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John Howard had no right to commit Australian troops to Afghanistan

By Pat O'Shane - posted Tuesday, 30 October 2001


Since September 11, 2001 we in this country, along with all others in the so-called Western World have been subjected to a propaganda bombardment such as no other that I can ever recall.

Within minutes of two commercial planes being flown into the twin towers of the World Trade Centre, and another into the Pentagon, the war of words started, with White House and military officials, not to mention the media, telling us that it was the work of Islamic fundamentalist terrorists, and one Osama bin Laden in particular. Their grounds for so saying have not, to this very minute, been disclosed. Despite their thundering in the ensuing days that they had incontrovertible evidence that bin Laden had ordered or authorised the attacks, no such evidence has been forthcoming. What has been put out to the public is a pastiche of minimal facts, dubious inferences, prejudice, wild speculation, and sheer propaganda.

As though to lend credibility and veracity to that, the US Administration launched a military offensive said to be targetted against the Taliban rulers of Afghanistan who have ostensibly given sanctuary to bin Laden. Even before they did that, Australian PM John Howard announced that Australia would go all the way with the USA. As various spokespersons talked up the need for the military offensive against Afghanistan, the same John Howard further announced that Australia would commit troops alongside US troops. At the time, no other country had made such a commitment, not even including Britain's Tony Blair, who had been as vocal as US President George Bush in his hawkish calls for military strikes against Islamic terrorists.

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A couple of weeks later, Howard  announced the next election date: November 10.

In the climate of the media hype that passes these days for election campaigns, Howard, having manufactured an "illegal refugees" crisis; having sent Australian gun-boats to ward off invading IRs; thereby creating yet another outbreak of primitive xenophobia among the unenlightened, the fearful, the always-paranoid, and the outright hate mongers, announced that he had received a call to arms from the his good mate, the USA's President Shrub (as Phillip Adams has dubbed-ya him), and thereupon informed the Australian public that 1,500 military personnel would set forth to fight the very good fight against international terrorism. The language as you will observe has ever so slightly been changing as each day goes by, still without the evidence that was simply not there at the outset.

In this forum on "Refugees, Terrorism, and the Public Right to Know", the big question that I want to address is this: by what authority did Howard make such a commitment of Australian lives?

It is not a question that has been taken up by any of the media. Nor was it addressed in John Howard's address to the Australian Defence Association when he put his so-called intellectual and moral arguments for the commitment of Australian troops.

Yet this question is fundamental to the public right to know about this and attendant issues.

Almost without exception, ever since the election was called, it has been assumed by all commentators, and particularly all media commentators, that John Howard had/has some implicit authority to launch Australia into a war that-isn't-a-war, or the war that-is-like-no-other-that-we've-known, by reason of his being the Prime Minister. But is he the Prime Minister?

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The [so-called] Australian Constitution (so-called because it is in fact part of a piece of legislation from Westminster, the British Houses of Parliament) is silent on what is the politico-legal situation when an election is called and Parliament is prorogued, that is, discontinued until the next session.

Placitum 28 of the Constitution provides: Every House of Representatives shall continue for three years from the first meeting of the House, and no longer…

"Every" used in that context clearly indicates that a new House of Representatives comes into existence after each term of three years, and the elections consequent upon its prorogation.

Placitum 32 then goes on to provide that writs for a general election shall be issued "within ten days from the expiry of a House of Representatives". The terms of those parts of the Constitution are pretty ordinary and simple to understand: any particular House of Representatives comes to an end at the expiration of its term; and when it does, clearly the incumbents, being all the Members of the House of Representatives (including the Prime Minister) are no longer. It's a case of, all up for grabs!

Not one of them has any authority as a Member (as so many so-called backbenchers will tell us during an election period), let alone as a Minister, or a Prime Minister. It will no doubt come as a surprise to the vast majority of Australians to know that the so-called Australian Constitution does not, in fact, even mention a Prime Minister.

During the life of a House of Representatives, of course the members only have such rights and responsibilities as vest in the House as defined in the Constitution.

But as I said a moment ago, once a particular House of Representatives, has been dissolved so too does a person's identity as a Member of the House of Representatives.

