It was once a proud boast that Australia was one of the world’s six or seven oldest continuing democracies.
Few would have predicted, less than a mere two years ago, that Australia would have fallen so low in repute to be the subject of disparaging reports in the international media about the surprising degree of authoritarian, even dictatorial control, exercised by governments of not especial competence or qualification over the lives and liberties of Australians.
There is a justifiable suspicion that some powers were exercised partially or even wholly for political advantage and that many were excessive and unnecessary.
In any event much, indeed, most of what was achieved in the relatively low rate of deaths attributed to the virus, was not the work of the politicians.
Rather it was the result of the very simple fact of geography that Australia remains, just as New Zealand does, one of the world’s most remote island nations.
Nevertheless, there is a bill before one state parliament, Victoria, which would invest the very premier—the first minister of the state—whose performance was by far the worst, with powers which neither Winston Churchill nor John Curtin had during their greatest of emergencies, the threat of invasion by a hostile power.
The exercise of truly draconian powers over the people during the pandemic has drawn attention to the fact that, over the years, there has been a gradual whittling away of the checks and balances which are intrinsic to the constitutional government under the Westminster system which developed in the United Kingdom after, and probably because of, the U.S. War of Independence.
The essential difference between the Westminster system, and the American system is that in the Westminster system, the government must have the confidence of the lower house where a vote of no confidence can bring it down.
Also, unlike the United States, it is a collective government, with the prime minister or premier being no more than first among equals. In addition, ministers must normally be members of parliament.
These are powers which, to be frank, no electorate can trust in anyone’s hands without careful checks and balances.
It was former U.S. President John Madison in the American revolution who reminded the world that if men were angels, no government would be necessary.
The fact that government is necessary means government must be surrounded by checks and balances. The reason is the eternal truth stated so famously and eloquently by Lord Acton, that power tends to corrupt and absolute power corrupts absolutely.
Almost all of the control exercised in Australia during the pandemic, either federally or in the states and territories, has been done under subordinate or delegated legislation made at the direction of the premier or prime minister by one single person, politician, or bureaucrat.
The detailed medical reasons for this are usually referred to as if they were some theological mystery, such as “the advice.”
As such, the claim, true or not, is that the prime minister’s or premier’s hands are tied, the suggestion being that he or she could not resist such infallible advice by the unelected medical bureaucrat. But rarely, if ever, is this medical advice made public except in rare cases where a FOI (Freedom of Information) application is successful.
On at least one occasion the delegated legislation was made without medical advice according to a chief medical officer. We only know this because she said so. This was the closing down of the construction industry in the largest state—New South Wales—for two weeks at a reported cost of A$1.4 billion (US$1 billion).
We also know that curfews and school closures have been affected for other than health reasons.
What sort of society, outside of a dictatorship, allows such an exercise of unbridled power on what seems to be no more than a politician’s whim?
Even in colonial times, and until relatively recently, it was normal for subordinate legislation of any importance to be presented to the governor, which we call the executive council, and the Canadians and British call the privy council. In Australia, such officials are not elected but are appointed, directly or indirectly, by the Queen.
The role of the governor is essentially to audit the propriety and legality of the process and be satisfied that he or she has the power to do what the ministers advise and if there are any conditions on the exercise of power that these are fulfilled.
This process of the governor being satisfied is designed to avoid any offence under tort law or misfeasance in public office.
This exercise, especially by a conscientious and competent governor, is an example of the vital maxim that the Crown is essential not for the power it wields but the power it denies others.
That is why in the Westminster system, supreme power is never given to a premier or prime minister, who remains, after all, a mere primus inter pares—first among equals.
Then, once the subordinate legislation made by the governor is approved and published, it is tabled in Parliament where either house can debate it, call for information to explain it, and if they think it unreasonable, disallow it.
Further, it is proper that each house be entitled to disallow it, especially where it removes or curtails rights and liberties—which we have seen with the pandemic, can (and in fact did) damage and destroy businesses, careers, fortunes, education, health, and even life itself.
In 1999, the Australians for Constitutional Monarchy (ACM) led a campaign against a referendum on seeing the current constitutional monarchy replaced with a republic.
This move would see the removal of significant checks and balances, including the governor-general as a constitutional guardian.
It would have been the only republic not only in the world but in history, where the prime minister could sack the president without notice, without grounds, or without a right of appeal.
Now, seeing issues stemming from the pandemic, distinguished former judge, Kenneth Handley Q.C., is calling for a national discussion on the restoration of constitutional government during emergencies—a theme we shall explore at a forthcoming national conference by the ACM involving former Prime Minister Tony Abbott, leading broadcaster Alan Jones, and leader of the United Australia Party, Craig Kelly.
