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Frank
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So, this is a battle about two valid competing priorities. Keeping the community safe versus upholding fundamental constitutional principle. For any government, the political and practical answer will be the same. Between them, many of the detainees released under the recent ruling run the gamut of criminal behaviour: from homicide to rape to child abuse. There is no reason to assume they will not offend again.
The solution is obvious. If their own country will accept them back, deport them. If not, lock them up until some other eccentrically generous nation takes them in. If that never happens, they stay in jail: Quod erat demonstrandum.
It would be hard to find many “ordinary” Australians who would disagree with this logic. But the High Court takes a different, more profound and rather more complex view. Unless penal sanction is the preserve of the courts, politicians will start punishing us. Ministers will put journalists in jail – potentially appealing – and administrative officers (level 4) will confiscate our property.
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The implications of the court’s decision go much wider than international detainees. There are plenty of laws that lock up the odd monster at executive behest, with minimal judicial involvement. Most are state laws, not federal, but the court has itched to expand its reach. The immediate question is, what can the Albanese government do? The idea it should have had a replacement law in its back pocket is risible. This would have been a virtual admission that the existing law was invalid.
The current regime of ankle bracelets, curfews and leg irons also is dubious. First, it is far less effective than detention. But, even more problematically, parts of the court’s decision may suggest even these restrictions are punishments, also to be struck down.
The task for Attorney-General Mark Dreyfus and his luckless advisers is to attempt to draft a law that keeps dangerous entrants off the streets without outraging the High Court. But because the court has refused to endorse any form of “limbo” detention without a foreseeable end, this will be extremely difficult.
Presumably, Canberra’s legal brainboxes will be playing around with possibilities that are as administratively effective as possible in pushing dangerous foreign nationals towards captivity but involves clear judicial supervision at crucial points in the process.
In the light of the court’s unanimous decision, this is a task from hell. One further problem is that no solution can involve judicial officers in any mere executive process because that too is verboten under the separation of powers. This is the catch-22 of Australian constitutional law.
Several states have managed to create effective “dangerous offenders” legislation, keeping supposed monsters caged, but only under judicial oversight. I remember working on this in Victoria as crown counsel for the Kennett government. It was an exhausting process, balancing community safety with constitutional liberty.
Anthony Albanese will be desperate to find a way through the High Court’s decision that is both practical and passes constitutional examination. If he can, he will squeeze through the opening, bruised but intact.
If he cannot, he has a judicial Christmas present leaving him unwittingly responsible for a politically flammable ripple of nasty offenders through the community.
No one will blame the High Court, everyone will blame him, and it is not something that can be regifted.
Greg Craven is a constitutional lawyer and former vice-chancellor of Australian Catholic University.
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How stupid is our High Court & our Politicians? (Read 5539 times)
