Andrew Bartlett (Queensland, Australian Democrats) Share this | Hansard source

I do not want to prolong debate on this particular measure, but I do think a point needs to be made. You can use a term like ‘reserve powers’ all you like, but you will be given the powers and there will then be minimal constraints on how they are exercised. You can decide for yourself whether or not an incident warrants the use of reserve powers—to adhere to the minister’s own language. I know we are calling this an emergency—and in one context I accept and agree with that terminology being used—but I do not accept and do not agree with some of the analogies that are often used, saying it is akin to a cyclone et cetera. This is a very different circumstance. Everything has not been wiped out or cut back to the ground. There are organisations in place. Many of them are underresourced but there are people there, there is expertise there and there is leadership there.

I appreciate that the minister is saying that the government will only use these powers as a last resort if they cannot get agreement. But you will have those powers in your back pocket all the way along. So, if not reaching agreement means not getting your own way, as soon as you are not getting your own way you will pull the reserve powers out of your back pocket. That is human nature. That is why parliaments guard against these sorts of things. If you know you have the ultimate trump card in your back pocket, no matter what the situation, you have the total power. Sometimes people will be able to resist just using the trump card and will be able to operate effectively, but at other times they will not be able to. They will get impatient, they will get passionate and, with the best of intentions, they will use that trump card.

The reason that this is a serious concern goes not just to the principle but also to the practical consequences. Again, from the Democrats’ point of view, our interest is in evidence on what is going to work and what is not. When you believe you have all the answers, it is very easy to say: ‘Give us all the power. We know what needs to be done. This will work.’ But those of us who do not have such universal faith in the complete all-knowing wisdom and ability of government officials and government ministers of any political persuasion—frankly, I do not have that much faith in human beings at all to give anybody that sort of absolute power—want to look at other evidence. We have plenty of evidence within Australia, let alone elsewhere, that even people who have the absolute best intentions, if given absolute control over other people’s lives, make some serious mistakes. And, because they have that much power, the mistakes can have very serious consequences.

So to say, ‘It’s okay; you can go to a court,’ (a) ignores the obvious reality that the court process is not accessible for many people in this sort of context and is a completely unrealistic option; and (b) and ignores the fact that the courts can still only interpret the law and, if the law gives you absolute power, all the courts can say is, ‘You’ve got absolute power.’ The court option has become fairly meaningless anyway, as we have seen in other areas, such as the Migration Act—which I would have spoken to if I had been speaking to government documents. The framing of the law in the way that gives absolute power means that the courts are basically cut out of all but the narrowest scope for review. There is no meaningful merits review at all. It may be all right if you had a whole bunch of people teetering on the edge of a cliff and you had to do something to stop them sliding over the cliff in the next minute, but, when you are talking about prolonged implementation of a range of measures relating to organisational decisions, implementation of infrastructure and all that sort of thing, the practical intent of the government’s approach is: ‘We are the only ones who know best; we need all the power at the end of the day.’

If you can show me anywhere in the world where that approach has worked in any context I would like to see it. That is a classical definition of authoritarianism. Again, for a government that claims to have even a shred of liberalism in its philosophy, it is extraordinary—not just because of the philosophical debate but also because we know it does not work. Long term it does not work. You might be getting lots done now, because you can do it, but long term it does not work. Governments the world over like to say, ‘We need more powers so that we can do things swiftly and smoothly.’ Of course you can do things swiftly and smoothly if nobody else can get in your way, but that does not mean you are going to do the right things swiftly and smoothly. That is why we have these sorts of checks and balances and protections.