Conspiracy theories
Occasionally I get conspiracy theory emails. Here is the latest.
I’m looking for some down-to-earth appraisal of what happened on February 8 of this year, when the federal government changed the Constitution by an act of parliament.
I was referred to a website with this explanation.
When Australia’s Constitution was written in the 1890s, it deliberately limited the federal government’s domestic military powers. The six colonies, giving up their own armies and navies at Federation, insisted that the new national defence forces must not be deployed against Australians, except in the case of a rebellion so vast that the police forces of a state faced being overwhelmed — and then only if the relevant state government appealed for help.
On February 8 2006, federal parliament overrode the Constitution to give John Howard (or any future prime minister) exclusive power to call out the defence forces against Australians on Australian soil. The Howard government claimed the risk of terrorism justified this new law, but the Bill doesn’t mention terrorists. Among the situations it allows the prime minister to quell with troops is any civil protest or industrial dispute that might threaten property.
Achieved by an amendment to Section 119 that directly contravenes Section 118, the Bill also makes soldiers immune to state law when called to turn their guns on fellow citizens, complicates the prosecution of any breaches of criminal law, and allows a defence of ‘following orders’. The Greens proposed an amendment to ensure that either house of parliament could immediately overrule any abuse of this power, but Labor voted with the Coalition to veto the amendment. The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006 passed without publicity while the press and public were distracted by the antics of Tony Abbott and the AWB.
In terms of the alleged constitutional amendment, I gather the concern is that section 119 of the Constitution requires the agreement of the states before the armed forces are deployed in situations of domestic violence. Nonetheless, the new legislation enables the armed forces to be called out without the agreement of the states.
It is important to note that the new legislation primarily looks to sections 51(vi) and 61 as its source of Constitutional authority (and possibly sections 51(xxix), 51(xxxix) and 68). The majority on the Senate enquiry that considered the Bill before it was enacted by Parliament concluded, “that there is adequate constitutional support for the amendments proposed in the Bill.” The best Dr Bob Brown could assert in his dissenting report was that the Bill might exceed the Constitution.
However, it is not up to an individual Senator, the Prime Minister or the Parliament to decide whether legislation is constitutional. It is the High Court of Australia that gets to decide whether legislation is constitutional or not. If there is ever a call-out of the defence forces to address domestic violence without the agreement of the state government, I am sure the constitutionality of the provisions will be tested in the High Court.
Returning to the email I received, I suspect that the claims of a constitutional amendment by an act of parliament are little more than political theatre from those opposed to the legislation. A normal act of parliament cannot amend the Constitution. And if this act of parliament exceeds its constitutional authority, the High Court can strike it down as invalid legislation.
In short, nothing unusual happened on 8 February this year: the Australian Constitution was not amended by an act of parliament.