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This week's High Court decision on the rights of asylum seekers in the Nauru concentration camp could serve as an object lesson to people seeking political short cuts via knockout blows, rather than the long haul of changing public opinion.
High Court upholds offshore detention
Human rights advocate slams High Court ruling that leaves vulnerable asylum seekers in limbo, saying "legality is one thing. The morality is another."
Australia's conduct in Nauru and Manus Island may be a moral outrage to thousands of Australians, but these thousands are a minority and the outrage will probably continue until that fact changes.
This is by no means necessarily to give six of the seven High Court judges a pat on the back for their decision. They ticked off the ingenious scheme by which boat people are held in appalling conditions by brutalised Australians (many in Canberra), out of Australia's legal jurisdiction. It was like one of those tax dodges that used to win the admiration of Sir Garfield Barwick. It was, six judges thought, good enough to remove our treatment of refugees away from the supervision of the Australian judicial system.
The case could have gone either way, and I could readily think of half a dozen former recent High Court judges, each of greater judicial reputation than most of the majority, who would have cut through the legal fiction in the manner of Justice Michelle Gordon, the judge in the minority.
The legal fiction is the notion that the veil provided by Nauru, which does Australia's bidding for reward in the punishment of boat people, is sufficient to remove any Australian legal accountability of Australian public servants and mercenaries working at Nauru to Australia's direction. Nauru, like Papua New Guinea, the other country we are treating as though it were in our pocket over the detention of boat people, is a deformed sovereignty, largely thanks to the corrupting ways and ends of Australian politics. Down the track the fact that we conduct our relations with both, but particularly PNG, through the prisms of immigration department convenience will produce a national security disaster.
The decision suggests that the court is weary of long tussles with parliament and executive government over the rights of people whose liberty is being restrained by agents of the Australian government. There were brave words, particularly from Justice Stephen Gageler, about the limits of executive power and the ability of the courts to hold government to account. But these could hardly disguise the fact that the court was allowing the Australian government to do behind closed doors, elsewhere, what the courts would not allow to be done in Australia itself.
The precedent is something like the claim, ultimately rejected by the American Supreme Court, that Guantanamo Bay was outside the jurisdiction of courts because it is not American soil.
[Gageler's judgment, in partial dissent, should be read by every politician and public servant as a general statement of how everything done by parliament and the executive is ultimately examinable by the courts. It's a great, and for the gung ho, foreboding, affirmation of the limits of official action. But Gageler, like five of the other judges, found that sovereign Australia was entitled by any number of constitutional heads of power to enter into agreements with "sovereign" Nauru. Such agreements can, it seems, erase words of our constitution.]
Australian public servants are entitled to detain boat people and to deliver them "to the Nauran authorities". Once there, it seems, what happens to them has nothing to do with us, even if the those doing it are Australian public servants, or people carrying out their orders.
Nauru pretends to give the prisoners we send a special visa (paid for, at exorbitant rates, by the Australian government after an Australian government application.) In Nauru, boat people are under the complete practical control of APS officers and contractors hired for "garrison" and other duties paid for and arranged by Australia. Only the deniability and accountability are exported, for rubber stamping by the High Court.
Nauru, under Australian guidance, has adopted a few laws to which detainees, like other residents, are subject, allowing our ministers to disclaim most responsibility for what happens in our name, at our instance, and, usually, by our hands.
The poor living conditions, official indifference to maltreatment and mental decline of many of those indefinitely incarcerated are the gift of, and generally at the hand of Australians.
In more recent times, partly so as to close off a potential gap in the defence to this action, most detainees have had free run of the island. They are no longer confined behind a fence, even if, in practice, they must sleep inside the tents in the camps. The "freedom" this affords to those involved must be experienced in the face of a hostile population, a corrupted and incompetent government and police force, and the knowledge that there is no escape, certainly to Australia, ever.
Those looking for something to console themselves will discover that the High Court has an expansive, and not (at least in this field, very critical) view of the limits of executive power and of the scope of the appropriation power to authorise spending on pretty much anything the Commonwealth wants, provided it is within power, somehow. This expansive role of Commonwealth central power represents the socialist dream, were there any socialists still around. I should think, for example, that an inventive Federal Treasurer could solve all of the problems of international tax dodging, whether by transnational and local profit shifters, or by wealthy Australians having funny, tax reducing, transactions abroad. All we need are a few international memorandums of understanding. Few of the judges any longer exhibit much interest in the substance of things.
But what a cheek that a few Australian bleeding hearts should think that they had the right to have the court overturn, as beyond power or being unjust, laws passed through the Australian parliament with the consent of both major parties. Or arrangements made by successive governments over more than a decade. Such interfering busybodies hunt around until they find a suitable horrible example of injustice in action – in this case a case a woman in Australia for medical treatment unavailable in Nauru, who did not want to be returned there.
Australia has no Bill of Rights. Some may think this wrong, but the omission, by our founding fathers, was deliberate. They thought the freedom-loving instincts of our wise politicians, bureaucrats and judges would be more effective than a possibly limiting formula of words. Politicians who went too far in oppressing others would be punished by our wise citizens at the next election. Real Australians could never be a lynch mob.
It takes an imaginative judge to divine much more than a right to due process and judicial scrutiny from the Constitution. Those who would have it otherwise would be better focused on agitating for a Bill of Rights than on impeaching judges for timidity or gutlessness.
