MIKE SCRAFTON. The Problem with the Nationhood Power

When influential public officials take the podium to tell us what’s what we should pay attention, close attention, to their words. Mike Pezzullo is one of the most powerful Federal public servants and therefore his view of the Australian political system in which he operates and the arguments he puts forward in support of those views are important.

The main emphasis of Secretary of
Department of Home Affairs’ presentation to IPAA, ‘Prosper the Commonwealth: The Public Service and Nationhood’, was thought by Richard Mulgan to be ‘on the relationship between public servants and politicians’. But what Pezzullo’s said directly about that general relationship was unremarkable and pedestrian.

As the narrator in Conrad’s Heart of Darkness says of Marlow, ‘the meaning of an episode was not inside like a kernel but outside, enveloping the tale which brought it out only as a glow brings out a haze’; the public service’s role in government was just something around which Pezzullo wraps a radical and disturbing view of Executive government in Australia.

Pezzullo begins with a somewhat confused soliloquy on the transcendent benefits of the nation-state. With more than a tinge of mystical nationalism he declares, ‘The nation-state is a concept which politically and socially binds people, time and space, in that it links our predecessors, our contemporaries and our descendants within a bordered space’. With a touch of authoritarianism, he claims, ‘Through the nation-state, we are bound together by a ‘social contract’ which is the basis on which rules are set and interests harmonised’.

This all begins to have echoes of Rousseau’s conception of the General Will in the Social Contract where he posits that forcing an individual to abide by the law is thus nothing else than “forcing him to be free.” For Pezzullo, ‘National governance is the expression – and enabler – of sovereignty’. Approaching the crux of his argument he declaims that ‘A nation-state has to be able to make laws and enforce them, and carry out its policies and implement public programmes – and it has to be able to do so within secure borders’.

On one hand a common sense view of administration. But absent an emphasis on the rights as well as the obligations of citizens and the purpose of ensuring the welfare, well-being and access to justice for all, or reference to the Constitutional distribution of powers between the states and the Commonwealth, it forms a proposition which could easily be found on the lips of Donald Trump, Matteo Salvini, or Viktor Orbán.

This authoritarian turn is further revealed when Pezzullo says, ‘[T]here is I would contend a ‘nationhood power’ – or the constitutional capacity which can be deduced from the existence and character of the national body politic’. What he is canvassing here is the idea that Executive government has additional powers that ‘can be inferred from powers which are conferred by statute, or which reside as the prerogatives of the Crown’ or which ‘are a consequence of the nature of the legal personality of the Commonwealth’.

Pezzullo exalts ‘the national institutions which constitute the British form of ‘constitutionalism’ that Australia inherited and especially that ‘historical norms, ‘rules’ and conventions, some of which are codified but most of which are not’ (italics added). Australia’s particular ‘social contract’ is not fully comprehensible ‘without reference to that tradition’.

From this Pezzullo concludes that Ministers somehow determine that ‘[T]he end of responsible government is that the will of the people prevails.’ Not necessarily the common experience! The Minister and Secretary, in Pezzullo’s view, ‘joins the political and the administrative in an association for the common good, and specifically for the employment of national powers and capacities for the advancement of the public interest’.

Constitutional expert Anne Twomey describes the nationhood power as ‘the power that dare not be named’ based on the reluctance of High Court Justices in the Pape case to do so. Dissenting in that case Justice Heydon warned that potentially this unnamed power ‘would give ‘an “unexaminable” power to the Executive, opening up the risk of the executive suppressing democratic institutions’.

Reviewing the case law, Twomey points out that ‘[T]he greatest difficulty with ascertaining the internal limits on the nationhood power is that the source of that power remains unclear’. In the Pape case the reasoning of each of the Justices that found a nationhood power to exist was different. Twomey concludes that the scope of the nationhood power ‘extends beyond self-protection and the prerogatives’ and is ‘somehow conceptually related to the types of powers that a national government should be able to exercise, regardless of the actual powers distributed to that government by the Constitution’.

