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When law making bastardises the Law


It is always tempting to imagine that the discontents of our own nation are unique. To look around us and discover we are not alone is bracing. We may discover to our discomfort that our dysfunctional responses to them are also shared.

In the last fortnight, the Australian High Court declared that the indefinite detention of people whose visas were cancelled, but who could not be returned to their own nations, was illegal. 

As a result, about 100 men had to be released, some of whom had been convicted and served sentences for serious crimes. In the messy aftermath the Government rushed through legislation to impose reporting to authorities, and the presumption that those released will be bound to wear ankle bands, will be subject to an all night curfew, and will be forbidden to pass close to schools and other places. Each breach of these conditions would be a criminal offense subject to a mandatory one year imprisonment. After the political demonisation of those released one can imagine what vituperation will be heaped on foreign looking people wearing an ankle bracelet.  The Government now intends to pass legislation that will again detain indefinitely those released under the title of preventative detention.

In the same fortnight the High Court in Great Britain judged illegal the Government decision to send to Rwanda people who had sought protection in England. It was found to contravene the Human Rights Act. The absence of such an act, which had enabled the Australian Government to send refugees to Manus Island and Nauru, provided the model for the Rwanda decision. The Government currently proposes to override the decision by legislating to suspend the Human Rights Act in order to allow the deportations to go ahead.

The common feature to both these events was the immediate rush by Governments to bring forward legislation that further limits the human rights of those affected. In each case the legislation designed to negate the effect of the High Court decisions will be vulnerable again to be struck down on judicial appeal. That haste suggests an initial disregard for human rights and the rule of law by Governments when legislating and an ingrained resistance to any limitation by the Courts of its power. Vindictive laws are used as patches on a rotting tyre at a heavy cost to the integrity and reputation of the mechanics. 

It is always fashionable to blame governments for their failures of excess and of neglect. In democracies, however, their behaviour often reflects the attitudes of the people who elected them.


'The kernel of the rule of law in any society has always been the principle of habeas corpus that protects from arbitrary deprivation of freedom. It affirms the value of citizens as human beings not by their qualities or usefulness. To trash this principle by law making devalues the law and ultimately erodes respect for the government that misuses legal processes.'


In this case governments believed that for voters the human rights of others than themselves and the groups to which they belong are not a priority. They could therefore disregarded when they became controversial.

This capitulation to public opinion is not a complete explanation of the response of the United Kingdom and Australian Governments to adverse Court rulings. It needs to be set alongside the authoritarian practices of Governments during the COVID crisis. Governments and people then accepted the restriction of rights of association, of movement, of religious practice and of economic activity in order to halt the spread of COVID. The restrictions were enforced by the justice system. The restrictions of rights were accompanied by the expectation that Governments would also take initiatives to provide housing for the homeless, increase welfare payments and support workers in social services newly discovered to be essential. The ideology of small government, already motheaten theoretically, was set aside. 

After Covid the taste of Governments for restricting rights and imposing penalties for violations continued. Draconian laws against protests that would inconvenience the financial interests of large corporations and of government agencies, for example, multiplied. 

More recently the legacy of heavy public debt after COVID and the pressures of inflation in societies marked by inequality have confronted Governments with new demands. They are expected to meet public needs at the same time as they reduce their own level of debt. They also face resistance to raising the revenue necessary to meet their social expectations. The commitment by society to the common good notable during the COVID crisis, moreover, has been eroded by the hardships associated with inflation and the shortage of housing. Popular frustration can then lead to hostility to minorities and to groups seen as deviant. Governments, which are the natural target of resentment at harsh economic conditions, are then under pressure to act in unfair ways.

The treatment of child lawbreakers in Queensland and the emergency legislation covering people released from immigration detention are cases in point. So is the proposed legislation to have asylum seekers sent to Rwanda by the British Government, which echoes the Manus Island and Nauru schemes of the Australian Government. They have in common that they respond to political pressures caused by public anxiety about law and order by infringing the human rights of minorities at a heavy social cost.  

This behaviour may seem to be of little significance in the longer term. But it can corrupt both the government’s commitment to good governance and its reputation, as has been the case in Australian Governments since they endorsed a refugee policy based on deterrence. The kernel of the rule of law in any society has always been the principle of habeas corpus that protects from arbitrary deprivation of freedom. It affirms the value of citizens as human beings not by their qualities or usefulness. To trash this principle by law making devalues the law and ultimately erodes respect for the government that misuses legal processes. One hopes that the High Court will again vindicate the principle in the face of fresh attempts by Government to neuter it. 




Andrew Hamilton is consulting editor of Eureka Street, and writer at Jesuit Social Services.

