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Monthly Archives: April 2011

Ambassador Bleich, the US Ambassador to Australia on Wikileaks:

http://photos.state.gov/libraries/adelaide/171311/speeches/20110210.pdf

Here is a rare interview by John Paul Stephens http://www.theatlantic.com/national/archive/2011/04/a-conversation-with-john-paul-stevens/237984/

Stephens proved to be, what Americans call, a liberal justice on the Supreme Court despite being appointed by a Republican. In truth, he is a moderate justice (certainly no Kirby). He is at most like a Sir Anthony Mason or a Justice McHugh. What happened was that the conservatives placed political conservatives on the bench rather than judicial conservatives.

His book should prove to be most enlightening given that background, and given that he was almost the longest serving Supreme Court justice ever. At one point, people thought he was going for a McTiernan (hanging on for dear life until either a Labor government comes in or until the Chief Justice refuses to build you a wheelchair ramp).

I have written about why I believe Australia should become a Republic, but it would be an injustice to the aims of this blog if I were to not describe the consequences of doing so, for this blog was never meant to be polemical (though it sometimes is) but it was intended for the general edification and so that I might seek the Truth.

The path to becoming a Republic will throw up many thorny issues. How can we amend the Constitution of Australia Act (UK) which contains the Constitution of Australia? The word ‘Crown’ has a million meanings; how would we replace that word where it is deliberately ambiguous? But, these are highly technical issues that can be solved. For the layperson, the end result will simply be that the word Queen is deleted and replaced by the word ‘President’. What effect will that have?

I have said that becoming a Republic will close off the last vestiges of monarchic control over Australia, however indirect, through the Queen’s potential advice to the Governor-General and Governors and through those few instances where information, by convention as strong as law, is sent through her. The most striking example that remains is the choice of the Governor-General him/herself. Who knows how much influence the Queen has had over past selections, because as I said there is a very strong constitutional convention that you may not tell others what the Queen says to you.

The monarchists often argue that it is a fundamental change to remove the Queen from our constitutional system, that she is an apolitical actor who can act when all else is shorn by partisanship. In truth, that role is now fulfilled by the Governor-General – as the example of Canada in 2008 shows. There, the Prime Minister sought to prorogue Parliament and advised the Governor General, Michelle Jean, to do so. He spent two hours convincing her, and was only allowed to prorogue Parliament for a short time so that he might draft a new Budget and Stimulus Package that the new Parliament might approve of.

The only functional role that the Queen plays, and ought to play, is in the dismissal of the Governor-General. It is argued that since the Prime Minister can dismiss the Governor-General and the Governor-General might dismiss the Prime Minister, that only the Queen might break the deadlock. It seems like a reasonable argument, except that any close study of the reserve powers shows that it is absolute hokum in practice. The PM v GG fight is like pistols at dawn, there are numerous incidents where everything turned on a matter of timing. If PM Whitlam had sought a double dissolution before his infamous dismissal; he would have prevailed. The Queen could only have acted if she were right in the thick of events, knowing everything that was occuring; she would have had to act very swiftly. In most circumstances, it would be impossible. She might only act retrospectively, and that would only be in cases of gross constitutional impropriety and it would always be more appropriate to have such matters decided by the people at an election. It is difficult to imagine any scenario where such a crisis could occur without an election happening.

So, shall we assume that no change will occur? That would be stretching things too far, I think. What is the role of the President in an Australian Republic? There are arguments, even now, that the GG is the trustee of the Constitution who preserves the constitutional order in times of constitutional crisis; who tidies up the little niceties that others forget. The contrary view, that the GG is merely a functionary for a non-interventionist Queen, would obviously be swept away in a Republic. Would the President get too big for his boots, and believe in an expanded ‘trustee of the Constitution’ role for himself? Would he strike down Bills he sees as unconstitutional, or dismiss Prime Ministers for political scandals (rather than merely grossly unconstitutional actions)? It is possible. But the genius of the system is that, because the Governor-General is unelected he has no democratic authority to appeal to, so he is constrained to a minimalist role. In a country with a High Court to adjudicate most legal matters, he is restricted to exercising his powers in non-justiciable legal matters only. That is why I oppose any directly elected president (unless we rewrite our constitution in its entirety).

