Several weeks ago Green's Leader Senator Christine Milne announced that her party had delivered the Abbott government a trigger for a double dissolution by helping to block, for a second time, legislation to repeal the Clean Energy Finance Corporation.
While it is true blocking the legislation created a double dissolution trigger, is is unlikely that the Prime Minister yet has constitutional justification to request double dissolution. That is assuming he was of a mind to do so.
An overlooked aspect of calling a double dissolution, and an aspect that tripped up Malcolm Fraser in 1983, is that while possession of a trigger is necessary for calling a double dissolution, on its own a trigger is not a sufficient reason.
This necessary but not sufficient condition relating to double dissolution triggers goes back to legal advice at the time of the first double dissolution one hundred years ago this month in 1914.
June/July this year is not only the centenary of the path to the First World War. The same two months in 1914 saw the debate that led to the proroguing of the Parliament in 29 June 1914, followed by the proclamation of the parliament's dissolution on 30 July 1914.
The power of a Governor-General to dissolve both houses of the Commonwealth Parliament for an election is not one inherited from the British Crown. It is a power created by the deadlock provisions of the Constitution (Section 57) and is bound by interpretation of that section's wording.
When the Cook Liberal government was elected at the 1913 Commonwealth election, it had a one seat majority in the House (38-37) but was in a significant minority in the Senate (7-29). By May 1914 the government had created a trigger based on legislation blocked twice by the Senate, and in June announced that the Governor-General had agreed to a double dissolution, pending the passage of supply to carry on government until the new parliament could convene after the election.
This supply issue meant that the calling of the first double dissolution received a thorough debate in the Parliament, with the Senate addressing the Governor-General on the matter and requesting that correspondence be released. The Governor-General did not respond, referring to the statement made to the House by the Prime Minister.
With supply passed, both houses were prorogued on 29 June 1914, not long after a certain event took place on the other side of the world in Sarajevo. The proclamation of dissolution was issued on 30 July 1914. For unrelated reasons, five days later Britain and Australia were at war with Germany.
Labor won the election on 5 September, but by then the political and international situation had changed dramatically from when former Prime Minister Cook had written to the Governor-General on 4 June requesting the double dissolution.
On 8 October new Prime Minister Andrew Fisher released all correspondence between Prime Minister Cook and Governor-General Sir Ronald Munro-Ferguson. It set a precedent that has resulted in correspondence for all subsequent double dissolutions being made public.
For this first first use of the novel double dissolution power, the Governor-General requested, with Prime Minister Cook's consent, advice from Chief Justice of the High Court Sir Samuel Griffith on the use of the power granted to the Governor-General by Section 57.
Griffith was in a unique position to offer advice, having attended the 1890s Constitutional Conventions and been one of the authors of the Constitution's several drafts.
In the released advice, Griffith advised Munro-Ferguson that the exercise of power under Section 57 was not automatic based on the existence of a trigger, but required the Governor-General to be personally satisfied of several conditions related to the trigger. To quote from the advice -
An occasion for the exercise of the power of double dissolution under Section 57 formally exists ... whenever the event specified in that Section has occurred, but it does not follow that the power can be regarded as an ordinary one which may properly be exercised whenever the occasion formally exists. It should, to the contrary, be regarded as an extraordinary power, to be exercised only in cases which the Governor-General is personally satisfied, after independent consideration of the case, either that the proposed law as to to which the Houses have differed in opinion is one of such public importance that it should be referred to the electors of the Commonwealth for immediate decision by means of a complete renewal of both Houses, or that there exists such a state of practical deadlock in legislation as can only be ended in that way. As to the existence of either condition he must form his own judgment. Although he cannot act except upon advice of his Ministers, he is not bound to follow their advice but is in the position of an independent arbiter.
Since 1914 there have been five further double dissolutions, one in 1951, and four in 13 years in 1974, 1975, 1983 and 1987.
As with the 1914 double dissolution, the 1951 request related to a single piece of legislation that the government argued had recently met the requirements of Section 57 of the Constitution. As with 1914, Menzies in 1951 also faced a Senate under control of the Opposition, 34-26.
