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Abbott is not above the law

Conservatives love Law and Order. And wars. War on Terrorism, War on Drugs, War on Bikies, War on Communism. Their response to anything they see as a threat is to enact legislation to Keep us Safe, or to introduce Harsher Penalties. Throw in some Mandatory Minimum Sentencing to Act as a Deterrent. Or Establish a Taskforce, led by an ex-cop who has previously headed a War on Something Very Bad. According to the conservatives, this platform is a foolproof way to beat every threat to modern society and thus let us sleep soundly in our beds at night.

Considering this framework, it is somewhat astounding that the Abbott Government would resort to Paying People Smugglers to achieve its agenda to Stop the Boats.

People smugglers prey on the most vulnerable and desperate people. They are labelled as cruel, heartless and vile in their trade. And Abbott is determined to stop them. He said that he was “not going to do anything that [would] encourage people to get on boats.”

Nope, Nope Nope.

Abbott was extremely adamant. Brutally so. If Australia did the “slightest thing to encourage people, this problem [would] get worse, not better.” On behalf of Australia, he told the world that helping to rescue boatloads of stranded asylum seekers would clearly be sending the wrong message to people smugglers.

Australia would not support this evil trade. No it would not. It never would.

It would smash the people smugglers business model. And stop those Illegal Immigrants seeking refuge in a country that had signed and ratified the Refugee Convention.

And clearly, the best way to not support the business of trafficking people, was to pay the very people who were smuggling them.

Wait. What?

This seems to contradict the conservatives’ usual fierce promotion of harsh and uncompromising Law and Order policies.

The conservatives love Three Word Slogans.

Prime Minister Tony Abbott urged everyone to Have a Go after the May 2015 budget. And offered an incentive of up to $20,000 as a tax write-off for small businesses to purchase expensive things like cars and machinery. It was perhaps this policy, one argued by some to Win the Votes, that gave him the idea to pay off people smugglers. After all, boats are quite expensive and the people smugglers could buy a pretty good boat for $20,000 AUD.

However while the media seems to have moved on from Tony’s Tradies (two word slogan?) Abbott has introduced his latest slogan by stealth.

Above the Law.

It might not have the same ring to it as War on Everything, but it nicely sums up Abbott and his ruling party’s present ideology.

With Abbott boasting the boats had been stopped, its little wonder he is as keen as anything to make sure none show up in Australian waters.

“By hook or by crook”, Abbott declared, his Government would Stop the Boats. And he was damn proud of the “creative strategies” his border protection agencies had come up with to do just that.

Because when you’re Above the Law, paying off people smugglers to ship back unwanted people of colour is just a mere nothing.

It’s not clear exactly what inspired Abbott for his new Three Word Slogan.

Perhaps Immigration Minister, Peter Dutton, was responsible. At least that would make sense, given he is forging ahead with his recent inspiration to strip Australians of their citizenship by Ministerial direction, despite this supposed genius policy being almost certainly unconstitutional and therefore invalid.

The Abbott Government, evidenced by its slow march towards fascism, seems to be forgetting the very basis of Australia’s democracy.

Former High Court Justice, Murray Gleeson stated, “The source of law-making authority is the Constitution, and the law, including the common law as developed by the courts, must conform to the Constitution.”

What is the Constitution? It is the basic document that provides the mechanism for the very existence of the Commonwealth Government. It includes the powers on which the Federal Government can enact law. It is quite clear as to the expectations of lawfulness of the Government. And the separation of powers between the legislature who make the law, the executive who put the law into operation and the judiciary who interpret the law.

Gleeson continues, “However law is made in Australia, it must be consistent with the Constitution. And so must any substantive principle said to flow from the rule of law itself.”

And the essence of the Rule of Law (a Three Word Slogan Abbott is yet to embrace) is that all authority is subject to, and constrained by law. The High Court has found on a number of occasions that the Commonwealth Government is not above the law. And it cannot define the extent of its own power. That role is for the courts.

