Since the High Court’s controversial ruling that apportioning government funds to pay for the postal survey was constitutionally valid, the topic of executive overreach has again entered the public debate.

The government generally needs an act of Parliament to allow it to spend money. Writing in Crikey, Michael Bradley summed up the challenge thus:

“The first ground of challenge was that the government couldn’t spend the $122 million without an act of Parliament. The arguments are really technical. The central point, however, is that the constitution is very clear on this point: the executive government can’t just spend money. It has to go to Parliament each year and ask for enough money to do everything it wants and needs to do.”

There is money put aside for unforeseen spending, which the Finance Minister can use if she/he “is satisfied that there is an urgent need for expenditure” that wasn’t provided for in the budget, because it was “unforeseen” at that time. In ultimately allowing the government to spend money on a process that is urgent only in political terms, and addresses an issue that has never been far from the public debate for years, Bradley concludes the court has set a “dangerous, destructive precedent”. 

But to a degree, according to University of New South Wales Law Dean Professor George Williams — who expressed similar misgivings about the process during his national press club address in August — this muddying of the waters between the executive and judicial is built into Australia’s system.

“The courts have never had great capacity to hold the executive in check,” he told Crikey. “It’s the culture of the system.” 

Williams says with very few constitutionally enshrined human rights — and without a bill of rights — there is little to prevent the legislature from impinging on human rights, and as terrorism and immigration in particular became hot button issues, legislation running roughshod over the role of the courts has become more and more common.

How far governments are willing (and, incredibly, able) to go is demonstrated by what’s known as the M68 case. A Bangladeshi woman — known as Plaintiff M68 — was transferred from Nauru to Australia to receive medical attention late in her pregnancy. In Australia, she gave birth. The Human Rights Law Centre took up her case, arguing “her past detention was unlawful by reason that it was not authorised by any valid law of the Commonwealth nor based upon a valid exercise of the executive power of the Commonwealth”. 

The government clearly agreed and promptly amended the Migration Act — adding section 198AHA — with retrospective affect to 2012.

“The government often responds to rulings they don’t like by giving ministers greater powers,” Williams said. “But it’s unusual that the government would legislate while a case was in front of the court.” 

Not only did the government clearly rewrite the rules to insulate itself from the court, the legislation was breathtakingly broad — the amendment allowed the government to “take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country” and “do anything else that is incidental or conducive to the taking of such action”. 

And don’t expect there to be any major opposition, if the changes to the Migration Act are anything to go by. As Daniel Webb, who led the M68 challenge, told The Saturday Paper:

“I don’t think we’ve ever seen a piece of legislation like this in Australia – retrospectively authorising three years of detention of thousands of innocent people in the middle of a case in our highest court. What’s almost as incredible as the law itself is how quickly it just sailed through our parliament with bipartisan support. Opposition leader Bill Shorten said at the time it took him ‘not more than 10 seconds’ to decide what to do. I only wish he’d spent those 10 seconds thinking about the 37 babies and 54 children whose lives he was helping sign away.”

In the High Court’s conclusion, ruling that the government’s actions were, ultimately, justified, came a telling phrase:

“I consider the plaintiff’s central claim (that the Commonwealth and the Minister acted beyond the executive power of the Commonwealth by procuring and enforcing her detention at the Regional Processing Centre between 24 March 2014 and 2 August 2014) to have been well-founded until 30 June 2015, when s 198AHA was inserted with retrospective effect.”

The government had been caught potentially breaking the rules — and with the support of their opposition and with a court unable, or unwilling, to stop them, were simply able to rewrite those rules.