The Liberal Party’s cadaver in waiting, Phillip Ruddock, described last week’s High Court decision on the rights of asylum seekers as “diabolical.” The misuse of the word was so grotesque as to suggest that the former immigration minister and attorney-general’s use of it might have itself been satanic inspiration.

The court’s unanimity, a rare enough event in itself, bringing together conservatives and liberals, Coalition and Labor appointees, was an endorsement of the law of the land — but in a sense it went further than that. By finding that the treatment of certain boat people had lacked “procedural fairness,” the court was also making a statement about justice, ethics and human decency.

In the most basic Australian terms, the judges found that at least two Sir Lankans had been denied a fair suck of the sauce bottle. And the reason was, quite simply, that the law propounded by Ruddock for John Howard and adopted by Kevin Rudd and Julia Gillard had not been properly applied.

When dealing with those confined on Christmas Island, the government had tried to have a bob each way — successive ministers had applied the Migration Act to knock back their applications for visas but had refused them the opportunity for appeal that the Act gave to those on the mainland. And the whole scam had its genesis in the legal fiction concocted by Ruddock and his fellow conspirators when they declared that Christmas Island could be excised from Australia’s migration zone, while remaining subject to the rest of Australian law.

The trick was, as my mother might have said, too clever by half. And now, finally, the whirligig of time, in the garb of our nation’s final arbiters, has brought in its revenges and established that the idea was, in the dictionary sense, indeed diabolical — fiendish, outrageously wicked; (colloquial) difficult, unpleasant, very bad.

Where we go from here is unclear; in spite of what the optimists have been saying, the decision does not constitute a new Magna Carta or bill of rights, an irreversible blow for human freedom. The government could try and legislate its way out of the impasse, and would presumably have the support of the opposition, whose leader, Tony Abbott, has declared that judges are out of touch with public opinion and that unless they start listening more closely to the shock jocks should perhaps be elected rather than appointed, thus shredding the concept of the separation of powers which is the very basis of our system of government.

And there is no need for such drastic measures. The government’s actions were found not to be unconstitutional, but unconscionable; it broke its own rules. The foundations of our democracy remain firm. But Julia Gillard and her advisers will now have to rethink their whole approach to asylum seekers, and this can only be a good thing. At the very least the decision might act as a circuit breaker to the hysterical paranoia over the issue.

These people are our fellow human beings, and as such must be given fair dealing under the law. Successive governments have tried to deny them this; how would we feel if the politicians decided to treat us with the same cynical disregard for our rights? We would consider it truly diabolical and, unlike Ruddock, we would be entirely correct.

For a self-confessed amateur in the field of foreign policy Julia Gillard is proving a commendably adept student. Her performances at the G20 and APEC may have lacked the panache of those of her predecessor, but they were competent and gaffe-free, and did nothing to diminish Australia’s won-back reputation as good global citizen.

The best thing about them was that our Prime Minister was able to separate the long term national interest from her current political travails. It cannot have been easy for her and Treasurer Wayne Swan to argue for special treatment of the local banks at a time when they are at their arrogant, self-serving worst on the domestic scene, but they held their noses, gritted their teeth and did just that. They now have all the more reason to give the ungrateful bastards a good kicking once they return home.

Equally commendable was Gillard’s vigorous and unequivocal commitment to the free trade agenda, which would not have pleased some of her key supporters in caucus and beyond. At a time when many of the countries which have emerged from the GFC in tighter economic straits than Australia are slipping back into protectionism, it was a bold and forthright stance — even one of leadership.

Kevin Rudd must have approved. His own leading role in the expansion and enhancement of the G20 as a pre-eminent intergovernmental body is perhaps his most important and lasting legacy from his brief period as prime minister. He would have looked on in envy as Gillard reaped the benefits of his work. But at least he would be pleased that she shows every sign of following it through, rather than ditching it as she has done with most of his domestic policies.

The Greens are understandably disappointed at the announcement that the Liberals will preference Labor ahead of them in Victoria, but they shouldn’t be — the Libs are, after all, a party of the right and these days Labor is far more inclined in that direction than are the Greens. For the Greens to expect Liberal preferences is as absurd as imagining that Labor would preference a party of the far right, like One Nation.

If the decision had gone the other way the Liberals would have justifiably been accused of blatant political opportunism, a cynical abandonment of principle, and that couldn’t be the case, could it? Well, okay, it was a couple of months ago, but that was Tony Abbott. It would never do for a Baillieu.

Peter Fray

Help us keep up the fight

Get Crikey for just $1 a week and support our journalists’ important work of uncovering the hypocrisies that infest our corridors of power.

If you haven’t joined us yet, subscribe today and get your first 12 weeks for $12.

Cancel anytime.

Peter Fray
Editor-in-chief of Crikey

JOIN NOW