It matters not that the Government can enact laws on immigration and foreign affairs and defence. It cannot otherwise act unlawfully. It would be a gross violation of the rule of law to endorse the Government committing crimes and acting illegally. And the Government cannot put forward some tenuous link between national security and any other thing, to attempt to legitimise its powers to enact the law, as found by the High Court in the Communist Case.

Abbott and his Government are not Above the Law. People smuggling is an offence in Australia. It is recognised internationally as criminal behaviour. The United Nations have expressed concern over the reports that Australia has effectively funded a criminal syndicate. Abbott, Dutton and the rest of the Government are refusing to comment on what they call Operational Matters, while still blaming Labor.

Conservatives are dogged in their hounding of anyone else for even the most tenuous of claims of impropriety. Decades old allegations against former Prime Minister Julia Gillard led to the establishment of a Royal Commission. Yet Abbott has indicated no intention of investigating the current people smuggling payment claims, which if true, pose serious questions about the judgement of Dutton and the legality of the entire operation.

Despite what Abbott thinks, he is not Above the Law. It’s time to Establish a Taskforce, or even better, a Royal Commission.

And maybe a new Three Word Slogan.

Vote Them Out.

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  1. Steve Laing

    I think that one way that Shorten might gain some political kudos back would be to very clearly iterate what royal commissions they will put into place when they get back into power. Firstly the whole immigration saga needs to be investigated, secondly the rorting and double dipping of expenses (which might get a few Labor members caught out, but at least it will be the transparency that the electorate deserves), and of course the submarine build saga. There are clearly many, many more.

    By doing this Shorten would at least get a chance to reveal what he stands for, and by stepping up the rhetoric, the media won’t be able to ignore it. He certainly needs to do something a bit more positive, and do it soon, as the smear campaign against him will impact him whether he is innocent or otherwise, as the Coalition is well aware.

  2. Deidre Zanker

    Lets hope nope nope nope is gone gone gone after next vote vote vote!

  3. donwreford

    As we are now about to celebrate The Magna Carta, and I understand part of the meaning of this legal document means no on is above the law we are now coming into a age of corporate and individuals who are in high places now becoming above the law, the law is becoming so convoluted we are losing our bearings as to what was once upon a time called common sense, it is hoped we return to a saner society rather than we are now subject to weird ideas such as the TTIP.

  4. darrel nay

    reply for Eva Cripps,
    Like you I can see through the war on terrorism and all the other wars but I don’t get you wanting to lay it solely at the feet of the conservatives – I mean Obama is allegedly a democrat and he is aggressively pursuing all of the wars you mentioned. As for the war on drugs, it was originated in the unelected UN. The UN drew up all the drug schedules that our governments now religiously adhere to back in the 50’s. All these wars are just control grids to curb the public and drive funding towards the military/prison industrial complex while the banksters only ever get token fines.


  5. diannaart

    Have far will Abbott go before we get rid of him?

  6. JohnB

    Thanks Eva for an excellent article.

    However, in the light of Murray Gleeson’s statement I must ask;
    Is the law below consistent with the Constitution?

    CRIMES ACT 1914 – SECT 15G
    Objects of Part
    The main objects of this Part are:
    (a) to provide for the authorisation, conduct and monitoring of controlled operations ; and
    (b) to exempt from criminal liability, and to indemnify from civil liability:

    (i) law enforcement officers who, in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability; and

    (ii) certain other persons who, in accordance with the instructions of a law enforcement officer and in the course of a controlled operation authorised under this Part, take an active part in, or are otherwise involved in, the commission of a Commonwealth offence or an offence against a law of a State or Territory or conduct that may result in a civil liability.

    When “reforms” to the Crimes Act IAB were passed by Parliament (1 Oct 2014), LNP minister Keenan made the following comments:
    From Hansard:
    Mr KEENAN (Stirling—Minister for Justice) (10:29):
    “….. a very important myth to dispel—the idea that the government directs our law enforcement or intelligence agencies over the timing of operations.
    That is absolutely wrong. It is an insult to both the acting commissioner of the Australian Federal Police and to the director-general of intelligence—who, quite frankly, would not accept an improper order from this government.
    We would never seek to make it and if we did, they would not undertake it.

