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April 05, 2005

state of exception?

Suprise suprise. Not content with Peter Lewis becoming an ex-speaker and isolated backbencher, due to his failure to substantiate his claims about pedophiles in high places, the Rann Government in SA has decided to up the ante, big time.

Last night the Rann Government rushed legislation--The Parliamentary Privilege (Special Temporary Abrogation) Bill 2005- into state Parliament. This bill allows police to search Peter Lewis's Parliamentary offices to prevent a serving MP, a former MP and two serving police offices from being named in relation to pedophile activities. It will also strip parliamentary privilege from MPs who attempt to name any public officials accused of criminal sexual conduct.

That is an extraordinary turn of events. What is going on?

Peter Lewis is still an elected member of Parliament and entitled to parliamentary privlege to speak out on pedophilia. Yet today's Advertiser, is silent about the attempt to gag Peter Lewis from speaking out under parliamentary privilege. Unlike The Australian, it has nothing to say on the subject of this legislation; even though a political crisis is now developing out of the Rann Government's response to Peter Lewis allegations about pedophiles in high places.

Police raids on Parliament? Isn't Parliament off limits to police raids on MP's offices? Negating Parliamentary privilege? Doesn't Parliament have its own privileges committee to deal with MP's who use privilege for bad purposes? Removing privilege for debate on any subject? Isn't this suspension of tradition and convention of parliamentary privilege due to paranoia and political panic?
Does not this muzzling legislation set a precedent that would allow a future government in SA to strike down privilege on other MPs?

'Parliament is master of its own destiny' says Premier Rann. Really? What the Premier actually means is an authoritarian executive without control of the Legislative Council and little time for Parliament. What Rann has overlooked is that Parliament is not master in a federal system. Parliament works within the rule of the constitution as interpreted by the High Court. Parliament regulates itself within the bounds of a constitutional democracy.

You can hear the justification for the emergency measures in the wings. The exceptional circumstances of the present require the suspension of the conventions of the Westminster political system.

Is not Premier Rann's claim, that Parliament is master of its own destiny, another step in the abolition of the distinction between the executive and the legislature? Is it not another step to prevent MP's from defying the executive by speaking out on sensitive issues?

Do not these 'emergency measures' exemplify a tendency that is becoming a lasting practice of government--increasing executive power? Emergency measures that indicate the emergence of constitutional dictatorship?

So what was once a political circus is now developing into a political exception, driven by an emotive argument about gagging the possibility of allegations so as to protect the families of those accused of pedophilia. The argument shows that its advocates are willing to strike against democracy to expand the powers of the executive powers by eroding the powers of Parliament.

However, this is less a case of a classic state of exception of the law (eg., war time), and more a case of revenge, desiring blood on the floor, and really bad law.

Will the SA Australian Democrats in the Legislative Council stand firm against the bill? Will they buy the state of exception argument? Or will they defend the powers of Parliament against an arrogant executive manufacturing an emergency to expand its own powers? Will they defend the traditions of Parliament against political recklessness.

Posted by Gary Sauer-Thompson at April 5, 2005 12:44 PM

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Do not the emergency measures mentioned here, which have arisen out of this situation, indicate a tendency to constitutional dictatorship? A step to constutional dictatorship arises when, in a time of crisis, it is held that a constitutional government... [Read More]

Tracked on April 5, 2005 02:33 PM


Totally agree with your comments Gary. I am pleased to see a report that the SA Democrats have said they will oppose the Bill and the Govt has reacted by saying they will withdraw the legislation.

It's a good example of why it is important to keep an Upper House out of the control of the Government of the day, whatever party they may be. You are quite right to point to the increasing tendency of the Executive/Government to assert an 'emergency' to make overnight power grabs without debate and to use those precedents to do more of the same further down the track.

Governments (and plenty in the media) portray the Parliament as a fairly irrelevant, quaint thing which is nice for a bit of theatre and ceremony but which should basically stay out of the way and 'let governments govern'. I don't think it will get any better soon, but it's good to see the SA Upper House hold the line on this occasion at least, although from what you say of The Advertiser's coverage, a lot of the public are going to be none the wiser.

Posted by: Andrew Bartlett at April 6, 2005 12:10 AM

good to hear that the SA Democrats held the line and defended one of the traditions of liberal democracy. It seems they were also trying to protect their own. Would Atkinson and Foley have introduced the Privileges legislation to protect the Australian Democrats if the allegations were made about them? I doubt it.

Alas the democratic traditions are going to be rolled back by the Senate over the next 6-10 years by the Howard Government.

Sad to say, but the Speaker's decline in power reflects that of Parliament, which is now no more than a rubber stamp of the Executive. The ALP really should push for a non-partisan independent Speaker in the House and President in the Senate. The current practice of Ministers ignoring questions and engaging in political attacks is a joke and disgrace.

The increase in executive power with Government control of the Senate gives us an all powerful executive.Can we say that this constitutes a constitutional dictatorship between elections?

Does the Australian constitution have anything about what constitutes a state of exception? We have had them in the past --eg., Curtin in WW2---these were seen as states of emergency (war) in which the executive increased its powers to deal with emergency. Many of the powers stayed when peace came.

Or does who say what is an exception depend on the sovereign power of the PM: can he declare a state of exception anchored in the juridical order?

I suspect the latter. Is that right? If so that means emergency can mean anything.

Posted by: Gary Sauer-Thompson at April 6, 2005 01:23 AM

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