Those Australians watching the findings of the Robodebt Royal Commission might take comfort from the evidence it provides that our justice system has shown itself to have at least some capacity to hold unjust governments to account – eventually. But a justice system is only as good as the laws it has to work with.
It can only provide justice for breaches of law after the fact – in other words after the damage has been done. And it cannot help prevent abuses of power and breaches of fundamental human rights, especially if laws themselves do not guarantee that such rights shall not be abused.
Australia’s laws do not protect Australians from governments that may be prepared to trash their rights for political advantage. Our justice system is not just weak – it is dangerously flawed from the top down. The highest law of the land – the Constitution – contains no guardrails to prevent laws being made that can and do breach our human rights – such as the right to presumption of innocence until proved guilty, as we saw in the Robodebt case. And while it persists in this silence on civil, political, economic, social and cultural rights, the Constitution stands as the basis for future abuses of power.
Robodebt is actually a relatively small-scale example of constitutional weakness. Much worse can happen and has happened on a large scale if we consider examples of how the rights of Aboriginal and Torres Strait Islanders and refugees have been abused and how all Australians can be exposed to existential risk due to the fact that our lack of guaranteed rights under our system of laws provides inadequate protection from climate change and propaganda for war. It provides inadequate protection of the democracy itself since it provides no rights to free speech, protest or even to vote. Nevertheless we can learn some handy lessons about how to protect ourselves from threats to our rights by taking the Robodebt case as an example.
In that case, there were laws in place which should have prevented the establishment of the scheme. In other words, it was illegal at birth. However, the knowledge that it was illegal didn’t function to stop the government behaving illegally. Instead it simply sidestepped the law. It chose wilfully to refrain from covering itself against legal risk by taking the course governments in Australia can (and do) take when they want to do something prohibited by the law. They refrained from attempting to change it at all, even though advice had been received that change was necessary. In other words, the government chose to take on legal risk. Eventually they – that is we, the taxpayers – paid the price.
It is obvious that the choice of putting legislation to parliament to make Robodebt legal was always available. But that course was not taken because the government, or at least any ministers in the know, feared it would be unlikely to pass in both houses of parliament. Hence we ended up with the necessity to resort to various types of legal proceedings brought by victims against the Commonwealth. In that chain of events though, we could only resort to participation in processes that were too late to stop the intensity of suffering wreaked by the abuse of power and the trashing of fundamental human rights by the Coalition government – a government turning a blind eye at every point to the heinous legal and moral faults of the scheme.
In Robodebt, the legal system functioned as well as it could. Eventually, and with some luck arising from a change of government, the system held the scheme’s perpetrators to account. But we could re-run the whole scenario to see how it would have played out had the government thought it had the numbers in parliament to put the scheme into legislation, revoking the laws that made it illegal. While politics may have prevented that and may still prevent it in future, Australia’s law system would not. The Constitution would not.
In Robodebt, victims were robbed of a fundamental human right – the right to presumption of innocence until proved guilty. They were robbed of the protection of laws which place the onus of proof on the prosecutor and were thereby consigned to a maddening system of having to prove they didn’t commit an offence. On top of that, most of them were robbed of the very evidence that would allow them to prove their innocence, in that documentation going back years was required as proof of compliance but that documentation was simply no longer available in large numbers of cases. In this bizarre perversion of the justice system, the prosecutor required no evidence to prove guilt and the respondents were rarely able to access evidence that would prove innocence.
The fact remains, however, that despite the confounding dimensions of this perfidious disregard of Australia’s laws, the Constitution would present no barrier to a repeat of the cruelty. Were a government to succeed in passage of laws for such a scheme, it is likely that the system which enabled a royal commission to find as it did in the Robodebt case would never even get off the ground. Worse than that, if the High Court agreed to hear a case on the matter it would be very unlikely to call out the scheme as unconstitutional and establish a basis to strike the perfidious law down.
For some years now the High Court has found it cannot protect Australians and others who come here from abuses of human rights because the Constitution itself gives the Court no basis to do so. It is largely silent on our rights and on the obligations of governments to refrain from abusing them. In my recent book, The People’s Constitution: the path to empowerment of Australians in a 21st century democracy, I was able to identify at least five cases where the High Court has found itself unable to protect the rights of Australians.
High Court rulings now make it apparent that it is permissible under the Constitution to make laws which detain children in horrific conditions and to detain refugees indefinitely. It’s also permissible to make laws that discriminate on the basis of race. (Australia is the only country in the world which has this power in its Constitution.) And it is permissible under the Constitution to make laws which breach almost every other human right, including the right to free speech and to equality before the law. By its silence on rights, it also empowers governments to breach human rights by means of executive decisions. No permission of the parliament is required. So from a constitutional perspective, Robodebt can happen all over again.
Robodebt displays the least of what could go wrong for us if we do not give our courts and royal commissions a better set of laws to work with. Those laws can only be developed if the Constitution is transformed to enshrine human rights. At the moment it simply hamstrings courts into allowing these abuses to persist.
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Bronwyn Kelly is the Founder of Australian Community Futures Planning and the author of By 2050: planning a better future for our children in 21st century democratic Australia and The People’s Constitution: the path to empowerment of Australians in a 21st century democracy. View her writing on Substack at bronwynkelly.substack.com or at austcfp.com.au
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