The 1974 request was different, resting on six pieces of legislation for which triggers had been built up over the previous 18 months. The 1974 double dissolution led to the only use of the second part of the deadlock provision, a joint sitting of the houses to deal with the disputed legislation. The process ran in parallel with a series of High Court cases that clarified the meaning of Section 57.
One of the Justices who sat on those High Court cases in 1974 was Sir Ninian Stephens. In July 1982 he was appointed Governor-General, which meant he was particularly well informed on the operation of Section 57 when Malcolm Fraser made the next request for a double dissolution on 3 February 1983.
The background to Fraser's request was the political situation surrounding the Labor leadership that day. Labor's National Executive was due to meet in Brisbane that morning, and an acrimonious debate was expected in defending Bill Hayden's leadership against supporters of Bob Hawke.
What Fraser did not know was that Bill Hayden had already made up his mind to stand aside in favour of Bob Hawke. What Labor did not know as they started their meeting was the Malcolm Fraser had headed out to the Governor-General's residence with a request for a double dissolution. Such were the joys of politics before mobile phones and twitter.
Embarrassingly for Fraser, Sir Ninian Stephens also did not know Fraser was on his way to Yarralumla. Fraser arrived with his listing of double dissolution triggers, but his advice lacked argument on the existence of practical deadlock. Knowing well the legal position related to Section 57, Stephens asked Fraser to provide further advice.
Fraser had already called an unscheduled press conference for 12:30, at which he expected to announce a double dissolution. However, he had left the Governor-General no time to consider his request, especially as he was about to engage in an important diplomatic lunch with the Polish Ambassador. Fraser was forced to return to Parliament House, by which time knowledge of his request had leaked and Labor had resolved that Bob Hawke would be the new Labor leader.
Through the afternoon Fraser provided further advice on the parliamentary situation to the Governor-General, and by evening had been granted his request for a double dissolution. But by then Bill Hayden had resigned, Labor had not imploded in acrimony, and Fraser had four weeks to try and destroy Bob Hawke's Labor leadership. He failed.
The relevance of this story is that while the Abbott government now has a double dissolution trigger on legislation to repeal the Clean Energy Finance Corporation, it has no grounds to argue that a situation of practical deadlock exists with the Senate.
The trigger was achieved in a Senate that ceased to exist on 30 June. The new Senate's term began in 1 July and new Senators will be sworn in next week.
If in the highly unlikely situation that the Abbott government were to suddenly request a double dissolution based on this legislative trigger, the Governor-General would be entirely entitled to ask for evidence that a practical deadlock exists with the Senate. As the new Senate has yet to meet, and as the new Senate has not debated the legislation, the Governor-General would be entitled to say a practical deadlock does not exist.
But beyond these constitutional issues, there are more practical issues about why we are not going to see a double dissolution election any time in the near future. These are
The option for a double dissolution is available until mid-May 2016. There is no reason to rush to a double dissolution early, especially before assessing the performance of the new Senate.
Above all, those pining for an early double dissolution need to remember that while the Senate can put the bullets in the double dissolution gun, it is entirely the Prime Minister's choice whether and when he fires the loaded gun.
Overlooking the event of November 1975 (which as always is the exception to the rule),
government's are never forced to a double dissolution. It is a government's choice to call double dissolution, and it is the government's choice to do so at a time most advantageous to its chances of re-election.
Given the tough budget it introduced in May, the Abbott government shows little sign of firing the gun to start a double dissolution at any time in the near future.
What makes the decent Left decent is not that it is Left, but what it shares with decent folk who are not of the Left. Failure to grasp that leaves one claiming that any person of the Left is morally and intellectually superior to any person of the “Right”: so Pol Pot is morally and intellectually superior to, say, Winston Churchill–which is repellent nonsense.
