It is, after all, in the nature of conventions that their contours and content have an element of indeterminacy. And it is also in the nature of conventions that they come under intense pressure during crises, when the power of real life cracks through the crust of long-established norms.
That was painfully obvious in the dismissal of the Whitlam government in 1975, an event whose consistency with constitutional conventions remains no less contentious today than it was four decades ago.
And it became even more apparent when the Covid-19 pandemic triggered an emergency that dwarfed the stalemate over the budget that had precipitated the dismissal.
Clearly, the mere fact the pandemic plunged the country into crisis cannot, in itself, justify Morrison’s conduct. But it is equally clear that it is artificial to examine the conduct as if it had occurred at a time of untroubled normality, as the Solicitor-General does.
The grave risk that artificiality creates is that we will fail to fully and dispassionately address the questions about our system of government that the response to the crisis – including by Morrison – so starkly posed.
The underlying problem is hardly a new one. The difficulties of reconciling responsible government with the polity’s survival in emergencies were of vital concern to the Greeks and Romans, and troubled the great humanists of the Renaissance as Italy’s city-states struggled with recurrent plagues and internecine warfare.
No one, however, formulated the issues more clearly than John Locke, writing when late 17th century England was still recovering from a devastating civil war.
With the “things of this world in constant flux”, wrote Locke, only the ignorant could believe that laws, rules and conventions were capable of anticipating every storm that would buffet the polity.
And because no norm is applicable to chaos, any precepts that pretended to guide the ruler in the violence of the tempest would necessarily be so vague as to provide little practical direction.
Lasting constitutions therefore had to include a prerogative power that could respond to the terrifying “accidents and necessities” that formed an ineradicable part of political life – for it was only by leaving some critical decisions to “the prudence and wisdom” of the executive that those “accidents and necessities” could be safely overcome.
Yet Locke was not naive about the dangers inherent in granting the executive “power without a (guiding) rule”. Duplicitous leaders, he warned, were apt to “colour their spirit of persecution with a pretence of care of the public weal”, exploiting the emergency to betray the trust vested in them.
The crucial question was “who shall be judge, whether the prince or legislator act contrary to their trust?”: “To this I reply: the people shall be judge; for who shall judge whether his trustee acts well, but he who deputes him?”
It is in that respect that Morrison’s decision not to disclose his accumulation of portfolios seems most vulnerable: no matter how well intentioned the lack of disclosure may have been, and how substantively inconsequential, it undermined the people’s ability to judge whether their trust had been abused.
The apparent failure of the checks and balances – including, within those checks and balances, the Governor-General’s responsibility to advise the prime minister when conduct, albeit legal, strains the bounds of procedural legitimacy – only compounds the concerns.
What is undeniable, however, is that Morrison’s decisions are scarcely alone in warranting review. On the contrary, his actions pale in comparison with those of the premiers, with Victorian Premier Daniel Andrews, for example, drastically curtailing his government’s parliamentary accountability, cloaking every decision in secrecy and repressing even the most peaceful of protests.
If preventing the people from judging their rulers is, as Locke maintained, “not prerogative but tyranny”, it is surely that conduct which ought to be under investigation, as part of a broader inquiry into how the federal and state emergency powers made it possible for “princes who cannot have too much prerogative” to act well in some instances but so deplorably in others.
Unfortunately, that is not the inquiry we seem likely to have.
Rather, the rhetoric of the past two weeks comes closer to the custom, which became entrenched in imperial Rome as the ancient republican virtues faded, of damnatio memoriae; that is, the damnation or condemnation of memory. Rising to power on narrow bases and with little substantive competence, each new emperor made it his most pressing task to destroy his predecessor’s reputation, piling infamia (disrepute, disgrace) and iniuria (insult, affront) on every aspect of the previous ruler’s record.
The predecessor’s images were defaced, with the organs of communication – eyes, ears, mouth – ritually targeted; his birthday was proclaimed a day evil to the Roman people (dies nefastus), while the anniversary of his demise was made an occasion of public rejoicing; even mentioning his good deeds became a crime.
Moreover, as the abuse mounted, the previous emperor’s court led the way in damning the old and exalting the new, with the case of Pliny the Younger – who, having served as Domitian’s legal adviser, excoriated Domitian as a “savage beast” the moment the tides changed – being especially derided by the few remaining moralists. The result, as the Historia Augusta (written in the late 4th century) rightly put it, was that “the great events which honoured the condemned were ignored or suppressed, since the denigrators only wanted to vaunt his faults”.
Far from allowing the people to judge their rulers, the Historia concluded, the process ensured that it was “impossible to give an unbiased account of the victim’s actions”. And to make things worse, the frenzied attacks served as a stark warning to opponents of just how far the new ruler would go so as to destroy them, chilling the criticism that alone could have saved the empire from eventual collapse.
Now, politics is no game for vicars, and those who play it must take the rough with the smooth. But this much is certain: the Covid pandemic is neither the last nor the worst of the crises Australia will face in the years ahead.
And this much is certain, too: show trials worthy of the damnatio memoriae will do nothing to help us learn the lessons of a turbulent period marred by errors, but also marked by successes. If the government genuinely wants to do better when the next emergency strikes, it is high time it changed tack.
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Whether Scott Morrison’s actions, in not making his additional ministerial appointments public, were “inconsistent with the conventions and practices that form an essential part of the system of responsible government”, as Solicitor-General Stephen Donaghue QC has concluded, will be debated for years to come.