MUNGO MacCALLUM. The exhumations have resumed.

Jul 1, 2019

Just when you thought it was safe to go back into the graveyard, the exhumations have resumed.  

The disinterment of the events of 2018, the persecution and assassination of Malcolm Turnbull, are now being laid bare on the table of the morgue, ready for forensic autopsy.

The overture for this macabre symphony was from Foxtel’s David Speers, in his two part special Bad Blood, New Blood. But then came a swift fanfare from The Australian’s editor at large, Paul Kelly, anticipating a cacophony of forthcoming books on the same theme..

The thunderous climax? Turnbull considered asking the governor general, Peter Cosgrove, not to commission Peter Dutton as prime minister because of doubts over his eligibility under section 44 of he constitution. Shock, horror.

As it turned out nothing ever happened; Dutton did not become leader so the advice was never offered But at the time, Kelly (and others) tell us, there was panic in the Liberal ranks. Crazy, they gasped.

The attorney general, Christian Porter, was particularly unhappy: he was ready to go public if necessary to say that Turnbull was wrong. The only matter for the G-G was whether the prime minister could command a majority in the house of Representatives. Any other issues would be for the High Court. That was an incontrovertible fact.

Well, for nearly 75 years we thought it was. But Porter and his mates must have known that there was a precedent when it wasn’t, and the Libs made no objection – indeed, they cheered.

When John Kerr dismissed the government of Gough Whitlam, self evidently Whitlam commanded a majority in the Reps. But Kerr, relying (covertly and against the wishes of his prime minister) on the views of judges Garfield Barwick and Anthony Mason, decided that this did not matter: his reserve powers covered the situation, so dismiss he did.

And he defied the long-standing convention not once, but twice. When the house resumed, with Malcolm Fraser appointed as prime minister, the Labor majority successfully passed a motion of no-confidence in Fraser and his minority and a motion of confidence in Whitlam. The speaker, Gordon Scholes, was instructed to convey this unequivocal message to Kerr forthwith.

But Kerr simply refused Scholes admittance, and went on to close down the parliament altogether. This was arguably the most blatant middle finger shown to an elected assembly since the 17th century reign of Charles I, who subsequently lost his head (literally) as a result of his arrogance. Kerr, like Charles, apparently believed he ruled by divine right – that the reserve powers gave him omnipotence.

And the point is that nothing has changed today: the reserve powers remain uncodified and unlimited. So if Turnbull could persuade Cosgrove, or any other viceroy, to blackball Dutton, for any reason or none, there would have been nothing Porter could have done – except, presumably, bluster and fulminate.

Of course, it would have been a huge breach of convention, a crisis – but, as the conservatives always insisted in1975, a political crisis, not a constitutional one. The benchmark – their benchmark – had already been set.

And that’s the trouble with exhumations – once you start digging, you never know what you might turn up.

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