Pearls and Irritations

The solicitor-general’s response that Morrison’s secret swearing of himself into five extra government portfolios was not illegal has done us no favours. On the 7.30 Report, Laura Tingle announced that Stephen Donaghue’s findings were not about ‘the legality or constitutionality’ of the findings, although Donahue’s report did go on to say that ‘the principles of responsible government are fundamentally undermined’.

On the ABC, Monash University’s constitutional law professor, Luke Beck, urged that the conventions around ministerial appointments should be turned into black-letter law forthwith. As a public we have been inoculated to thinking that law is fundamentally important while ‘conventions’ are mere conventions, ready to be flouted whenever an adventurer, like Donald Trump, Boris Johnson or Scott Morrison wishes to do so.

Since 1975, we have been living in the backwash of an unresolved constitutional crisis that convinced us all the ‘conventions of the constitution’ were a weak basis for a system of government. That our whole system had functioned well under them up till the time of the dismissal is but a curiosity of history.

Leaving aside the layers of intrigue that surrounded the 1975 crisis, Kerr as appointed governor-general proffered the doctrine that the written law must prevail over constitutional convention. The scandal was that Kerr justified his dismissal of the government according to the principles of responsible government, that a prime minister who cannot guarantee supply must either advise an election or resign. Where is that in the written constitution? As an astute observer at the time wrote, Kerr ‘relied on convention to override convention’ (R. W. Staveley) while claiming to be faithful to the written law. The impossible contradiction in his ‘reasons’ was little remarked by the general press.

My point here is that the conventions of the constitution under which our democratic system operates are vital and are prior to the written law. Kerr’s impossibilist doctrine undermined the very basis on which written law is produced. Parliament is the fountain of law, the very seat of the rule of law. Written laws are specific to certain situations, conventions govern the underlying foundations on which they are produced. As Aristotle had long since taught, enacted law cannot cover all foreseeable circumstances.

Scott Morrison himself had a very curious notion of ‘the rule of law’. In rejecting calls for a parliamentary inquiry into serious allegations raised against the former attorney-general, Christian Porter, Morrison declared that the matter had been referred to the New South Wales police; that reference, he claimed, was the rule of law. That the police had decided not to take the matter forward somehow prevented him from asking Parliament to look into the allegation. Morrison’s view was (as usual) evasive, if not completely unhinged. Yet Parliament is the very ground base of the ’rule of law’. Short journalistic memories had forgotten that in 1959, in the Menzies era, Parliament had called a regional publisher and his editor to the bar of the House and had actually imprisoned them!

Morrison’s British counterpart, Boris Johnson had flouted the Constitution when he advised the Queen to prorogue Parliament so that he could avoid scrutiny of his Brexit deals. This was contempt of Parliament indeed, and his opponents admittedly resorted to law when they had the High Court overturn the Queen’s prorogation of Parliament. Apart from a few enacted documents dealing with such things as the succession, Britain has never had a written constitution. Constitutional observers remark how deep and ancient were the commitments to civil liberties.

The common law was fundamentally established under the rule of Henry II, according to some, the only British monarch to merit the title ‘great’. Henry’s chief legal advisers, Ranulf Glanvill and Richard de Lucy learnt from Roman jurisprudence that ‘the people’ were the ultimate legal foundation of the law of the land. The king ruled under laws ‘discovered’ from the people, and by consuetudines, customs and conventions ‘drawn from reason and long observed’. Under Henry III the jurist Henry de Bracton was also a high cleric of the Church of England. He too was influenced by Roman jurisprudence, but also the precepts of the Bible. The ancient Jews and Christians became accustomed to the law of God. As the prophet Jeremiah has God declare, ‘I will put my law in their minds, and write it on their hearts…’ (Jeremiah 31.33); the theme was echoed in Psalm 40. 8; and in the early Christian era by St Paul (Romans 2.15) and the writer to the Christian Jews (Hebrews 10. 16). Medieval kings and jurists all took solemn oaths before God and the people to uphold justice. Of course, British royalty had more than its share of adventurers, such as the ravaging Henry VIII and the attempted despots among the Stuarts. As one of the great modern writers on constitutionalism, C. H. McIlwain, observed, if customary conventions break down, ‘the possibility of revolution remains the only sanction of constitutionalism’.

Revolution was indeed the outcome of Stuart despotism. Morrison the Pentecostalist may have presumed like them to exercise the ‘divine right’ of rulers, but in the end the people, through its Parliament, prevailed in the seventeeth century. Renewed constitutional understandings were widely accepted with the accession of William and Mary, monarchs established by Parliament.

Our political orientation needs revision. We need an official repudiation of the Kerr doctrine and a renewed emphasis on restrained and upright conduct on the part of our political actors, and an educated public that knows the consequences only too well. As for the prevalence of law, prominent British political scientist, S. E. Finer, speaks at one with Aristotle: ‘If the powerholders exercise self-restraint, the written constitution is unnecessary, and if they do not, no written constitution will check them’.

Graham Maddox FASSA Em. Professor of Politics University of New England

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