Pezzullo’s use of the term ‘Commonwealth’ in the title of his presentation could simply refer to Australia. Still, Pezzullo is concerned about ‘the paucity of knowledge’ of British constitutional traditions’ among his colleagues. Given Pezzullo’s own knowledge of British constitutional history, it perhaps didn’t escape him that in British history the Commonwealth refers to the period of Cromwell’s Protectorate that saw in the Instrument of Government the first written constitution in a modern national state. A constitution which created an Executive with supremacy over Parliament.

There are many other contentious aspects to Pezzullo’s presentation, but most disturbing is the spectacle Secretary of a powerful department with wide ranging security responsibilities advocating recognition of a significant extension of Executive power. It is crucial that senior executives have a sound understanding of the constitutional issues affecting government. He is right that too few seem to appreciate the inherent complexity.

However, we should pay close attention when Pezzullo connects together a dubious ‘social contract’, some muddled history, superficial legal references, and an almost mystical connection between the Executive and the ‘common good’ with some as yet poorly understood ‘nationhood power.’

Mike Scrafton is a former senior Defence executive, former CEO of a state statutory body, and former chief of staff and ministerial adviser to the minister for defence.

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8 Responses to MIKE SCRAFTON. The Problem with the Nationhood Power

  1. j austen says:

    Mr Scrafton: thank you for drawing this important matter to attention.
    Mr Pezzullo’s address included other significant inaccuracies e.g: all public goods are organised on a national basis (not true for transport or police); government answers to the people (Parliament answers to the people).
    This and his use of ‘nationhood’ implicitly argue for greater Commonwealth Government (officials’) powers. Potential issues are
    . undermining Parliament and Federation
    . rectification only via litigation which requires ‘standing’
    . prior to litigation, a temptation to get away with as much as possible.
    Mr Pezzullo referred to British practice, yet the High Court decisively rejected this as implying power for the Commonwealth Government to spend on what it likes – because of the above. The Court’s interpretation of ‘nationhood’ similarly has been much narrower than implied.
    I would be more comfortable were such addresses more accurate and delivered by people other than serving Commonwealth Secretaries.

  2. It sounds like…..history.

    ‘n 1933, the Melbourne Herald ran a series of articles titled “Why I have become a fascist” by Wilfrid Kent Hughes, a Victorian MP. Kent Hughes came from a well connected Melbourne family. He had been school captain at Melbourne Grammar and a Rhodes Scholar at Oxford. He went on to become deputy premier of Victoria. In the 1950s he was a minister in Menzies’ federal Liberal government.

    Menzies, Australia’s longest serving prime minister, was glowing in his praise of Nazi Germany. In 1938, when federal attorney general, he visited the country and enthused about the “really spiritual quality in the willingness of Germans to devote themselves to the service and well being of the state”.

    Hitler and Mussolini were viewed as heroes by conservatives because they had crushed the socialist movement and smashed the unions. They had ensured that profits kept rolling in. An editorial in the Sydney Morning Herald declared: “Italy was only saved from Red dominance by the heroic remedy of fascism”.

    Another typical example comes from 1937. William Mackay, the NSW police commissioner, established the first Police Boys Clubs. They were modelled on the Nazi labour youth battalions, which he admired because they “subordinate the individual to the welfare of the nation”.

    Mackay’s fellow police commissioner in Victoria, Thomas Blamey, headed the main far right paramilitary organisation the League of National Security (also known as the White Army). Blamey went on to become a field marshal and commander of the army in World War Two.’

    https://redflag.org.au/article/secret-history-fascism-australia

  3. Mark Freeman says:

    You claim at the start Mike that we should pay attention to senior officials’ musings over what’s important, then don’t back this up. I’m much more interested to know how Pezzullo still has a job and has not been tried in court over the offshore detention centres’ contracts scandal. The next Royal Commission should be into our worst department – an incompetent money pit that threatens our security and treats our new citizens to years of delays.

