Politics
The High Court on indefinite detention
Writing in The Conversation – The High Court has decided indefinite detention is unlawful. What happens now? – Mary-Anne Kenny of Murdoch University explains the case leading to the Court’s ruling that it is unlawful and unconstitutional to detain people indefinitely in immigration. This ruling overturns an earlier 2004 decision.
Kenny draws attention to international standards:
International standards specify that a person detained for immigration purposes must be brought before a judicial authority “promptly” and that their detention must be subject to “regular periodic reviews”.
As she states “There is a substantial body of evidence demonstrating that hasn’t been the case for far too long”.
Many of those who have been held in detention, such as the Rohingya refugee whose case led to the decision, are stateless.
Writing in The Conversation Katie Robertson and Michelle Foster of the University of Melbourne describe the horrible implication of statelessness and the life those released from detention can expect: “I have no rights”: what happens to stateless people in Australia after the High Court’s ruling?. It’s a condition that those “who call Australia home” find hard to imagine.
These commentators cover the substance of the High Court’s finding. It’s a nuisance for the government, but it’s resolvable, and it shouldn’t have any partisan implications because Labor and Coalition administrations have both practised indefinite detention.
But Dutton and his backers in the partisan media weren’t going to let a chance go by. Shadow immigration minister Dan Tehan signalled the opposition’s intention to run a scare campaign in an interview on the ABC. That intention was confirmed in a short clip on the ABC’s 730 program.
The fear-laden message is that the government has suddenly released 80 murderers and rapists into the community. The government was unprepared for the decision and worse, it was indifferent to any consequences for community safety.
As it did in the referendum campaign, the opposition counted on voters not understanding how our Constitution works, and not understanding that the government is bound by the High Court’s interpretation of the Constitution.
Kenny and other legal experts explained that it would be unwise for the government to rush into legislation to deal with these people until the High Court provides reasons for its decisions, and any legislative action could well have to involve state governments.
That gap between the Court’s decision (which required the detainees to be released immediately) and statement of reasons placed the government in a difficult position. It also gave Dutton his acolytes space to mount a scare campaign, levelling ridiculous accusations against the government.
Dutton criticized the government for giving the released people accommodation and giving them some living allowance. What would Dutton do – let them starve in the street, or load them onto already stressed refugee services? Then there was the criticism that Albanese is travelling: he should stay in Canberra until Parliament passes legislation. Really? If Dutton were in this situation would he be so untrusting of his ministers that he would stay in Canberra to keep an eye on them? Then again, perhaps he would, for that is his style.
As for community safety, there is a problem, but it is easily overstated. Even without specific legislation there are community safety measures that can be applied to these people, depending on the risk they pose. Also they are still subject to Australian law. We have plenty of native-born Australians who have done time for ghastly crimes but are unrepentant and are living in the community, under the watchful eye of law enforcement authorities: another 80 (on the extreme assumption that they are all dangerous) is only a marginal addition to this burden.
It would have been wise for the government to hold off preparing specific legislation until the Court’s reasons give the government some guidance about the governments’ (Commonwealth and state) latitude in restraining these people’s liberties.
In spite of all the good advice for the government to move cautiously, it yielded to the opposition’s scare campaign and rushed legislation through Parliament. This legislation has gone to an extreme, just short of re-incarceration, risking another High Court challenge on the grounds that people are being deprived of liberty without process.
Is Labor still having trouble realizing that it is in government and doesn’t have to give in to Dutton’s bullying?
The government has not handled this situation well. Once again it has failed to anticipate the savagery and hysteria of the opposition’s attack. It naively believed that as responsible elected representatives the opposition would avoid raising the community’s stress level, and never imagined that it would conflate issues around the release of the detainees with emerging problems of anti-Semitism and Islamophobia in the community.
