Oz Politics Blog

The Weekend Australian contained an edited extract from David Smith’s latest book, Head of State, published by Macleay Press.

In it was a paragraph that caught my eye.

Had Whitlam not decided to go to Government House on that day to ask the governor-general for a half-Senate election, the events of November 11 simply would not have occurred. If Whitlam had needed more time, he could have had it. Instead, he chose to present the wrong advice at the wrong time. Whitlam was the architect of his own misfortune; he was hoist with his own petard.

What tripe! I do not believe it.

Oh, I believe that if Whitlam had recommended a normal election for the House of Representatives, he would not have been dismissed. What I do not believe is that Kerr was willing to give Whitlam more time to find a political solution to the supply crisis. Nor do I believe the implication that if Whatlam had not arranged to meet Kerr that day, Kerr would have been willing to let the supply crisis continue.

I think it fairly clear that Kerr had made the decision to sack Whitlam if his Government was unable to achieve supply for the Crown.

Even if you take Kerr’s account of the dismissal (which as Paul Kelly points out in November 1975 differs from Whitlam’s), there is nothing to lend credence to the view now being put forward by Kerr’s then Official Secretary, David Smith.

Kerr had discussed his options with Garfield Barwick. He had the documents of dismissal drawn up. He had discussed them with his wife that morning and at her suggestion added the phrase; ‘It is for the people now to decide the issue which the two leaders have failed to settle’. They were signed on Kerr’s desk before Whitlam had entered the room. Perhaps the most telling point is that Fraser was waiting in the wings at Yarralumla to accept the prime ministerial commission. Kerr would not have summonsed Fraser if he had not already determined to sack Whitlam.

While Smith makes a number of valid points in the Weekend Australian, on this point I think his memory and analysis have failed him. In Kerr’s assessment, Whitlam had no more time.

Yesterday, the Senate’s Legal and Constitutional Legislation Committee handed down its 300 page report on the Provisions of the Anti-Terrorism Bill (No. 2) 2005 (ATB2). In a fairly gutsy move from the Coalition senators, the committee made 52 bipartisan recommendations; most recommended changes to the government’s proposed anti-terrorism laws. On reading the report, the recommendations seemed eminently sensible.

ATB2 is based on an agreement between the Commonwealth, State and Territory Governments adopted at the Council of Australian Government’s (COAG) Terrorism Summit held in Canberra on 27 September 2005. Under the COAG Agreement, Premiers and Chief Ministers agreed to introduce complementary legislation for the purpose of introducing preventative detention for a period of up to 14 days and search powers. Key features of the Bill include:

• the expansion of the grounds for the proscription of terrorist organisations to include organisations that ’advocate’ terrorism (Schedule 1 of the Bill);
• a new offence of financing terrorism (Schedule 3);
• a new regime to allow for ’control orders’ to authorise the overt close monitoring of terrorist suspects (Schedule 4);
• a new police preventative detention regime to allow detention without charge to prevent a terrorist act or to preserve evidence of such an act (schedule 4);
• wider police powers for warrantless search and seizure in Commonwealth places and in ’prescribed security zones’ (Schedule 5);
• police powers to compel disclosure of commercial and personal information (Schedule 6);
• updated sedition offences (Schedule 7);
• increased financial transaction reporting obligations on individuals and businesses (Schedule 9); and
• the expansion of information and intelligence gathering powers available to police and ASIO (Schedules 8 and 10).

Many of the committee’s recommendations go to ensuring people under control orders and preventative detention have adequate protections and appeal mechanisms. Other recommendations dealt with the new powers for ASIO. But for my money, the chapter on sedition and advocacy was the one to read. In summary the committee agreed with the repeal of the current sedition provisions in sections 24A to 24E the Crimes Act, but could not see a reason to replace those provisions as proposed.

5.167 The committee received an overwhelming amount of evidence in relation to the sedition provisions in Schedule 7 of the Bill. With the exception of the evidence from the Department and the AFP, this evidence indicated strong opposition to the sedition offences from all sectors of the community.

5.168 The committee agrees with many of the concerns raised in relation to the sedition provisions. The committee recognises that Schedule 7 is an attempt to update and modernise the existing offences of sedition already contained in the Crimes Act. However, the committee agrees with the evidence received that the removal of Schedule 7 from this Bill, pending the review foreshadowed by the Attorney-General, would not weaken Australia’s anti-terrorist capacity given the nature of the existing law in this area. In particular, the committee is not convinced of an urgent need for the provisions in light of existing laws such as the offence of treason (in section 80.1 of the Criminal Code) and the crime of incitement (in section 11.4 of the Criminal Code).

5.169 The committee acknowledges concerns about the potential impact of the sedition provisions on freedom of speech in Australia. Despite the Department’s various reassurances on this issue during the committee’s inquiry, the committee is troubled by evidence of the potential for ’self-censorship’ by a community cautious of the potential breadth of the provisions. The committee also notes the extensive expert legal evidence to this inquiry raising serious concerns about the provisions, including the clarity of various aspects, such as the fault elements and defences.