  4. David Brown says:

    Pezzulo’s reference to nationhood power operating within “secure borders” appears to be a contrived introduction of the term
    Is this trying to express the importance of Australian sovereinty needing to be protected from external forces
    Which raises the immediate question why, if Pezzulo thinks he is expressing the current governments tendencies, Australian LNP governments so obviously bow the knee to the American state and even worse, multinational corporate media and other powers

  5. David Brown says:

    so, is it Pezzulo that has manufactured the cruel authoritarian Dutton puppet?

  6. J knight says:

    In the absence of a Privy Council, there is, without some real gumption from the GG, nothing to protect Australians from a High Court that connects together a dubious ‘social contract’, some muddled history, superficial legal references, and an almost mystical connection between the Executive and the ‘common good’ with some poorly understood notions of any constitutional matter eg: marriage.

    Since 2013, we have a situation where a simple Constitutional matter where the ACT government (for all intents a local government authority bestowed with Constitutional recognition as a State!) saw the High Court, unilaterally, and without legal reference or need, redefine marriage (ignoring its definition in the Family Law Act since 1975 and verbatim the 2004 Marriage Act amendment) by equating a provision for polygamy of overseas marriages.

    Such unaccountable judicial abuse – itself in contravention of the Constitution* – is far more dangerous than anything a maverick mandarin can “brain fart!”

    *5. Operation of the Constitution and laws
    This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State…

  7. Inigo Rey says:

    What the Secretary does not pay sufficient attention to is that the act of parliament that we call ‘the constitution’ is only one among a number of acts of parliament that are part of the constitution, and most of those were enacted in the late seventeenth century, beginning with Habeas Corpus (1679), then The Bill of Rights (1689) and finally, The Act of Settlement (1701). These acts separated the powers of Parliament, the Crown and the Judiciary, and codified basic rights of individuals to be free of arbitrary action by the crown. Quick and Garran’s still largely definitive discussion of the Australian Constitution described these as part of the constitution, along with the common law and conventions.

    What Mr. Pezzullo may not emphasize sufficiently is that these acts were an expression of a recognition of the necessity of limiting executive power and of a strong desire to do so. You cannot leave out the history.

    If it accepted that ‘the crown’ and ‘the executive’ in a constitutional form of government are, saving some undefined ‘reserve’ powers of the crown, functionally identical, since the crown is constrained to act only on the advice of the executive (so long as it retains the confidence of Parliament), then the ‘national power’, which can only be a power of the crown/executive, must be subject to the kind of limitations envisaged by those who wrote and voted for the above-mentioned acts, and subject to the will of parliament.

    A similar set of issues is in play in the US right now in respect of trump’s desire to use the declaration of a state of emergency to override Congress’s ‘power of the purse’.

    I believe the High Court has also, in recognising that the Australian Constitution carries a democratic implication, and an implied democratic right of political speech (and by implication, other forms of political participation, as evidenced by a recent decision on limitations of political contributions by unions and others)), taken a view that recognises some of the same necessity that the ‘revolutionaries’ of 1688 recognised. A limitation of the ‘national’ power to such scope as remains after both recent High Court decisions, and the historical 17th C acts, seems implicit. There are a number of common law ‘principles’ that tend to invite us to lean the same way too, I think.

    The old arguments are still valid. Overriding the Parliament’s power to be the sole controller of expenditure and the final source of legislation (and arbiter of regulations), would constitute an attack on democracy as would substituting executive decrees for parliamentary legislation.

  8. Jandra Beeston says:

    The further problem with “nationhood power” is that, in practice, such powers will have no material impact on the operations of multinational enterprises, particularly (but not limited to) their movement of capital, goods, IP, executives, plant, etc. For such enterprises, national borders and any “nationhood power” that may operate within them are transparent and biddable.
    It is the static Australian population and our local enterprises that are likely to find themselves subject to the exersise of some uncodified Executive power. A community carefully cowed & scared, closely monitored and, perhaps, soon to come under “nationhood power”.
    Safest, then, not to characterise Mr Pezzullo’s address as “un-Australian”.

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