Wednesday, March 22, 2006

Coming Soon - The Constitutional Crisis We Have to Have. Please.

Forget the ongoing Monarchists versus Republicans vendetta - that's just a side show. Some time in the future - either when Elizabeth Battenburg Saxe-Coburg Gotha pops her clogs or the Coalition government needs to throw a sop to the Republican Liberals in the tradition of John Stuart Mill within its own ranks and the progressives outside, so that the adherents of the cult of John Howard and The Latter Day Burkean Conservatives can go on running the show their way, there'll be a referendum proposal for an elected Australian Head of State with bipartisan support. The Laboral Party will allow itself to be dragged along with whatever the Coalition puts up, to avoid the inevitable ridicule of the for years you guys have been saying you want a Republic and now we're giving you one and you're still not happy variety. The real constitutional problem us happy subjects of Wise King Otto have right now is the continuing encroachment of the executive arm of the government - the Prime Minister and Cabinet - into areas that they should leave well enough alone.

Here are a few recent and not so recent abuses of executive power - largely exercises of the Royal prerogative transferred holus-bolus to the Prime Minister and Cabinet under section 61 of the Constitution:
What's going on in national politics at the moment? We have a government with control of both houses of Parliament which is using its majority in both houses to extend its executive powers into areas that are properly the private concern of Australian citizens and an opposition that has becomed conditioned to roll over and play dead whenever it hears the magic words "national security" or "Australian way of life", that's what. Not all of the executive encroachments I've listed can be sheeted home to the Government alone - due discredit needs to be given to the Laboral opposition for those Ministerial powers in s501 of the Migration Act and to Senator Brian Harradine for that RU-486 ban. And both sides of Federal politics have acted fairly shoddily when it comes to taking this country to war.

In all the examples listed above, Parliament was merely doing what the Constitution allows it to do - cede unfettered power over Australian citizens to the executive. The only limitations on Commonwealth power in the Constitution are in respect to conflicts between the Federal Government and the States. Our British Imperialist Founding Fathers (BIFFs) were pretty complacent about the powers of the executive over the citizenry. Even Section 116 (originally Section 115) which limits the Commonwealth power to establish religion was framed in this spirit. It is included in the section of the Constitution referring to the States and their rights. At the 1898 Constitutional Convention in (Adelaide/Melbourne/Sydney), Edmund Barton rabbited on at length about differences between the proposed Constitution Act of 1897 and the earlier draft of 1890. His rabbitings include these remarks on Section 115/116:

I will not use the words themselves, but say that the preamble states, that the people, who have agreed on the Constitution, humbly rely on the blessing of the Supreme Being. It was feared that some interpretation such as has been taken up in one or two cases in America might lead to this phrase being regarded as an action taken against religious liberty. This Convention has agreed to a clause which prevents any possibility of that kind as regards the Commonwealth, and which does not interfere with the states in questions of their internal regulation, with which, of course, this Commonwealth will not have anything to do. Clause 115 says -

The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious. test shall be required as a qualification for any office or public trust under the Commonwealth.

While, therefore, a concession has been made to the popular opinion that some reverential expression should be embodied in the preamble, due care has been taken by the Convention that no reliance upon that provision, and no far-fetched arguments based upon it, shall lead to any infraction of religious liberty under the laws of the Commonwealth which we hope to create. [my emphasis]

In other words, only the Commonwealth is barred from taking action against religious liberty - if the States choose to establish Churches (if, for example, the New South Wales Parliament should take it into its head to establish the Sydney Diocese of the Anglican Church as the official Church of New South Wales or the Victorian Parliament decided to make the Uniting Church the official Church of Victoria) there is nothing in our national Constitution to prevent this. And that's pretty much the way the BIFFs wanted it. The prerogatives of State governments ("States rights") take precedence over individual rights of religious conscience.

Thanks to that overrated bunch of complacent slack-arses, we have a constitution which is clearly inadequate in defining limits on the power of executive government to interfere in the lives of Australian citizens - hardly surprising, because with one or two exceptions, the buggers were all "British to their bootstraps" and were content to assume that British political tradition would be carried forwad in perpetuity when dealing with Constitutional matters. Clearly, as a matter of history, this hasn't happened and the result is an undefined executive prerogative (formally the Royal prerogative) which successive Parliaments, Governments and even High Courts have interpreted more in favour of giving power to the executive than protecting the rights of Australian citizens. Largely because the idea that there would one day be Australian citizens was beyond the comprehension of the BIFFs.

The argument between Monarchists and Republicans is largely about how we choose the national figurehead - should it be a Government appointee, representing a distant monarch or someone popularly elected. The question has largely been decided in favour of the latter and, once someone comes up with a workable proposal it will probably happen. So maybe it's time to look at some serious constitutional problems - such as the arrogations of power that have happened under this Government and the current Parliament. Or would you prefer to wait until a Laboral Government has control of both Houses of Parliament?

5 comments:

Flute said...

Funny how Johnny starts a fan dance on republicanism in the Indian summer of his tenure.

Perhaps he has someone in mind to be president.

Ken Parish said...

A wortwhile rant Gummo, but a small nitpick. Only the first of your dot points (declaring/participating in assorted wars) is actually an example of prerogative power. The rest are powers having their basis in statute.

Also, although it's certainly true that the precise extent of Commonwealth executive power isn't delimited expressly in the Constitution, it's generally regarded as co-extensive with the Commonwealth's express heads of legislative power which are mostly found in sections 51 and 52. There is a significant extension of that in the so-called "implied nationhood power" and, as you say, in the common law prerorogative (or to be more accurate, powers that derive their content from the old common law prerogative although their formal source is Constitution section 61). It's certainly true that powers deriving their content from the old common law prerogative are not insignificant (and include declaring war and making peace, appointing judges and QCs, pardoning criminals, issuing ex officio indictments etc), but they don't include most of the items you list in your post.

Ken Parish said...

BTW One exercise of executive power that WAS defined by the content of the old prerogrative powers (rather than any statute) was the Howard government's detention of the Tampa asylum seekers. See Ruddock v Vadarlis - Full Federal Court.

Gummo Trotsky said...

Thanks for the tip Ken.

Think I botched the rant a little - I was somewhere in the middle of Macaulay on Charles I when I got the idea for this post and I was struck by the way an ill-defined common-law prerogative was contested between parliament and the Crown, which is the serious stuff that makes MacAulay a worthwhile read, even while you're sniggering at some of the high Victorian accidental humour.

Yep, all the examples are of executive power deriving from legislation - the trouble is that the Parliament seems to be legislating in areas where it should be leaving civil liberties the hell alone. May have to come back to this at another date, after more reading of the constitution and sources.

BTW - I don't think a Bill of Rights is necessarily the solution to this problem. But I don't think we can rely on tradition and parliamentary conventions either.

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