The difficulty with predicting the future is that Australia’s constitution consists mainly of constitutional conventions which are unwritten and constantly evolving. To the law student who has sat through a Fed Con lecture, that seems obvious, but the point is more nuanced than they might think. Who does the Governor-General represent, now that he is no longer the Queen’s representative? If he represents the Constitution, does he have the power to defend it (by refusing to exercise his powers if they breach the Constitution)? If he represents the People, does that give him a greater democratic mandate to dismiss the Prime Minister for gross political (and not constitutional scandal)?

Furthermore, the High Court has been willing to make implications from relatively minor changes to the Constitution. In the case of Sue v Hill, they quite expressly adopted an evolving view of the Constitution, based upon constitutional landmarks such as the Statute of Westminster, the Australia Acts and, probably, the Republic. One excellent example is Kable v DPP, which extended the separation of powers to State Supreme Courts. The Australia Acts abolished appeals from the State Supreme Courts to the Privy Council, leaving the High Court as the final arbiter on Australian legal issues. Kable pronounced that the Constitution now envisages one common law, with the High Court at the apex of a judicial hierarchy. The High Court said that the Constitution now contemplates such a hierarchy which includes ‘Supreme Courts’ which must be fit to bear the name ‘Court’. Thus, it was a breach of the Federal Constitution for State legislatures to legislate in a way that severely undermines State Supreme Courts. Such a ruling could not have happened before the Australia Acts, and I doubt that anyone could have foreseen Kable when they abolished Privy Council appeals.

To any non-law students whom I have yet to drive away, the summary of this article is simple. The Constitution rests upon twin pillars of law and convention. This flexibility is its great strength, but also a source of unpredictability.

In all that I have said, is anything of great concern? Should we be concerned that, when Prime Ministers intend to perpetrate grossly unconstitutional acts, that a President might stop them? It is not realistic to believe a non-elected President would intervene in anything but the most extreme circumstances.

A Republic poses some small challenges, but it also provides great opportunities to fortify our Constitution and allow the High Court to derive implications from it that are the privileges of any free and independent nation. Let it not ever be said that when faced with the future, Australians fear to look forward and preferred the stability of limbo.

Disclaimer: I am not a lawyer nor legal academic. These views are my own, and any legal facts should not be treated as legal advice or anything but the views of one student who may or may not be right. In particular, I have yet to actually study the Republic directly in my constitutional law elective and the entirety of this post is my own personal opinion.

The Economist has a regular column ‘Bagehot’ which discusses UK affairs named after Walter Bagehot, a 19th Century constitutional lawyer who wrote the classic book The English Constitution. His contribution to constitutional law is still remembered today, for he gives us the three rights of the Monarch (and his/her vice-regal officers): “The right to be consulted; The right to encourage; The right to warn.”

I had no idea that he was also the Editor-in-Chief of the Economist. That august newspaper has become that little bit more august in my mind.

He also said the following choice quote:

It is often said that men are ruled by their imaginations; but it would be truer to say they are governed by the weakness of their imaginations.

Thomas Jefferson once Declared, in beautiful prose, these following words: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness”.

I am a Republican because equality should be the gift of every child, so they have the same opportunity to make of their lives what they will; to pursue Happiness.

Are you a Republican? Or are you a monarchist, who believes in the Divine Right of Kings, the mediaeval notion that the Creator extended His hand to bless one particular family with His sovereign imprimatur regardless of how many wives they marry (and how many religions they might found to obtain that right).

When the Queen dies, the throne might go to Prince Charles, a man so daft that he believes in homeopathy; it might go to Prince William, a man of such unimpeachable bloodlines that he is balding before 30. What is clear, though, is that it shall not go to a man like Barack Obama, a man who fought racial prejudice to become the first black President of the Harvard Law Review and then the first black President of the United States. It shall not go to a Victoria Cross winner, who earned his honours by bravery and good deeds. Nor to men of wit and good humour, of charisma and charm, of good temperance, courage, intelligence or men or women with any of those qualities that make for a great leader. Instead, it shall go to these men by virtue of primogeniture.

Primogeniture. What does that mean? It doesn’t just mean that the throne may only pass to the dusty descendants of some 17th Century German named Sophia of Hanover. It means it goes to the first-ranking male, and expressly excludes Catholic.