5.170 The committee acknowledges that the Attorney-General has committed to reviewing the sedition (and advocacy) provisions of the Bill next year. In that light, the committee agrees with the evidence received that it is inappropriate to enact legislation which is considered to be in need of review.

5.171 The committee therefore recommends that Schedule 7 be removed from the Bill in its entirety, pending a full and independent review.

The other big amendment suggested by the committee was a five-year sunset clause for the new anti-terrorism provisions, rather than the ten-year sunset clause agreed by COAG. The committee argued that there was no precedent for a ten-year sunset clause.

I am opposed to the death penalty, primarily because the judicial system makes mistakes. Australia’s best example of a judicial mistake is Lindy Chamberlain, who was convicted of murdering her nine week old child on circumstantial ‘expert’ evidence that was inconsistent with eyewitness accounts, the absence of blood on her own clothing, and the later discovery of the baby’s jacket.

In the United States the application of DNA technology to old cases has revealed a string of false convictions. For example, the Innocence Program has exonerated 163 wrongly convicted people through post-conviction DNA testing.

My contention is simple, if the judicial system cannot be relied upon to get it right 100 per cent of the time, if mistakes occur as they do, the state should not apply the ultimate (and irreversible) death penalty. The risk of applying the death penalty to the innocent is simply too high. It is better not to apply it at all.

In respect of Singapore and Indonesia I have added concerns. In my view, the application of the death penalty for medium level drug trafficking is disproportionate to the crime. Drugs are a scourge on society, and I can understand the desire of those governments to take a tough stance in their penalty regimes. But the death penalty is too tough.

A second concern is not just that the death penalty exists, but that in Singapore its application is mandatory. Singapore has a mandatory death sentence for the possession of 30 grams of heroin, 30 grams of cocaine, 500 grams cannabis, 200 grams of cannabis resin, and 250 grams of methamphetamine. At least in Indonesia the application of the death penalty for drug offences is discretionary.

These are not abstract issues. Ten Australians — Tuong Van Nguyen and at least some if not all of the Bali-9 — are likely to be executed for drugs offences; Nguyen as early as next Friday.

But nor are they issues that can be assessed on the merits of the death penalty alone. While I oppose the death penalty, I accept it is ultimately a matter for Singapore and Indonesia to determine for themselves — just as Australia has decided to abolish the death penalty. I understand that Singapore has achieved a relatively low use of illicit drugs through tough sanctions; and that this outcome has a high level of support in Singapore. While the outcomes in Indonesia are less clear, in part this reflects Indonesia’s lower levels of economic development.

And I accept that Australians in those countries must abide by the laws of those countries. There is little doubt that Nguyen and the Bali-9 were trafficking. There is no reason that Singapore or Indonesia should waive penalties for Australian convicts that would otherwise apply to Singaporean or Indonesian convicts. The law should apply in the same way to all regardless of their nationality. We would not accept the reverse situation in Australia, such that foreign nationals get a lighter sentence at their government’s intervention than Australian citizens receive. If Australia’s opposition to the death penalty is seen as tied to the cases of particular Australians, it will be seen as special pleading.

Finally, I have sympathy for the families of those to be executed. Doubtless they are and will experience substantial anguish. I cannot image how I would feel if it were my children in that position.

You only need to read the Singaporean papers to see why there is no hope for Tuong Van Nguyen. The best example is Janice Seah.

Nguyen, 25, had foolishly agreed to act as a mule to carry nearly 400g of heroin through Singapore to pay off his twin brother’s gambling debts. This is what moves many Aussies.

He has been dubbed ‘The Good Twin’ and ‘The Baby on Death Row’ by the Australian press, who, in their support and sympathy for him, have pulled out all the stops to get his death sentence commuted.

They think mitigating circumstances are in his favour.

Will it make any difference to his sentence?

Most definitely not.

If Nguyen had committed his crime in Australia, a story like his could have led to a reduced sentence from a liberal judge.

But as every Singaporean here I have spoken to knows, it’s a very different story back in the Republic.

We understand the reasons Singapore cannot commute Nguyen’s sentence no matter how much they may want to.

It’s become the classic battle between making exceptions and enforcing the law.

Singapore cannot afford to ignore the drug menace and the danger of becoming a drug transit hub.

It also cannot have double standards.

But Aussies just can’t understand why we can’t make an exception in this case.

And this is where my view from the fence might come in useful. Australians tend to mete out justice by emotion. A sob story here, tears there, a wheelchair and oxygen tank thrown into the mix, and you can bet that no matter what the evidence, the sentence will rarely fit the crime.

Singapore too makes allowances for mitigating circumstance, but when it comes to drugs, you’d have a better chance of nudging the Rock of Gibraltar.