    It appears to me that Mr Keenan is setting out above the condition by which politicians can/will escape prosecution for a breach of Australian law.

    Politicians should be expected to plead the following defence:
    “It wasn’t us – we did not direct those officers to break the law.
    it was an operational decision taken at that time by officers under the Crimes Act 1914 – Sect 15G, who are exempt from criminal liability, and indemnified from civil liability.”

    If that section of the crimes act is constitutional, we citizens have no case to prosecute.

  7. bobrafto

    When has it been lawful for a politician to deceive a nation?

    For instance, Abbott intentionally set out to deceive the Australian voters when he pronounced no cuts to Health, Education etc etc before the election.

    So why is it okay for Abbott to STEAL someone’s vote through deception?

    It’s straight-out fraud, yet no one questions this criminal behaviour.

    Abbott is above the law and now that he has power he is the law.

    Now who would come forward as a whistleblower over Abbott bribing people smugglers? The risk 5-10 years jail.

    Abbott is above the law.

  8. Bilal

    It is a misnomer to call this front bench “conservative.” Conservatives value and protect such traditions as the rule of law, the constitutional monarchy and habeas corpus. This Tea Party gang is trashing Magna Carta, the Glorious Revolution of 1688 and the 1689 Bill of Rights. It is a radical right wing government, destroying conservative values.

  9. Ivo Edwards

    This seems an opportunity too good for Australia to forgo? How about if we proceed as follows?: –

    First, acknowledge that if Australians committing horrible acts abroad like supporting ISIS (or even fighting against ISIS) are total mongrels to the degree that they deserve to lose their status as Australian citizens, then it is surely equally deserving that Australians at home who commit , arguably, equally horrible crimes, or worse, like murder or domestic violence should suffer the same fate?

    Secondly, if we can agree on that, then it makes sense to deprive criminals in Australia of citizen rights, and to deport them also?
    Herin lie the wonderful opportunities then, to make Australia a better place: –

    1. Pay refugee traffickers, but only those with Australian citizenship, lots of money to take away newly declared persona non grata in Australia like most of the prison inmates and especially indigenous Australians cluttering up the prisons and defiling our reputation as an egalitarian society. (we don’t need to worry about where they might go, any more than we need to worry about where desperate people trying to find refuge in Australia, might now be going ( if they are still alive!)
    2. Recognize that the new rich human trash traffickers will then have a good job and will be able to afford to buy houses in Sydney, thereby adding to the riches, via capital gain, of Tony and Joe.
    3. Australia’s reputation as a very low crime country and kudos with the United Nations etc. will be enhanced because our incarceration rates will be super low. Hence tourists will flock to our great crime free country, and will be glowing in their praise for our political leaders.

  10. Ro Bailey

    I liked the Australian Refugees Support Group comment on another post that said “By hook or by crook and we’re all out of hooks”. That said it for me.

  11. Eva

    Reply to JohnB. My understanding is that the Crimes Act amendments were in response to the decision in Ridgeway v R (1995) where the High Court stated that the Government cannot act illegally – of course if it legislates immunity for itself it may not necessarily be ‘illegal’ after that but I don’t think the amendments have been tested in the High Court. The Ridgeway case involved drug smuggling into Australia where government officials were complicit in order to get the conviction. The case was thrown out. I think this situation can be distinguished from Ridgeway in that the officials were not trying to get evidence for a crime, but were actively participating in the crime of people smuggling, albeit outside of Australian territorial waters. The Migration Act references smuggling into Australia, not away, so I don’t know what laws they will rely on to justify their actions, if any. I’m very interested to see how it pans out.

  12. Rossleigh

    Of course, the thing that I keep wondering about is the auditing. Even if one accepts that it’s ok to pay people smugglers and ignores all the ethical and legal questions, then one has to ask how are the government going to keep track of the money. “We took out an unspecified amount of money which we gave to members of the ADF who then handed it on to people smugglers.” All of it? “Well, no money came back to Treasury, and you wouldn’t suggest that the ADF members we gave it to would have pocketed some, would you?”
    Yeah, but if we don’t know how much was taken out, how do we know that SOMEBODY didn’t misappropriate some?
    “That’s an operational matter.”

