THE HIGH COURT & THE CONSTITUTION

This appeared in the Canberra Times last Saturday, and should have been posted at the same time.

It is, I believe, particularly important because it details how some people in the government appear not to understand the separation of powers upon which our constitution is based . . .

PRINCIPLES MUST DRIVE POLICY

It's important to understand that the High Court is not involved in some sort of bizarre campaign aimed at giving itself unfettered discretion to rule the country, upsetting Parliament's procedures at its whim. Informed legal opinion is conclusive. Wednesday's decision was absolutely not, as Julia Gillard appears to be seeking to imply, some form of judicial activism. It was a simple interpretation of existing law.

Australia has signed international treaties that guarantee to protect the rights of people seeking asylum. The government constructed a swap deal with Malaysia leaving it unable to guarantee the people affected would retain those rights. The Court pointed out this inconsistency. It does not get much more emphatic than a 6–1 decision. Despite the Prime Minister's completely unwarranted assertion to the contrary, this decision did not represent the creation of new law.

It's as basic as the doctrine of separation of powers.

This was the concept that former Queensland Premier, Sir Joh Beelike Petersen, could apparently never quite get his mind around. Gillard appears determined to join him in the dunce's corner. The job of the High Court is quite simple. It is there to make sure the law is applied properly. If Parliament is unhappy with the court's interpretation, then it's up to the politicians to make some new law to achieve what they want. It's not up to Ministers to arrogate to themselves the arbitrary power to act unilaterally in whatever way they want. The role of the legal system (since the Magna Carta) has been to provide a check on the executive.

Although a couple of the judges did differ (slightly) in their reasoning, the rapid and decisive judgment of the full bench on Wednesday was a simple and definitive interpretation of the law. Gillard has attempted to insist that Chief Justice Robert French “turned on its head" the way the law was understood. Yet yesterday her office declined, under deadline pressure, to provide any specific examples of this. Instead it simply referred to the case presented by the government to the court.

Hours before the decision was released it seems Cabinet was actually provided with a legal briefing intimating that this was the way the court was leaning. The Attorney General was provided with every chance – every possible opportunity – to present a case that could have persuaded the Justices otherwise. He failed.

Instead we had the extraordinary suggestion from the PM that the Court had “missed an opportunity" to tackle people smuggling. Perhaps she should go back and read the constitution again. A statement such as this raises the astounding possibility that she doesn't properly understand the role of the courts. It’s not to make the law; merely to interpret it.

What is outstanding about this result is that it's caught the government so utterly unprepared, leaving it flat-footed and flailing around desperately in an attempt to salvage something, anything from the continuing debacle that asylum-seeker policy has become. Because Gillard nominated the issue as one of the key problems that Kevin Rudd had been unable to deal with, it has rightly provided a litmus-test for her own leadership. The court's decision has simply exposed her own failure for all to see.

The very evening that Rudd was challenged he warned that the party risked being hijacked. He warned of a drift to the ideological right. That night, surrounded by the chaos of his own autocratic style and a disintegrating office, his words were easily dismissed. Today they appear prescient. The problem was that instead of simply dusting off the Howard government's Pacific Solution, Gillard attempted to create her own: first in East Timor, then Malaysia. Domestic political concerns were driving the new PM. She didn't appear worried about either the asylum seekers themselves or our reputation in the region; however nor was she willing to accept the possibility that Nauru might have provided the only way out for her dilemma. It's difficult not to conclude that the government’s motivations acted to force disastrous compromises on its ability to formulate good policy.

This week the High Court simply acted to enforce the words of the laws passed by Parliament into the statute books.

ANU professor Pene Mathew sat through the entire case. She was distinctly unimpressed by the government's argument. “It appeared as if it was hunting around, searching for anything that might plausibly justify an outcome that was primarily driven by polls and politics. A far-fetched case was being constructed to justify a political requirement: this placed an unbearable strain on the law. What we should be doing is using the extensive research that's already been done into this issue to formulate some good evidence-based policy, instead of aiming to do the minimum required to meet our international obligations."

There comes a moment in the life of every government where events suddenly congeal to form a unified picture. This becomes its defining image. It provides the framework for interpreting everything that occurs. Unfortunately for Gillard this weeks events have now cemented those bars rigidly into place. She has trapped herself in a prison of her own making. She could never reach out to voters on the right; Tony Abbott had them in a vice-like grip. Feeling secure on the left, she attempted to woo those in the centre, but in doing so discarded the policy clothes that had once legitimized her actions. She could have risked doing this if the actions of the government had actually been effective. Yet her inability to achieve even those things she had once nominated as priorities has today become self-evident.

There is no way back. Labor's disastrous free-fall in the polls will continue. Gillard's attempt to foist the cause of the failure of her own asylum-seeker policy on to the courts will further alienate those who were concerned about the government but horrified at the possibility of a conservative Liberal, Abbott, becoming PM.

Now, nothing other than humor provides the motivation for Labor supporters to open the papers. A former senior Cabinet Minister in the Hawke/Keating governments recently told me he'd stopped even thinking about the party's woes. Engaging with politics was too depressing.