Monday, April 28, 2014

The UK is a foreign power to Australia - Sue v Hill [1999] HCA 30

Just in case anyone has had any questions or is unclear in relation to what Australia's relationship is with its 'parent company' (in the literal sense) the United Kingdom, then the documentation from the High Court of Australia case Sue v Hill [1999] HCA 30, will be able to provide light on the subject.

In particular the following items should be noted:

65. It follows that, at least since 1986 with respect to the exercise of legislative power, the United Kingdom is to be classified as a foreign power.

173. At the very latest, the Commonwealth of Australia was transformed into a sovereign, independent nation with the enactment of the Australia Acts. The consequence of that transformation is that the United Kingdom is now a foreign power for the purposes of s 44(i) of the Constitution
248. The question as to whether Mrs Hill was capable of being chosen as a Senator is one for the Senate to determine unless and until the Senate resolves to refer the question to the Court of Disputed Returns. There is no need for me to determine, therefore, whether Pt XXII attempts to confer non-judicial power on this Court or whether, at this stage of Australia's constitutional development, the United Kingdom is a "foreign power" within the meaning of s 44 of the Constitution

289. The petitioners (and the Commonwealth which supports them) acknowledge that at the time of Federation the United Kingdom was unquestionably not a foreign power. One of their primary arguments on the central question whether the United Kingdom is a foreign power is that, as time has passed, circumstances have changed, and the United Kingdom, by a process of evolution has now become a power foreign to Australia (the "evolutionary theory"). It is upon that argument that I wish to comment.

290. The evolutionary theory is, with respect, a theory to be regarded with great caution. In propounding it, neither the petitioners nor the Commonwealth identify a date upon which the evolution became complete, in the sense that, as and from it, the United Kingdom was a foreign power. Nor could they point to any statute, historical occurrence or event which necessarily concluded the process. There were, they asserted, a series of milestones, for example, Federation itself, the Statute of Westminster Adoption Act (Cth), the Royal Style and Titles Act 1973 (Cth) and the Australia Acts[386] but neither the last of these nor any other enactment was said to be the destination marker of the evolution.

291. The great concern about an evolutionary theory of this kind is the doubt to which it gives rise with respect to peoples' rights, status and obligations as this case shows. The truth is that the defining event in practice will, and can only be a decision of this Court ruling that the evolutionary process is complete, and here, as the petitioners and the Commonwealth accept, has been complete for some unascertained and unascertainable time in the past. In reality, a decision of this Court upon that basis would change the law by holding that, notwithstanding that the Constitution did not treat the United Kingdom as a foreign power at Federation and for some time thereafter, it may and should do so now.

293. The Court was not taken to any statutes in which the term "foreign power" is used. However there are statutes which do use that term and whose application might perhaps be different if this Court were to hold that the United Kingdom is a foreign power. One such statute is the Australian Security Intelligence Organization Act 1979 (Cth). Section 4 of that Act defines "foreign power" to mean a foreign government, an entity directed or controlled by a foreign government or a foreign political organization. Section 4 also defines "acts of foreign interference" to mean activities carried on by a "foreign power" that are "clandestine or deceptive", "carried on for intelligence purposes", "carried on for the purpose of affecting political or governmental processes", "otherwise detrimental to the interests of Australia" or "involve a threat to any person". Section 4 also defines "security" to include the protection of the people of Australia from, inter alia, "acts of foreign interference".

296. The potential reach of s 78 of the Crimes Act is very great. It is conceivable that until a decision of this Court that the United Kingdom is a foreign power, (assuming the expression should have the same meaning in the Crimes Act) people might unknowingly have been infringing that section for an indeterminate period of time.

297. I would therefore be inclined to hold that the evolutionary theory which has been advanced in this case, having as it does the defect of uncertainty as to events and conclusion, should not be accepted or applied here. However on neither that nor the other arguments relied on by the parties and the Commonwealth is it necessary for me to express any concluded opinion in view of my agreement with McHugh J on the issue of jurisdiction.

The entire document can be downloaded in a 75 page pdf from:

From the source:

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