The objections to the use of Papua New Guinea and Nauru for Australian concentration camps are well known, and, of course, sincerely held. For some it is a moral issue. One does not – feels one cannot – accept a majority decision if it is wicked or wrong. Majority rules cannot justify racism, murder or an immoral war.
For others, the boat people issue is, ultimately, just a pragmatic issue. It's about saving boat people from evil people smuggling gangs. Or from drowning. Or, perhaps, from making a convenience of our continent by exercising an international civil right of running away from war and oppression to the refuge of a country pledged to help genuine refugees.
About two-thirds of the population supports the policy. In Canberra, the proportions seem to be reversed. The policy has been a major election issue on a number of occasions, and the present coalition government has an undoubted political mandate for it.
The first task of those of us opposed to the policy is to mobilise public opinion, or other pressure, in an effort to persuade government to change it, or the electorate to force it to. There are many ways of making the argument. One can tell people about the appalling conditions involved in the policy, and the terrible misery on innocent people, including children, that Government seems to think is necessary in order to deter others from getting on a boat.
The Human Rights Commission, human rights groups, doctors and influential citizens have done just that. But their arguments have had little effect, and not for want of being heard. The politicians know about the misery. Most do not act because they know that most of the public also knows, and that it doesn't care. Or positively approves.
The ranks of the indifferent include people simply opposed to a refugee intake, or to a Muslim or Asian one. But they also include people persuaded that it is necessary to be cruel to be kind to boat people, if only to prevent more drownings. The idea that ours is a wise, if harsh, policy, is magnified, for some, by the problems Europe is having in coping with an "invasion" of tens of thousands of people fleeing Syria.
Many think that the particularly generous response by Angela Merkel of Germany comes from German war guilt over the fate of millions of Jews, Gypsies, Poles and Russians. Post-war generations of Germans judged their parents very harshly. Perhaps.
I suspect that 20 years hence most Australians will judge today's politicians, and the bureaucrats (and soldiers) who devised and carried out our national policies very harshly indeed. High school students will study and be asked to analyse the speeches of Philip Ruddock about not humanising boat people, the vainglory of Kevin Rudd, and the calm coldness and indifference of Peter Dutton. Others will comment on how ADF officers provided cover for a policy of concealment. Others will ask why most of their parents, and grandparents, were so willing to persuade themselves that there was no practical alternative.
That some will seek to excuse themselves by pointing out their loud and practical opposition may be of little more account than the claims of many white apartheid South Africans that they themselves were liberal on race matters and kind to their black servants. It won't quite cut it. It's effective opposition that matters.
Australia's participation in the Vietnam War was initially very popular with the electorate and overwhelmingly endorsed at an election in 1966. By 1970, it was distinctly unpopular. This was no matter of the war dragging on. It was because of a lot of campaigning and persuasion, and not merely in the streets, but in all sorts of public forums, societies, churches and parliaments.
It took similar campaigns to make apartheid unpopular – although a good many Australians of conservative persuasion were practical good friends, and defenders, of apartheid South Africa almost to the end.
Using the law to cut off a serious practical evil can be, in the right circumstances, a quick way to get results. But it often has its costs. US politics lives with the legacy of abortion rights coming from the judges, via an imaginative extrapolation of the right to privacy, rather than through the legislatures. It would have happened there, if more slowly, and then might have "taken" - even if some were invincibly opposed.
For many of the more turbulent Christian right, that judicial decision was an immoral deal breaker that stripped not only the courts, but the very social fabric and national government, of moral authority and legitimacy. A major reason for the modern US revolt against national politicians is because a significant number of Americans no longer respect or assent to the system.
Likewise, Canadian politics has suffered because progressive courts have anticipated human rights and been prepared to impose them on sometimes unwilling and dissenting subjects.
I fear that the movement for constitutional recognition of Aborigines faces this problem. If Aborigines, other than privileged insiders are to have any enthusiasm for it, they must be persuaded that it means something. Many generally apathetic Australians will vote for it only if they are persuaded that it is legally meaningless, a feel-good exercise. It can't be both. In the background is the fact that Aborigines have had some great short-cut victories in the High Court, not least in Koowarta, Mabo and Wik. But sometimes, I wonder any of this judicial benevolence has had the slightest impact on the quality of Aboriginal lives.
The moral authority of government practice, as much as of its legislation, depends on the consent of the governed. It might be active, after lively debate. It might be passive consent, where the citizen did not feel involved in the debate, but knew the debate occurred. Talking people into change is a necessary part of how change "takes".
On many issues one starts from the unpopular, sometimes very unpopular position. One has to argue, over and over. Sometimes move forward, sometimes retreat. Widen and sometimes narrow one's front. Make deals. Compromise. It takes time. It takes energy. Usually money. The capacity to raise money is often a measure of whether people really care, or are just along for the ride.
Only rarely are there short cuts, or victories achieved by oblique action, such as through judges. Even more rarely will the tools of modern information technology substitute for talking to actual people in real interchanges, rather than an amorphous and unaccountable ether. The courts, usually, are a detour, not a substitute for effective politics. That so many of us hold the processes and the players in such low regard is the crisis of our age.
With all of this happening, it is ironic that Scott Morrison, now Treasurer rather than master of boat people punishment, is making just the mistakes in successful tax policy formation that his opponents made over boat people policy. Perhaps it is karma, or kismet. Or perhaps it is because he is now, as it were, out of his depth.