And there is not a hint to the contrary in the Constitution, not even pl. 48, which provides: Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

Clearly it deals with the issue of payment, not membership of the House; and cannot be read, I argue, to circumvent or over-ride other parts of the Constitution dealing with membership; functions and responsibilities of members. Less so in the light of pl. 1 which states that only a legislative power vests in Federal Parliament of which the House of Representatives is only part. And while on the subject, another question might be asked: by what authority are politicians paid their remuneration once the life of any particular House of Representatives expires?

Some Constitutional lawyers - that elite, eccentric group of people committed to reading arcane matters into the straightforward and mundane - would no doubt want to argue the toss about this until their dying breaths; and while the High Court of Australia, a few years ago, amazingly read into the Australian Constitution a right to freedom of speech, there are absolutely no hidden words or codes that can be interpreted to give meaning to some of the nonsense that some Constitutional lawyers are experts at manufacturing.

If the Constitution is to be read otherwise, then clearly it needs to be changed to put these issues beyond doubt.

It was said briefly in the past week and a half, that once we are in the election period, then the outgoing Government assumes a "caretaker" role by convention (a word much bandied about by Constitutional lawyers, and occasionally by politicians), and by that reason alone, then the Prime Minister has certain authority, including in the prevailing circumstances, the power to authorise the commitment of Australian troops to a war-that-isn't.

That is sheer balderdash! There is no convention on which these people can rely.

To reiterate my point, there is nothing in the Constitution which would enable any commentator to draw such an inference; Secondly, the Constitution, by placitum 61, vests executive power solely in the Queen - for very good reason: ours is a constitutional monarchy - exercisable by the Governor-General as the Queen's representative. This provision specifically states: and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

As far as I can see, that is the only power set out in the Constitution which gives a clue to the state of governance during the hiatus which is necessarily created by the Constitution, when a House of Representatives is dissolved, and before a new one comes into being.

In any event, pl.51 provides: The Parliament shall…have power to make laws for the peace, order, and good government of the Commonwealth with respect to: … (vi) 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.

Even in the days of corporatism, and Government by Executive, there can be no comfort for John Howard (nor his cronies and other supporters) in those provisions. The fact that the Leader of the Parliamentary Labor Party, Kim Beazley, endorsed what Howard has done in sending Australian troops to a foreign war on foreign soil in support of a foreign power in no way validates the action. If anything, it simply illustrates the Opposition Leader's hubris.

Coming back to the question I posed at the outset: the Constitution further provides (pl.68) : The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.

There is no suggestion - neither implicit, nor explicit - that vesting is limited in some way; that it may be exercised by the Prime Minister, let alone an erstwhile Member of the House of Representatives, posturing as such!

With all due respect to the Governor-General, if he had even a scintilla of understanding of the Constitution and his powers and authority thereunder, he would order the immediate return of those troops.

On my reading of the Constitution, it appears that John Howard has not only attempted to circumscribe the Constitution, in so far as he purports to exercise powers which can no longer be vested in him, but he has also attempted to usurp the role and function of Parliament, and the authority of the Queen as exercised by the Governor-General.

From that, I go so far as to say, that anyone who is disaffected with John Howard's hubris in sending Australian troops to war at this time, anyone who has the passion and the resources, would have a court action against him on those very grounds. When the body-bags start coming back, will the parents or families consider they have an action in damages against John Howard as John Howard? It's an issue worth pondering.

And if they don't think that way, what does the Constitution mean?

Should it mean that these issues never arise for discussion or debate? If so, why are these issues not explicitly stated in the Constitution?

When I spoke at the Constitutional Convention in February 1998, I specifically called, not for a tweaking of the Constitution, not for the replacements of frills and furbelows with buttons and bows, but for a complete re-working of the Constitution, one which would serve a modern, intelligent, independent nation of proud, democratic people, who value peace and justice, respect and mutual understanding on which to build our social cohesion. At that time, I could never have predicted, let alone expected, that this need would become so urgent so soon.

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This is and edited version of a speech given to the Australian Centre for Independent Journalism The Public Right to Know Conference in Sydney on October 26, 2001.



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About the Author

Pat O'Shane is a NSW magistrate and an activist for the rights of women and Aboriginal people.

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