This journal recently published an aggressive piece by Ms Pat O’Shane, a famous New South Wales magistrate, in which Ms O’Shane asserted a lack of authority on the part of the Prime Minister to commit troops to the current conflict in Afghanistan. Her thesis is one based on lack of constitutional power. It is an exercise in fundamental misinterpretation of the Constitution, insults and, most unfortunately, a scurrilous and self-evidently untrue accusation against the Prime Minister of attempting to circumvent the Constitution and the nation’s governmental institutions.
The article is largely concerned with the constitutional power of the government to act as it has, but questions the legitimacy of the military action in Afghanistan on the basis of lack of proof of Osama bin Laden’s involvement in the attacks on the United States. I recall the broadcast where bin Laden practically admitted his involvement, and, at the very least was highly congratulatory of the "martyrs" who carried out the atrocities on September 11. Ms O’Shane would know that even on the public evidence, there is more than enough to commit bin Laden for trial. If we can accept the Prime Minister’s assurance that there is even more compelling evidence supplied by the Americans, as I believe we can, then there really can be no question of the legitimacy of the action. The Americans are seeking to arrest a terrorist with the capacity to continue to endanger thousands (and, given time, millions) of lives across the world. They are seeking to displace one of the world’s darkest, most brutal and misogynistic regimes. The cause is just.
Ms O’Shane’s assertion of lack of constitutional power to commit troops relies on two separate grounds. First, she says that because it is now more than three years since the last election and the Constitution provides that a Parliament may only extend for three years, none of the Ministers are in fact still Ministers. Second, she argues that because the Constitution vests command of the armed forces in the Governor General, the Prime Minister has acted ultra vires his constitutional authority by committing troops.
The first argument falls apart at the first hurdle. The last election was in October 1998. The writs for that election would not have been returned until some time in November. The last House of Representatives was, therefore, less than three years old at the time that it was dissolved. However, the House of Representatives has been dissolved as a precedent to the coming election, so there are, in any event, no members of the House of Representatives at the moment. The next problem for Ms O’Shane’s argument is that one need not be a member of the Commonwealth Parliament to be a member of the Executive. Section 64 of the Constitution allows that a person may be a member of the Executive for up to three months without being a member of the Commonwealth Parliament. That provision exists exactly so that elections can be held without the absence of a government for the period of the election campaign.
In the course of arguing this point, Ms O’Shane attempts to dismiss well educated dissent from her views by deriding constitutional lawyers as "that elite eccentric group of people committed to reading arcane matters into the straightforward and mundane [who] would no doubt want to argue the toss about this until their dying breaths". The sad thing is that if she had bothered to read the plain words of the Constitution (whose authority she does not, in any event, entirely accept) she would have understood the fundamental difficulty with her argument. Even sadder is that in deriding the High Court for "amazingly read[ing] into the Australian Constitution a right to freedom of speech" she misrepresents the High Court’s decisions on this important constitutional question. The High Court has said that the Constitution does not create personal rights. There is a freedom of political communication which operates merely as a limitation on the legislative and executive power of Australian legislatures and governments.
As for the assertion that there is no convention of caretaker government, that would come as news to the generations of politicians who have observed the convention and - one might argue - by so observing it, have created the convention even if it was not already inherited from Britain.
The second argument - that it’s the Governor General’s job to command the armed forces - ignores the fundamental constitutional principle that the Governor General, like the Queen, acts on the advice of his Ministers. I do not know that the Prime Minister has consulted the Governor General and advised him to make the necessary orders to deploy the troops, but I would feel safe in betting that he had observed the due constitutional process. I imagine that Tony Blair would have observed similar process and that as a matter of constitutional procedure, it is in fact the Queen who has ordered the United Kingdom’s involvement in the conflict.
The Governor General makes orders and assents to government decisions all the time. He does so acting on advice. I have no doubt that the deployment of troops is no different.
Lastly, Ms O’Shane practically accuses the Prime Minister of treason. That is the effect of accusing the nation’s elected leader of circumventing its Constitution. Apart from the despicability of such an unfounded allegation, it is absolutely irresponsible to suggest that an action may lie in damages against Mr Howard and the government for two very important reasons. First, Ms O’Shane is a member of the judiciary and ought not to be urging or advising on questions of law for the very simple reason that it imports to her judicial decisions a question of whether she has made them with the essential impartiality. Secondly, it is just wrong in law as she ought to know. The High Court has specifically said that no actions for damages arise from the Constitution.
Ms O’Shane, like everyone else in this country has a right to express herself, but it is imperative that those who accept positions of trust in our community preserve that trust. Being a member of the judiciary places obligations upon a person. One of those is to remain politically uncontroversial. Ms O’Shane is not alone in her rejection of that doctrine, but that is no excuse. The judiciary, whether it is in the Magistrates Court over which she presides, or in the High Court, must maintain public confidence in its impartiality. Furthermore, it must maintain confidence in its ability to make informed and legally correct decisions. Ms O’Shane’s article erodes both of those confidences.