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The telegram that saved us from technocracy

The 2014 Thawley Prize winner

10 January 2015

9:00 AM

10 January 2015

9:00 AM

2014 Thawley Essay winner

Just as the seasoned roué can but guess at the number of his bastard offspring, the Commonwealth government gropes vainly for a tally of public bodies it has spawned. According to the 2014 Commission of Audit, there are ‘about’ 900 of them. Such is their rampancy, that the audit commissioners recommended a national register to keep track of them, like vexatious litigants or paedophiles.

Of course, Commonwealth-funded bureaucracies are generally less malign than child sex-offenders. Orwellian monikers notwithstanding, we’ve nothing to fear from the Australian Grape and Wine Authority or Statutory Fishing Rights Allocation Review Panel, much less the Australian Plague Locust Commission or Australian Weed Committee. Or do we?

More often than not, bureaucrats wield real power. The ATO official, the Centrelink functionary, the ASIC apparatchik, even the good men and women — or should that be women and men? — of the Workplace Gender Equality Agency: all of them exert significant authority over ordinary Australians going about their lives.

And regulation by bureaucrat is different from regulation by written rule. Public servants’ decisions are as unpredictable as the people who make them. They can be biased, unfair, pigheaded or influence-peddling. Or, at the Grape and Wine Authority, under the influence.

The metastasis of federal officialdom appears unstoppable. But thanks to a small clause in our constitution — section 75(v) — Australians do have a powerful weapon to keep bureaucrats within the bounds of their legal authority.

The clause itself is unassuming (so unassuming that I needn’t bore readers by reciting it). But it is of great import. If you’ve been on the wrong end of official wrongheadedness, section 75(v) is your friend. It guarantees you a chance to set the official straight by seeking a writ of ‘mandamus’ or ‘prohibition’ (essentially, orders either forcing or forbidding the functionary to act in a certain way) from the High Court.

Like so many effectual protections of individual freedom, these writs were the inventions not of international human rights experts but of English common lawyers. The monarch’s subjects could petition courts for them to restrain bureaucratic excesses. By this means, for instance, a 17th-century English landowner could enforce limits on the overweening power of the Commissioners of Sewers (who oversaw discharge of the same dark substance as routinely emanates, in a figurative sense, from Australia’s Human Rights Commissioners).

Former Chief Justice Murray Gleeson thought section 75(v) ‘essential’ to maintenance of the rule of law in Australia. Gleeson’s erstwhile colleague on Australia’s judicial Olympus, Mary Gaudron, labelled it ‘the peculiar genius’ of the Australian Constitution. It is ‘all our own’, she said, ‘like lamingtons and Australian Rules football’.

The clause secures our right to force Commonwealth authorities to do their legal duty or, perhaps more importantly, to prevent them exceeding it.

Yet without an auspiciously timed telegram dispatched in 1898, section 75(v) would not exist.

Understanding why requires a brief detour to the formative years of that other fortunate inheritor of English law, the American republic. In the very-lame-duck period left to him in the White House after losing the 1800 presidential election to Thomas Jefferson, a miffed John Adams set about booby-trapping the federal judiciary by stacking it with political allies.

Among these ‘midnight judges’ was one William Marbury. The Senate ratified his appointment, but that counted for nought so long as Marbury’s commission remained undelivered. Unluckily, the Jefferson administration took office before this could occur. The new secretary of state, James Madison, refused to hand over the commission.

Being an early subscriber to the Clive Palmer school of litigious obduracy, Marbury sought a writ of mandamus in the United States Supreme Court to compel Madison to do his legal duty. To no avail: in the seminal case of Marbury v Madison, the Court found it lacked power to issue the writ.

Almost 100 years later, the man with the plan for an Australian federal constitution was Andrew Inglis Clark. Here was a barrister whose knowledge of American constitutional law would ultimately shape the nation. His draft constitution included a clause ensuring that there would be no Australian reprise of Marbury v Madison.

During the 1891 constitutional convention, the clause attracted little attention. But in Inglis Clark’s absence at the 1897 -1898 convention, delegates unaware of Mr Marbury’s plight saw fit to delete it.

It was then that Inglis Clark, who must have been bemused as he followed proceedings from Tasmania, sent his telegram to Edmund Barton. The missive is lost, but the future Prime Minister’s reply gives us the idea: ‘None of us here had read the case mentioned by you of Marbury v Madison or if seen it has been forgotten. It seems however to be a leading case.’

This was no Jefferson-Paine correspondence, but it changed our constitution. Barton went on to champion restoration of the deleted clause ‘so that the High Court may exercise its function of protecting the subject against any violation of the Constitution, or of any law made under the Constitution.’ The delegates listened. Section 75(v) was born.

Another century later, Mary Gaudron exalted our Constitution’s ‘lamington’ partly, no doubt, because it wedges the courthouse door open for asylum seekers, even in the face of governments’ attempts to bolt it shut.

But section 75(v) is not merely the plaything of refugee advocates and the human rights lobby. For it protects the ordinary, run-of-the-mill freedoms of Sir Robert Menzies’ forgotten people. The enterprising pharmacist whose attempt to open a neighbourhood pharmacy is smothered by a Canberra public servant. The business owner threatened with officious intermeddling by Workplace Gender Equality Agents. The pilot unfairly denied a licence by the Civil Aviation Safety Authority. The honest taxpayer hounded by the ATO. The hapless employer tossed before a Fair Work Commission bristling with former union officials.

For all these people, whose causes lack the pseudo-political glamour of ‘international human rights law’, section 75(v) is a bulwark against encroaching bureaucracy.

Of course, nobody could guess what twists our constitutional jurisprudence might have taken had section 75(v) been omitted. After all, which of our Founding Fathers was comic genius enough to predict that Commonwealth legislation regulating Murray Darling water use would one day be founded upon the parliament’s ‘external affairs’ power?

Even so, the rest of the world gives us cause to thank Inglis Clark for his telegram as heartily as did Barton.

Take England, the fountainhead of the section 75(v) writs. Lord Justice Thomas Scrutton once pronounced: ‘There must be no Alsatia in England where the King’s writ does not run.’ Alsatia was an area of London that retained its peculiar status as a sanctuary from arrest long after the decampment of the Carmelites who gave the place its more common name, Whitefriars.

Sadly, all of England is now an Alsatia in England. Though his daily life is governed by decisions of Eurocrats, an Englishman lacks his Australian cousin’s right to haul those administrative overlords before a national court. Instead, he is relegated to some distant European Court Of Something-Or-Other staffed by a hodgepodge of jurists from 28 EU member-states.

There is a view that modern Australia should veer down the European path — rule by a diminishingly accountable technocrat elite. Asks Mark Latham: unelected Reserve Bank officials determine monetary policy, so why not apply this model to other areas? If the last three annual Lowy Institute Polls are to be believed, young Australians probably agree: they don’t much care for democracy. And politicians’ answer to any policy challenge is to set up an ‘independent agency’ to deal with it.

Thanks to Inglis Clark’s telegram, though, we have the means to repel the boa constrictors of federal bureaucracy. Wherever they stifle our common law rights, wherever they flout laws enacted by our democratically elected representatives, section 75(v) rears its benevolent head.

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Daniel Ward is completing post-graduate law at Magdalen College, Oxford.

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