Main image: Frances Coch (Getty images)

Topic tags: Andrew Hamilton, Parliament, Law, High Court, Detention, Human Rights



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Existing comments

Bravissimo, Andy! Not that your fervorino needs support from political theory, especially aspects of it informing the evolution of democracy, the tempering of majority opinion and the separation of powers.

John Stewart Mill believed people should not be allowed to limit someone’s opinion because of three arguments: minority opinion could be true, majority opinion could be true and the minority false, or majority and minority opinion could be partially true and partially false. It would therefore be wrong for the majority to suppress the opinion of a single person because of the overall harming effect.

Mill’s third argument is particularly apposite. If people are allowed to discuss their opinions openly and without fear of social and legal punishments, they may change their opinions. When people are worried about social persecution or consequences with people of authority, such as the government, they are less likely to feel safe to share their ideas. Once people are allowed to openly discuss, they can optimize utility. Mill defines utility as the greatest good for the greatest number, thereby refining the mistaken impression that democracy is exclusively majoritarian.

Catholics are alerted to this principle, given the ramifications of the Gordon Riots when we were scapegoated!

Michael Furtado | 01 December 2023  
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John Stuart Mill of his own free will on half a pint of brandy was particularly ill MF. When he coined that aphorism he was in his cups.

Francis Armstrong | 05 December 2023  

From the opposite end of the Chamber, Hobbes inadvertently comes to Mill's philosophical rescue by taking fright at everything after his mum gave birth to him at the sight of the Armada approaching the English Channel.

A pity, in consequence, that some of your positions, even though I share your outrage about the treatment of women in the Church, are so reflective of a Hobbesian mindset that is 'solitary, nasty, brutish and short'.

Michael Furtado | 07 December 2023  

Andy, your article was all the rage at Faculty today, with several lawyers & political theorists weighing in to support you. (UQ was at the forefront of reform in Qld, as Joh's regime came to an ignominious end).

Someone said in regard to my post that not only Mill but Edmund Burke would be in support. An Establishment Irishman Burke, whose theory cleaves away from Mill's, passionately defended the view that MPs are NOT delegates but Representatives, expected to maintain their integrity and independence of mind regardless of the Party Whip!

While some Tories had the guts to do this during the 'Voice' referendum debates, it is nothing short of shocking that only the Greens have spoken up for the Burkeian principle that, once convicted with sentence served, no one should suffer the double jeopardy of additional punishment.

In Catholic Social Teaching this would be regarded as disproportionate to the nature of the committed crime. What it additionally does is to shed light on the fact that a group of asylum-seekers are being subjected to a punishment unrelated to the nature of their crime other than in the context of the exceptionality of their circumstances in seeking asylum in Australia.

Michael Furtado | 04 December 2023  

Fr Andrew, S 161 Of the Immigration Act 2009 states that people who have grave felony convictions can be deported to their homeland. Of course they have a right to a court hearing before deportation.
Do we want child rapists and murderers free in the community after detention? Within Australia freed murderers are normally required to be on parole for life with restrictions on travel, inability to get a passport and fortnightly reporting to the police.
The High court frees these unwelcome characters from detention but seems indifferent to their fate thereafter. Do they qualify for the dole? Where do they live? How would any one know if they would not reoffend?
I think they should be deported.

I understand the High Court decision but the aftermath on the community and children needs to be considered.

Francis Armstrong | 05 December 2023  
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I enjoy reading your contributions to this journal. The reason for this is that I find them amusing.

When I question myself about what precisely it is that amuses me about your posts, I discern that they come across as contrarian. By this I mean that, while you start with a premise that appears to be from one end of the political spectrum you generally end with a conclusion that appears to favour the other end.

Apart from illustrating the complexity of your thought, with some of which I happen to agree, I perceive in your use of logic a contradiction that, at best, begs to be read as a paradox.

Let me illustrate what I mean by this, in case you think I regard your work as a bit of a hotchpotch. As an admirer of Chesterton, who richly employs the use of paradox to make his point, I find that he does so by inviting an opponent into his den, agreeing with their premise and then showing how conclusions contrary to those expected by his opponent might logically be derived.

That said, please now tell us how criminals can be deported when they have nowhere else to go.

Michael Furtado | 06 December 2023  

They should be returned to their country of birth.

Francis Armstrong | 09 December 2023  

Ideally, agreed, Francis. Now how might that be done without a passport? Put back out to sea or made to live interminably at an airport or sea-terminal?

Would that we had a 'no man's land' to send them to! (Perchance another Terra Nullius?) And we know what tragically eventuated the last time that was tried, do we not?

'What cannot be cured must be endured.' (Robert Burton, 'The Anatomy of Melancholy'. n.d.) Have a heaps better than melancholic Christmas, Francis!

Given the state of the world as 2023 draws to a close, God Alone knows we need your passion for a Better & More Just New Year.

Michael Furtado | 12 December 2023  

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