Of course the government would have been aware that the High Court could rule the way it did and public servants would have prepared contingency plans. But it was quite unprepared for the opposition’s attack. As evidence of its unpreparedness you can hear Immigration Minister Andrew Giles on ABC Breakfast give a rather uninformative explanation of the government’s plans. Hamish McDonald asked him several questions relevant to community safety, but his responses were almost all in generalities, as if they had been drafted by an AI machine: “Community safety has been our number one priority”, “We are considering all measures that may be available”, “There are a range of mechanisms”, “There will be appropriate responses”, and so on. He could have given some specific examples of measures the government has considered, without making a firm commitment, but his vague responses to questions played right into the opposition’s assertion that the government was unprepared for the Court’s ruling.
Perhaps the government was saved politically by Dutton’s overreach in Parliament. David Speers reports that Dutton’s attack on Albanese in the Chamber exposed his bullying style, to the discomfort of many on the Coalition’s benches: Peter Dutton’s plan to squeeze Albanese on Israel-Gaza war and the High Court’s controversial decision doesn’t hit the mark.
That attack gave Albanese a chance to respond:
The weaponisation or attempt to weaponise anti-Semitism in this chamber and make it a partisan issue is frankly beyond contempt.
He went on to say:
I make no apologies for trying to bring communities together not divide them, because that's the role of political leaders.
That is a politically apt statement, but more importantly it is right and proper statesmanship.
Political polls and voter sentiment
“Voters cut support for Labor as cost-of-living concerns mount” is the headline of an article by David Crowe in the Sydney Morning Herald.
The headline is misleading: sub-editors often do terrible things with journalists’ pieces. Opinion polls do show diminishing support for Albanese, and a pickup in support for Dutton, but there is no discernible shift in the way people say they would vote. Australians vote for a government, not for a president.
Leaders’ ratings
The media, including David Crowe’s article, have reported a significant shift in people’s assessment of party leaders. The Essential poll of 14 November now shows that favourability ratings for Dutton and Albanese are running neck and neck: for Albanese this is a significant fall from his previous lead. Some attribute his fall to the referendum outcome, but Albanese’s ratings have been falling over all this year. The proportion of people reporting a positive assessment of Dutton has risen, but the proportion reporting a negative assessment has also continued to rise.
There is a significant difference between younger and older Australians. Dutton’s support is concentrated among voters aged 55 and over. Also he is far less favourably rated by women than by men.
The same poll asks people about their attitudes to the Israel-Palestine conflict. People reveal that they are concerned about its consequences, including the possibility that it could “trigger hostility between Palestinian and Israeli communities in Australia”. When asked whether they believe we should have any involvement with the conflict, some say we should provide assistance to Israel and some say we should provide assistance to Palestine – views that are not necessarily contradictory. But almost two-thirds say that Australia should stay out of the conflict entirely.
Nevertheless Dutton has been trying to raise the temperature, calling for the national cabinet to be convenedto discuss the conflict, and accusing the prime minister of being soft on anti-semitism. The language quoted on the ABC website is provocative, and appears to be asking Australians to take one side, in contrast to the carefully-worded and balanced official statements by the government.
As in the Voice referendum, Dutton seems to be stirring up division, just for the sake of embarrassing the government. That’s a serious assault on good order in any circumstances, and is particularly so in any issue associated with foreign policy. As Paul Bongiorno warned in the Saturday Paper two weeks ago – Peter Dutton’s play at weaponising Israel-Hamas war – “Peter Dutton has decided there is political advantage in breaking the united front the major parties have so far adopted on the latest crisis in the Middle East”.
Party ratings
Although leaders’ ratings have changed, people’s voting intentions do not seem to have shifted. A number of polls show that Labor still holds a substantial TPP lead over the Coalition, but because there are many assumptions and an accumulation of sample errors in TPP calculations, care must be taken in interpreting these results. Polls on primary voting intentions are more reliable.