The only argument that ordinary people (and not aristocratically infatuated elites who support a continued monarchy) raise against a Republic is the tired old line, “Don’t fix what ain’t broken”. And yet, our constitutional system is broken. The Queen, and her representative, the Governor-General are vested with vast powers under the Constitution. She is both the receptacle of legislative power (s 2) and executive power (s 61, amongst other sections). She owns the land and the law; Ministers, Judges and certain civil servants swear an oath to her (and not the nation, flag or country) upon taking office. She is Commander in Chief and may exercise the prerogative of war.

This is not theoretical power, but actual power expertly wielded by one who has held power for a very long time. She has no legal power, but her influence is magnified immeasurably by the fact she is part of every aspect of the governmental process.

The story of the Queen’s hidden power is told through anecdotes. You will know how the Queen did what the APEC nations could not – to stop the Chaser doing what they do best. As others have pointed out, stifling political and satirical commentary on an event broadcast around the world simply would not be tolerated if it were done by China or any other State in the world. Why is it tolerated by one who regards herself as divinely born?

Did you know that the current Queen attempted to block the Australia Acts from passing just 30 years ago? The tale is told in the Chameleon Crown, a book by Anne Twomey. The Queen trenchantly refused to listen to the advice of her Commonwealth and State Ministers, at each and every step using guile and deception to stop them agreeing and throwing roadblocks whereever she could. She succeeded in this for many years, but she was defeated by a cross-partisan group of governments. Had she been more successful, Britain would still retain the power to reserve State legislation and to refuse assent to contentious Bills.

It was only through meticulous research that this history was uncovered, but the lesson should be learnt and heeded – the Queen’s power is her incredible influence behind the scenes and within the shadows. It is enhanced by the great and undefined powers vested in her by the Constitution. Sections which constitutional scholars thought were relics are still in use. In Britain, for example, it was thought that it was a mere formality to send certain Bills to the Queen before she assented to them. It turns out that she demanded to have them sent to her earlier so that she could get independent legal advice on whether those Bills should be altered.

Even now, the Governor-General and the State Governors exercise great powers that are crucially important in a hung Parliament. They might have the power to refuse Royal Assent to Bills. This is not an outdated power. Assent was nearly refused last February at the Commonwealth level and in Victoria in 2005. It happened almost 50 times in the various Canadian provinces between 1900 and 1935 (there is no little research on later refusals of assent). The Governor-General and Governors may prorogue Parliament and dissolve it, they may dismiss the Prime Minister and the Ministry. Though convention binds them to do this on ministerial advice, they remain the Queen’s representatives.

It is doubtful that they would listen to the Queen’s command, but they are honour-bound to listen to her advice, and convention-bound to never disclose what the Queen says to them. It’s almost like a conspiracy theorist’s dream – a secretive family hiding in the open, with laws vesting absolute power in them and laws that prevent anyone from knowing how she exercises those powers.

I am a Republican because the principles of democracy and equality must be upheld. One should not be raised above all others at birth because they have particularly anaemic ancestors. The Queen wields her influence through soft power, and that power is magnified by the vast power vested in her by the Constitution. It must stop.

I think, along with Dixon CJ and McHugh J, Evatt J is becoming one of my favourite justices.

I’ve just been reading two of his learned books. The first is his PhD thesis, the only thesis to have won a University Medal in the University’s very long history. This PhD, of course, is what bestowed upon him the name ‘Doc Evatt’, the name to which he was known to the world. The thesis is on the prerogative powers, and its a marvellous and very thorough work. On one point, at least, I disagree with him. He doesn’t discuss the prerogative power to summon, prorogue and dissolve Parliament. Whilst in most Australian and other Dominion jurisdictions, this is no longer a prerogative power (but a statutory/constitutional power in the nature of a prerogative power), it was at least worth a discussion. He may also have considered it not to be a prerogative power, due to its legislative (and not executive) nature, a matter with which he disagreed with Keith. On this I would also disagree with him.

But I am also reading his book, The King and His Dominion Governors and he wrote the following passage of which I am much enamoured:

In connexion with such grave constitutional problems, one observes a very curious growth of ‘authority’. The helpful precedent is selected and the general statement advanced until, as time goes on, the loose generalisation is itself treated as the true and only gospel. Further, what is really the appropriate subject for specially trained constutional lawyers and historians tends to become the hunting-grounds of mere party polemics.