The problem with folk such as Pol Pot, Mao Zedong, Joseph Stalin, Kim il Sung and their ilk is not that they are not of the Left–for any such claim is nonsense on stilts–but that they are too intensively Left. That is, they partake of things which make the Left, Left but do so in unrestrained ways. They are, for example, not less committed to the ideal of material equality than other members of the Left, but more so. (No matter how profoundly self-defeating any commitment to as complete as possible material equality through state action is.) They are not less committed to the notion that the Left is where one finds moral purity and social-political understanding, but more so. They are not less committed to doing what it takes to achieve the goals of the Left, but more so.
Of course, admitting that the problem with such folk is that they are too intensively Left can be very uncongenial, for it says that not only is being of the Left not an automatic ticked to moral and intellectual superiority but that there are potentially deeply problematic things within what makes being Left, Left. That much of the appeal of being Left is a sense of moral and intellectual virtue is fairly obvious–the tendency to personal abuse in response to critiques of the Left, the insistence that one cannot critique the Left unless one makes it clear “the Right” is worse, etc are pretty good markers that a sense of superior identity is being affronted in critiques of the Left. (And the greater the fear that there is something to the critique, the more resort to exorcising emotion in response.)
It does not help that Left-and-Right is a problematic dichotomy. There is, in a (very broad) sense, the Left, because an overt commitment to equality (albeit variously conceived and to varying degrees of intensity) is a unifying value of the Left. There is no such unifying value on “the” Right, which includes folk who emphasise very different values, conceptions of people and politics. No amount of narrowing intensification of the politics of, say, Milton Friedman will get you to the politics of Adolf Hitler.
Where the Left goes seriously wrong is when it gives into the Jacobin impulse. The terms “Left” and “Right” arose in the French Revolution, that transforming accident of history, which also gave us the original Jacobins and set in motion the Jacobin impulse.
Make something worse — add Robespierre
The Jacobin impulse is to take the moral purpose and social understanding of one’s project to be so complete and all-encompassing, that no divergence from it is to be permitted and no restraint in action needs to be entertained. It is total politics–both in the ambit of its social reach and the means it is willing to employ. Adding the Jacobin impulse to any political project makes it (much) worse.
Thus, adding the Jacobin impulse to nationalism gives us Fascism. Adding the Jacobin impulse to Aryan racism gives us Nazism. And adding the Jacobin impulse to socialism gives us Leninism and its cognates. (As Lenin himself explained.)
The Jacobin impulse arose out of the very origins of the Left and is the most tempting to folk of the Left. Merely adding in the Jacobin impulse does not, however, make one of the Left–attempts to claim that Fascism and Nazism are “really” Left-wing movements are too tedious for words. Both movements may have appropriated their approach to the ambit and actions of politics from the Left, but their projects were not projects of the Left. There were (and are) left-nationalism and left-racism, but both nationalism and racism had long since escaped into very non-Left forms by the time Mussolini and Hitler were adapting Lenin’s political methods to their particular political projects.
Thus the realities of the Great War convinced Mussolini that the collectivism of nation was more powerful than the collectivism of class. But that moved him from the hard Left to the “third way” of Fascism, turning Mussolini-the-socialist into Mussolini-the-creator-of-Fascism.
Nevertheless, the notion that one’s moral and political understanding is so correct, one’s goals so virtuous, and what has been created by the past so flawed, that any means can be employed to pursue them; that there is no nook or cranny of social life that should not be subject to the liberating project’s transforming touch; that is a temptation that speaks most naturally and most profoundly to people on the Left. Which is why the Jacobin impulse arose out of the origins of the Left.
But the Jacobin impulse makes any project it is added to worse, because no one has anything seriously approaching that complete a level of moral purity and social understanding. Nor is any project, or its practitioners, immune to the corruptions of power–so to seek total power is to end up totally corrupt. While to commit to unrestrained means is to commit to unrestrained evil, as the core of morality is restraint in one’s actions towards others.
Hence the Jacobin impulse is to be fought in all its forms. Even the petulant and petty Jacobinism of the US campus dis-invitation tendency. What is specifically wrong with such dis-invitations I will leave to Prof. Stephen Carter of Yale University to say much more humorously and effectively than I can.
