The High Court of Australia and our government both made fundamental errors in handling the immigration detention issue. And both need to learn from their mistakes because the current government, and possibly future governments, are proposing actions that envisage a much greater role for the High Court in the ordinary affairs of Australians.
The best illustrations of a government that seeks to involve the High Court in the nation’s day-to-day affairs are the construction of the Aboriginal and Torres Strait Islander voice referendum proposal and the industrial relations bill.
As a mere commentator I feel uncomfortable about criticising the actions of our High Court given it is the assembly of the best legal brains in the country.
But I find my views and those of former Prime Minister John Howard are the same, so I will use his commentary to criticise the High Court and reserve my commentary for the government.
The retirement week conversation between legendary Australian radio commentator Neil Mitchell and Howard highlighted that more than 140 people had been released from immigration detention after the High Court ruled the government could not detain them indefinitely when there was no realistic prospect of deportation.
The High Court did not provide a detailed judgement detailing the reasons for its decision until November 28, almost three weeks after the initial ruling.
According to our second-longest serving PM, it was “quite unacceptable” for the court to take this approach to an issue with such significant consequences.
“I believe in the rule of law, and if the courts decide on something, we’ve all got to abide by it. But I think it is quite unacceptable, on a sensitive issue like this, for the court to announce a decision and say we will tell you later why we reached this decision,” Howard said.
Howard said that if the High Court wasn’t ready to provide reasons for their ruling, then it “shouldn’t make the decision”.
“Because it was obvious that once this decision was announced and made, the government would have to react with responsive legislation.”
I would add that in reality, the High Court cocooned itself and did not think of the practical situation it created for the government. But the government was completely out of its depth in devising a way to handle such a situation.
My legal advisers tell me it should have immediately applied to the High Court for a stay of execution until the reasons were given. Almost certainly, that stay would have been given.
And once again when the reasons were given it would have been appropriate to ask the High Court for further time so that a legislative response could be put together.
Instead, in sheer panic, the government simply released a whole series of extraordinarily dangerous people into the community.
Clearly, the position of the home affairs minister and the attorney-general are arguably untenable as a result of that mistake. But maybe the responsibility starts with the PM.
Our politicians, both federal and state, in all our parties, usually look for someone else to blame. That’s why, according to opinion polls, they are held in low esteem.
The good news for the nation is that the opposition leader Peter Dutton and his people were far better prepared and almost looked like a government in exile.
I have previously written extensively about the legal issues raised in the referendum proposal – where a new arm of government was to be set up with the constitutional right to make representations on almost all issues to the public service and also to the parliament. In case of the public service, it was completely unworkable.
The complex proposal was rightly rejected by the Australian people, but it was nevertheless proposed by an elected government and would have required a very active and flexible High Court to enable the country to continue operating.
Similarly, the 784-page business blueprint contained in the incredibly complex industrial relations legislation basically hands the operating rules of all our enterprises, from the smallest to the largest, to the High Court.
I am obviously jesting, but it is though the High Court judges are being invited into the boardrooms of the nation.
In this case we can be so thankful for the independents in our Senate, many of whom who took the trouble to look closely at the legislation and realised that the only way to tackle such a complex exercise is to split the legislation. The worst provisions will be looked at next year.
I doubt whether government members, including the PM, have actually read the 784-page business blueprint.
Given the legislative approach in both the referendum and the industrial relations bill, it is highly likely that there will be more complex legislation brought before the parliament that will require an activist approached by the High Court.
That’s why I urge the judges to realise that they now have two clear functions.
Firstly, the traditional function of interpreting the law at the highest level and secondly, helping the community and parliament manage the implications of their decisions. And that will remain until we have a government that examines the full consequences of its actions prior to putting legislation before the parliament.
Maybe something good will come out of the immigration detentions affair.
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