Opinion

Tony Abbott running from the law

Gillian Triggs did the wrong thing. The woman surely deserves to be savaged. She held an inquiry into a problem the prime minister assures us is “dissipating” and almost a thing of the past. Who does she think kiddies in immigration detention are? Pink batts? 

In Tony Abbott’s world you hold inquiries to stitch up your opponents. You face down calls for a royal commission into the rorts of the financial services industry and hold one into crooked unions. You break an old and wise convention against trolling through the papers of a defeated government to score a few points against Kevin Rudd’s chaotic administration. 

Abbott isn’t constrained by consequences. In government as in opposition, there is no tomorrow with this man. He is unafraid to trash conventions and rewrite old rules. There’s no plan behind this, no radical purpose. He just does what it takes to win the contest at hand. 

As a bovver boy for B. A. Santamaria at university this carelessness for the future didn’t matter much. Student politicians aren’t around for long. They have their day and move on. But damage done in Canberra lasts. 

Everyone curious about the blooding of the prime minister knows about the raucous politics of his youth. But something else happened – or failed to happen – at Sydney University. Abbott studied but never came to love the law. 

Casting around for a career after he abandoned the priesthood, young Abbott never tried what he was most qualified to do: be a lawyer. It seems never to have crossed his mind. Instead, he ran a concrete-batching plant for Tristan Antico before settling down to journalism. 

This country is full of lawyers not plying their trade. A few stragglers go into journalism. Squads enter politics. But most carry with them what Abbott never seems to have acquired: a feel for the law. That would not have mattered a bit except this unlikely man finds himself where he is today. 

Abbott doesn’t set out to break the law. That’s not the point. But when the law stands between him and a quick win, he shows contempt for its values, its customs and the part they play in national life. 

A prime minister with a feel for the law would not have slashed legal aid as hard as Abbott has. Nor would he have worked so hard to write lawyers and the courts out of migration and anti-terrorism law. He would not be so keen to proclaim the guilt of terrorism suspects awaiting trial. Nor would such a prime minister have set the dogs on Triggs. 

For a start he would have respected the fact that section 14 of the Australian Human Rights Commission Act 1986 gave the commission under Triggs the right to do exactly what it did: “For the purpose of the performance of its functions … hold an inquiry in such manner as it thinks fit.”

And a prime minister with a deeper respect for the law might know how poorly it would play for him to abuse a figure such as Triggs. Let think tanks take pot shots; let The Australian fulminate; dissent by all means from her findings; but remember the president of the Human Rights Commission is one of the independent umpires of the state. 

The audience for this week’s brutal personal attacks on Triggs is in talkback land. These are Abbott’s people. Out there, elitist judges and wily solicitors are daily accused of leaving citizens exposed to unimaginable dangers. The prime minister was speaking directly to this audience on Monday as he delivered his national security statement. 

He might have been channelling Alan Jones. 

“For too long, we have given those who might be a threat to our country the benefit of the doubt,” he said as he painted in broad strokes the picture of a nation exposed as never before to terrorism. “When it comes to someone like the Martin Place murderer, people feel like we have been taken for mugs.”

So yet more traditional protections are to be sacrificed, thresholds lowered and latitude denied in Abbott’s pursuit of public safety. “We will never sacrifice our freedoms in order to defend them,” he assured his audience. “But we will not let our enemies exploit our decency either.”

That’s standard Abbott. And the legislation being drafted now to give weight to his words will likely be standard Abbott too: minimum scrutiny by the courts, maximum power to government and close to nil concern for individual rights as Canberra pursues refugees in boats and lone wolf terrorists. 

The refugee advocate David Manne calls this “taking the law out of the law”. 

This didn’t start with Abbott but grew dramatically worse with the amendment late last year of the Maritime Powers and Migration acts – after hundreds of children were held hostage in detention until the senate caved in. The amendment shreds our obligations under the Refugee Conventions and hands godlike powers to immigration ministers to decide the fate of refugees. 