  13. OzFenric

    The government has already legislated that personnel involved in OSB are exempt from the provisions in workplace law to ensure the safety and well-being of themselves and others: they are specifically licensed to assault and do harm to refugees, and potentially the crews of smuggler vessels. (Even our combat troops in the middle-east are not exempt from these constraints. It is quite possible for one of our soldiers to be court-martialled for failing to ensure the safety of non-combatants. Not so with OSB personnel.) Unless I’m mistaken, foreign-flagged boats cannot be legally seized or sunk in international waters unless we are at war with the stated country. So far they’ve been able to turn boats around through intimidation and threat, but if it comes down to using force, they’re left with collusion or capitulation as the only viable approaches.

    Similar to the Sarah Hanson-Young spying debacle, you can be sure that if it ever comes to a head, the government will argue that the payments to smugglers were done by on-water personnel without the specific approval of the government. Either 15G of the Crime Act is constitutional and the Government will claim that the personnel are exempt and indemnified, as JohnB pointed out, or Dutton will claim that personnel were operating “beyond their authority” and will be appropriately chastised. The chances of bringing this back to a government directive from Abbott, Morrison or Dutton are approximately zero.

  14. mars08

    @OzFenric. um… so… the Coalition passed that legislation simply by using it’s numbers?

  15. OzFenric

    Actually it’s not so much “legislation” as a “directive” on the existing Act. See http://www.comlaw.gov.au/Details/F2013L02166/Explanatory%20Statement/Text. No numbers or Parliamentary approval required.

    “After consulting with, and obtaining the approval of, the Minister for Employment, the Chief of the Defence Force declares that the following provisions do not apply to the above activities undertaken under Operation Sovereign Borders:

    Paragraphs 28 (a) and (b) Duties of workers
    Paragraphs 29 (a) and (b) Duties of other persons at the workplace
    Section 39 Site preservation”

    Further commentary is at Crikey: http://www.crikey.com.au/2014/03/06/training-lifeboats-and-asylum-seekers-in-the-battle-space/

  16. JohnB

    @Eva June 15, 2015 at 4:27 pm;
    Thanks for your reply Eva.

    Perhaps either of these regulations could enable prosecution of the offence of paying people smugglers monies to transport refugees back to Indonesia.

    Anti-People Smuggling and Other Measures Act 2010 (NO. 50, 2010) – Schedule 1 Part1
    “…73.3A Supporting the offence of people smuggling
    (1) A person (the first person) commits an offence if:
    (a) the first person provides material support or resources to another person or an organisation (the receiver); and
    (b) the support or resources aids the receiver, or a person or organisation other than the receiver, to engage in conduct constituting the offence of people smuggling.
    Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.”

    -OR –

    MIGRATION ACT 1958 – SECT 233D
    Supporting the offence of people smuggling
    (1) A person (the first person ) commits an offence if:
    (a) the first person provides material support or resources to another person or an organisation (the
    receiver ); and
    (b) the support or resources aids the receiver, or a person or organisation other than the receiver, to
    engage in conduct constituting the offence of people smuggling.

    As you have said, the Migration Act stated objective is to regulate “…the coming into, and presence in, Australia of non-citizens…”.
    I suggest that the alleged payments were indeed made to ‘people smugglers’ in the act of transporting non-citizens to Australia – the alleged payments would not have been necessary if the travel direction of the refugees destination were other than to Australia.

    However, the question I raised in my earlier comment remains hanging – Is the enacted law set out in the Crimes Act 1914 – Sect 15G,
    Objects of Part
    The main objects of this Part are:
    (a) to provide for the authorisation, conduct and monitoring of controlled operations ; and
    (b) to exempt from criminal liability, and to indemnify from civil liability:

    consistent with the Constitution?