The graph below, taken from William Bowe’s Poll Bludger reports, shows voters’ primary voting intentions as revealed in November polls. Taken together they suggest Labor’s primary vote has improved a little since the election, support for the Coalition has fallen a little, and support for the Greens has held steady. The safest conclusion we can draw is that the differences in these polls is about sampling errors, and that nothing has really changed. Adrian Beaumont has a Conversation contribution – Labor still far ahead in Resolve poll, in contrast to other recent polls – giving additional detailed findings on these polls.
Teals
It is hard for polls to pick up support for independents. A limitation of polls is that after asking people’s responses to major parties, and sometimes One Nation, the remaining category is something like “independents/other”. That category would pick up everyone from pro-Putin anti-vaxxers to socialists for woke transvestites. Even if there were a polling category “Teals” it would be a low number revealing little, because they are concentrated in a small number of electorates. We don’t have useful polling data on the fortunes of independents.
But the “Teals” seem to be travelling well. Mark Kenny, writing in The Conversation, suggests that support for the Teals is holding up. The headline – Halfway through their term, the “teal” MPs look here to stay – and may present a huge challenge in 2025 – summarises his conclusion.
They are successful politically, because although the parliamentary cards are stacked against private members bills they have been effective politically by “raising issues, improving legislation and, in some cases, in stiffening government resolve”. Kenny mentions specifically their effectiveness in shaping the National Anti-Corruption Commission, and in their capacity to engage with their electors. They are also bringing a more civilized tone to Parliament, exposing the loutish behaviour of Dutton and his shadow ministers.
Kenny analyses the vote for the Voice referendum as a proxy for the Teals’ political effectiveness. The “yes” vote was generally over 50 percent in Teal-held seats.
Perhaps we need to be re-thinking how we see the political contest. Ever since 1944, when the Liberal Party was established from the ruins of the United Australia Party, journalists and the public have seen the political contest as a Labor-Coalition one. But the Teals, the Greens, and independent senators are presenting a different contest, between the Westminster oligopoly and political movements that are challenging the oligopoly.
Lobbyists and their quiet influence
Pharmacy Guild House, Canberra
“The current code of conduct for lobbyists is about as strong, effective and cohesive as a wet tissue”.
That’s a quote from MP Monique Ryan on the ABC’s 730 program In Canberra, lobbyists outnumber politicians three to one. Now there are growing calls for stronger regulation.
She has introduced a private member’s bill that would require lobbyists’ meetings with government to be recorded on a public website, impose fines for breaches of the code, and restrict politicians and senior public servants from moving to lobbying firms straight after serving in Parliament. She notes that the US, the UK, Canada, and New Zealand all have stronger lobbying regulations than we have in Australia. On the same program Joo-Cheong Tham of Melbourne Law School calls for an enforcement agency that would be independent from the lobbyists and the interests they serve.
Lobbyists in Australia are required to register with the government, but that’s a weak regulation. In a Conversation article Jennifer Lacy-Nichols of the University of Melbourne and Katherine Cullerton of the University of Queensland report that the register provides little clarity about lobbyists’ activities or their influence: Who’s lobbying whom? When it comes to alcohol, tobacco, food and gambling firms, we’re in the dark. In fact the register provides information only about lobbyists working as hired guns for professional lobby firms. They do not cover lobbyists employed in corporations (e.g. as “manager, government relations”), or those working in industry associations such as the Pharmacy Guild.
The lobbying code stipulates that former public servants members of parliament are not allowed to work as lobbyists until there has been a cooling off period of 12 or 18 months, but as Lacy-Nichols and Cullerton point out, this applies only to the hired guns. There are no restrictions on ministers or public servants taking jobs with companies they once regulated, or with which they had negotiated major contracts. Also there is little restriction against other conflicts of interest. For example on the 730 program it is revealed that lobbying firms that helped Labor with its 2022 election campaign subsequently became lobbyists to the newly-elected government.
Monique Ryan also has a 9-minute interview on the ABC: There's 15 lobbyists for every politician: MP seeks crackdown.[1] She cites examples of ministers going to work for corporations dealing with government straight after leaving government: Christopher Pyne and Julie Bishop are two she names. Other independents and the Greens are enthusiastic about her proposals, but from her comments it’s apparent that the government is less than enthusiastic. That’s in spite of Labor having made strong statements about controlling lobbying when they were in opposition.
