The chorus of public concern over the constitutionality of the Abbott government’s citizenship-stripping proposal is growing. Malcolm Turnbull has again been emboldened to break ranks with his Prime Minister while denying he is doing any such thing.
It will be ironically appropriate if the citizenship-stripping issue ends up derailing Abbott’s plans to revive his ailing leadership in the wake of the failed spill motion against him earlier this year. Abbott’s strategy ever since he achieved Liberal Party leadership in late 2009 has been squarely based on racist dog whistling and inflaming national security paranoia.
The fact that citizenship isn’t even mentioned in Australia’s Constitution flows in part from similar racist sentiments among our Founding Fathers. They couldn’t work out a plausible way to define Australian citizenship without conferring it on Chinese, Japanese and Pacific Island migrants not to mention Aborigines. As South Australian delegate James Howe put it: “the cry throughout Australia will be that our first duty is to ourselves, and that we should… make Australia a home for Australians and the British race alone.” No sly Abbott/Howard-style dog whistling in those days; our forefathers were openly and proudly racist.
The solution our Founding Fathers came up with was to avoid mentioning citizenship in the Constitution, but give the new Commonwealth Parliament wide-ranging powers to make laws with respect to immigration and “aliens”. The new Parliament proceeded to enact the White Australia policy.
This deliberate constitutional silence is one reason why it isn’t certain whether the Abbott government could now validly legislate to confer the power to strip citizenship on a Minister rather than a court.
Human rights lawyer Kerry Murphy has a very useful explanation of the weakness of judicial review as a safeguard against new laws foreshadowed by the Abbott government which would permit arbitrary ministerial stripping of Australians’ citizenship from those accused/suspected of terrorist activity. However, if anything the situation is even worse than Murphy says. Citizenship is arguably the most fundamental right any Australian possesses, without which no other human rights protection is assured, even the most basic application of the rule of law. And yet our citizenship right itself is not protected by our Constitution.
We don’t actually know exactly what provisions the citizenship-stripping law proposed by Abbott and his Immigration Minister Peter Dutton will contain, but you can bet they will include the following:
- A subjective opinion clause;
- A clause requiring national security or criminal intelligence information to be withheld from a suspect and his lawyers but nevertheless to be used against him.
These provisions have become increasingly popular with governments at both federal and state levels since the “moral panic” induced by September 11. As a result, the combination of enthusiasm for greater power and less accountability on the part of both politicians and intelligence agencies, and a relatively supine response on the part of the High Court, has had drastic adverse consequences for the freedom and human rights of all Australians. It is hardly an exaggeration to observe that in today’s Australia the right to impartial judicial review of executive government action, which was intended by the drafters of our Constitution to be a fundamental aspect of our system of national governance, is now an optional extra that governments can effectively negate almost at will. And yet hardly anyone knows about it.
That is probably because some of the concepts are quite difficult to explain clearly to non-lawyers. Nevertheless, bear with me. It’s important and worth “unpacking” the argument.
Data security and retention are very much in the news at the moment. Indeed the Abbott government’s data retention bill is currently being debated by the Senate and will inevitably be passed given that the Coalition did a deal with Labor whereby the latter will support it in return for inclusion of a fairly weak requirement for a warrant before law enforcement agencies can access journalists’ metadata. Richard “Justinian” Ackland published an article yesterday that highlighted the deficiencies of the warrant regime in the current bill.
I can modestly claim to have been ahead of the zeitgeist on this issue, having made a submission and given evidence before the Senate Standing Committee on Legal and Constitutional Affairs way back in 2010, when they were considering the bill which eventually gave rise to the current journalists’ qualified privilege or immunity in relation to disclosing confidential sources when giving evidence in court. As I argued at the time:
That Tony Abbott should have been forced this week to concede defeat on fiscal reform by declaring partial victory over “debt and deficit” (“the glass is half full”) is both ironic and fitting. As I discussed in a fairly recent post, Abbott was responsible for bringing to destructive perfection the toxic mix of “small target” strategy and relentless negativity that both major parties now employ when in Opposition. Tony has now been hoist with his own petard, brought undone by his own success in convincing the electorate to believe erroneously that governmental debt and deficit are universal evils that can never be justified. He finds himself just as helpless to achieve a budget surplus in the foreseeable future as his ALP predecessors, and for essentially the same reasons: unexpectedly slow recovery of revenue in the wake of the Global Financial Crisis; progressive collapse of iron ore and coal prices; and a recalcitrant Senate with an opportunistic Labor Opposition gleefully intent on being just as relentlessly negative towards Abbott as he was towards them.
