Is our unwritten constitution worth the paper it’s not written on?

 

When it finally became known that Scott Morrison, in darkest secrecy, had made himself the Lord High Everything Else, the solicitor-general said there wasn’t anything illegal about it. But was there?

When Sir John Kerr sacked a government that had the confidence of the House of Representatives, he wasn’t doing anything illegal. Or was he?

Australia’s constitution is in three bits. The first is the written document, an act of the British parliament called the Commonwealth of Australia Constitution Act 1900. It has occasionally been amended but remains limited to what it always was – a practical manual for running a federal system of government.

The second is case law – judgments by the High Court which define how the constitution applies in particular circumstances. Many of these judgments decide whether the Commonwealth parliament has the power to pass a law or whether the government has the right to do something.

The third element is convention, based on long-standing practice about the way certain things are agreed to be done. These cover a large range, from the trivial to the critical.

THE CONSTITUTION’S FATAL FRAGILITY

The critical conventions are those that protect – or don’t protect – responsible government. An executive government in a democracy has to be answerable to the parliament and to the people. But those are conventions, not the law; and they can be overturned at any time. When they are, responsible government is no longer possible.

The parliamentary publication House of Representatives Practice says this:

“The workings of responsible government, the concept of ministerial responsibility (collective and individual) and the existence of Cabinet (not mentioned in the Constitution) are for all practical purposes the subject of constitutional convention.”

And they quote the political scientist, L.F. Crisp, who wrote in 1965 that: “the [conventions] will affect the operation of the constitution and may affect the working of the law but they themselves have not the force of law.”

That was the thinking behind the Solicitor-General’s advice to the new government that although Scott Morrison’s secret appointments struck at the foundation of democracy – responsible government – they were not illegal:

“That said,” he wrote, “the Parliament, the public and the other ministers … were not informed of Mr Morrison’s appointment was inconsistent with the conventions and practices that form an essential part of the system of responsible government …

“Plainly enough, it is impossible for the Parliament to hold ministers to account for the administration of departments if it does not know which ministers are responsible for which departments.”

There are three ways of converting conventions into law – by referendum to change the written constitution; by laws enacted by the parliament; and by going to court.

First, the referendum option.

State parliaments have the power to fill a casual vacancy in the Senate when their state’s representation is involved, but by convention the vacancy is filled by someone from the same party. That convention was breached twice in 1975.

Joh Bjelke-Petersen, the Queensland Premier, appointed a puppet to replace a Labor senator who had died. And when Senator Lionel Murphy resigned from parliament to become a High Court judge, the Liberal NSW Premier, Tom Lewis, appointed the conservative Mayor of Albury, Cleaver Bunton, instead of the Labor nominee.

That changed the balance of power in the Senate and set the course for the rejection of the Whitlam government’s budget and the elected government’s dismissal. It could not have happened if those state premiers had not flouted a critical parliamentary convention.

The problem was addressed after the event, when a referendum in 1977 succeeded in turning convention into law by changing section 15 of the constitution. State parliaments now have to appoint someone of the same party.

(It would, incidentally, not have changed the Queensland case. The Bjelke-Petersen appointee, Albert Field, was formally a member of the ALP at the time, though an inactive and monumentally obscure one.)

The second method – passing a new law – will almost certainly be used to close the loophole Scott Morrison used to keep his multiple ministries secret. It won’t happen, though, until after the Royal Commission headed by Virginia Bell, a retired High Court judge, reports in November.

The third option – going to court – has not been used in Australia to protect conventions. It was apparently assumed that the High Court would rule that a convention, however important, did not have the force of law.

But perhaps they would think otherwise. That was the case in Britain only two years ago.

THE COURTS SHOULD (AND CAN) DECIDE

In August 2019 the British Prime Minister, Boris Johnson, had a Brexit problem with his back-bench. He wanted to leave quickly, with or without a negotiated deal with the EU. Others wanted a delay. Johnson, at that time governing in minority, would probably have lost a vote in the House of Commons and may have faced a no-confidence motion.

Parliament was due to be prorogued, or suspended, for four or five days to prepare for the next session of parliament. Johnson advised the Queen to extend that to five weeks. The longer delay would solve his problem by preventing the House of Commons from voting on anything – including Brexit and any no-confidence motion. The Speaker, John Bercow, said it was “a constitutional outrage" designed to “stop MPs debating Brexit”.

The Queen, taking the view that she had to act on the advice of the Prime Minister, gave her consent.

Unfortunately for Boris, that was not the end of the affair. Large groups of MPs and others began legal actions in the Scottish Court of Session in Edinburgh and in the High Court of Justice in London. These courts are the equivalent of Australia’s Federal Court.

The London court found the case was non-justiciable – that it was a matter of political convention, not of law. The courts, therefore, could not intervene.

A different answer came from Edinburgh. The Court of Session declared the royal proclamation as “null and of no effect”. They found Johnson was motivated by “the improper purpose of stymieing Parliament” and had effectively “misled the Queen”.

