Thirty years ago the trouble was that the Government did not have majority in the Senate.
The trouble now is that it does. At least from a Labor perspective.
The past week’s outpourings in the lead up to the 30th anniversary of the dismissal divided along predictable lines: republican-Labor saying that Governor-General John Kerr acted unconstitutionally – in effect exercising a coup – and constitutional monarchist-conservatives saying what he did was perfectly legal and within the Constitution Coalition.
There is some difficulty with the Labor-republican view. If Kerr did sack Whitlam unconstitutionally, redress presumably could have been sought in the High Court, the upholder of constitutional legality. But it was not and could not have been, because the words of the Constitution are as plain as day – the Governor-General appoints the ministers of the Government. And the Governor-General is appointed by the Monarch, who holds office under the principles of hereditary and divine right.
Nearly all the time, the Governor-General appoints ministers according to the advice of the leader of the party that can muster a majority in the House or Representatives.
But once in Australia’s 105-year-old history he did not. We are now marking the 30th anniversary of that occasion.
Could it happen again? Hypothetically yes.
The Constitution provides that the supply and appropriation of money must be approved by the Parliament comprising both the Senate and the House of Representatives.
This is a flawed system and the fact is has not been fixed is a blight on our constitutional and democratic history.
We are marking the 30th anniversary of the one time in our history since federation that we did not have a democratically elected Government.
It is no good saying that Australia is an independent democracy because conventions and practice in addition to the Constitution make it so. That works nearly all the time, but not all the time. In these days of whipped up fear over terrorism, conventions and principles are not worth much.
We should revisit constitutional change. It is broke and defective. You won’t get perfection but you can get a Constitution that reflects and can help enforce democratic practice.
It seems that if the monarch and Governor-General head of state duo is to be replaced by an Australian chosen by Australians it will have to be by a directly elected head of state. The opinion polls are unmovable on this, despite the apparent conflict with opinion polls saying people do not want a politician as head of state. A direct election will mean a Labor-v-Liberal run-off.
An elected politician may present some dangers – he (or she) might get ideas that he represents the democratic will and therefore refuse to sign some Bills into law, or dismiss a Government, or call an early election.
It might mean that the powers of the head of state must be codified. Incidentally, that is true under the present system.
But the other way of going about it is to change constitutional arrangements so there is no room for the Head of State to exercise power contrary to what the elected parliament has decided.
Here are some suggestions. One. Fix the terms of Parliament, so there is no discretion by the Head of State to reject a Prime Minister’s decision on an election date and no discretion by the Head of State to call an election out of the blue (as what in effect happened in 1975).
Two. Remove the Senate’s power over Supply, but not totally over money measures. The Government should be allowed to have what it had last year plus CPI.
Three: After an election, the Parliament meets and is presided over by the Chief Justice until a Speaker is elected and the first business is the election of the Prime Minister. This is the system in the ACT and it has worked for nearly two decades without hitch, despite an absence of clear majorities on most occasions. At any time, the Parliament may dismiss a Prime Minister, but only if it names the new Prime Minister in the same motion.
Four: The Prime Minister signs Bills into law, as in the ACT. In the ACT Chief Ministers with a minority have regularly signed into law Bills that they had voted against in the House.
Five: A bill of rights with such things as freedom of speech and no arbitrary taking of liberty or property.
We can continue with the arrangements that created 1975 and nothing might happen, but the potential is there for the ostensibly powerful Governor-General to sack an elected Government. So it is a flawed democracy. And those people who have argued that it ain’t broke and that written Constitutions with Bills of Rights mean nothing compared to traditions of democracy and rule of law should wonder if that argument holds in the face of the new regime of preventative detention without trial. And we should bear in mind that this new regime is brought to you by the Government that illegally detained more than 200 Australian citizens under “get tough” immigration laws and will be administered with the help of the intelligence agencies that brought us children overboard and the certainty of weapons of mass destruction in Iraq.