Too true. If someone comes to you bitching about the Lang or Whitlam Dismissals, you quote that passage to them.

As you may know, I’m a big fan of marine biology. Set adrift from the land and animals with which we are so familiar, it is possible to see the innovation of evolution in its brightest glory. There are deep sea anglerfish whose males have resolved the difficulty of finding mates in the deep, wide sea by becoming parasites, permanently attaching to any females they find. There are animals thought lost to the world, like the nautilus and the Kraken. There are animals passingly similar to those more familiar, and yet so different like prawns which zip in and out of heat vents from absolutely freezing water to boiling water without a care.

And yet, the deep sea is the last frontier on our planet. Whilst Man has conquered Everest, the poles and even tamed the deserts to his will, he knows nothing of the deep sea. When the Ocean covers 72% of the world’s surface, isn’t it absurd that we’ve only explored 1% of the deep sea?

Let me outline a few of the absurdities that ensue. Despite the Louisiana Purchase and the Manifest Destiny of America, 50% of American territory is completely unexplored. We lack even basic maps of the ocean floor. It is a fact that we have better maps of Mars than we do of the Earth itself.

That’s why I’m so enthused that Richard Branson is designing his own one man submarine to explore the deep sea. Whilst all the focus has been upon private capital being used as the next explorers of space, we have forgotten the other great frontier of man – the sea.

Private capital is no substitute for government funded research. For one thing, it is simply too risky to do it that often. Yes, there are many potential rewards but completely unquantifiable ones. Compare this to oil exploration – we know the rewards, we know they’re large. But the sheer improbability of finding oil in a particular place relative to the costs highly limits the profitability of oil exploration. For another thing, private discoveries are not shared with the world, and that is what science is for. In adopting the great impetus of capitalism, we cannot forget the impetus that pulled man down from the trees to stare across the plains of the future – curiosity. Oftimes, the desire for knowledge can be just as powerful as the lust for material rewards.

Both have a role to play. Eventually, innovations in technology driven by private enterprise will flow to the public sector. But this is terribly cool.

“[Staunford] wrote books so crammed with references and quotations that he seemed incapable of venturing an opinion unless it could be derived from someone else. In that sense Staunford was the first modern legal textbook writer”
– J H Baker, English Law and the Renaissance


“So much is to be found in Men of all conditions, of that which is call’d Pedantry in Scholars: which is nothing else but an obstinate addiction”
– Thomas Sprat, The History of the Royal Society, London

(And yes, the latter is taken from the Facebook feed of a friend, who incidentally occasionally does read this blog)

The Sydney Morning Herald is now reporting that Pauline Hanson is set to win the final NSW Legislative Council seat. The article in itself is an unusual development, since Hanson has been in the lead for some time and Anthony Green blogged that it was slightly misleading, since it didn’t account for preferences. That suggests to me that the SMH now believes the result is sufficiently final that Hanson will win. Or, its a slow news day. For the record, Anthony Green believes the result will remain too close to call until the ‘count preferences’ button is pressed.

What would happen if Hanson won the final seat? I argued before that the result would not be a total disaster because each time they wished to pass a Bill, the Liberals had a choice between allying with 2 feuding right-wing parties, or with the Greens. In many cases, it might have been easier to negotiate with the Greens (assuming they are reasonable) than to cobble a compromise acceptable to 4 political parties (Liberals, Nationals, the Shooters and Christian Democrats). In other cases, their interests may intersect quite easily.

If Hanson is elected, the Greens will still hold 4 seats. Since the Liberals have 19 seats and need 22 seats to pass a Bill, their choice remains between negotiating with the Greens alone, or with 2 of the 3 right-wing parties. So looking at the issue on a purely numerical basis, it appears that Hanson’s victory makes it easier to negotiate a right-wing coalition on any individual Bill (since if one party is stubborn, the Liberals can negotiate with the other 2 parties).

But politics is never purely about numbers. Whenever Hanson is the final vote, the Greens and Labor will yell red fury and say the Liberals are kowtowing to the racists in Hanson and the CDP. This may make it preferable for the Liberals to negotiate more often with the Greens (or even Labor) to maintain good relations with them, and to offer plausible deniability when negotiating with Hanson.

