Constitutional Ignorance and Criminal Policies towards refugees

With the general collapse of mainstream politics it is not surprising that both politicans and journalists are completely ignorant of current constitutional arrangements.

But we have now got to the point where Constitutional lawyers are also clueless.

Here is one arguing that the Government would be “mad” not to allow enactment of the “medevac” legislation approved by both Houses of Parliament.

The use of “mad” of course signals a political rather than a legal constitutional argument, which is quite normal for constitutional lawyers. The blather about a dilemma for the Governor-General as to whether to act on the advice of the two Houses or of the Government can also be dismissed as just the usual pomposous embroidery that constitutional lawyers like to dress up in rather than an expression of fundamental ignorance.

But here is the ignorance:

There is a reason why there is no precedent of a government in the UK or Australia advising the refusal of assent in such circumstances. It would not only be a constitutionally dubious thing to do, but would also be politically stupid.

Actually there is a precedent in Australia. I do not have time to look it up but a Government bill that had passed both houses of the Commonwealth Parliament was subsequently refused assent simply because the Government had changed its mind.

The whole point of the consent of the Executive Government being required for legislation has little to do with anachronistic survivals of monarchy. In a crowned republic or “constitutional monarchy”, just as in any other form of government, enacting laws opposed by the executive responsible for enforcing them only invites trouble.

The reason there are few precedents is simply that the anachronistic single member electorates produces a two party system in which the largest party usually has a guaranteed majority. With a genuinely representative legislature it would be quite normal for governments to be faced with bills passing that they have to decide whether to enact or not and face the consequences of their decisions, including the possibility of ceasing to be the government.

The actual “constitutional” situation is that the government made a political decision to enact this legislation.

Both parties agree on a policy of destroying the boats that refugees arrive in to increase the cost of transport so as to insulate an island continent from the large refugee flows faced by much poorer countries with land borders such as Pakistan and Iran. This naturally resulted in use of cheap unseaworthy boats, which resulted in deaths at sea. Both parties want to pretend that they are locking people up outside Australia to prevent deaths at sea caused by the criminal policies they actually both support.

But they both need to keep up the “debate” between them and keep that debate away from the criminal policy of destroying the boats that people flee in.

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