MIKE SCRAFTON. The Problem with the Nationhood Power

Feb 4, 2019

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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