Once upon a time, the Commonwealth was a model litigant. It did not play mean and sneaky tricks. It acted properly. It acted in the public interest. It conducted litigation in the courts, whether suing or being sued, fairly.
Once upon a time, the Commonwealth Parliament legislated according to some fundamental principles of fairness to all and the public good.
We expect politicians to be selective with the truth, to exaggerate, to use artful point-scoring in debate, to squirm when caught and so on.
But we do not expect the Commonwealth Government as litigant and the Commonwealth Parliament as legislator to engage in unprincipled conduct more suited of a stand-over merchant or a child who screams, lies, morally blackmails and otherwise misbehaves to get his way.
This is what the Government – with the connivance of the Labor party in the Parliament – has done over the Tampa refugee affair. They have perverted the meaning of the rule of law. They have perverted the law into a weapon of a bully.
What have they done? The Border Protection (Validation and Powers) Bill – which is set to pass Parliament on Monday with the help of the Labor Party – offends a number of long-standing principles.
First. It is retrospective. It seeks to make lawful what was unlawful at the time it was done. (“”Clause 6 – All action to which the Part applies is taken for all purposes to have been lawful when it occurred”. Among the actions being validated is the armed invasion of a ship and the prevention of people from leaving it).
Second. It imposes mandatory minimum sentences. For people smuggling it says “”the court must impose a sentence of imprisonment of at least . . . five years” or eight years of a repeat offence. And the repeat offence minimum retrospectively drags in convictions before this law.
Third. It excludes the jurisdiction of the courts. (“”Clause 7 Proceedings, whether civil or criminal, may not be instituted or continued in any court to which this Part applies against the Commonwealth or a Commwealth officer.) Once again it includes seizing vessels.
Fourth. It reignites the old Crown prerogative to eject people from the realm with legislative authority. This has not been used since Jews were barred from entry into England by the King in the 1770s. The normal principle is that the Crown, Executive or Government acts according to detailed law laid down by Parliament setting out the circumstances that people can be excluded with access to the courts for appeals.
Fifth. It sanctions detention without trial and without recourse to the courts in contravention of legal principles going back almost 800 years. (Clause 8 “. . . Any restraint on the liberty of any person found on [a detained] ship is [deemed] not [to be restrained] and proceedings . . . maynotbe instituted in any court against the Commonwealth or officer.”)
Then there are the changes to the Migration Act. These breach our internation agreements by pretending that parts of Australia are not part of Australia.
Then there is the bully-boy tactics of seeking costs against those who brought the Federal Court action, Melbourne solicitor Eric Vadarlis, the Victorian Civil Liberties Union and their lawyers. They did the case pro-bono (for nothing). They had a reaonable case. The first judge and one of two appeal judges found for them. It was a public interest matter, and the Commonwealth with its large standing legal armoury should pay its own costs. That it seeks costs is hypocrisy because Attorney-General Daryl Williams has been praising pro-bono work to relieve the legal-aid burden. The costs are punishment out of all proportion. They will have the effect of discouraging an appeal to the High Court. This is an abuse of power.
Then there is the contract with the Nauru government to house the refugees which is a combination of bribery and blackmail.
Then Australia acting outside Australian territory has forcibly put men, women and children behind barbed wire amid the phosphate mining wasteland in the centre of Nauru. It was force. There was no choice for them.
In all, this is as bad as the stolen generation, perhaps worse. At least that was mostly cases of misguided people with honest intentions at a time when community standards knew no different. On the other hand, the Tampa case has been a series of deliberate legislative and executive acts exercised with utmost foresight and knowledge with the inevitable result that cruelty will be inflicted on these people.
The passing of the Border Protection (Validation and Powers) Bill will be a blot in the history of Australian jurisprudence made more infamous by the intricacy and deliberation of its manufacture and execution and the simple fact that we should know better.
It is a perversion of the rule of law because this law offends long-held standards and principles.
Those Ministers who have legal qualifications who have been engaged in this affair – Howard, Ruddock, Williams and Reith – should hand back their certificates of admission to practice law. They are not worthy of them.