The veil around lobbying is but one aspect of the government’s unjustifiable obsession with secrecy. This week the government announced that it will accept all 56 of the recommendations made by the Commission into the Robodebt Scheme, but it will not accept Commissioner Holmes’ “closing observation” that cabinet documents would be exempted from FOI release only if there is a clear public interest reason for use of the “Cabinet in Confidence” classification. Secrecy and over-classification remain the norm for government behaviour.
1. How does she get to a 15:1 ratio when others refer to 3:1 ratio? She points out that 80 percent of lobbyists aren’t on the register. ↩
At last – a reasoned argument against the Voice
Nicholas Gruen has drawn our attention to an anonymous article The mythology of the Voice, posted on Substack on October 12. (Gruen in fact identifies its author as a friend, Charles Wylie.)
The article raises doubt about the effectiveness of the The Voice in closing the gap. There have been previous consultation mechanisms for indigenous Australians, and these have achieved little. Why should another succeed?
Many may disagree with this assessment of bodies such as the National Aboriginal Council and the Aboriginal and Torres Strait Islander Commission, but the argument presented is well-reasoned. That is in contrast to the hysterical scare campaign of fake news, lies, bullshit and sophistry unleashed by the Liberal Party in the referendum campaign.
Dutton and his fellow “no” campaigners could have mounted this reasoned case against the Voice, but he chose not to, because to have done so would have required him to explain the workings of the Constitution and to have acknowledged that there have been previous consultative bodies.
Dutton’s tactics have a chilling resemblance to those adopted by the US Republicans. In an Atlantic article by Anne Applebaum, The west must defeat Russia, she considers the Republicans’ measures to block appropriations for military aid to Ukraine, writing:
Part of the Republican resistance to helping Ukraine fight an American adversary is simply the perverse desire to see President Joe Biden fail.
Here it was Dutton’s perverse desire to see Albanese fail.
How can such a strategy be justified as a path to office? Why does not the opposition engage in a reasoned argument about public policy and offer an alternative? The likely explanation for the Liberal Party absolving itself from engaging with public policy is that they just know what’s best for Australia, without having to explain it. For them good government is second nature, partly innate, partly conditioned by the wise and wealthy people with whom they keep company. No need to argue or explain, just destroy the “Labor” government that is occupying the Coalition’s rightful place.
Paul Keating on how Bill Hayden revitalized a demoralized party
Paul Keating’s oration at Bill Hayden’s state funeral covered the long period of Hayden’s contribution to public life – as a member of Parliament, as opposition leader, as a minister, and as Governor-General.
When Hayden became opposition leader in 1977 the Labor Party was still reeling from its catastrophic defeat in 1975. In the following six years he pulled the parliamentary Labor Party together, helped it articulate a policy platform around a “Roosevelt-style Keynesianism”, and prepared it for government. The far-reaching reforms of the Hawke-Keating era would not have been possible had Hayden not prepared the ground.
Anyone interested in the Labor Party’s history during that era would find Keating’s obituary informative. Even within the confined style of an obituary he manages to have a couple of Keatingesque digs at Hawke.
It should also be recommended listening for members of the Liberal Party, who may wish to learn how a party that has suffered a catastrophic defeat, is disunited and embittered, and that has lost any idea of a coherent policy platform, can make itself electable.
Keating could have rounded off his presentation by mentioning Hayden’s time as a Queensland police officer before he was elected to Parliament in 1961. That would have been a blokey and rough milieu, but in his public life Hayden treated his political colleagues and opponents with respect, did not patronise the Australian electorate, and focused on developing policies to advance the public good rather than engaging in a gladiatorial war with his political opponents.
The whole funeral service goes for three and a half hours. Keating’s eulogy is from 1:25 to 1:51.