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Did Howard deal with Bush/Blair outside Executive?

Impeachment - Did Howard deal with Bush/Blair outside Executive Council ?

According to the 1999 UK Parliamentary Joint Committee on Parliamentary Privilege (HL Paper 43-1, HC 214-1, Session 1998-99): Impeachment in the UK is an English parliamentary procedure whereby a person may be prosecuted and tried by the two Houses of the English Parliament for a crime.

It involves an accusation by a Member of Parliament in the people's House, the Commons, against a public official of High Crimes and Misdemeanours.

The accusing MP must present his or her proofs to the people's House and if it agrees that there is a case to answer, a committee may be established to draw up articles of impeachment.

In the UK the upper House, the House of Lords, is notified and if it agrees to the articles it then appoints prosecutors to try the case before the Lords who are the judges. If there is a conviction the Commons decides the sentence. The people's House is the arbiter of what may be charged as an impeachable offence.

Halsbury’s Laws of England (,Vol 8(2) 4th ed. Miscellaneous powers of the Crown (1) The Making of treaties, Butterworth’s 1996) states: "The danger incurred by a minister who conducts a secret correspondence with foreign powers or agents is clearly shown by the impeachment of the Earl of Danby (see R v Earl of Danby (1685) 11 State Tr 600 at 621-622, HL), where the first article of the impeachment charged him with having 'traitorously encroached to himself regal power by treating in matters of peace and war with foreign ministers and ambassadors, and giving instructions to His Majesty's ambassadors abroad without communicating the same to the Secretaries of State and the rest of His Majesty's Council'."

Whatever may be the impact of the terms of the Australian Constitution on the applicability of impeachment law within the Federal Parliament of the Commonwealth of Australia, it remains possible for an Australian Prime Minister, as the executive head of national government in Australia, to arrogate to him/herself prerogative power contrary to the constituted role of the Governor-General as Commander-in-Chief for the Queen of Australia as Head of State outside the constituted Executive Government for the Commonwealth of Australia under Section 62 of the Constitution, and to misuse this power beyond his/her accountability to the Federal Parliament.

In such a circumstance, the Australian people would be without a remedy against high abuses, unless there were to be some actionable criminal process available without conflict with the Constitution by which the Prime Minister could be brought to the account of the Commonwealth.

The exigencies of justice would not be simply met by the necessity for the Prime Minister to have either lost the confidence of the House of Representatives or face the people of Australia in a Federal election of the House of Representatives within three years.

Justice delayed is justice denied, and a motion of no confidence puts in issue the whole national government and not simply the head of national government.

This provides no remedy for an arrogation of prerogative power beyond Section 62 of the Constitution.

Accordingly, the Parliament may have no choice but to deal with any motion for impeachment that may in such a circumstance be raised before it.

The capacity of the Senate to entertain a motion for the proof of a High Crime or Misdemeanour by a Prime Minister acting beyond the Executive power under the Constitution in dealing with a foreign power or agent so as to have 'traitorously encroached to himself regal power by treating in matters of peace and war ... without communicating the same to ...[Her] Majesty's Council', is not something that may be ruled out of legal possibility, until the Constitution is amended by the people to provide for the replacement of all the remnant regal power invested by the Constitution in the Queen of Australia and exercisable in and for Australia by the Governor-General (including as Commander-in-Chief, and the Reserve powers), by a defined and legally replete constitutional power exercisable under the Constitution by an elected Australian Head of State subject to a constitutional process of impeachment under law within the Parliament for High Crimes and Misdemeanours capable of being unlawfully perpetrated by any officer of State.

The legal issues of the Bill of Rights for individuals are related to the issue of the powers of Parliament.

The current 1689 Bill of Rights (UK) provisions only empower our parliamentarians with its privileges.

The Act of Settlement, which also empowers Australian Parliaments above the Australian people, directly forbids the Australian Head of State from pardoning any person impeached by Parliament.

