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Appendix 4 - The Illegality Argument |
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Appendix 4 - The Illegality Argument
Some apologists for our present Constitution claim it is necessary for the Governor-General to be able to dismiss a Prime Minister, even one with majority support in the House of Representatives, if that Prime Minister’s Government is engaging in illegal conduct or somehow ‘subverting the Constitution’. They claim this as a virtue of the present system, and conveniently overlook the fact that any role the Governor-General has as some sort of supervisor over the Government could be easily circumvented by the Government appointing one of its own supporters as Governor-General.
The illegality argument is put in a variety of ways, all of them equally invalid.
Widespread Illegality upon the Blocking of Supply
Defenders of Sir John Kerr state that his dismissal of Mr Whitlam in 1975 was necessary, because once the supply of money to the Government ran out, widespread illegality would have resulted. Some cite the power to ‘maintain our laws’ in s.61 of the Constitution to support the argument. Kerr actually dismissed Whitlam well before the money ran out, when no illegality had occurred, and it was likely that the Senate would have backed down before any significant illegality eventuated. Kerr did not rely on the illegality argument when justifying his decision. Nevertheless let us consider the argument.
Illegal conduct may be either criminal or civil. The illegalities alleged to have been inevitable were breaches of the Commonwealth’s obligations under various statutes and contracts to pay people, such as its staff, or to carry out other obligations which could not be carried out if no staff or money were available to perform them. This would have resulted in the Commonwealth incurring civil liabilities and breaching statutory duties. (In all the material produced about the 1975 crisis, I cannot recall a single example being given of how an absence of supply would have lead to a failure to pay by the Commonwealth which was criminal in nature.)
Unintentional breaches of statutory duties, contracts and torts are the lowest level of ‘illegality’ possible. The Commonwealth inadvertently, mistakenly or negligently engages in such breaches every year; for example, when public servants make mistakes. Assuming a crisis about supply was resolved at some stage, the liabilities could be paid then, albeit a little late.
By contrast, the principle that a Governor-General must act in accordance with the advice of his Prime Minister while that minister commands the support of the House of Representatives was, prior to Kerr’s treacherous actions, regarded as an integral part of our Constitution by virtually everyone who had considered the issue. The Constitution is our highest law.
So the argument of those who justify the dismissal of a Government whose supply has been blocked by the Senate is that a Governor-General may disregard the fundamental principle that the majority forms the Government - in effect deciding that the principle is not part of our Constitution - simply in order to avoid breaches of much lesser laws. This is plainly illogical.
Illegality is determined by courts. By deciding majority rule was not part of the law, Kerr was actually usurping the role of the High Court.
Regardless of what view is taken of the 1975 crisis, on implementation of the Advancing Democracy model the prospect of ‘widespread illegality’ would disappear, as the Senate’s inability to cause the dismissal of the Prime Minister by blocking supply would make it highly unlikely it would block all money supplies to the Government. The Senate would still retain power to block specific money bills. If that was done, the Government could withdraw the part of the bill to which objection was taken, or split the disputed part into a separate bill, to be dealt with under s.57 of the Constitution concerning disagreements between the House and the Senate. The remainder of the supply bill would then be passed, avoiding any ‘widespread illegality’.
Specific illegality
In New South Wales in 1932, at the height of the depression, the NSW Government was in dispute with the Federal Government over whether interest should still be paid to British banks on Government debts. Labor Premier Jack Lang directed the State’s public servants to deal with Government money in a way which avoided it being available to be taken by the Federal Government and used to pay the interest due. The State Governor, Sir Philip Game, stated that this was illegal, in that it contravened Commonwealth banking regulations. Lang was supported by a majority of the NSW Legislative Assembly, yet the Governor dismissed him when he refused to change course, and commissioned the Leader of the Opposition, Mr Stevens, to form a Government which then advised a general election be held. Labor lost office.
Some say that the Governor-General needs a similar power to dismiss a Prime Minister who acts illegally. However, Game’s action was unprincipled and wrong. Firstly, it was a denial of democracy, in that the majority was not allowed to continue to govern. Secondly, it contravened the separation of powers, by asserting that a representative of the Queen could perform the judicial function of determining the legality of a Government’s conduct. Thirdly, Game determined legality without following any of the normal judicial methods which apply in court cases - the reception of evidence, the hearing of argument for both sides, then an impartial decision. Fourthly, it was entirely unnecessary - whether or not Lang’s Government was acting illegally could easily have been determined by the Supreme Court.
The dismissal occurred under the New South Wales Constitution. We are considering the Commonwealth Constitution. No-one ever alleged Mr Whitlam was engaging in illegal conduct at the time he was dismissed (though some hysterical rationalisations for the dismissal were later published). Nevertheless the same arguments against Game would be applicable to a Governor-General who attempted to dismiss a Prime Minister for illegality. Legality is a matter for the courts.
