Crikey

Ever since the 1920s, Australia’s highest court has tended to side with Canberra when it comes to overriding the objections of states to power grabs by the Commonwealth. But yesterday’s decision by the High Court, which upheld the right of the Rudd government to pay its $900 one-off tax bonus to millions of Australians, puts the brakes on that trend. Just because Canberra politicians dress up a package of laws as being the necessary response to a crisis or emergency, that will not alone make it is constitutionally valid.

In its decision in Pape v Commonwealth, a number of the judges took issue with the idea that a national or international crisis would enable Canberra to ride roughshod over objections from state governments in funding programs. And relying statements or agreements from groups like the G20 or the IMF as justification for Canberra taking action and spending money for any purpose was also knocked on the head by the Court.

Chief Justice Robert French said the Rudd government’s tax bonus package is valid because its “executive power extends, in my opinion, to short-term fiscal measures to meet adverse economic conditions affecting the nation as a whole, where such measures are on their face peculiarly within the capacity and resources of the Commonwealth Government.” But he, and a number of his fellow judges, took issue with the view that the Commonwealth can legislate whenever it deems that the nation is facing a crisis.

Justices Ken Hayne and Susan Kiefel did not accept the argument “because there is a national economic crisis or emergency to which a national response must be made,” the Commonwealth can spend “money to meet that crisis in whatever way the Executive chooses.” “Words like ‘crisis’ or ‘emergency’ do not readily yield criteria of constitutional validity,” Justices Hayne and Kiefel said.

They observe:

It may be accepted, for the purposes of argument, both that there is shown to be a national crisis to which a national response is required and that only the Commonwealth has the administrative and financial resources to respond. It does not follow, however, that the Commonwealth’s executive power to respond to such circumstances by spending money is a power that is unbounded.

Politicians and media hype about emergencies and crises do not pass muster with this High Court when it comes to Canberra justifying the constitutional validity of its actions. Justices Hayne and Kiefel probably speak for many in the community when they write that the:

… truth is that the modern world is in part created by the way language is used. Modern linguistic usage suggests that the present age is one of “emergencies”, “crises”, “dangers” and “intense difficulties”, of “scourges” and other problems.

They relate to things as diverse as terrorism, water shortages, drug abuse, child abuse, poverty, pandemics, obesity, and global warming, as well as global financial affairs. In relation to them, the public is endlessly told, “wars” must be waged, “campaigns” conducted, “strategies” devised and “battles” fought.

Often these problems are said to arise suddenly and unexpectedly. Sections of the public constantly demand urgent action to meet particular problems. The public is continually told that it is facing “decisive” junctures, “crucial” turning points and “critical” decisions.

Even if only a very narrow power to deal with an emergency on the scale of the global financial crisis were recognised, it would not take long before constitutional lawyers and politicians between them managed to convert that power into something capable of almost daily use.

The great maxim of governments seeking to widen their constitutional powers would be: “Never allow a crisis to go to waste.”