Pius wasn’t on the ballot

The 1949 Australian Federal Election is usually remembered for the election of the long-lived Liberal/Country Party government which lasted until 1972. It threw up one other interesting result: a High Court decision which (a little surprisingly) has never been reported.

Gordon Anderson was the winning candidate for the newly-formed electorate of Kingsford-Smith.  He took 49.7% of the vote.  His election was challenged by independent candidate Henry Crittenden (who took a whopping 3.2%).  Crittenden alleged that the Gordon – a Roman Catholic – was under an allegiance to the “Papal State”.  This would mean that his election breached §44(i) of the Australian Constitution. That section provides that –

Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

By contrast, s.116 of the constitution states that “no religious test shall be required as a qualification for any office … under the Commonwealth”.

Chick
Nope! (Image from here)

The case was brought in the High Court of Australia sitting as the Court of Disputed Returns. Anderson applied to stay the proceedings as vexatious. The matter was dealt with by Fullagar J. His Honour said –

[E]very person born in Australia, into whatever religion he may be born and whatever religion he may embrace, is according to the law of this country … a British subject owing allegiance to His Majesty, and that of that allegiance he cannot rid himself except in certain prescribed ways. … But the root of the matter, to my mind, lies in the fact that the petitioner really seeks to revive a point of view which was abandoned in England in 1829, when §2 of Act 10 Geo. IV, c. 7 enacted that any person professing the Roman Catholic religion might lawfully sit and vote as a member of either House of Parliament, if in other respects duly qualified. Section 116 of our own Constitution was, of course, not enacted by men ignorant or unmindful of history, and it is, in my opinion, §116, and not §44(i) of our constitution which is relevant when the right of a member of any religious body to sit in parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”. In my opinion, the ground put forward … is quite untenable.

The application was dismissed with costs against the petitioner.

Crittenden v Anderson (High Court of Australia, Fullagar J, 23 August 1950, unreported)

Bringing a Lawbook to a Gunfight

An interesting case came out of the US Supreme Court ten days ago.  In May 2010 three officers of the University of Arizona Police Department responded to a callout regarding a woman [Amy Hughes] acting erratically (hacking a tree with a knife).  On scene they found the woman’s housemate [Sharon Chadwick] on the other side of a chainlink fence.  Hughes came and stood about six feet from her, still holding the knife.  She ignored officers’ demands to drop the weapon and was shot four times by officer Andrew Kisela.

U AZ Police

Hughes sued Kisela on the basis that he had used excessive force, violating her Fourth Amendment rights:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The US District Court for Arizona summarily dismissed the claim.  The Ninth Circuit Court of Appeals reversed the District Court and remanded the matter for further proceedings.  The defendant appealed to the US Supreme Court.

The Supreme Court expressed doubt that Hughes’ rights had been violated but in any case bypassed the question.  It concluded that Kisela was immune from being sued.  In essence, a police officer will be immune from suit where their action did not violate clearly established rights of which a reasonable person would have known.  The existence of the right must be well established and should not be defined at a very general level: defining a right very generally would empty the immunity of value.

Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for trial on the question of reasonableness.

On the undisputed facts it was not obvious that a competent police officer would have known that shooting Hughes to protect Chadwick would breach Hughes’ Fourth Amendment rights.

Kisela v Hughes, 584 US ___ (2018)