This will certainly make for an interesting legislative council.

Edit: The final count has been finalised for the final LC seat. The Greens have won a 5th seat.

Apparently, the Greens won on the back of preferences from the Family First candidate, Gordon Moyes. Despite the reputation of Family First due to Parliamentary dunce Steve Fielding Gordon Moyes is a relatively upstanding candidate. A former CDP MLC, he quit the party due to Fred Nile’s authoritarian attitudes and his Islamophobic/racist policies that he described as unChristian. No wonder many Family First preferences would move to the Greens rather than One Nation, but it is a surprising result.

The US Budget showdown is fascinating for a number of reasons. As one of my friends commented, what triggered a constitutional crisis in Australia in 1975 is the ordinary course of business in the US.

What occurred was a powerplay of the most extraordinary proportions. The stakes were high. On the Left, Barack Obama feared the curse of all left-wing politicians in the modern era – to be painted as a tax and spend liberal who would raise the debt ceiling rather than slash spending. On the Right, John Boehner’s gambit would have paid off very poorly for him had he actually shut down government. Shedding $8bn off the economy each week the government shutting down, and potentially annihilating all the economic recovery since the GFC would have destroyed Boehner’s whole economic narrative for slashing spending. More importantly, financial markets had expected the Budget to be passed. Had they not, they would have plummetted and Boehner would have been blamed.

Equally fascinating, I find, is the composition of the budget. Whilst both sides were quibbling over Planned Parenthood (an abortion counselling service, partially funded by the government) and NPR (roughly equivalent to ABC radio here), the truth was that the majority of spending and thus where the majority of spending cuts should have come from was Social Security, Medicare, Medicaid and Defence.

Here is a graphic from Wikipedia:

Isn’t that staggering? Only 20% of the Budget is actually discretionary spending on most of what you think the Federal Government does. Everything you think the Federal Government does – national highways, FBI, CIA, NASA, national parks, running the Senate, Washington DC. That’s all placed in to a category marked ‘misc’.

At least 43% of Federal expenditure is on state issues – health, social security etc. 20% is spent on the Defence. And interest payments on the US’s huge debt, is 6%. That’s one third of all discretionary spending. Cutting the debt isn’t just a political buzzword, its an economic necessity in the long run.

And isn’t also funny how disconnected the ordinary American voter, and to some extent, the American media, is from the real issues? Whilst there was some focus on slashing health expenditure, the far greater focus was on incredibly minor partisan issues. I am not fond of the Republicans who pushed these partisan interests ahead of the national interest, but nor am I fond of Democrats who refused to allow cuts to the sacred cows of Medicare and Social Security.

This blog has taken a consistently strong line on health care reform in America. This is not a question of trimming budgets and cutting wasteful spending. This is a question of wholesale structural reform of the US healthcare system. I may not agree wholeheartedly with Obamacare. I may not agree wholeheartedly with Republican proposals. But the way America’s healthcare system has evolved, it is grossly inefficient and wasteful. America spends far in excess on healthcare, whilst experiencing shorter life expectancy than equivalent countries.

As one of my (conservative) friends pointed out, isn’t it funny that progressives believe the Constitution is a ‘living document’ whilst believing programs like Social Security and Medicare that were conceived of in a time with totally different demographics are set in absolute stone?

Today, the NYT ran a series of articles on how Obama might reframe his leadership as a result of the Budget (e.g. http://www.nytimes.com/2011/04/10/us/politics/10assess.html?hp and http://www.nytimes.com/2011/04/10/weekinreview/10obama.html).

I think Obama, who has always been a centrist with liberal tendencies in some narrow policy areas, will do well in the current political environment. I think if you search through this blog’s archives in 2008, you’ll find that I disapproved of Obama’s campaign just before the presidential election to redefine his entire presidency as hinged upon a vague notion of ‘Hope’. I thought he should put his credentials as a reasonable person on display because that is what excited me about Obama. He stood up to teacher’s unions, because that was the right thing to do. But equally, he stood against the Iraq War because that was the right thing to do. And that is also why he stood for ‘war’ in Libya, because that was the right thing to do. Those ideas are not inconsistent when you think of Obama, as a great progressive pragmatist who does what ought to be done.