The war on terror

By Simon Longstaff

This article was published in Living Ethics: issue 62 summer 2005

The product of hard-won battles fought from the time of Magna Carta onwards – these liberties have come to be understood as the property of citizens rather than the gift of governments, says Simon Longstaff.

So, it has come to this. The latest victim in the ‘war against terror’ will be the civil and political liberties of Australia's citizens. We should never forget that when John Locke defended the right to ‘property’ he did not have in mind material goods so much as the rights to life and liberty. Even democratically elected governments are not universally benign in their activities towards their own citizens. That is why a combination of the common law, constitutional settlements and legislation has been developed to curb and balance the power of governments over their own citizens.

In the current circumstances, every liberty lost is a victory to the terrorist who takes delight in watching us wound our own constitution. We say that the terrorists will never win. However, having threatened our lives and security, the terrorists might well boast of success as we bend to do their dirty work of undermining the character of our society.

Given this, any proposal to increase the power of government needs to be considered with utmost care. The governments of Australia understand the extreme seriousness of what is being proposed in legislation to strengthen their hands in response to the threat of terrorism. To their credit, the politicians acknowledge that what they are proposing to do is less than ideal – the regrettable product of strict necessity rather than a preferred course of action.

However, what seems to be absent from their thinking is a clear recognition of the need to rebuild some of the institutional checks and balances that have been lost over the past decades. In particular, such dangerous times require a renovation of the role of parliaments in Australia and a reinforcement of the convention of ministerial responsibility.

The three main political parties in Australia – Liberal, National and Labor – have a stranglehold on our parliaments that exceeds anything seen in other liberal democracies around the world. Indeed, in the initial response to Senator Barnaby Joyce's demonstration of a streak of independence, the Prime Minister expressed the view that the first duty of members of parliament was to the party room (rather than the parliament, the people or the constitution). Even if Mr Howard's statement was the product of a rare, unguarded moment, it is a matter of concern that any political leader should have held such an opinion in mind, as it reinforces the perception that the parliaments of Australia have become mere rubber stamps – unwilling or unable to hold the executive accountable for how it governs.

Linked to the need to reinvigorate the role and standing of the parliament is the need for government ministers to refresh the convention of ministerial responsibility.

It used to be the case that ministers would be accountable to parliament for all that was done by the departments they led. When significant mistakes were made, then ministers might be expected to take responsibility and offer to resign (or actually resign) even if they had no direct responsibility for the fault. That ministers applied such a high standard was reflective of the fact that they alone form the actual government of the day and are therefore personally accountable to the parliament for what is done in the administration of their portfolios.

It is, perhaps, arguable that ministerial standards of responsibility and accountability can be reduced in times of peace and prosperity. At such times, the need for strict accountability might be loosened in line with a reduction in the overall power of government. However, those are not the times in which we live.

In recent months we have seen graphic evidence of the way in which governments can abuse the powers given to them by parliament. In particular, the Department of Immigration, Multicultural and Indigenous Affairs (DIMIA) has been responsible for the illegal deportation and detention of people – sometimes fellow Australian citizens and sometimes for years. Yet, no minister has resigned – the ultimate sign of their acceptance of responsibility.

The case of DIMIA demonstrates the extent to which vigilance is required when extraordinary coercive powers are given to governments – even when the underlying policy reasons for doing so are sound. The extension of new powers, in order to combat the threat of terrorism, requires the highest standard of vigilance – which must include a restoration of the convention of full, forthright and unqualified ministerial responsibility. This is something that our parliaments ought to require as a condition of their support for increased government power.

There are bound to be times when a minister's resignation will be unfair to the individual concerned – but no more so than the detention of innocent citizens or a general loss of the public's liberties. Renewed standards of ministerial responsibility should be part of the price paid for the extension of new powers to governments. That is, the burdens that fall on citizens may have to be borne in some measure by our governments.