Pearls and Irritations

Last week Australians were forced to suffer through the spectacle of their parliament being dragged to a new low as the Coalition hammered the Labor government for not being better prepared for the prospect that the Commonwealth might lose the most recent High Court case about whether indefinite detention of refugees is unlawful or unconstitutional.

The Coalition insisted that the government should have anticipated that the High Court might rule (as it did) that the detainees must be released, and should have had legislation ready to go. In short, the political talking point in the service of a Coalition scare campaign was that the government should have been ready to thwart a ruling that might uphold human rights. The Coalition’s suggestion was that if immigration detainees must be released because indefinite detention is deemed unlawful and unconstitutional, then the Coalition wanted legislation to lock them right back up again and quick smart.

Most Australians won’t be aware of the background to this case but briefly it began in 2004 when the High Court in the case of Al-Kateb versus Godwin ruled that amendments to the Migration Act did lawfully allow indefinite detention, and that the Act was not unconstitutional. The ruling pertained at the time even though the detention was recognised as arbitrary and contrary to Article 9 of the International Covenant on Civil and Political Rights. Several cases have since been mounted in the hope of overturning the decision in Al-Kateb but none have succeeded until this one in 2023 – NZYQ versus the Minister for Immigration and the Commonwealth. The full judgement is still pending.

This series of cases is illustrative of a major dilemma about the health and standing of Australia’s democracy. It goes to the very heart of whether we live in a democracy or not. On the face of it, the cases seem to be merely about the rights of a few (currently less than 100) non-citizens. They are about whether it is lawful to deny these people human rights – rights that they’re entitled to under the international laws to which Australia is a signatory and which our parliaments have ratified. But the cases have ramifications well beyond these few wretched detainees.

On one level they are indicative of a base willingness by successive Australian governments (both the Coalition and Labor) to collude to force through laws that allow them to arbitrarily deny not just the human rights of refugees but those of all Australians. The Commonwealth’s success in these and some other related cases over a thirty-year period has emboldened our governments to assume that they can get away with using power autocratically to impose legislation that, as Professor George Williams has shown, now amounts to “350 laws that infringe on [the rights of all Australians to] freedom of speech, freedom of the press, freedom of association, freedom of movement, the right to protest, basic legal rights and the rule of law, all of which are essential to a healthy democracy.”

By these and other cases going back to the mid-1990s, governments have become so presumptuous about the superiority of their power (relative to the parliament and the courts) that they have also claimed the right – without the need to seek parliamentary permissions – to make “executive statements” that allow them to act inconsistently with their commitments and obligations under international human rights law. They have effectively authorised themselves to flout the will of the parliament that has been clearly expressed in favour of universal human rights by its ratification of the seven core human rights treaties. Accordingly, Australians have been subjected to a level of overreach by executive governments which is turning Australia’s governance system into an autocracy.

In this situation it doesn’t really matter whether it’s Labor or the Coalition that is in power because both parties of government have assumed that they can arbitrarily make executive decisions without reference to or accountability under the law, and without fear of constitutional challenge.

And they have been emboldened in this assumption by permission of the High Court no less, a permission which arose in 1995 in the case of the Minister for Immigration and Ethnic Affairs verses Ah Hin Teoh. In that case the court ruled that ratification of a treaty (such as on human rights) does give rise to a legitimate expectation that decision makers will act consistently with the provisions of the treaty and take them into account in making administrative decisions, even if those provisions have not been incorporated into domestic law. But the Court also held that such a legitimate expectation could be set aside by an executive or legislative indication to the contrary. And on 25 February 1997, the Howard government did indeed set aside the legitimate expectations of Australians when the Attorney-General and the Minister for Foreign Affairs issued an Executive Statement to the effect that the act of entering into a treaty (like a human rights treaty) does not give rise to legitimate expectations that could form the basis for challenging an administrative decision.

So now we have an executive that believes it can not only withhold human rights arbitrarily but that any of its breaches of international human rights law cannot be challenged. The executive’s idea of the limits of its power can now be characterised thus: forget the parliament, forget the courts and their obligation to protect Australians from arbitrary abuse by executive governments – just exert power autocratically. And if we want any extra confirmation that this is the prevailing ethos of the Coalition and Labor in government, we need look no further than the findings of the recent joint parliamentary inquiry into international armed conflict decision making, where the defence minister Richard Marles did not even give the committee a chance to consider the issue of greater involvement by Australians and parliaments on decisions on defence and entry into wars before he stated firmly that the existing arrangements whereby governments can commit Australia to war without parliamentary authorisation “should not be disturbed.” The committee was duly cowed into submission (with one dissenting voice from the Greens senator).

All of this displays a major tussle for power between the executive government, the parliament and the courts. Lawmaking of this kind and the cases it gives rise to function as the stage on which consecutive executive governments over more than thirty years have successfully mounted a full-on assault on the powers of both the parliament and the courts. To date, it is the courts that are coming off last, with the parliament running a close second-last. The two major parties of government have successfully ganged up on them, as though they are an enemy of the state rather than essential elements of a balanced system of power. The price Australians are paying for this is the loss of their human rights and therefore their democracy – since a state is not a democracy if its citizens have no rights.

The situation for our democracy is now dire inasmuch as this executive overreach is pushing the nation towards rather than away from catastrophic perils such as war and climate change. This is something that can only be reversed if Australians can organise themselves better to assume a greater role in their own governance. To do this they need to build a new Constitution, one which gives them a reasonable prospect of secure human rights and a better future. I have offered a practical option for this in a new essay on Saving Australian Democracy and Sovereignty by Building a New Constitution.

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