Peter Hartcher had quite a good article in yesterday’s Fairfax media (which I can’t now find) outlining the recent history of tit-for-tat political bastardry that has brought Australia to our current situation of almost complete governmental paralysis on fiscal policy. However, the cycle of retaliatory fiscal mischief goes back decades. I would date the phenomenon back at least to Paul Keating’s cynical and unprincipled demolition of John Hewson’s Fightback policy in the lead-up to the 1993 election, a tactic that Keating pursued relentlessly notwithstanding that he himself had advocated a GST only a few years previously and that John Howard by contrast had had the guts and integrity (not words that most on the Left would associate with him) to support most of the Hawke/Keating government’s necessary deregulatory, market-based reforms over the previous decade. The gloves were off on fiscal policy from that moment on.
NB This post makes extensive use of the footnote plugin. The footnote numbers are very small, but they are hyperlinks so you can jump to them by clicking.
NBB The fact that I argue below that a major reason for the demise of the Newman government was the standard template opposition strategy that I outline/discuss does not mean that I personally approve of LNP policies or performance (or those of Tony Abbott for that matter). In fact I think the LNP richly deserved to be booted out (anti-bike laws, politicisation of judiciary etc). However, I don’t think the ALP would have gone within a bull’s roar of winning in the absence of OGS101, nor is it obvious to me that Labor will be a significantly better government. After all, they’re not even promising to repeal the VLAD (anti-bikie) laws, just to “review” them (in itself a classic example of OGS101 in operation).
Yesterday’s seeming electoral triumph of Annastacia Palaszczuk’s Labor rump in Queensland after a single term of LNP government underlines the extent to which the secrets of successful continuous campaigning for an Opposition party have come to be reduced to an almost foolproof formula that almost guarantees successful undermining of all but the most wily or dead lucky incumbent government, even by a telephone booth-sized Opposition with very little visible talent or experience.
The formula largely accounts for the results of the last 3 federal elections and at least the last 2 Victorian and Queensland state elections. It is found in a political spin doctor’s playbook called Opposition to Government Strategy 101 (OGS101). The formula is well known to spin doctors on both sides of politics but has been kept secret from the general public until now. Fortunately I have now obtained a leaked copy and reproduce the Executive Summary over the fold:
Domestic violence is constantly in the news these days which can lead to the impression that the problem is increasing. To the extent that scrutiny and public discussion shines light in dark places, we might have expected the real underlying rates to be tapering.
So I was more than surprised when The Age reported figures from Victorian Police Family Violence statistics in the left section of the table below, along with the headline “Family Violence Epidemic.” They specifically highlighted the increases from 2011-2012 to 2012-2013. (Warning; This is a long post so set aside some time!)
Victorian Totals are taken from Police Crime Statistics.
Victorian Premier Dennis Napthine announces a “plan” to spend $20 million upgrading Junction Oval at St Kilda to accommodate the AFL team named after the suburb, even though it hasn’t played or trained there for decades. The plan appears not to have been checked with the local council or the AFL, and would apparently need another $37 million in infrastructure funding from the Abbott government. At first glance it looks to be a complete waste of money with few if any redeeming features.
The Melbourne East West Link tunnel is a vastly more expensive but equally dubious project in cost-benefit terms that Napthine has rammed through despite very widespread opposition, including from the ALP which has said it won’t build it under any circumstances if elected.
The announcement by Communications Minister Malcolm Turnbull that the ABC’s budget will be cut by $50 million per year for the next five years has generated predictable kerfuffle in mainstream and social media circles. Whether it will have any real effect on the broader voting public is much more questionable, but it’s still worth talking about in policy terms.
The predictable line by left-leaning commentators is that Tony Abbott has broken a promise, or even “lied” when he said before the election that ABC and SBS funding (along with health, education etc) would not be cut. In a tit-for-tat sense I guess that’s fair enough, because it’s exactly the same accusation that Abbott successfully prosecuted against Julia Gillard in relation to her backflip on carbon pricing.
Tony Abbott might well be the last bloke on earth who could plausibly demand a “mature debate” on tax reform. But that doesn’t deny the crying need for such a debate in Australia.
Nor does the fact that it’s the antithesis of what Abbott did in Opposition mean that Bill Shorten should necessarily emulate Tony’s tactics himself. What won the last war won’t necessarily win this one. Abbott didn’t win the 2013 election only because he relentlessly opposed everything Labor tried to do. That tactic worked because Julia Gillard had mortally wounded herself by the manner in which she seized the prime ministership, because that inevitably resulted in ongoing destructive disunity orchestrated by an embittered Kevin Rudd, and because her government consistently exhibited appalling administrative and policy implementation skills despite some excellent policy ideas. Without those self-inflicted wounds, Abbott’s “one trick pony” knee-jerk obstructionism might have failed.
Despite the fact that opinion polls have looked quite respectable for Shorten for some time, Abbott in government isn’t burdened by any of the handicaps that ensured Gillard/Rudd’s doom. Moreover, he now has the additional benefit of wrapping himself in khaki, which John Howard exploited with such great success in 2001 and 2004.