Among Donald Trump’s many achievements is the re-normalisation of actual Nazis as legitimised participants in the civic debate. There they are, marching, flag-waving, race-baiting and punching on. The irony — that a thing called Antifa even needs to exist today — was lost long ago.
Hitler, it is often noted, rose to power and completed all of his work without ever breaking a law. The Nazi Party participated in democratic elections, he was invited to become chancellor by president Hindenburg, the Reichstag passed an emergency decree and every Fuhrer Directive he made after that was, in strict legal terms, valid. His crimes against humanity weren’t even recognised by international law as such until after he’d lost the war.
Trump also acquired power democratically. He has no intention of surrendering it, and I’ve already explained one possible means by which he might lawfully keep it. The US constitution’s fatal flaw is its failure to deliver power in accordance with Lincoln’s command: America’s government is not, under the law, made by the people.
What about Australia? Let’s say we had a government one day which, having been elected to office by the usual means, was as unconvinced as Trump is that it should ever give it up? Could it peacefully manipulate its way to perpetual power?
Let’s remind ourselves of a few key aspects of Australia’s system of government established by our constitution. Like the US, it ensures that parliament will be directly elected by the people, and that parliament is the supreme law-making body. Supreme, that is, subject to one qualification: no law becomes a law until the Queen, through her agent the governor-general, says so. This bit isn’t just convention, it’s written: “The Queen may disallow any law.”
Also written is that the Queen is our executive government. The governor-general appoints the ministers (who must be MPs), and can sack them at will. The federal executive council, which is the ministry, has under the constitution only an advisory role.
Not written anywhere in the constitution is the prime minister. Nor are the concepts of cabinet government, political parties, any suggestion that the party with the most seats in the House of Representatives will be invited to form government, nor any vesting of executive power in anyone below the Queen.
All of those things are done by convention. As Sir John Kerr demonstrated, those conventions are only as good as the will of officeholders to abide by them. Kerr, before dismissing the Whitlam government and dissolving parliament, had conspired secretly with the opposition leader, the High Court chief justice and Buckingham Palace. None of that was conventional. But it wasn’t illegal either.
Australia’s constitutional arrangements are more robust than America’s, for two key reasons: the person who sits at the head of executive government and the armed forces isn’t elected and keeps their powers in reserve, unlike the US president; and our High Court is not politicised like the US Supreme Court.
The High Court is the constitutional gate-keeper. Success in a bloodless coup requires keeping it contentedly acquiescent. The other key factor is control of parliament, proofed against losing the majority of seats at an election.
The ace-in-the-hole is the governor-general, who would need to be convinced to break with the convention that government is the automatic prize from having the most seats in the House of Representatives.
Practically speaking, parliament would need to be neutered so far as possible. It is a noisome place, antithetical to the requirements of benevolent dictatorship. Shutting it up (or rather, down) is not as hard as it sounds.
Boris Johnson had a go at just such a thing in 2019, when he got the Queen to prorogue UK’s parliament for long enough to prevent it from blocking Brexit. The House of Lords intervened, ruling Johnson’s advice to her majesty invalid and therefore her prorogation order as well. However, as you’d expect with Boris, the plan was sound but he just cocked up its execution.
This year, our parliament was suspended for many months because of COVID-19. Nobody bothered challenging that, or the fact that the government effectively replaced parliament’s functions with a combination of the so-called national cabinet made up of the prime minister and state premiers, and the weirdly secretive non-government post-COVID commission that supposedly reports straight to cabinet.
The point is that what is required for the plot to have a chance of succeeding is a crisis. National emergencies trigger all sorts of unexpected legal uncertainties. There is a heap of legislation, such as the Biosecurity Act and the constantly expanding call-out-the-army law, which gives the executive government absolutely extraordinary powers in times of supposed danger.
In addition, on top of the carefully listed law-making powers the constitution gives to the Commonwealth, the High Court has always recognised that there is another set of powers pencilled in the margins, which can be wielded quite freely if things get existential (for example, if we’re invaded). Human rights, which our law doesn’t protect anyway, can go right out the window very quickly with the imprimatur of the courts.
Think not? Read some of the High Court’s judgments on four topics: the Commonwealth’s so-far unlimited power to detain asylum seekers at its leisure; the power of our governments to continue to imprison convicted criminals after they’ve served their sentences; or to imprison people on the threat that they might commit a serious crime; or to detain children as young as 14 on suspicion of terrorist activity.
Recall that Hitler’s accession to power came at the ballot box (the Nazis didn’t win a majority, but the plurality at the 1932 elections). Shortly after, the Reichstag burned and president Hindenburg approved a decree suspending civil liberties. A month later, he signed a law giving Hitler emergency powers and the rest is you know what.
Would the internet and social media make that kind of fake emergency harder to pull off these days? Or easier? Look to the US again — half its population is well on the way to being convinced, in the face of no evidence whatsoever, that the presidential election was, in fact, rigged. That’s thanks to the ubiquity of access to information, not despite it.
Imagine the prime minister finds a trigger, like a cybersecurity or bio-warfare threat, that is so serious he can’t tell us much about it. He declares a national emergency, invokes the laws that suppress civil liberties (remember the BLM marches during COVID?), suspends habeas corpus, calls out the military, takes control of major media outlets and quarantines the internet (not difficult, ask China). The cause is safety and security. Parliament is unable to meet, for the same reason.
