Sep 8, 2017

High Court win could further concentrate the government’s power

The High Court appears to have opened the way further to unchecked executive expenditure with its marriage equality decision.

Bernard Keane — Politics editor

Bernard Keane

Politics editor

So Malcolm Turnbull finally caught a break. After a shocking run of bad luck and self-inflicted injuries, the Prime Minister was due for some good fortune, and the High Court delivered it yesterday afternoon. If the court had found the government's attempt to circumvent the Senate's refusal to support a plebiscite by using an emergency fund to get the Australian Bureau of Statistics to conduct a mail survey was unlawful, it not merely would have revised the marriage equality crisis within Liberal ranks; it would have suggested that this is a government that can't even do simple things like spend money legally.

We don't yet know the High Court's rationale for dismissing the suits brought by marriage equality supporters to halt the survey. But it's hard to see how it won't expand the capacity of governments to use the Advance to the Finance Minister for whatever they like, even when Parliament has specifically rejected legislation for that expenditure -- as happened in the case of the plebiscite bill. The Advance is currently limited to $295 million but that could be increased in next year's budget to whatever figure the government likes. Notionally, the Advance is limited to

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12 thoughts on “High Court win could further concentrate the government’s power

  1. Charlie Chaplin

    Yep. Quite a win for cronyism – both political and capitalist. First cab off the rank: coal – this is an unforeseen emergency. We need Liddell, so we must purchase it for nice Mr Adani to run so the lights don’t go out. Fuck the market.

    Thanks, high court. You really thought this through.

  2. klewso

    Nice precedent ….. can’t wait for Labor to win power and follow suit – to listen to what this Animal Farm Choir are going to be braying in response.

    1. lykurgus

      Judging by the last Labor government, they’ll be bringing the public spend down (they did, even with the fiscal MegaWhoops), while the Tories sit there screaming “BUDGET EMERGENCY” and “SPIRALLING OUT OF CONTROL”

  3. Nudiefish

    Why even have a high court?

    Turnbull was right “the High Court will so hold”.

    And they did.

  4. CML

    I’m still trying to work out how a voluntary survey on SSM is ‘urgent’ and ‘unforeseen’.
    Look forward to reading the High Court’s reasoning on this one…but it does rather leave a nasty taste in the mouth about the largesse this decision has created for governments in the future.
    Nudiefish…you asked the wrong question…Why have a representative, democratic parliament if the government/executive can ignore any vote on the floor of parliament…particularly in the Senate????
    Doesn’t make any sense to me…we are becoming more like the US, and it’s political Supreme Court, every day.

  5. Dog's Breakfast

    Clearly me and other contributors have no idea about the laws of the land.
    Probably same goes for Anne Twomey and George Williams, the two most senior academic constitutional experts, who, I thought, considered this likely to be a loss for the government.

    Apologies to those two academics if I misinterpreted their prognostications.

    The disconnect with us plebs just keeps growing.

  6. Xoanon

    What a mess. Without a bill of rights, we already have an executive which has too much power. And here’s the High Court, handing them more.

  7. Desmond Graham

    As I commented weeks ago – The High court is a partner of executive government – separation of powers is a myth – bit like dream time stories or Greek myths, at least Norse & Icelandic sagas have some historical basis. Easily proved just analyse the judgements over last 100 years . Unlike the Supreme court in the USA the High Court has no social philosophical underpinnings to restraint of Government – High Court is to maximise freedom for government not freedom from government.

    1. CML

      Not quite right, Desmond. “…High Court is to maximise freedom for government…” Only if your talking about a COALITION government/opposition!
      Malaysian Solution comes to mind…even the rAbbott has conceded that the original legislation on this matter should have been passed by the parliament, but because the Coalition opposition at the time voted against it, the question went to the High Court.
      Surprise, surprise…guess who won that one? And many, many more… past, present and future.

  8. AR

    The grounds for this decision will be more eagerly read than the average HC judgement.
    It does raise the question of how so many (apparently) intelligent, well educated and wildly over paid people can argue black-is-white with a straight face.
    Next rank cab is s44 – not looking good for democracy.

  9. Tracey Ellery

    What we do know is The High Court has just appointed the ABS as the official pollster of the Government whenever they need to resolve an issue they are internally wedged on or want to open up a new front.

    Should we have compulsory or voluntary voting, should we move the date of Australia Day, should we keep the lights on, should we ban the burqua etc.

    A truly dingbat exercise in creative democracy.

  10. Wallywonga

    Hey Bernard/ Crikey, can we get rid of this hideous smirk photo of MT please?

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