    Does it satisfy the test (expressed by Murray Gleeson) that the substantive principle flows from the rule of law itself?
    As you have said,
    “… the essence of the Rule of Law is that all authority is subject to, and constrained by law.
    The High Court has found ….that the Commonwealth Government is not above the law.
    That role is for the courts.”

    The Commonwealth Gov. in Sect 15G above has legislated to the effect that Court defined criminal law does not apply to certain people in specified circumstances.

    It looks unconstitutional to this layman.

  17. Annie B

    @ Darrel Nay …….. “I am not sure of the Australian law regarding propaganda but my guess is that if it’s not already legal it will be soon.”

    A bit late with that observation / question Darrel — propaganda is alive and well, and living in Australia – via the inane utterings of the alleged ‘leader’ of our nation, and his front bench cohorts. … Just listen to them – you will hear it. … ” Law ” doesn’t even come into it.


    I may be naive, but what the HELL are we celebrating 800 years of the Magna Carta for ? … Huh ?

    The only thing worthy of consideration there, is the proclamation that the law of the land is uppermost, and must be obeyed.

    Well – goodbye to that too – the abbot and his crew have placed themselves above the law of our land, and do so on an almost daily basis. … At least they remind us constantly that they are indeed ‘above the law’ … in every nasty, down tredding, discrimanatory way possible.

    ( expletives thought of but ……. not for publication !! )

  18. Eva

    Re JohnB. My understanding is that whether or not it is unconstitutional will come down to statutory interpretation and whether it exceeds the powers in s 51 of the Constitution. Personally, I would say it does, on the basis that it is giving the Commonwealth unfettered power to do what it pleases in regards to controlled operations, including what would otherwise be unlawful. In the Communist case the High Court found that just because the Cth can enact laws under a head of power, it does not mean that they can enact anything they want to do with that particular power; there are limits.I don’t think that exempting the Crown from criminal liability in all circumstances would be unlawful (by legislating an exemption it then becomes lawful – eg, police officers are allowed to do things that other people can’t do, like carry weapons in public etc). However in the context of controlled operations, if it has the effect of allowing the Cth to do whatever it wants in any way it wants, it would exceed the limits of that power. They would then be acting outside the law and acting as though the law does not apply to them. The other question regarding legality is how the payments were actually authorised, as opposed to the breach of the Migration Act. The High Court found in the school chaplains case that the Executive only has the authority to make payments where it is authorised under legislation, which must be made under a valid head of power. I’d be wondering what legislation authorises bribes to criminals and cross-referencing with the exemption in s 51 to say that it is beyond the powers of the Commonwealth to exempt themselves from being constrained by law in that context, and allow them to do whatever they please under the guise of immigration or defence or external affairs or whatever else they want to justify it under. It’s a bit more complex than just saying yes or no. I’m sure a constitutional law expert would be able to give a much simpler and clearer answer.

  19. Eva

    The other complication I can see is if the transaction took place in international waters and what laws apply there. For example recently the High Court found that it wasn’t unlawful for the Cth to hold intercepted asylum seekers on the customs vessels and return them to their country of origin without due process in assessing any claim, because it was outside Australian territorial waters. The law is pretty complex and not black and white in most cases – hence the requirement for the courts to interpret it, and my initial comment on the High Court not yet ruling on the validity of the relevant section. Until a High Court ruling is made as to validity, it is assumed to be valid law. It is possible in this case that the Cth won’t rely on that provision at all, but look elsewhere for authority and justification.

  20. Annie B

    Eva –

    From what source could the transaction have taken place ( if it did ) – in or out of international waters ? …

    An Australian Navy vessel, some ‘customs vessel’ or a smallish fishing boat floundering out there and handing over the dosh ?

    These trafficking bods would not have a bar of anything but hard cash, in some international monetarily viable form. … Australian dollars ? Probably wouldn’t happen. .. They’d need the U.S. dollar, readily acceptable. And so it could be.

    I am not being flippant at all – I am seriously asking the question. ….

