Power is shifting away

Monday, 6 August 2007 

When parliament meets this week it is likely to show how far the ground has shifted from under the government since the last sitting. The most important sign that the government is losing power, even before the election, is the Haneef case.

If the fall-out over Haneef was really about the doctor’s rights, why is the focus on Kevin Andrews? The Immigration Minster did revoke Haneef’s visa to prevent him leaving the country, but this had little practical impact on Haneef as he already had his passport taken from him by the AFP under the powers of detention. These anti-terrorist powers, and the Ministers responsible for them, are not the main issue in this debate.

This is less about Haneef’s civil liberties than a fight between the government and the judiciary over who uses these powers. Kevin Andrews is the target because his revoking of the visa went directly against the judiciary’s ruling on Haneef’s bail. But Andrews did it as a response to a political challenge from the judiciary. The unhappiness of the legal profession with government powers in the anti-terrorism legislation has been evident since it was drafted and it constantly recurred through the Haneef case. For example, the Magistrate granting bail cited ‘exceptional circumstances’ based on the insufficient evidence despite it being part and parcel of anti-terrorism legislation. Around 80% of the 1,200 anti-terrorist detentions in the UK since 9/11 did not have sufficient evidence to make a charge and indeed three of the seven detained in the UK on the Glasgow bombings were held on the same basis (and it was the UK authorities that provided the evidence in requesting Haneef’s detention).

The legal profession also supported Haneef’s lawyer taking the highly unusual step of leaking the police transcripts to the media and there was even the rather facetious remarks of the Federal Court judge that he too would fail the character test applied by the Immigration Minister to revoke the visa. The fact that the Migration Act granting such sweeping visa powers has been in place for half a century and are currently used to revoke visas, often on flimsy grounds, on an almost daily basis, suggests it is not the minister’s powers that was the problem for the legal profession as much as their use to over-ride one of their own. But it was precisely to counter-act the legal profession’s undermining of this first test case of the anti-terrorism laws that made Andrews act.

This could be seen as just the government fighting again with the ‘elites’ but we are not talking here about the Wilderness Society or the Arts Council. This is an elite that has just undermined the government’s action on a matter of national security. It has not just internal consequences but as the Haneef case shows, is critical for Australia’s credibility with key allies like the UK that asked Australia to act and has little problem enacting the same powers several times a week. It indicates that the government is starting to lose its influence over core functions of the state apparatus as its future looks increasingly in doubt.

Paul Kelly has picked up the conflict between the government and the legal profession as noted in this blog last week. But he then under-estimates its political significance by lauding Howard’s attack on the states as an effective strategy. Howard has just suffered a mortal loss of authority with a key part of the state apparatus. How that will inevitably work its way to the electorate is not clear but Howard’s attack on the states will probably help. It is obviously incoherent. Running ads attacking Labor’s spending clearly makes no sense from a government that has just over-turned the Tasmanian government’s rationalising of two hospitals within twenty minutes drive of each other. Even an organisation that would normally welcome such largesse, the Tasmanian AMA, has criticised the move as counter-productive and bound to fail.

Howard’s latest “failed state” strategy is typical of the genre, undermining an existing state without the authority to replace it. Having played a minor role in creating a chaotic vacuum of authority in the Middle East, the federal government is now trying to apply it at home. While even the Tasmanian government should survive with its credibility largely intact, there was an earlier example where Howard has been much more successful at undermining the existing structures but again with little authority to replace it – in the Northern Territory. This will be one of the first items on the legislative agenda this week and is discussed below.

Posted by The Piping Shrike on Monday, 6 August 2007.

Filed under The Australian state

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