The upside of Mozilla’s purging of Brendan Eich is various folk are getting the point that penalising opinion andpurging workplacesis so not a good idea.
The downside is a lot of folk just don’t get the bigger issue. This piece, for example,First They Came For The Mormons, exemplifies the common notion that “this” started with gay activists or modern progressivism, or whatever.This postmostly gets the bigger issue, thecomments belowmostly do not.
An old, traditional pattern
No, this is not a “new” thing, moral exclusion started much earlier and is deeply entwined with the Judaeo-Christian tradition. What happened to Brendan Eich is actually a relatively mild version of what was done to queer folk for centuries. The habit for much of the C20th, for example, of whenever bars catering for a queer clientele were raided, having all those apprehended listed in newspaper reports was exactly the same as finding out who contributed to theProposition 8campaign and then targeting them. (Ugandan newspapers are continuing that inglorious tradition.)
It is the modern, scaled-down, version of the theology ofDeuteronomy 13.Deuteronomy 13enjoins the killing of those who have wrong beliefs–i.e. worshipping pagan gods:
If your very own brother, or your son or daughter, or the wife you love, or your closest friend secretly entices you, saying, “Let us go and worship other gods” (gods that neither you nor your ancestors have known, 7 gods of the peoples around you, whether near or far, from one end of the land to the other), 8 do not yield to them or listen to them. Show them no pity. Do not spare them or shield them. 9 You must certainly put them to death. Your hand must be the first in putting them to death, and then the hands of all the people. 10 Stone them to death, because they tried to turn you away from the Lord your God, who brought you out of Egypt, out of the land of slavery. 11 Then all Israel will hear and be afraid, and no one among you will do such an evil thing again.
Thoughtcrimewas Biblical long beforeGeorge Orwell. Purifying society by purifying public belief by outcasting the wrong-thinker is entirely Biblical.
The Christian right’s social model
And enforcing social conformity by boycotts and outcasting is entirely something the Christian right perfected long before the Brendan Eich case. There is a long history of Christian boycotts targeting the (extremely vulnerable) queer minority and those who stood up for them. Theattempts to blockTV shows and plays that dared to present them positively. Toblock openly employingthem. To block any form of legal protection. Declaring permitting access to the ordinary amenities of life to be “promoting homosexuality”.
It cannot be said often enough:the purging of Brendan Eich is the Christian right’s social model in operation. The notion that you can cut a group out from the herd and deny them ordinary amenities of life is precisely what the Christian right did, attempted to do and continues todemand the right to do. WhenScalia Jwrote from the bench of US Supreme Court that “Americans” should be entitled toshow their”disapproval” of “homosexual conduct”:
Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries old criminal laws that we held constitutional inBowers.
he was endorsing the practice (though not the direction of the targeting) that the purging of Brendsan Eich represents. Being denied ordinary amenities for failing to conform is exactly what was meant in the above passage (except the doers and target has changed); expressing moral disapproval for conduct is what has now been done to Brendan Eich, and was done to queer folk for generations.
Those who see this purging as somehow something new, or a speciality of the left, are, at best, ignorant of this Christian history of boycotting and denial of ordinary amenities of life to enforce conformity; so that they literally do not see that it is precisely what the Christian right wanted and did and still seeks the right to do. For part of moral exclusion is an impoverishedepistemology; the notion that what happens to the morally excluded literally does not count. That what was done to the queers has no implication for “real” people.
But there are no “proper” and “improper” persons, nor are there any “do not count” folk who are different from “real” people so that what happens to them has no implications for “real” people. What happens toanygroup counts, because it is a model that can be used against others–anyothers.
There is a deep sense of entitlement here–that people like us are entitled to do this to “them” but no-one is entitled to do it to people likeus. Sorry, that sense of entitlement is entirely in your head and it will be taken over (and inflicted on) whomever has enough social power, and feels sufficiently entitled, to do it too.
