Some sentences constitution watchers don't want to hear from the Prime Minister of Australia: "We regard this as akin to a national emergency.", "But what matters more: the constitutional niceties, or the care and protection of young children?"
Frequent elections in a democratic system are supposed to make politicians more sensitive to the needs of their constituents as they risk losing their job over electoral displeasure. So I am not surprised that both major parties are laying out all sorts of policies and initiatives; it is how it is supposed to work.
I am concerned about the 'national emergency' and 'for the children' language. Both are intended to thwart political opposition and scrutiny. The language is for the purpose of making reasonable people sound unreasonable.
The last emergency we had prior to an election meant that the federal government practiced indefinite detention with refugees. The executive force of law became political and didn't extend into the camps overseas, and as Sydney Daily Photo reminded us the other day; in our cities as well.
Emergency government, or a state of exception, state of emergency, or its other various names, is repugnant to republican government. Normally under an emergency the executive suspends constitutional relations between political bodies, and effectively adopts the powers of all branches either directly or through non-enforcement. Constitutional and statutorial laws are suspended momentarily in this state as it is an 'emergency'.
Another issue with a state of emergency is that the force of law becomes arbitrary, and inevitably political. Once that is achieved an individual effectively loses their political rights and their judicial expression becomes at the whim of the executive.
Australia has more issues in this area than other nations for a variety of reasons; one being the poor separation of powers between executive and legislative in the Westminster system, which means it can be harder to spot as the legislative has already given up its independence through party executive discipline.
It also means that arbitrary powers end up in legislation because the executive has an easier time pushing it through Westminster than it does in a Washington system.
Either way, a state of emergency enables arbitrary government, and as a result, cannot be accepted as republican governance.
The news release from the Prime Minister is short on details, and I suspect that the Northern Territory will be used as a test case as the Federal Government will have an easier time asserting its authority and sovereignty because the Northern Territory is a territory and not a state.
I also suspect that the policy around this emergency will change as electoral and political realities intrude and the emergency is used for political gain. It is the nature of emergency governance.
It will also be interesting to see how this is achieved constitutionally in parliament, so everyone, from the federal government to the territory, can be comfortable that is ok.
There also needs to be some discussion of the policy. This is a nation-state approach, where money and resources is thrown at the slower part of the country to make it catch up. I am of no doubt that sexual abuse is the premise to enable the federal government to do this.
In the past there have been statements that the Aboriginal communities should come to the cities, where there are jobs, economic opportunities and greater social stability. This is an obvious suggestion with merit.
It also places these people under the umbrella of the biggest and most easily understood constituency in Australia - the middle class. A constituency which is well catered for at the federal, state and local level. This is a fact of our urban and suburban life.
The nation-state response fifty-years ago, prior to us competing in globalisation, would have been for the federal government to tell BHP or Holden to put an office or plant in one of the towns of the territory and then build a highway, or railroad, that goes past it.
This would have been used to provide the mix of private and public investment as well as some employment stability. This kind of policy has not worked in the past, and given the nature of the market-state is pretty impossible to implement now.
Another nation-state practice was to locate a large government department or office locally, such as the Department of Agriculture or Education. Providing secure employment. Again, digital technology has meant this can be centralised and done more efficiently in Canberra.
The market-state response is to make the localities innovate their way out of problems and issues. This is usually done by the national government getting out of the way and allowing localities to take care of it themselves.
Aboriginal welfare has been going on for how long now? I seriously doubt this new spate of paternalism will make a change. It will be experts and politicians from Canberra deciding policy rather than the localities. It is not like the localities are unaware of the issues; every six months some current affairs show does an expose on the subject.
I don't doubt there are serious issues in these communities, and it may be that this response does some good, I suspect the extra policing will have benefit, but I do not like the language that it has been announced in.
The constitution is not respected in Australian politics; and since republican government places high importance on constitutional restriction of the executive and legislative, this can cause republican constitutionalists concern when seeing news releases such as this.
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