As the vulture flies, I meditate to grow wise… A win for parliamentary sovereignty

People underestimate how important parliamentary sovereignty is.  Our representatives, democratically elected, control the whole State system as a deliberative organ.  We can, of course, debate the nature of ‘democratically elected’ and why it is that old white men are statistically overrepresented.  But, as a general principle, an elected body having the final say is a pretty good way to go.

There are people who disagree with this.  In times gone by, people who were quite keen on the divine right of kings and whatnot were quite eager not to have a democratically elected body having the final say.  Current defenders of the House of Lords also get a little bit worried when people advance the radical idea that maybe you shouldn’t have a lot of power in the hands of people who aren’t directly accountable to the electorate.

And then there are the human rights fantasists.

In order to protect Liberty, they argue, you have to have an unelected body that polices democracy.  You can’t trust voters and you can’t trust elected representatives.  Therefore, you need a body of Law Lords to make sure that the democracy delivers the ‘right’ outcomes – or, at the very least, avoids the ‘wrong’ outcomes.  To achieve this, you need a written constitution which outlines the rules and which specifies when the Law Lords will intervene and disregard the democratic process in favour of the liberal ideal.

Then they disagree about what, precisely, they mean by the liberal ideal.  Should our property rights be privileged, or another’s social rights?

Today’s decision in the High Court, Plaintiff M68-2015 v Minister for Immigration and Border Protection, was a win for parliamentary sovereignty.

First, the other story.  The case was a loss for asylum seeker advocates.  This is a fraught policy space where advocates have increasingly fallen back on arguing in courtrooms rather than engage in public debate in order to bring about their desired policies.  I’ve written before about how asylum seeker policy discussion in Australia is irredeemably broken, so it makes sense that this is the approach that’s preferred.  You don’t have to convince the electorate; you just have to find a technical reason why the policy is wrong.

The case was complex and weird, not least because the statutory situation changed during the proceedings with retrospective effect.  To show how weird the case was, this is one of the conclusions of the joint decision:

Once it is understood that it was Nauru that detained the plaintiff, and that the Commonwealth did not and could not compel or authorise Nauru to make or enforce the laws that required that the plaintiff be detained, it is clear that the Commonwealth did not itself detain the plaintiff. [at 36]

The problem then became the extent to which Australia participated in the detention and whether that participation was authorised by the Constitution.  Unfortunately, the answer wasn’t as dramatic as I had hoped, because the joint decision found that there was valid statutory authority (the retrospective law), so it wasn’t necessary to explore the limits of executive power.

This leads me quite naturally to questions I find interesting.  What if the retrospective law hadn’t been in play and we did need to discuss the limits of executive power?

When I first started reading this case, I thought to myself: What if we weren’t talking about processing asylum seekers offshore, but we were instead talking about treating an epidemic?  New Zealand has a zombie plague that’s out of control, and Australia and New Zealand have teamed up to ensure people who enter Australian territory with signs of the symptom are sent to New Zealand for treatment.  We would hope that the Australian Government would have the capacity, somehow, to give effect to this proposal and that we wouldn’t be forced to let the outbreak spread here.

Of course, asylum seekers aren’t necessarily diseased and it’s offensive even to link the idea of people fleeing persecution with a public health threat… but the legal capacity of the state to facilitate particular movements of people in this way are quite similar.

There’s a lot of boring technicality to answering the question which involves saying ‘Section 61 of the Constitution’ quite a lot, but at a higher, principled level the question is engaging.  Who should make the final decision about whether or not an intervention of this kind should be legal?  Should we allow the outbreak of disease simply because a bunch of stale, pale, and male lawyers in the late 1800s used one set of words over another to describe executive power?

You might be tempted to utter some banal phrase like ‘rule of law’, but would we really be satisfied with that?  Could you really look the ordinary person in the eye and say ‘Look, I know you want the State to do something about this problem, but there’s a nebulous legal concept to consider’?

This is why we need a plenipotent federal parliament that doesn’t have the High Court playing constitutional beat cop.  In a thriving, vibrant democracy, our democratically elected representatives should be giving effect to what we want from our government.  If that means doing something that would upset somebody who’s been dead for two centuries, so be it.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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