Subverting the Constitution
The Lang dismissal is the only time an Australian Government has been dismissed for a specific illegality. None has been dismissed for ‘subverting the Constitution’ or something similar. There is in fact no current law, rule or convention which states that a Prime Minister who is ‘subverting the Constitution’ must be dismissed and no modern example of the power being exercised in a comparable political system as far as I am aware. A few constitutional writers however have supported the idea.
The concept is inherently flawed. If the so-called ‘subversion’ is alleged to be illegal, then the same arguments mentioned above apply. If it is not alleged to be illegal, on what basis could the Prime Minister’s conduct be challenged? One English text advances an example of such conduct as being changing the electoral laws to ensure the Prime Minister’s party won. Unfortunately that has been commonplace in Australia, particularly in the States - for example, the Country Party was kept in power for years in Victoria by a gerrymander, as was Premier Bjelke-Petersen’s Queensland Government from the 1960s to the 1980s. It is reprehensible and undemocratic, but legal, at least until we have the common sense to include in our Constitutions a requirement for one vote, one value.
The requirement in the Advancing Democracy model for the Prime Minister to be the person with majority support in the House of Representatives means that the Prime Minister could not be dismissed by either the Governor-General or the courts for either alleged illegal conduct or the more nebulous ‘subversion’.
Let us examine though how the Constitution, as amended by the Advancing Democracy model, would cope if a Government’s conduct was challenged, found by a court to be illegal, and the Government then persisted with the conduct. Orders and injunctions would be issued requiring the conduct to cease. Ministers and public servants who intentionally breached the court orders would be liable for contempt of court - a criminal offence. A Prime Minister in contempt could be arrested and charged. If the crime of which the Prime Minister was convicted permitted a sentence of imprisonment for a year or longer, the Prime Minister would cease to be a member of Parliament on conviction, under s.44(ii) of the Constitution, and would therefore be ineligible to remain as Prime Minister. If the crime was a lesser offence, a shorter term of imprisonment would almost certainly prevent the Prime Minister from fulfilling his or her duties in practice, leading the majority in the House to appoint a new leader.
It is simply unnecessary, and undemocratic, for anyone to have the power to dismiss the Prime Minister or the Government on the grounds of illegality.
Go to last Appendix |
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Appendix 4 - The Illegality Argument
Some apologists for our present Constitution claim it is necessary for the Governor-General to be able to dismiss a Prime Minister, even one with majority support in the House of Representatives, if that Prime Minister’s Government is engaging in illegal conduct or somehow ‘subverting the Constitution’. They claim this as a virtue of the present system, and conveniently overlook the fact that any role the Governor-General has as some sort of supervisor over the Government could be easily circumvented by the Government appointing one of its own supporters as Governor-General.
The illegality argument is put in a variety of ways, all of them equally invalid.
Widespread Illegality upon the Blocking of Supply
Defenders of Sir John Kerr state that his dismissal of Mr Whitlam in 1975 was necessary, because once the supply of money to the Government ran out, widespread illegality would have resulted. Some cite the power to ‘maintain our laws’ in s.61 of the Constitution to support the argument. Kerr actually dismissed Whitlam well before the money ran out, when no illegality had occurred, and it was likely that the Senate would have backed down before any significant illegality eventuated. Kerr did not rely on the illegality argument when justifying his decision. Nevertheless let us consider the argument.
Illegal conduct may be either criminal or civil. The illegalities alleged to have been inevitable were breaches of the Commonwealth’s obligations under various statutes and contracts to pay people, such as its staff, or to carry out other obligations which could not be carried out if no staff or money were available to perform them. This would have resulted in the Commonwealth incurring civil liabilities and breaching statutory duties. (In all the material produced about the 1975 crisis, I cannot recall a single example being given of how an absence of supply would have lead to a failure to pay by the Commonwealth which was criminal in nature.)
Unintentional breaches of statutory duties, contracts and torts are the lowest level of ‘illegality’ possible. The Commonwealth inadvertently, mistakenly or negligently engages in such breaches every year; for example, when public servants make mistakes. Assuming a crisis about supply was resolved at some stage, the liabilities could be paid then, albeit a little late.
By contrast, the principle that a Governor-General must act in accordance with the advice of his Prime Minister while that minister commands the support of the House of Representatives was, prior to Kerr’s treacherous actions, regarded as an integral part of our Constitution by virtually everyone who had considered the issue. The Constitution is our highest law.
So the argument of those who justify the dismissal of a Government whose supply has been blocked by the Senate is that a Governor-General may disregard the fundamental principle that the majority forms the Government - in effect deciding that the principle is not part of our Constitution - simply in order to avoid breaches of much lesser laws. This is plainly illogical.