So in many ways, it is culture clash, a different experience, a different way of doing things.

The letters to the editor (from Singapeans) have a similar message. Pauline Ooi Chen Ni wrote:

AUSTRALIA, in indulging in mob hysterics (and maybe a false sense of moral superiority), has chosen to ignore Singapore’s sovereignty and the laws governing our land and people.

Continuing to champion a convicted drug smuggler, and not acknowledging his crime and the harm his act would have brought to (Australian) society, reveal much of the sorry state of law and order, and sense of social responsibility, in Australia.

It is impossible that Nguyen Tuong Van did not know about the strict Singapore laws governing his crime. When he agreed to be a drug courier, he had put aside his ethics and morals. He decided to take a gamble and, unfortunately, he lost.

Singaporeans live under the very same laws that convicted Nguyen. Are the Australian government and people suggesting that because he carried an Australian passport, he is therefore above our laws?

And that special consideration must be accorded him or we would be in ‘contempt’ of Australia?

And Ace Kindred Cheong wrote:

LIKE many others, I feel sad for Australian national Nguyen Tuong Van who faces the gallows for drug trafficking. However, I believe the sentence is necessary to prevent the spread of such crimes here.

I say this even though I do not believe in the death sentence for every serious crime.

But the law against drug trafficking has to be the most severe for it to be a deterrent. Drugs destroy millions of young lives every year all over the world.

I have travelled far and wide since young and I have seen how easy it is to buy drugs in other countries. I have seen many addicts who consume the drugs in the open.

It is not an easy task for the Singapore Government to eradicate drug abuse or even trafficking, even with its tough laws.

People, including arriving foreigners, still get caught now and then.

What more if we make concessions to the mandatory death penalty for traffickers?

For these reasons, I think Singapore’s tough stand is the only reliable way to keep this heinous crime in check here.

The critical issue at the heart of The Dismissal was money. Since the Glorious Revolution of 1689, the Crown has required the consent of Parliament to raise taxes and spend money. This requirement is a foundation of the Australian Constitution.

In October 1975, the Senate refused to pass the Government’s budget. It resolved in respect of each of the budget bills,

… this Bill be not further proceeded with until the Government agrees to submit itself to the judgment of the people, the Senate being of the opinion that the Prime Minister and his Government no longer have the trust and confidence of the Australian people …

The month long standoff between the Prime Minister and the Senate was resolved on 11 November 1975 when the Governor-General unilaterally dismissed the Prime Minister and appointed the Leader of the Opposition as a caretaker Prime Minister. The new Prime Minister saw the Budget passed. The Governor-General immediately dissolved both houses of Parliament, and an election was held on 13 December 1975. The Whitlam Government was soundly defeated at the poll.

Could it happen again? Absolutely! For example, it is entirely plausible that Labor could win the next election, while the Coalition retains sufficient numbers to block Budget bills in the Senate. If this happened, the fundamentals are in place for the Senate to refuse supply to the Government.

Is it likely? It depends on what you mean.

If you were asking whether it is likely that a hostile Senate would refuse supply in the future — I would say yes. However, an opposition controlled Senate is only likely to continue blocking supply if it judged the mood of the electorate was in its favour and against the government of the day.

If you were asking whether it is likely that the Governor-General would intervene unilaterally as Kerr did — I think this is less likely.

First, there is now an acceptance in Australia that the Westminster doctrine of responsible government includes the accountability to both houses of parliament for Budget bills. Implied in this is the acceptance that while a Prime Minister does not have to resign or advise an election at the point when supply is first delayed, ultimately he or she must resign or call an election if the Senate continues to block supply.

Second, having seen the opprobrium that John Kerr suffered following the dismissal of 1975, future Governors-General would only take unilateral action to dismiss the Prime Minister as a last resort. Future Governors-General are much more likely to urge a political solution to a political problem.

Third, the budget cycle has changed since 1975. Budget bills are now passed over 6 weeks between mid May and 30 June, rather than over 14 weeks between mid August and 30 November. This means that a supply crisis would more quickly come to a head. It would also quickly overtake the constitutionally required minimum of 33 days to hold an election.

Fourth, and most importantly, Whitlam was ambushed by an innovation he and others were not expecting. This innovation has since been studied and a number of weaknesses have emerged.

• If had acted quickly, Whitlam could have had the House of Representatives rescind its support for the Budget Bills. This would have denied Fraser the ability to secure supply for the Crown, and Fraser would have had to resign. If that had happened, Kerr would have been required to reappoint Whitlam as Prime Minister. Very messy.
• Whitlam could also have kept the House of Representatives in session, as it cannot be dissolved while it is in session. The House adjourned so that the Speaker could communicate with the Governor-General. While it was adjourned, it was dissolved.

Because Kerr’s innovation is not a guaranteed failsafe mechanism to resolve a supply crisis, I believe it is highly unlikely to be used in the future.