Dispatches From the Moderate Left

Saturday, August 27, 2005

This Constitution is NOT A Solution (Aust)

In a similar theme, I'm waiting for the day when progressives in this country will stop attempting to win political victories by making constitutional/administrative challenges against actions by the Howard Government in the Federal and High Court. For the purposes of this post, I will ignore the fact that the court is stacked with conservative ideologues (Callinan, Hayne, McHugh CJ in particular), and simply point out that our constitution is so deferential to parliament that even if progressives were to get a victory in any of their flagship cases over the past few years the victory would be immediately nullified by parliament.

Take the current constitutional challenge to the Industrial Relations propaganda campaign. The basis of this challenge is that the funds for the campaign weren't authorised by a specific-enough paliamentary spending appropriation. Lets think about the end game here. If the challenge fails (and I'm not down enough on the merits of it to be able to say if that's likely or not), then the ACTU and the Labor party have a few million dollars of legal fees on their hands. But if they win it will be a purely phyrric victory which will be effective for the five seconds it would take for Howard to whip up the appropriate, reterospective, authorising bill and run it through both houses of parliament. In fact I'm quite sure such a bill is already drafted and I'm a little surprised it hasn't been passed already. The fight is purely about procedure, and given that the Lib/Nats control both houses there is no reason why they cannot re-authorise the ads using the correct procedure. I can't understand the purpose of this litigation.

It's the same with some of the other big refugee cases over the past few years. The Tampa Case (Ruddock v Vadarlis) was about the actions of our esteemed executive branch during the Tampa affair. Howard had purported to use residual executive prerogative power to expel unwanted persons (the crew and asylum seekers on the Tampa) from Australia's territorial waters. For non-lawyers, prerogative power is power the executive branch is able to wield without parliamentary authorisation. Now, the plaintiffs had a good case that this prerogative power either didn't exist or that it had atrophied after a few centuries of non-use. The case ultimately failed, due to a fairly disappointing judgement from the sometimes left-leaning French J, but once again this would have been a purely phyrric victory if it had been one. Straight after the case, and even though they won it, the Coalition (with Labor support) passed reterospective legislation authorising the expulsion. I ask again what's the point? As an added bonus the case ended up giving Howard his election slogan, courtesy of French J:
Australia's status as a sovereign nation is reflected in its power to determine who may come into its territory and who may not and who shall be admitted into the Australian community and who shall not.


Again, take the signature refugee case of Al-Kateb v Godwin. This sought to challenge the constitutionality of the mandatory detention regime by arguing that indefinite executive detention (which is what happens when the Department of Immigration is unable to deport a stateless person) is an exercise of judicial power, which can only be wielded by the judicial branch of government. Once again they had a reasonably strong constitution argument but it was shut down by some extraordinarily poor judgements (Hayne and Callinan's are particularly odious). But any victory by the plaintiff's here, once again, would have been purely phyrric. The indefinate detention regime could easily have been re-drafted as a criminal offence with mandatory life imprisonment, subject to the minister granting a pardon if a suitable state was found to deport the person to. Nothing of substance would have changed at all.

Our constitution is not a vehicle for winning political victories. Getting disappointed about these results misses the point - political victories in this country must be won in the political arena. Political gains have been disappointing slow in areas like refugee policy, but trying to fast-track them through inventive or even orthodox constitutional arguments is a waste of time, money and energy. These court challenges distract from the real battle, which must be fought and won in parliament if it is to be won at all.


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