The governor-general is highly unlikely to attempt to intervene in any of that, up to the point where the constitution mandates an election within three years of the last one (it gives no leeway for that not to happen). So we go to the polls. If the government’s majority is lost, then the governor-general has to be persuaded that the nation’s survival requires that the incumbent government continue in power nevertheless.
That’s not a million miles from what Kerr decided to do when he sacked the government that still held the majority of seats, and invited the minority opposition to take its place. In the national interest.
If the governor-general went that way, having come around to the view that the executive government needs to stay in the hands he or she considered most safe and ignoring the preference of the voters, then what? Parliament could pass laws to take power back from the now-minority government; but they’re not laws unless the governor-general signs them. So parliament is neutered.
In such a scenario, the High Court would be neutered too, because the governor-general’s actions would be within the power given to him or her by the constitution. To get around that, the court would have to find some limitation on the governor-general’s exercise of reserve powers, as the House of Lords did in the Brexit case.
But that’s an extremely narrow precedent, and our High Court is not renowned for its adventurousness. More importantly, it has declined to arrest the slow spread of executive power in Australia for decades.
Could this happen in Australia? I see no reason why not. Will it? Probably not; but did anyone predict that the Republican Party would go as far as it has to undermine the greatest democracy on earth?
It’s not fanciful to suggest that we should be identifying the structural weaknesses in our own democracy before less benign spirits decide to do so in earnest.
Will Australian democracy ever go the way of the US? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication in Crikey’s Your Say section
Much as I despise Morrison, Trump he ain’t.
And that’s the nicest thing I’ll ever say about him.
My thoughts exactly.
Yes, we absolutely should identify and tackle the structural weaknesses. Instead, the major parties steadily chip away and undermine the already inadequate protections. They obviously believe that all ministers are decent chaps and we can always trust them to do the right thing. It escapes their notice that if that was true we would have no need for a parliament at all. Why have all this malarkey about holding ministers to account and scrutinising legislation if we accept the premise that ministers can be trusted with any amount of power?
BTW Bradley refers to the House of Lords acting to restrain Johnson’s attempt to prorogue the UK parliament. I think the UK Supreme Court, and the case brought by the wonderful Gina Miller, really deserves the credit. And in a fine example of no good deed going unpunished, the judges were labelled ‘enemies of the people’ and the Tories are now determined to destroy the independence of the judiciary so it does not defy the executive again. The great irony of course is that Brexit was sold to the people as a way of restoring power to the UK parliament – but clearly Johnson has other ideas.
Rat, there is a good article in the Economist on how the UK government is undermining parliamentary democracy heading towards a majoritarian executive elected dictatorship.
I think MB’s article is quite good although he fails to mention that the people in Australia do not elect governments – they elect a parliamentary representative and the convention is the Crown appoints a person who has the ‘confidence’ of the HoR to be PM. He quite correctly points out that the so-called ‘National Cabinet’ has no legal basis. Premiers, and indeed the PM, remains accountable to their respective legislatures and through them to the people of their States. None are bound by any of the National Cabinet’s decisions nor any ‘rules’ the PM might try to impose on them through that National Cabinet. As we have seen with borders and quarantine the National Cabinet is just a marketing stunt by Morrison.
Whilst we have a Opposition in disarray a Opposition with no attack dog mentality aka: Keating, Hawke era, then we have Morrison and his grubby clowns running the circus.
The dirty dealings of L/NP is open slather and yet where is Labor and why does it shirk it’s responsibilities at attacking?
L/NP are flawed from the foundations up and it should be pounded into submission and yet Labor has no strong leadershio to hone in on the weaknesses.
Very hand that “parliament will be directly elected by the people, and that parliament is the supreme law-making body.” until it is prorogued, illegally in Britain last year to avoid tiresome voting by MPs or here, by decree for health reasons.
Even Capt Kirk was subject to Bones’ authority.
Our very own Generalissimo managed nicely for several months, ignoring the totally ignorable AA, making him even more irrelevant to man or beast. (I was going to write ‘neutering’ or ‘gelding’ but that would be impossible given his base state.)
The country has, for most of this year, given the knee to the most egregious overreach of untrammeled authoritarianism of petty bureaucrats, thugs with badges & guns without a trace of the mythological bronzed Larrikan rejecting them.
If we think that the Brereton report was about events in a far away country of which we know nothing (and care less) then it is far later than we think.
The British used NI to train for low intensity warfare and the lessons were put to good use during the Miners’ Strike to utterly crush them.
The US police forces have been gifted “awesome weapons” ™ ® Trump (after hiding in the WH bunker) excess to requirements after Iraq and love to use them.
“It can’t happen here” is a phrase more observed in the breach than the oservance the world over, time & time again.
Be afraid. Be very afraid coz SmoKo is just the type to find that appealing.
Yes but to appropriate money a Government has to convene Parliament. As 1975 showed, a Senate can defund a Government at any time (Despite accusations of hypocrisy, Labor might consider all bets are off if your hypothetical played out). Only rarely does a Federal Government control the Upper House, thanks to Arthur Calwell legislating a PR system, which it is in the interests of the minor parties to retain..Then there are the deadlock double dissolution arrangements, alterable only by referendum (enough said on that score).