Legislation is policy. Law is politics.

Not really. Not precisely. But now I’ve got your attention, legislation is all about policy, and politics is all about law.

While going about my communications in the Twitterverse this week, many people asked me whether there is a legal process by which we can get rid of an obviously incompetent and distressingly cruel government. It dawned on me that there is a profound misunderstanding about the relationship between politics and law; and more specifically the relationship between policy and legislation.

Most of us have a working knowledge of democracy and its basic tenets. Not law so much. There is a widespread set of assumptions that the law is somehow all-powerful, internally consistent, and apolitical. These false assumptions are carefully cultivated by the ruling class. In a democracy so-called, the ruling class is made up of political elites and the corporate donors who invest in political power-holders.

People break the law every day and get away with it. So the law is not all-powerful.

Cases are regularly successfully appealed, and often decided by a majority of the bench rather than unanimous view. So the law is not internally consistent.

Legislation is made by politicians. That is in fact their day job – to pass legislation on our behalf. The notion that this process could somehow be apolitical requires a complete suspension of disbelief. It is too silly a proposition for words. Laws are not apolitical because laws are made by politicians in their role as politicians. Politicians have other roles than passing legislation, but the passing of legislation is their core business. Law is inherently political.

Arguing otherwise is like talking to those people who say they are ‘not into politics’, but can not understand that their stance is a specific political position.

The relationship between policy and legislation is a specific iteration of the relationship between politics and law. Legislation is codified policy. It is a policy, or political promise, codified into law. That is how the system works. It is designed to work like this. I am not exposing a scheme any more corrupt than democracy itself – a system of government created by propertied white men for propertied white men. Much has changed, but not so much that we can not make our democracy more democratic.

Here is how a law gets born.

A group of people, mainly men and mainly led by men, and operating in a hyper-masculine patriarchal space, get together and form a political party. They encourage others of same mind to join their party. They establish all sorts of infrastructure for their party: membership, meetings, and policies. Their policies are made up of political positions on the best way to govern a society and its economy. These are bundled together and called a policy platform. The political party stands on its platform and campaigns for votes, to garner political power, in order to implement their policies. When they win government the members of the political party (the politicians) draft and pass legislation. Now they can legally implement their policies, because they have followed the accepted process with legal authority to govern in a certain way. They have codified their policy into a statute which has been passed by both houses of parliament.

Some political parties care about the planet as well the society and its economy. This is a relatively recent resurgence of understanding: that the environment is crucial to the existence of humanity. In Australia, humanity’s first responsibility to the earth was understood for millennia, but much of that vast knowledge was destroyed between 1788 and the present. Thankfully, the custodians of this knowledge are incredibly strong and resilient survivors who are also generous with much of their knowledge, as it is embedded in a culture of inclusiveness and sharing. Nevertheless, non-Aboriginal Australians are re-learning the hard way that the law’s preoccupation with people and property is anthropocentrically selfish, ignorant and destructive; and that the planet matters too.

If the political party that has come into office – by the accepted method, which is ‘free and fair election’ – and passes a piece of law that is not lawful, they can be brought to account by people with sufficient time and money to challenge the legislation in the High Court of Australia. The court is made up of seven judges. All courts are made up of an odd number of judges, so that a majority can decide closely contested cases. It is not unusual to see laws struck down, or precedents over-turned, by a majority of the High Court. A unanimous decision on the other hand is rare indeed. Not even Mabo, the most powerful High Court decision of our time, was decided unanimously. Dawson J dissented (and I never read another judgement he wrote. Not even if it was a set text. I read Justice Kirby’s judgement instead).

As most people are aware, the High Court decides the matter based on the facts and law. This is a judge’s job description: apply the law to the facts and reach a decision, and put the reasons for the decision on the public record. The arguments of over which law and which facts are put before the court by lawyers for each party to a dispute. This is the bit that tells us why persuasive arguments are so important to democracy. Remember, the politicians have already persuaded you to vote for them, based on the appealing arguments they have put about their policies, the best way to govern the society and its economy (and possibly the planet). Now someone has observed that the government may have overstepped the power handed to it by the voters, and asked the High Court to decide on the matter.

That decision will depend on the arguments submitted by lawyers about different ways to interpret words that have been arranged into sections and clauses and schedules and regulations and all the other ways that law is manifest. All of this in its entirety is a legal process originating in a political process. The point is that every aspect of it entails human beings in specific power relationships. The rights of other humans and their power relationships are always at stake. Again, think of the Mabo case, the iconic decision of a generation. How was it done? Who made it happen?

Eddie Mabo was a groundskeeper at James Cook University when he fell into conversation with one of the academics, Henry Reynolds. That conversation triggered more conversations which led to even more, ritualised conversations such as formal submissions to first the Queensland Supreme Court and ultimately the High Court. When Mabo was first recognised at law as having native title rights, the politicians stepped in and passed another law to quickly and retrospectively extinguish any remaining property rights of Indigenous peoples in their land. The High Court found that the state of Queensland had wielded power it did not have. The governing party of the state had acted ultra vires, beyond power.

Democracies are characterised by power-sharing. The shorthand used to communicate this is ‘checks and balances’. The formal name is ‘the doctrine of the separation of powers’. Power is distributed across separate arms of government so that not all power rests with a single body. The power to govern originates with the voters. The restraints on government power are the upper house, the High Court, and elections. The best illustration of the system working is a story about the Communist Party of Australia.