Malcolm Fraser called the bill: “The perverse creation of a government prepared to tear up the rule of law for its own political ends.”

How are those rules faring in Abbott’s Australia? We long ago accepted the violation of the absolutely basic rule: habeas corpus. Since Paul Keating’s time, refugees have been imprisoned here and in offshore camps without charge and without trial at the pleasure of the government. 

But how does Abbott respond when a United States court declares that David Hicks was held in Guantanamo Bay for more than five years under appalling conditions on the basis of no law at all? “Whatever the legalities … he was up to no good.”

Then we have the separation of powers. Abbott is a prime minister quick to judge. Arrest of terror suspects is swiftly followed by their conviction, not in criminal courts but at press conferences. Abbott isn’t persuaded there are reasons for restraint here, reasons more weighty than immediate political advantage.

This week a Sydney solicitor, Steven Boland, attacked Abbott for making an “unprecedented intrusion by a sitting PM into criminal proceedings” that may ultimately see his client Omarjan Azari acquitted of terrorism charges. 

Within hours of Azari’s arrest in September last year, Abbott declared Azari guilty of plotting random “demonstration killings” at the direction of a senior Islamic State figure linked to Australia. He used none of the saving rhetoric of accusation and allegation. He said: “This is not just suspicion, this is intent.” 

Abbott described Azari over the following days as “a determined individual who will kill without compunction”, a man “ready and intending to conduct these attacks” whose arrest in the largest security raids in the nation’s history “ensured that an atrocity didn’t happen”.

Boland spoke of the “irreparable prejudice” caused to his client’s case by the prime minister. “Mr Abbott has deliberately or otherwise spread misinformation that has no support in the evidence … [it] gives rise to a substantial possibility that Mr Azari’s interests have been harmed by the power of Mr Abbott’s statement.”

The case returns to court in late April. 

Two weeks ago, Abbott was at it again. This time, police had swooped on Omar Al-Kutobi and Mohammad Kiad in the Sydney suburb of Fairfield. Abbott reviewed the evidence against them in parliament. Once again he declared them guilty. 

“I do not think it would be possible to witness uglier fanaticism than this, more monstrous fanaticism and extremism than this, and I regret to say it is now present in our country,” he told the house. 

“I want to thank NSW Police, the Australian Federal Police and our security agencies for the work they did to forestall this attack. We need them now more than ever. This is a metastasising threat, because under current conditions under the influence of the Islamist death cult, all you need to be a terrorist is a knife, a flag, a camera-phone and a victim. That is all you need.”

Who needs a court? Who needs a jury?

The point of this gross breach of convention by the prime minister was to spruik for legislation that will see the end of privacy as it has been understood in Australia. After declaring the nation saved from “an imminent terrorist attack inspired by the Islamist death cult”, he reminded the house: “There is more legislation on data retention shortly to come before the parliament and it must be passed if our community is to be as safe as it should be in these difficult times.”

Abbott is not a conservative here. Separation of powers, habeas corpus and court scrutiny of government are conservative doctrines. All prime ministers bridle at the restraints of the law. But Abbott has been willing to a remarkable degree to push the law aside to appease populist fears and populist contempt for human rights.

This plays beautifully to his base but across Australia it raises old trust issues with Tony Abbott. The evidence of the polls can’t be doubted: Australians trust courts far more than they trust politicians. Attacking courts, judges and the traditional ways of the law makes Australians uneasy.

We imprison children. It is done knowing it will wreck their lives. Attacking Triggs can divert political attention from this scandal for a week or so. But it’s a gutter fighter’s strategy that reminds us all over again that we have a prime minister ready to brawl and reluctant to respect the ways of the law. It’s looking more and more like a losing combination.

This article was first published in the print edition of The Saturday Paper on Feb 28, 2015 as "Abbott running from the law". Subscribe here.

David Marr
is a reporter, commentator and biographer.

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