Some people keep saying, “The people have spoken. The Abbott government is right. The boats have stopped. So just get over it.” I am getting a little weary of this populist refrain. I am quite prepared to accept that the majority of Australians want the boats stopped. Then arise the questions: how can this be done ethically? How can it be done respecting the rule of law and the sovereignty of parliament and the separation of powers? Even the second question should be of concern to all citizens, and not just lawyers.
The historical perspective is important. The High Court struck down the Malaysia solution. Both sides of Parliament agreed that they did not want the High Court scrutinising this sort of deal again. So it was agreed that the scrutiny would be applied ‘with a light touch’ by both houses of parliament being able to disallow any future arrangement. At no time did anyone suggest that it be done by the Executive with no scrutiny other than the three year ballot box which is not the rule of law but populist rule of the mob.
Both houses waved through the resurrected Pacific solution. A year later, Kevin Rudd then decided that he could use the existing designations for Nauru and PNG as temporary offshore processing countries as the basis for a completely new arrangement for permanent offshore resettlement countries – an arrangement which has never been scrutinised by Parliament. Imagine if Sarah Hanson Young had stood up in the Senate back in 2012 and opposed the designation on the basis that it opened the door to permanent relocation of refugees to Nauru and PNG. Many senators and commentators would have told her to stop being so shrill and to stop following her wild imagination and that she should get back to the matter at hand. Presumably the government thought that the High Court was locked out. I am still not certain about that. And time will tell no doubt when a challenge is ultimately brought.
But meanwhile we have an arrangement designed and put in place by the Executive without parliamentary approval and without the opportunity for parliamentary disallowance. This is a serious democratic deficit particularly when community leaders including all our bishops (and the Pope!) are questioning the morality of what is in place.
There is an added public policy reason for seeking the parliamentary review. The boats have now stopped. The Abbott government is confident that the smuggling racket is smashed and that the Indonesians are now basically on side. So the boats will remain stopped whether or not there is any one left on Nauru or Manus Island. So what ethical or political imperative is there for keeping people locked up in such inhumane circumstances? When the inevitable royal commission on all this is ultimately convened, we would all save the taxpayers many millions in compensation if we could terminate the gulags as quickly as possible. If we were serious about looking after those people, we would have sent in our own military rather than contracting the matter out to inexperienced, profit seeking corporations and the well motivated Salvos. It is imperative that our Senators on the cross benches take a long hard look at this once they are all in place next month, for the good of the detainees, and for the good of our democracy.