Time to rethink the PM's powers
Drafted in deference to the British Empire, the Australian Constitution allows our leaders to wage war without Parliament's backing
In 1975 Malcolm Fraser ambushed Gough Whitlam, secured an early election, and romped into office. The people gave Malcolm the "thumbs up". However, from the moment that Gough was declaring from the steps of Parliament House that "nothing will save the Governor-General" there was vigorous debate about the constitutional correctness of waywardness followed in the dismissal of the Whitlam Government. Much of that debate focused on whether or not the Governor-General had strayed beyond acceptable limits to his powers.
That was more than a quarter of a century ago. Since then our legal ties with Britain have been formally reduced, there has been a Constitutional Convention and the lengthy report of the Constitutional Commission, a referendum on our preferred model for a "head of state", and a year-long celebration of 100 years of Federation. Collectively these events suggest our democracy is in good shape.
That makes it all the more surprising that when our Prime Minister recently declared war upon Iraq there was nary a public whisper about the appropriateness of the method he followed. There was much public debate about whether our nation should be a member of the invading force. There was none about the method that ought, in our Parliamentary democracy, to be followed before our armed services launched attacks upon another state which had neither attacked us nor threatened to do so.
This was the first time in our history that we sallied forth to attack without an umbrella provided by empire, treaty or United Nations mandate. Why then has there been no vigorous discussion about whether our Prime Minister strayed beyond acceptable limits to the powers of the executive?
Both in 1975 and 2003 the significant events were outside Parliamentary control.
The act of dismissal and the declaration of war are both based in what are quaintly known as the "exercise of Crown prerogatives". This is a hangover from those ancient times when the king commanded and the subject obeyed.
Even as the powers of parliaments grew, so the monarchy retained some powers which it could, and did, exercise at a whim.
When our founding fathers debated our Constitution they did so as loyal subjects of an empire upon which the sun did not set.
They included one short section to declare that the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General. That was enough to import the Crown prerogatives.
No-one, then or since, turned their minds to the possibility that those few words would suffice to enable a Prime Minister to lawfully avoid Parliament, ignore the massed protests, and "do it my way".
There is no doubt that because of the fundamental principle of parliamentary supremacy over the executive it is open to our Parliament to pass a law which will reduce or abolish this "unfettered" right to wage war.
It must come as something of a surprise to know that while there are laws that control how the police behave, what the tax man can do, how long one must go to school, the age of consent, the management of hospitals and cemeteries, and a myriad other aspects of our lives, there is absolutely nothing in the way of an act of dictatorship when it comes to committing the men and women of our defence forces to aggressive hostilities.
The existing mechanism is simple enough. The Governor-General is "head" of our armed forces, invoking those times long past when the king led his forces on to the field of battle. The Prime Minister advises the Governor-General and, presto, we are at war.
Archaic mechanism needs a rethink
At the least we need some legislative control on this archaic mechanism, some rules that guide the Government and stay its hand until there has been a proper accounting for what is to be done, why, when and with which of our forces. Any such legislation must also have some budgetary controls within it - so many times in history the lack of funds has stopped or delayed warlike expeditions.
In the absence of such legislative control we should expect a future leader to take advantage again of this prerogative, arguing in support that there was a precedent in March 2003. Our silence will be taken as informed consent. Thus can a relic be reshaped in modern form.
No such law to control this prerogative will be passed in the near future. Supposing that a private Member's Bill was introduced before the next election, it would be defeated in the House of Representatives as the Liberal and National Party members stand en bloc behind their leader.
Would a Labor government introduce or support such a law to cut down the power of the executive? Perhaps its leadership will tell us.
Whether or not you support our actions in Iraq, as a voter in our proud democracy, are you content with the notion that we wage war without the imprimatur of legislation by our Parliament? As we were not under attack, what impediment was there to the Government introducing legislation to define the nature of our involvement?
Certainly there was no legal impediment. Surely there was a moral imperative to do so. If the cause was just, then the Parliament could be persuaded, not necessarily to do exactly what Blair and Bush desired, but along the way.
The resort to the prerogative was within the rules, like underarm bowling. It took the "unused" and pretended that it was "up to date". And like that conduct it smacks of that most unAustralian characteristic, a lack of fairness rolled up with the smell of a foul.
One can only wonder what might have happened if the Prime Minister was confronted by a constitutional expert as Governor-General.
Such a person might have noted that the attempt to declare war was a usurpation of the rights vested in his office and politely declined to play ball, perhaps by simply being indisposed for long enough to create the smell of a "constitutional crisis"
That would have been a field day for the commentators - 1975 revisited.
In 2003 John Howard ignored the Parliament, went to war, and saw the polls move his way. No doubt he'll choose the time for the next election, romp to victory and claim the people have given him "the thumbs up".
How ironic that this man who fought so hard to label the Republicans as wrong-headed should be the best evidence of the dangers that lie in our monarchist inheritance.