The current conservative philosophy for governance is well described by Paul Kelly in a recent op-ed titled: At war over the law. This is the new brand of conservatism which is now competing with liberalism as the basis for governance. Forget left-right, that is gone as a binary distinction and the only use for it is to construct strawmen. Conservatism is based on executive dominance where the interests of the state trump individual rights. This is the opposite to republicanism and liberal democracy.

Kelly writes:

The bedrock view of the lawyers' rebellion is their refusal to accept the legitimacy of executive action based on statute and invoking the national interest.

The failure of this reading of government is that it elevates the executive and state above the individual. Coupled with a weak legislative - which is always a problem in parliamentary systems, this allows any despotic statute to justify the removal of judicial rights or an individual's full judicial expression.

The Migration Act of 2005 has been passed as statute law, but contains measures in it that allow arbitrary executive governance. It is a bad law and is the statutorial basis for the government to act arbitrarily. Which the executive did with Haneef by detaining him in an immigration detention center after the judicial could find no reason to detain him.

It was the executive in this case who refused to accept the authority of the judicial. This is a classic case of state of exception governance.

The other aspect of emergency is that it is done to save the state; maybe by suspending the constitution in order to save it (a-la Fiji), or in some other national interest where the collective concerns over-ride the political rights of individuals. This enables arbitrary governance from the executive. The handling of the Haneef issue carries all hallmarks of exception adhoc government.

So under the conservative definition of government; a weak legislative enables arbitrary government action in statute, which allows the executive to act arbitrarily, including ignoring the authority of the judicial, and to cancel an individual's political rights in the national interest.

At the best result of this style of governance is arbitrary government. At the worst it is tyranny.

We have constructed our political system with political technologies such as constitutionalism, federalism, separation of government branches, checks and balances, elected representatives, etc etc specifically to stop arbitrary government. Allowing it under executive dominance, national interest or emergency governance completely undermines the whole system. We do not have a republican system anyway, but we do have a liberal democratic one, and it undermines that completely.

Kelly continues:

Brennan slammed the detention powers as a "remarkable infringement on a person's common-law rights".

Such an expansion of executive power was undertaken without sufficient safeguards, the defect being "to transfer the protection of individual liberty from the judicial to the executive branch of government".

Brennan's remarks are illuminating. They make the pivotal issue one of power between executive and judiciary. His clear implication is that public acceptance of the laws cannot validate this defect nor make it acceptable.

There are two issues both of which form the core of republican doctrine. A simple, though not complete test, of republicanism is if the minority accepts majority rule, but with the knowledge they are secure in their rights. Public acceptance of laws cannot trump that. Otherwise it is known as tyranny of the mob.

The other issue is and in adjunct to the above; under republicanism an individual's political rights are universal, isotropic and inalienable. The executive and legislative cannot intrude into those rights. It is an area of absolute liberty an individual has which the executive and legislative are denied authority over.

This is why left-right is only useful for the construction of strawmen. The binary political descriptor is liberal vs conservative where liberal is individual as the dominant political entity and conservatism is the state as the dominant political entity. Under conservatism the state is generally embodied in the executive acting in national emergency or exception.

Most Australian conservatives are liberals. And those that wish to call themselves conservative or live conservative lifestyles,they have that liberty to live their lives as they choose. However this modern conservatism is unfit to inform governance. The end result - very quickly I might add - is executive rule and arbitrary government. We have seen this numerous times under the Howard government.

Another reason why left-right is meaningless is that I am sure future Labor governments will use emergency government and executive rule to dominate the political process. Already we have seen Rudd accept a war cabinet over the indigenous issues in the Northern Territory and not fight for liberalist or republican principles in the Haneef case.

This style of governance is becoming a new legal order in western democracies; "a new rule of permanence, a new long-lasting condition of suspension of the rule of law, whereby politics could become the product of a succession of ad hoc decisions made by government officials and bureaucrats"

Another aspect of emergency governance is that it makes the politics unitary. Essentially the adhoc decisions follow the political path of the executive and not the deliberative path of liberal democracy.

Kelly writes:

As explained by journalist Leigh Sales in her recent book, while John Howard could have brought Hicks's suffering to an end, so could his own lawyers by striking a plea bargain three years earlier. They didn't. Their aim was to wage a political campaign to break Howard's will and force his complete backdown over Hicks. It failed.

Once exception is established the judicial component is not fought in the legal or court space - it is elevated by the executive into the political space. The politics become unitary and public.

We saw this in the Haneef case were the guilt/innocence of the defendant was fought out in the public political space by the executive, the AFP and Haneef's lawyer. By establishing exception or emergency and ministerial fiat over the judicial decision the fate of the individual ceases to reside in legal order and becomes one of pure politics. It escapes the court and the trial is conducted publicly in the political space.

This is a failure of executive governance not the judicial. In fact the executive probably prefers it to be fought in the public space than under the less controllable legal outcome of a court.

Australia is poorly organised to fend off the establishment of the new exception legal order. We do not have a separate executive and our legislative in parliament is already under the thumb of the executive. The creation and passing of laws are the domain of the executive in parliament.

We do not have a constitutionally entrenched bill of rights which prohibits the executive from intruding into liberties and judicial mechanisms the individual has to sue the executive to have their grievance heard - such as habeas corpus. Rights ensure that an individual is dealt with uniformly, apolitically, not under exception or arbitrary executive intrusion.

John Howard recently argued in an Australia Day speech:

I believe this [establishing a Bill of Rights] would be a big mistake for our democracy. A Bill of Rights would not materially increase the freedoms of Australian citizens. It will not make us more united, indeed I believe it would lessen our ability to manage and to resolve conflict in a free society.

Howard is arguing that only a vigorous executive can protect an individual's freedoms. That the state or 'national interest' dominates the capability of a society to maintain civil order. This is in direct opposition to republicanism and liberalism. It also carries the irony that there is no aspect of an individuals political or judicial expression that can be denied executive interference. Consequently in this form of governance the state is politically dominant over the individual.

Rights are not about 'a right for everyone to go to school' or 'a right to dignity'; they are brutal and explicit constitutional language which denies the executive and legislative intrusion into an individuals liberties.

A Bill of Rights would limit executive and legislative action. They create a sphere of liberty that government cannot intrude into. If the government does, it enables the individual to sue the government directly through the judicial.

Anyone interested in a very modern Bill of Rights which is explicit and subtractive from government should read Avocadia's Bill of Rights v0.2.

More: Bill of Rights articles on SSR.

The American Presidents Abraham Lincoln and Woodrow Wilson are good examples of the rhetoric of politicians in and out of power. When out of power they both decried the loss of liberties to the executive and happily railed against the governing of the day. Once in power both expanded greatly the power of the executive using the excuse of emergency to circumvent the constitution; Lincoln in the suspension of habeas corpus, and Wilson with the Espionage Act's disaffection provision which allowed the executive to run rough-shod over the first amendment.

It is a political pattern we see time and time again. There is no easy answer for it in liberal democracy or republican constitutionalism. Democratic practices lead the challengers to appeal to the populism of criticism of the governing, yet the depravities of executive power then lead those same people to expand the power of the executive gregariously with little respect for the mores and conventions of constitutionalism.

If anything it is due to the power of explicit constitutionalism that liberal democracies can contain and recover from such bad governance as the constant tension from those holding power is to expand the executive to absolute power.