    No person(s), organisation, political party or business, can be given ‘unfettered’ power – IF the law here, anywhere at all, says it cannot be so.

    “I’m sure a constitutional law expert would be able to give a much simpler and clearer answer.”
    No doubt – but would they ? … given the current climate in politics and seemingly uncontrolled ‘unlawful’ activity by this government. .. Wouldn’t blame a legal eagle for being cagey in reply – at this point in time.

  21. JohnB

    Thanks Eva.

    Further to Annie B’s point above re the source of the US dollar funds used.
    An amount of cash money that large would have to appear on some departments auditable balance sheet – someone has to be responsible, if only to ensure amounts of cash money are not fraudulently dispersed amongst corrupt employees/staff/politicians.

  22. Annie B

    @ John B.

    Point taken, but not sure about it ever having to be shown on any auditable balance sheet. … Sure someone would be physically responsible, but crime ( and this WOULD be a criminal act in every way ) tends to fudge accounting.

    Thing is, I wouldn’t put anything whatsoever, past this government, to do ‘all that it takes’ to achieve an outcome, in their perceived favour, which I sincerely hope comes back and bites them so hard in the bum, they’ll never sit down again, especially in Parliamentary leather bound chairs.

    They really are a rotten lot.

  23. Eva

    Re Annie B. “From what source could the transaction have taken place ( if it did ) – in or out of international waters ?” To be honest, I don’t know. That is the question everyone wants the Government to answer. Until we know on what authority the transactions took place (assuming they did) and under what legislative instrument, we’re dealing with hypotheticals.

  24. Möbius Ecko

    I see Abbott’s friend and protector, the AFP, might investigate the smuggler payments. For mine this most certainly means a cover up to get Abbott out of trouble. After all Abbott hasn’t accommodated with the AFP and given them huge increases in funding to have them do their job and investigate his government malfeasances and illegalities.

  25. Kaye Lee

    In the Coalition’s Policy for a Regional Deterrence Framework to Combat People Smuggling released in August it states: “Navy and Customs vessels will be used for interception of boats – providing warnings of turnaround in international waters, taking control of boats as soon as they enter the contiguous zone and turning Indonesian flagged and crewed boats back to Indonesian waters if it is safe to do so”.

    This boat was in International waters and headed for New Zealand. It is illegal for us to intercept them if they are more than 24 n miles off our coast. Hence the bribes.

    There is also some suggestion that the payments were made by one of our intelligence agencies which means we have buckley’s of finding out what went on. They have funds at their disposal for all sorts of nefarious deeds

  26. Mick

    Good to see you back doing what you do best Eva. Bravo.

  27. John

    Who will rid me of this turbulent priest!

  28. Kaye Lee

    Out, damned spot! Out, I say!—One, two. Why, then, ’tis time to do ’t. Hell is murky!—Fie, my lord, fie! A soldier, and afeard? What need we fear who knows it, when none can call our power to account?

  29. Annie B

    Eva – re : where the ( alleged ) transactions might have taken place ….

    ” That is the question everyone wants the Government to answer.” …. Yes, that IS the question, and is one that the government will NEVER answer as they prefer to keep everybody in the dark, while vigilantly protecting themselves … They deal continually in hypotheticals in fact, ( e.g. the threat of terrorism here and how it might happen, and what they have done to stop it ) … they deal in lies. …. So they are not about to answer any questions truthfully whatsoever, about anything, no matter who puts it to them.

    Nothing like a continuing mystery to keep everyone interested. … and that’s just one of their many ploys.


    Mobius Ecko – Yes – the protectors !! – looking into the possiblities of cash incentives to turn boats around ( in international waters no less ? ) …. ?? …. that too will end up being a furphy. …. The AFP – at this time, are about as useful as teats on a bull.

    Waiting to see what the rabble spruik about today –

    it’s past time we had another diversionary tactic, ya know !!! .

  30. stuff me

    Vote them out, and A royal commission, both 3 word slogans! Thanks Eva!

  31. Sir ScotchMistery

    Begone foul pommie bastard.

    Et tu Malcolm?

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