Illegality is determined by courts. By deciding majority rule was not part of the law, Kerr was actually usurping the role of the High Court.
Regardless of what view is taken of the 1975 crisis, on implementation of the Advancing Democracy model the prospect of ‘widespread illegality’ would disappear, as the Senate’s inability to cause the dismissal of the Prime Minister by blocking supply would make it highly unlikely it would block all money supplies to the Government. The Senate would still retain power to block specific money bills. If that was done, the Government could withdraw the part of the bill to which objection was taken, or split the disputed part into a separate bill, to be dealt with under s.57 of the Constitution concerning disagreements between the House and the Senate. The remainder of the supply bill would then be passed, avoiding any ‘widespread illegality’.
Specific illegality
In New South Wales in 1932, at the height of the depression, the NSW Government was in dispute with the Federal Government over whether interest should still be paid to British banks on Government debts. Labor Premier Jack Lang directed the State’s public servants to deal with Government money in a way which avoided it being available to be taken by the Federal Government and used to pay the interest due. The State Governor, Sir Philip Game, stated that this was illegal, in that it contravened Commonwealth banking regulations. Lang was supported by a majority of the NSW Legislative Assembly, yet the Governor dismissed him when he refused to change course, and commissioned the Leader of the Opposition, Mr Stevens, to form a Government which then advised a general election be held. Labor lost office.
Some say that the Governor-General needs a similar power to dismiss a Prime Minister who acts illegally. However, Game’s action was unprincipled and wrong. Firstly, it was a denial of democracy, in that the majority was not allowed to continue to govern. Secondly, it contravened the separation of powers, by asserting that a representative of the Queen could perform the judicial function of determining the legality of a Government’s conduct. Thirdly, Game determined legality without following any of the normal judicial methods which apply in court cases - the reception of evidence, the hearing of argument for both sides, then an impartial decision. Fourthly, it was entirely unnecessary - whether or not Lang’s Government was acting illegally could easily have been determined by the Supreme Court.
The dismissal occurred under the New South Wales Constitution. We are considering the Commonwealth Constitution. No-one ever alleged Mr Whitlam was engaging in illegal conduct at the time he was dismissed (though some hysterical rationalisations for the dismissal were later published). Nevertheless the same arguments against Game would be applicable to a Governor-General who attempted to dismiss a Prime Minister for illegality. Legality is a matter for the courts.
Subverting the Constitution
The Lang dismissal is the only time an Australian Government has been dismissed for a specific illegality. None has been dismissed for ‘subverting the Constitution’ or something similar. There is in fact no current law, rule or convention which states that a Prime Minister who is ‘subverting the Constitution’ must be dismissed and no modern example of the power being exercised in a comparable political system as far as I am aware. A few constitutional writers however have supported the idea.
The concept is inherently flawed. If the so-called ‘subversion’ is alleged to be illegal, then the same arguments mentioned above apply. If it is not alleged to be illegal, on what basis could the Prime Minister’s conduct be challenged? One English text advances an example of such conduct as being changing the electoral laws to ensure the Prime Minister’s party won. Unfortunately that has been commonplace in Australia, particularly in the States - for example, the Country Party was kept in power for years in Victoria by a gerrymander, as was Premier Bjelke-Petersen’s Queensland Government from the 1960s to the 1980s. It is reprehensible and undemocratic, but legal, at least until we have the common sense to include in our Constitutions a requirement for one vote, one value.
The requirement in the Advancing Democracy model for the Prime Minister to be the person with majority support in the House of Representatives means that the Prime Minister could not be dismissed by either the Governor-General or the courts for either alleged illegal conduct or the more nebulous ‘subversion’.
Let us examine though how the Constitution, as amended by the Advancing Democracy model, would cope if a Government’s conduct was challenged, found by a court to be illegal, and the Government then persisted with the conduct. Orders and injunctions would be issued requiring the conduct to cease. Ministers and public servants who intentionally breached the court orders would be liable for contempt of court - a criminal offence. A Prime Minister in contempt could be arrested and charged. If the crime of which the Prime Minister was convicted permitted a sentence of imprisonment for a year or longer, the Prime Minister would cease to be a member of Parliament on conviction, under s.44(ii) of the Constitution, and would therefore be ineligible to remain as Prime Minister. If the crime was a lesser offence, a shorter term of imprisonment would almost certainly prevent the Prime Minister from fulfilling his or her duties in practice, leading the majority in the House to appoint a new leader.
It is simply unnecessary, and undemocratic, for anyone to have the power to dismiss the Prime Minister or the Government on the grounds of illegality.
Go to last Appendix |
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