There is, of course, a notion operating thattraditionaloutcasting is somehow different. But that is simply a persistent flaw in conservative thinking–by valorising the past, one is blinded to inconvenient aspects of it. Yes, queersdidhave this experience and yes itdidcount. Both in itself and in providing a model for others to follow. The historical, very traditional, chickensarecoming home to roost.
Fetishes of order
Which leads to another persistent flaw in conservative thinking–creating fetishes of order which are in fact causes of disorder. In the late 1920s and 1930s, a fetish of order which wasa (disastrous) creator of(economic, then social then political) disorder was thegold standard. Nowadays, narrowinflation targetingperforms the same role–a fetish of order whichis a creator of(pdf) (economic) disorder.
The denouncing of homosexuality and homosexual pairing is also a fetish of order which creates social disorder. It tears apart families, leadsto youth suicide andother self-destructive behaviour; when reflected in law, makes people vulnerable to blackmail and strips them of legal protections (as going to be police over any crime becomes so fraught), makes them vulnerable to criminal exploitation; makes building stable relationships harder. But you only notice this if the experience of queer folk counts; experience (and aspirations) which moral exclusion excludes from counting in its impoverished epistemology.
Acts above people
A moral exclusion which puts acts above people. Christ spends much of the Gospels criticising acts-based religious authority. Catholic, Orthodox and other Christian priests and clerics quarantine that by claiming Christ that was just attackingJewishreligious authority–the well-knownblame the Jewsmove. And then promptly contradict that quarantine by saying that (the rest) of Christ’s teaching was for everyone.
Let’s not engage in the blame-the-Jews quarantining of the inconvenient past. This is all an excellent lesson in the power of the Gospel teaching–don’t focus on acts and fail to see the person. In particular do not fail to see themasa person,asan object of moral concern and protection, just like you. Which means listening to their experience and aspirations as you would want to be listened to. Which means permitting them access to the ordinary amenities of life as you would want access. Do as you would be done by. Love thy neighbour as thyself. Do not delude yourself that there is someone or some group out there who can be stripped of moral standing and protections, and access to the ordinary amenities of life, and yet this has no implications for you and yours.
A delusion which the Christian right has bought into for decades and the progressive left is doing now. Asterisked Christianity as its own reward.
There is a certain amount ofvelvet ragein the purging of Eich. A cry of rage and pain over past and present miseries. Understandable but not helpful. Well, perhaps a helpful morallessonbut not in the sense the purgers intend.
Brendan Eich apparently alsodonated to folk such asPatrick Buchanan, who said that:
… our promiscuous homosexuals appear literally hell-bent on Satanism and suicide …
… homosexuals have declared war on nature, and now nature is exacting an awful retribution …
That expressing of moral disapproval for homosexual conductScalia Jthat judicially opined is just fine. Eich also donated to the cause of denying queer folk access to ordinary amenities of life (i.e. marriage). Well, having a career is an ordinary amenity of life too. And folk have expressed their moral disapproval for Eich’s anti-equality-before-the-law conduct. For his failure to successfully recant as,say, Hillary Clinton has done.
But recantation of their homosexuality and homosexual conduct is precisely what was and is demanded by the Christian right of homosexual folk. Which is yet another way in which queer-hatred is like Jew-hatred: making an utterly unreasonable demand (give up your sexual nature, give up your religion) as a requirement for full moral standing and equal protection of the law. Along with pretending it is not hatred, it is just “moral concern”.
The velvet rage is understandable, as the “moral disapproval” of homosexuality still tears apart families and ruins lives. But however useful the moral lesson from the Eich case that the moral exclusion beloved of the Christian right is a force for social disorder–not merely for queer folk, but by providing an example for anyone to use–it is still not a path to take.
The Jewish roots of homicidal purification
For we should remember that theHolocausthad Jewish roots. The notion that society is rightfully purified by blood and fire destroying a corrupting and perverse minority was part of Catholic and Orthodox teaching for generations: that was (and remains) the mainstream Christian reading ofGenesis 19
. Rather than thetraditional rabbinical readingthat thecities of the plainwere destroyed for withdrawing moral protection from the vulnerable–indeed, were soanti-moral that they punished those who protected the vulnerable.