Fixing the terms for the national Parliament is an improvement for the rights of the individual within the nation against these rights and privileges of Parliamentarians over the Australian people, provided the change also enshrines an impeachment power in the Parliament that extends to both the Australian representative of the Queen of Australia as the Head of State (who prorogues and dissolves the Parliament, and is the Commander-in-Chief) and the head of national government, which is the office of Prime Minister. The confidence of the House of Representatives in the head of national government is not the sole condition which should protect the citizenry from a Prime Minister intent on exercising dictatorial powers (and especially the abuse in the arrogation of the power to commit Australia to war by dealing with foreign powers or agents outside Executive Council), or from the Head of State as the Commander-in-Chief who may constitute him/herself either as de facto dictator, or a puppet at the behest of the head of government. The Senate needs powers in addition to those vested in Senators as Members of Parliament by the 1689 Bill of Rights, to entertain proofs of High Crimes and Misdemeanours by an officer of State, including the effective power to hear an impeachment of the head of government, wherever such an accusation may be before the Parliament (and by way of a joint sitting if necessary).

There are modern examples under the model of the Commonwealth system of dictatorial heads of government who have made a mockery of the Westminster conventions governing the resignation of Ministers of State for misleading the House of Parliament in which s/he sits.

There are also equal issues about dictatorial Heads of State under the fixed terms for Parliaments.

This impeachment process in the United States is a constitutional imperative where the Head of State is a fixed term President.

Australia must assess the issue of an impeachment process because the value and necessity for the rule of law and the supremacy of Parliament of such a process has been subsumed to date in the control that the House of Representatives has been conceived to maintain under the Constitution over the incumbent of the office of Prime Minister, despite the aberration of the 1975 sacking of the Prime Minster by the Governor-General, without His Excellency first having waited to be assured by the House of Representatives that it had no confidence in the occupant of the office.

Were the Australian Parliament to attain fixed terms without contemporaneously settling upon a specific impeachment procedure for high abuse of office, the incumbent of the office Prime Minister may be adjudged to have acquired undefined dictatorial powers in foreign relations, unless the Senate already has an unfettered power to undertake a hearing into any impeachment that a Member of the House of Representatives may commence in the House of Representatives, either against any de facto or the de lege head of government - the Prime Minister, or an Australian Representative of the Australian Head of State who usurps constitutional authority.

Such changes as these would require constitutional change.

The introduction of a Bill of Rights would raise the constitutional issue of whether an effective Bill of Rights could be integrated with new constitutional arrangements for fixed terms.

Also, irrespective of whether the issue of dealing with a dictatorial head of government within a State or Territory is equally serious or not, the same issue for the national Parliament, it is a different matter.

The nation MUST NOT be able legally to be held to ransom by a dictatorial head of government whom one House of the Parliament alone cannot get the Australian people depose.

The related issues from 1975 do need to be addressed contemporaneously because the introduction of fixed terms for the national Parliament would take from the Australian Representative of the Head of State the power to sack the Prime Minister, except where the House of Representatives has passed a motion of NO CONFIDENCE in the occupant of the office of head of government, or where such of the Reserve Powers as may be available and applicable, would otherwise allow it.

It is these Reserve Powers which need to be taken from the Head of State (where they may be misused for the benefit of the head of government) and invested in the Australian people by the legal institution of a constitutionally sanctioned impeachment process (involving the people's House - the House of Representatives), but outside the control of the head of government on the floor of the House of Representatives.

In the maintenance of the primacy of Parliament over the Executive, a Bill of Rights is necessarily related to these issues of impeachment and the Reserve Powers.

Patrick T. Byrt

e-mail: Join us in the Journey of Healing to remember the pain of the Stolen Generations, their families and communities left behind. Tell them how sorry we are. Ask our Government to sit down and work out with the Stolen Generations how to repair the damage done. Ask fellow Australians to join together to help with healing for us all: visit:

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