The story is set during the post-war Menzies era. Keep in mind that voting-age Australians had lived through the war. They had seen pictures of the liberation of Auschwitz. Anyone who had read a newspaper had a working grasp of the dangers of unrestrained power. The world had just witnessed some of the most devastating results of unrestrained abuse of power known to humankind. Not just the Nazi death camps but the bombing of Hiroshima and Nagasaki, the whole steaming killing frenzy of war on a mass scale. Into this environment we must add Stalinism and the Cold War propaganda machine. The entire post-war era was saturated with communist propaganda until recently. These days, the same tired old techniques are used to create fear of terrorism instead. Even the most cursory of glances through history reveals that the end of a war brings not peace but a frantic search for new enemies and markets. The military-industrial complex has dominated the modern human experience, although it is rather unfashionable to speak of it. In those brief moments between foreign war waging, the state mobilises the prison-industrial complex instead, and wages war against its own people, such as the ‘war’ on drugs.

So when the Menzies government tried to ban the Communist Party of Australia (CPA) it was always a politically risky move that required truckloads of anti-communist propaganda to support the case. Propaganda is wheeled out when there is no rational, logical argument for a transfer of power, a shift in the power-sharing arrangements. Men in power always seek to transfer power from the citizenry to the state, because they run the state. In this case, the government sought to outlaw a political opponent, and a savvy political opponent at that.

The Communist Party lawyers took the case to the High Court and persuaded the bench, using logical, rational legal argument, that it is unconstitutional to outlaw a political opponent in a democracy. This should be a no-brainer. Where governments seize power to outlaw the opposition, we end up with a one-party state, which is the opposite of a democracy.

Being nothing if not cognisant of the law and the political system, the Menzies government then took the question to the ultimate arbiters in a democracy. A referendum was drafted, and put to the people at an election. All of this was of course accompanied by frenzied propaganda, enthusiastically reproduced by media cheer squads. The propaganda and fear-mongering were necessary for the same reason it is always necessary: the idea itself was a poor one. A stupid idea. An anti-democratic policy.

The Menzies government was returned, but the referendum was not passed. The Australian people effectively said to the Menzies government: here, we will elect you democratically but not confer on you the power to diminish our democracy. The system worked. Australians safeguarded their democracy from excessive power of the state, in this case to outlaw a political opponent.

There are lessons, as always, in this history. Last time the anti-terror frenzy was whipped up by a Coalition government, the Greens tried to make commitment of Australian troops to a foreign conflict a necessary decision of parliament. In other words, the Greens presented a sensible, moderate, restrained limit on executive power by arguing that taking the nation to war required the Parliament, rather than the government of the day, have the power to make the decision. Of course the major parties united in their own common interest and voted the amendment down. All major political parties can smell a power grab and rush it through. It doesn’t matter which major party proposes the power grab. The other major party will rub its hands with glee at the prospect of its future grabbing of the levers of power.

The same thing is happening today. The money-grubbing power-hungry policy-vacant minds of the Commonwealth government are talking gravely of a terrible threat to the nation, enthusiastically brandishing imagery of swords and witches’ brews and other fermenting cauldrons of mediaeval primitive Muslimish threats. The Australian people are gravely assured that we must ‘sacrifice’ some freedoms for security. They tell us the problems are deeply complex, but can be solved with new legislation and military aggression. It was ever thus. The proposed legislation is simply a transfer of power from the citizenry to the state and its heavily armed and extremely powerful agents (ASIO, the ADF, the AFP).

The actual complexities, such as the role of the west in producing todays problems, are never mentioned. According to teh dominant narrative, the arguments that are made by politicians and reproduced by the mainstream press, none of the mess in Iraq, or Syria, or Kurdistan is of our making. Rather some random extreme danger has sprung out of nowhere and is lapping at our shores. The only possible cause raised other than super terrorist Islamic Islamicness is social media. Yep, that’s right. Nothing to do with weapons manufacturers or ill-conceived military adventurism by profiteering warmongers of the west, but maybe social media played a role. Power-holders hate being held to account by people using social media. This is because so many of their lies and mediocrities are distributed so rapidly. So they decide that social media could do with a little bit of demonising while we are in demonisation mode.

To the people who seek answers on what to do with this appallingly inept government, who inquire as to legal solutions to a political problem – and political problem manufacturer – I am sorry there is not a better answer. I hope this post has at least provided some clarity on how our democracy works and why we can not just fire the PM for being a fearmonger and a liar and a sexist racist homophobe. I wish we could.

The law can not stop the state unless the citizenry insist that the law at least examine the actions of the state and determine the legality of its actions. What makes its actions legal are the drafting and passing of statutes through both houses of parliament by a vote of our elected representatives. When the government of the day is doing a terrible job, when it can not pass the legislation that has been drafted to codify its policies – such as what to spend the nation’s tax receipts on in the case of the spectacular failure of its first budget – the government turns to propaganda. And the most time-honoured topic of propaganda is war. And that is what we are watching today in badly-governed, geo-politically safe but very racist Australia.


5 thoughts on “Legislation is policy. Law is politics.

  1. Pingback: vote | oecomuse

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