And from whom did Christians learn to readGenesis 19
in as purification by slaughter of a vulnerable minority? From Jewishnatural lawphilosopherPhilo of Alexandria, inOn Abraham: XXVI-XXVII andSpecial LawsIII:VII.
Now, I am sure God-fearing family man Philo had no inkling that this notion that society was
purifying by slaughtering a corrupting and perverse minority had any implication for folk such as him; that homicidal denunciation of pagan degenerate queers had no implication for “right-thinking” and “right-acting” folk. But, of course it did. Because one person’s proper thought and conduct is another person’s corruption and perversion. The constant iteration by the Church down the centuries of Philo’s notion of moral cleansing by slaughter of a targeted “corrupting” and “perverse” minority very much had implications for folk such as him, as centuries of Christianpogromsproved.
A notion of moral-cleansing-by-slaughter that the Catholic Church happily took up as a tool of preaching; endorsing (and, where they had temporal power) practicing “purifying” judicial murder of corrupt and perverse sexual actors and corrupt and perverse thinkers. Indeed,happily spreadingthe idea, in a compilation compiled by a (later beatified, mainly for doing so)prince of the Church, that Christ insisted on having all the sodomites killed–purifying the world–so that the Incarnation could happen. The Gospels asborn in purifying massacre.
All leading up to the greatest pogrom, the starkest purifying massacre of all, the Holocaust. (Though the slaughters of Leninism also come from this root.) If you constantly preach that some vulnerable minority is corrupting, perverse and against God; if you preach that God endorsed purifying slaughter of such a minority, then there will be consequences. Not least because you also set up and inculcate the example for others to follow.
Just as pro-gay-rights folk are practising the outcasting that the Christian right has so long practised and still endorses. The Christian right that set up the example for others to follow.
And now really does not like the consequences. However tempting it might be to say “tough”, stew in the social juices you prepared, it is still not the way to go. Because moral exclusion is a moveable feast, a social game anyone can play, if they have the power.
Let’s not (also) go there
A game that does,as has been pointed out, greatly increases the cost of losing social struggles. Part of the civility of a good society is tonotmake politics mean that much, to have such profound implications. Nor religion, for that matter.
Yes, the sense of righteous entitlement involved is intoxicating. Yes, it is great to be a gatekeeper of righteous, enforcing a moral gulf between correct and incorrect acts and beliefs.
Philo’s natural law reworking ofGenesis 19had such appeal precisely because if sexual acts mattered so much that God would destroy entire cities over them, then youreallyhad to listen to the priest and clerics as they led you through the divinely ordered moral universe of correct and incorrect acts and beliefs. To bepharisaicalin the sensethat Christ denouncedis to be aneededsource of entitled authority. Which, like other aspects of Judaeo-Christian belief and practice, can be happily secularised.
But the real lesson in rejecting the entitled moral bullying and outcasting of the Christian right is not to practice some “new improved” version for oneself–to take you your own sense of entitlement–but not to practise it at all. Yes, stand up for people’s rights, support equal protection of the law, but not as a new litany of “correct” and “incorrect” acts and beliefs, but because you domorally see the person, even when they do not morally see other people; do so even when, in some waysespeciallywhen, they are wrong.
To buy into error having no rights is to buy into the social tyranny of whoever has the power to deem what is right. A free society means having the liberty to be wrong. Just because the Christian right persistently refuses to grant that, does not mean the rest of us should not.
Boycotts work through social power. Part of the conservative outrage over the Eich case is the display of pro-queer social power and the evidence of the loss of anti-queer social power. A profound sense of moral entitlement encased in a fading sense of social significance is not a pretty sight.
Even so, social might does not equal moral right. The conservative Christian attempt to deny access to the ordinary amenities of social life was and is not right, and neither is the reverse.