The next stop was Britain’s Supreme Court, the highest court in the land. Eleven judges sat in the case and all agreed with the Scottish verdict. And so a convention – that parliament could not be prorogued for the purpose of avoiding debate – became law. The president of the court, Lady Hale, famously wore a spider brooch, setting the mood.

Lady Hale and her spider

This is what she and the other judges said: “A decision to prorogue parliament (or to advise the monarch to prorogue parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.

“In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

After all, if the Prime Minister can prorogue parliament for five weeks at will, what's to stop him suspending it for five months or five years?

That judgment is important not only for Britain but for other jurisdictions governed under the Westminster system. Including Australia. The Supreme Court judgment firmly rejected the notion that the courts had no place in deciding matters of political convention:

“Although the courts cannot decide political questions,” they said, “the fact that a legal dispute concerns the conduct of politicians, or arises from a matter of political controversy, has never been sufficient reason for the courts to refuse to consider it … The courts have exercised a supervisory jurisdiction over the decisions of the executive for centuries.”

This would be a relevant precedent for Australia’s High Court to consider. First, though, someone would have to bring a case.

WHAT’S THE G-G FOR, THEN?

Perhaps the most cogent argument in favour of having a head of state is to put someone above politics who can intervene when politicians endanger the democratic process.  These are the reserve powers and they don’t work.

In 1975 Sir John Kerr – and the Queen, as we can finally see from the palace letters – were the problem, not the answer. And David Hurley could have avoided the assault on democracy of Morrison’s secret ministries simply by publicising them himself.

And in Boris Johnson’s attempt to suspend democracy for his own advantage, the Queen was no help at all.

In all three cases, the key convention was that the crown must act on the advice of the Prime Minister. In the Morrison and Johnson cases, that advice was obediently and apparently unquestioningly followed. In 1975 it was not. Whitlam was still the Prime Minister with the confidence of the House of Representatives but Kerr overrode both the Prime Minister and the parliament.

In all three cases, the regal and vice-regal safety-net failed.

This invites three possible solutions: get rid of the reserve powers altogether; define (codify) what they are and how they should be used; or change the written constitution to remove any doubt that the High Court has jurisdiction to rule on important disputed matters of convention.

Constitutional convention and reserve powers are intricately bound together. The debate over reserve powers is almost always about how they should impact on unwritten but important conventions.

“The ephemeral quality of constitutional conventions,” wrote constitutional law expert Dr Bede Harris, “makes them incapable of meeting this challenge of identification and definition of the powers of the head of state.”

It’s probably impossible, and certainly impractical, to codify every possible reserve power and convention. But the failure to define those core aspects, upon which ensure responsible government depends, is to disregard matters that are too important to leave alone. They relate to the powers to suspend and dissolve parliament, to commission a Prime Minister and ministers, and to accept or reject bills.

Some of these could be included in the republic referendum, which is likely to be held in the next term of parliament. The Australian Republic Movement proposes:

·       Removing the power of the head of state to dismiss a Prime Minister who commands a majority in the House of Representatives. This would address the Kerr situation.

·       Requiring the head of state to prorogue parliament whenever the Prime Minister advises it. If this provision had existed in Britain two years ago, Boris Johnson would have been able to prorogue parliament and avoid scrutiny. It shows the difficulty of anticipating all situations.

And that is why Professor Anne Twomey, perhaps Australia’s most prominent academic expert in constitutional law, warns against wholesale codification.

“Calls to replace all prerogatives [reserve powers] with legislation as a reaction to the recent prorogation controversy should be treated with wariness,” she wrote.

“While some prerogatives may be better dealt with by legislation, that cannot necessarily be said for all of them. It is important to be discerning in determining which prerogatives to codify in statute and to be very careful as to how this is done, with particular consideration being given to how other prerogatives may be affected in different scenarios.”

RESOLVING THE IMPASSE: HERE’S HOW

This leaves us with a problem. Many, perhaps most, conventions cannot be codified without creating as many problems as they solve. Not all situations can be foreseen.

Often, these complex matters demand careful and informed judgment. That’s what heads of state are supposed to provide; but experience shows we can’t always rely on them. So where could that judgment come from?

The British Supreme Court, in its unequivocal judgment on Boris Johnson’s prorogation ploy, provides the obvious answer.

“We are firmly of the opinion that it is justiciable,” the eleven justices said. “It is well established … that the courts can rule on the extent of prerogative powers.”

High Court .. ideal final arbiter

If that’s the case in Australia, the assumption that such matters are out of reach of the courts is wrong. And the solicitor-general’s opinion that Morrison was not acting illegally in keeping his many ministries secret is also wrong.

But we need to put this beyond doubt. Rather than loading up the already-controversial republic referendum with complex matters few voters will understand, the constitution could be amended to remove any doubt that the High Court has jurisdiction to make the final decision.

It would not remove the powers of the head of state but would provide an authoritative, credible avenue of appeal.

We’ve seen often enough that referenda fail when voters feel they do not understand the proposed changes well enough. Avoidable complexity could once again sink the whole republic project. And that would be a pity.