New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Tony Abbott baits hooks and pays crooks
No one could put it better as a description of the Abbott government’s way of doing business. “By hook or by crook” was the phrase the prime minister came back to three times in a radio interview. He was referring to “stopping the boats” but you don’t have to be Sherlock Holmes to pick the MO of this perpetrator at other crime scenes.
A good place to start is the pickle the government is in over stripping dual national terrorists of their citizenship. Eighteen months ago, then independent national security legislation monitor Bret Walker, SC, advised the government it should consider giving the immigration minister power to revoke the citizenship of Australians where the minister is satisfied that the person has engaged in acts prejudicial to Australia’s security and it is not in Australia’s interests for the person to remain in Australia. Why it has taken the government so long to act on this advice is a good question. Hardball politics is the most obvious answer.
Bolstering that suspicion is another leaked cabinet document. Obviously not everyone in the engine room of the government is happy with the idea that constitutional safeguards are secondary to skewering Bill Shorten at every opportunity. A question time brief, with limited circulation to cabinet ministers, dismisses concerns over the need for judicial review. “A law requiring a terrorist conviction would be toothless,” it reads. Then with a rhetorical flourish, “Does Bill Shorten want a toothless law or one that actually protects the community?”
Dan Tehan, a Liberal backbencher who chairs the Joint Standing Committee on Intelligence and Security, dismissed concerns over the brief as just part of the theatre of question time. If he was suggesting we should take lightly everything said in the bearpit of partisan combat, he may have a point. But as we have seen, at least six cabinet ministers are not so sanguine. They fear priority is being given to damaging an opponent rather than respecting the rule of law as enshrined in the doctrine of the separation of powers in the constitution.
It emerged this week that advice from the solicitor-general, Justin Gleeson, said giving a minister discretion to strip citizenship without prior conviction would be unconstitutional and would be struck down by the High Court. Sky News reported three ministers confirmed that the advice was not shown to the whole cabinet. Tony Abbott insists he is going to do the right thing by the people of Australia. “The important thing is that we have a sound law,” he said. Indeed it is. This point was hammered home by Communications Minister Malcolm Turnbull in two interviews that were seen as breaking ranks because of simmering tensions over what the prime minister really wants to do. Any laws to bolster national security, Turnbull says, must not be allowed to erode the very framework of freedom they are supposed to be protecting.
The sensitivity is well founded, especially as in parliament the prime minister and his immigration minister, Peter Dutton, ignored Bret Walker’s clarification of his advice on national television. The high-powered silk didn’t include the need for prior conviction because it was “constitutionally unthinkable” to revoke a person’s citizenship without it. He “never dreamed it would be possible”.
The shiny or tarnished new law is still being drafted with a promise we will see it in the coming week. Public opinion is squarely behind any move to send terrorists back to where they came from or to stop them returning home. As a dog whistle it’s working a treat. But the court of public opinion will not be the final arbiter. The High Court will be. Before it gets to that, some believe a cavalier attitude will be taken, again in the name of politics. Put up a strong but flawed bill then blame Labor and the senate crossbench if it doesn’t survive.
Australians have always played their politics hard. Establishing royal commissions to damage your opponents is a sport the conservative side of politics particularly enjoys. Historically the Petrov royal commission set up by Robert Menzies in 1954 is a stark example. Ostensibly into espionage in Australia, its real target was opposition leader H. V. Evatt and any links he may or may not have had with Russian spies and communists. That and the Labor split over communist influence certainly helped Menzies win the election the following year.
Menzies’ fellow Liberal prime minister, Tony Abbott, has taken the device to new extremes. The Royal Commission into the Home Insulation Program, which cost $20 million, found nothing new but it reminded the nation of Labor’s incompetence. That was its real purpose. Now the $80 million commission into certain unions is beginning to pay dividends. At least it has put Bill Shorten’s name up in lights. Before anything is tested or proved, ministers are delighting in being judge and jury in parliament.
Christopher Pyne regularly sets up questions that enable him to talk about trade union corruption. He seized on an “Australian” report to lump “extortion” and “kickbacks” on Shorten. Then, piously, tongue firmly in cheek, he said the government wanted to help the Labor leader clear his name. Shorten has no option but to say he will co-operate with the inquiry.
“What I’ve also said about Tony Abbott’s royal commission,” said Shorten, “… it will be an opportunity for vested interests and for people to try and settle old scores of all sorts of baseless allegations, and what I say is that it shows the government’s priorities.”
Coming in a week that the Newspoll showed Shorten losing ground in the personal approval stakes, his appearance at the commission later in the year will be a crucial test of his mettle. With News Corp and Fairfax running hard on the story, he is now asking to be called earlier lest the issue fester.
Nowhere does Abbott’s “hook or by crook” doctrine of political success reveal itself more dramatically than in the mounting evidence that his government is now in the people-smuggling business. The Indonesian police investigation has produced witness statements, a detailed chronology of our customs and navy apprehending a vessel on the high seas and eventually paying its captain and crew $US30,000 to take 65 asylum seekers back to Java. There are even pictures in living colour of the money.
The politics were messy at first with the foreign and immigration ministers denying the payments with a curt “no”. This morphed in parliament to a “no comment” shrouded in either an attack on Labor or the plea that security, intelligence and operational matters were off limits. That was as good as confirmation of a Daily Telegraph story citing a senior government source saying that our spy agency was involved. Labor seemed to be dragged into the imbroglio with reports it too had used our agents to pay money while in government.
Abbott was defiant, saying he would do whatever is necessary within the law to stop the boats. The weasel words are “within the law”. The Australian Secret Intelligence Service is heavily protected by law to break the law in carrying out espionage overseas. But there is a real difference between our police or spies working with their Indonesian counterparts and paying for intelligence on the people-smuggling syndicates, and actually paying the people smugglers to ply their trade and break the law.
Labor’s denials it had ever done so are bolstered by the fact that 1000 boats came on its watch. Kevin Rudd promised to turn back the boats but was quickly advised it was not safe to do so. It was particularly unsafe diplomatically and would see a deterioration in relations with Indonesia. Besides, smugglers began sabotaging their boats when approached by Australian vessels.
How Operation Sovereign Borders, as the militarised border security regime of this government, overcame these problems is a mystery. More secrecy surrounds it than a World War II commando mission. That secrecy is hiding a multitude of dubious activities. Abbott praises our agencies for being “incredibly creative”. It probably explains “the crook”.
Labor’s version of “turn back” was the deal it did with Malaysia in 2011 for a people swap, “800 boat people” for “4000 genuine refugees”. The Liberals joined the Greens in voting that down. The number of boat arrivals surged as a result – something that suited the political purposes of the Abbott opposition. One senior Liberal told me at the time, “The more boats that come the better for us.”
The impartial speaker of parliament, Bronwyn Bishop, in her unprecedented appearance on Q&A as a spokesperson for the government, claimed the Indonesians welcomed the fact that Australia had taken the sugar off the table. That drew the quick retort we had just put it back on the table to the tune of $30,000. Smugglers must be tempted to test our generosity again.
Our behaviour has certainly tested the patience of Jakarta. Tony Abbott, with his usual chutzpah, claims relations have never been better. Tell that to Indonesia’s foreign minister and vice-president. They have condemned Canberra for unethical behaviour, bribery and illegality.
They, of course, don’t get to vote in Australia. And that’s all that really matters. Whatever it takes is a small price for a victory at the ballot box.
This article was first published in the print edition of The Saturday Paper on Jun 20, 2015 as "Abbott baits hooks and pays crooks".
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