Although you can no longer believe everything Scott Morrison says, its necessary to take everything he says seriously and examine his utterances carefully – just in case in a particular instance he will follow through on what he has said.
Sometimes what he says is just rubbish. For example, just before Christmas, the full court of the Federal Court, acting on a case remitted to it by the High Court acting as the Court of Disputed Returns, rejected petitions challenging the election of Treasurer Josh Frydenberg and Liberal MP Gladys Liu.
The Prime Minister’s reaction was that he was not surprised by the result because of the nature of the case. To which he added, ‘It was a smear job and its been chucked out.’
The ‘smear’ was by the Prime Minister.
While the petitions were unsuccessful, the court found that the Liberal Party had erected signs that were plainly misleading or deceptive – as the petitioners had pleaded. The signs were in Chinese and purported to be a sign of, and convey a message from, the independent Australian Electoral Commission. They purported to tell electors ‘that a correct or valid vote must be by voting for the Liberal Party and that they must vote for the Liberal Party, irrespective of what their preferred choice might be.’
The petitions were unsuccessful in challenging the two elections however, because there was no real chance that the result in the elections was affected.
But that is not the end of the matter. The petitions also sought declarations from the court that the man who was responsible for the signs, the then acting director of the Victorian branch of the Liberal Party, Simon Frost, committed an illegal practice, exposing him to a possible punishment of up to six months in gaol, or a $2,100 fine, or both.
Because Mr Frost was not personally represented by a lawyer, the court decided to give him the chance to make submissions (by 7 February) as to why the court should not find he committed an illegal practice. If the court makes such a finding, the matter will then find its way to the responsible Minister, who happens to be Mathais Cormann, to take the next step in any prosecution. During the hearing of the case Mr Frost was on the ministerial staff of Mr Cormann’s colleague, Josh Frydenberg. (A test for Senator Cormann?)
Moving on from talk of smears, the Prime Minister has an interesting way of avoiding admitting that he has made a mistake. Take this example from his extended interview with David Spears on the ABC when asked whether his Hawaiian holiday was a mistake. ‘In hindsight,’ he said, ‘I would not have taken that trip knowing what I know now.’
Given the public denunciation of his actions, its hardly surprising that knowing what he now knows, he wouldn’t have taken the trip. But he didn’t concede that on the basis of the bushfire crisis that existed before he left, he made a serious mistake in deciding to go to Hawaii – and in trying to stop people finding out about it.
Now on to something else he said in the interview that needs to be looked at much more carefully. This was his discussion of the use of the defence forces during the fire emergency and how that should be controlled.
The Prime Minister acknowledged that what has happened and is still happening with the use of the defence forces in the fire emergency ‘have pushed the constitutional authorities for us to act to its very edge’. That is absolutely correct. Indeed, it would probably be correct to say ‘over’ the edge.
The problem is there are constitutional limits on the way the defence forces can be employed. Almost certainly, those limits are being exceeded – though of course no-one is objecting, yet.
The Constitution in section 51(vi) empowers the Parliament to make laws for the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. This is the general defence power. What ‘defence’ means depends on the circumstances, according to the High Court. During wartime this is a very broad power that can allow the Commonwealth to determine anything from consumer prices to how the civilian workforce is deployed.
There is a second provision included in the Constitution because the former colonies (now States) had to give up their own military forces. Section 119 says ‘The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.’ In peacetime the power is more confined.
First, the State has to ask before the defence forces can be supplied. Second, this can occur in cases (only) of ‘domestic violence’. That last term is not defined. It is unlikely to include natural disasters (unless rioting is a consequence of the disaster).
The Defence Act recognises and adopts the limitation in s. 119 in a part of the Act entitled, ‘Calling out the Defence Force to protect Commonwealth interests, States and self‑governing Territories’. It provides for States and Territories to be able to ask for protection against domestic violence and additionally for the deployment of the defence forces in States and Territories to protect Commonwealth interests, though it requires the States and Territories to be consulted before the Governor-General makes the relevant order.
Curiously, there is another section of the Defence Act involving a call out of forces where ‘call out’ is defined differently. This is s.28, and it provides for the calling out of the reserves. The effect of this call out is to bring some or all of the reserves into continuous full-time service.
This can be done where there is a need associated with the defence of Australia and the States and Territories, or for ‘civil aid, humanitarian assistance, medical or civil emergency or disaster relief.’ This last provision is what was referred to in the order signed by the Governor-General early in January to call out up to 5,000 reservists.
Clearly, the reserves are being used for this purpose – ‘civil aid, humanitarian assistance, medical or civil emergency or disaster relief’. But that was merely the reason quoted by the Governor-General for them being called up. The legislation doesn’t actually provide any authority or legitimacy for the reserves to be used in this way. It may not be able to.
And that is the constitutional problem, the ‘very edge’ that the Prime Minister thought was being pushed.
Now, as he also said, the Commonwealth was acting under a ‘very agreeable environment’. None of the States is going to complain about the help the reserves and permanent defence forces provide – so long as everything is done with the considered concurrence of the States. And this appears to be the case. No-one seems to want special legislation (permitted by the Constitution) where one or more States could give conditional legislative approval for the Defence Force to be used within their jurisdictions in circumstances other than in relation to ‘domestic violence’.
It appears, however, that the Prime Minister wants the Defence Force to be able to act of its own initiative. As I noted at the beginning, there are times when it is necessary to look very carefully at what Mr Morrison is saying. Here he said, ‘this is the first time where I think the Federal Government has ever been in a position where we had to take this action. To ensure that in the future it can be done in a way that I think is in a more pre-emptive posture, that we can do that I think more seamlessly’.
‘Pre-emptive’? ‘Seamlessly’? Does he actually mean unilaterally? The States would have a fit if the Federal Government could decide of its own initiative to send in the army, the navy or the air force. They would similarly resist any attempt by the Commonwealth to take over natural disaster management in their own backyards.
And when should defence assets be deployed, according to the Prime Minister? ‘Where the Chief of the Defence Force believes there is a risk to life and safety…’ That’s certainly not in the Constitution.
And on that point, whatever happened to responsible government where such decisions are ultimately taken by Ministers (and ticked by the Governor-General) on the advice of the relevant generals or police or fire commissioners?
You’ve got to worry about some of the things our Prime Minister says.
David Solomon is a retired political and legal journalist.