April 2007


Brian Toohey

The lone ranger

John Howard’s concentration of power

When John Howard became the federal treasurer in 1977, the head of his department, Sir Frederick Wheeler, was a couple of years away from retirement. Wheeler embodied a public-service ethos which had served Australia well for decades. Retirement, though, seemed to come as a relief: visitors to Wheeler's home in his later years could hardly miss a privately commissioned hanging featuring the phrase "Fuck them all". The prominence given to the date on the piece, 11/11/75, suggested his disillusionment with the political process centred on the events surrounding the dismissal of the Whitlam government.

Had Sir Frederick Wheeler lived to see John Howard in action as prime minister, he might have extended the timeframe to include the current era. Wheeler was a strong believer in governments following ‘due process'. The notion sounds tedious, and it often is. It can also serve to boost the power of senior mandarins. Nevertheless, Wheeler had a strong case: governments that rely on an established process of public-service advice, he argued, are less likely to commit major blunders than those in which a dominant prime minister takes short cuts. His favoured example was the folly of the Khemlani Loans Affair, which precipitated the Whitlam government's downfall in 1975 and could have been avoided by adherence to due process.

Despite the two years of tutelage he gave Howard, Wheeler's commitment to due process does not appear to have rubbed off. In some ways, Howard is one of the least conservative prime ministers to occupy the Lodge. He is not a stickler for due process. Unlike his political hero, Sir Robert Menzies, he is not steeped in the great traditions of individual liberty inherited from the English legal system. Although he honoured the "progressive spirit of the Enlightenment" in his 2006 Australia Day address, he is quick to ditch its key precepts when it suits. He pays scant regard to the institutional underpinnings of traditional conservatism, in which the parliament and the judiciary are supposed to act as a check and balance on the power of executive government.

Under Howard, the courts have increasingly been barred, by statute, from reviewing administrative decisions, most notably in decisions affecting refugees. The dominance of executive government over the parliament - something often commented upon by the clerk of the Senate, Harry Evans - has accelerated, especially since Howard gained control of the Upper House. Power has been concentrated in the hands of the prime minister, a post that doesn't even rate a mention in the Constitution. The traditional position of a prime minister as primus inter pares has been rendered obsolete; certainly no minister believes that Howard is merely first among equals in the exercise of power. The convention that big decisions must always be taken by the cabinet no longer applies. And this has been accompanied by an even stronger departure from the convention that the public service should be independent of the government.

The Enlightenment ideal of a bureaucracy providing carefully researched, balanced advice was never fully attained. But it has disappeared under Howard, who has taken advantage of the fact that the Labor government which preceded him eroded the independence of the public service by abolishing lifetime tenure for departmental heads. One of Howard's first actions after winning power in 1996 was to seize the opportunity this created and sack seven departmental heads. The rest could hardly mistake the message: serving the political needs of the government has precedence over the commitment to a neutral public service. Departmental heads are now on short-term contracts, and stay in the job only for so long as they enjoy Howard's approval. Nor is proximity to the direct exercise of political power any barrier to career advancement, as was demonstrated by the appointment of one of the prime minister's personal staff, Paul O'Sullivan, to lead ASIO.

John Howard is untroubled by due process because there is nothing to stop him, other than self-restraint. The checks and balances that are commonly considered a vital part of our system of government are mostly based on conventions, rather than constitutional edicts. They only work if there is a willingness to respect them. In this, Howard has been aided by Labor's frequent failure to perform the role of a vigorous Opposition. Although the ALP initially opposed the invasion of Iraq, once Kim Beazley resumed the leadership the party rarely tried to lay a glove on Howard, even as the situation in Baghdad deteriorated dramatically. And Labor's fear of appearing to be soft on terrorism allowed Howard to strip away, with little challenge, ancient legal protections for individual liberty.

While Howard holds socially conservative views, his attitudes and policies are often far more complex than this label implies. He is not, despite the persistent claims of some critics, an arch conservative determined to return Australia to the '50s. It is equally surprising that his supporters so readily laud him as a conservative for doing little more than denouncing political correctness and cultural elites every couple of years. The culture wars, in fact, have little to do with the more substantial decisions Howard has made as prime minister, particularly on international matters. (Climate change is a partial exception. Howard initially treated it as an opportunity for just another skirmish in the culture wars, dismissing global warming as little more than a conspiracy to halt economic progress. Much to the distress of the culture warriors, he has slowly shifted his views.)

In tackling water shortages, Howard has been predictably reluctant to follow due process. Early this year, he announced a $10-billion plan for the Murray-Darling Basin that trampled over conservative worries about centralising power in Canberra. He did not seek cabinet approval for the decision, nor did he trouble Treasury for advice on the massive financial outlay. Even the department of Environment and Water Resources had only limited involvement in developing the package, which was put together hastily by the prime minister's department. (In fact, little more than a month earlier, the government had introduced to parliament an entirely different set of legislative arrangements for water management.) Had standard governmental processes been followed, the relevant departments would have undertaken extensive analyses, followed by submissions for consideration to the full cabinet. Had Howard sought Treasury's advice, he would probably have been told that there are cheaper ways of increasing water supplies than spending more than $5 billion on engineering works to cut losses from evaporation and seepage.

It is also likely that taxpayers' money will end up boosting irrigators' private assets, as the plan contains no commitment to recover costs from irrigators. Michael Keating, an economist who previously headed the prime minister's department and now runs New South Wales' water-pricing authority, has said, "The gap between [the] subsidised price and the market price of water for irrigation is effectively a form of economic rent that then accrues to the irrigator, and not to the taxpayer, who pays for these improvements. The subsidy would encourage irrigators to overextend their operations beyond what is economically efficient." The package also allows as much as $3 billion for buying back water licences which were over-allocated to irrigators, allowing unsustainable quantities of water to be taken from the Murray-Darling Basin. That might make environmental sense, but it also means that the National Party could deliver a large windfall to those farmers with licences which were issued free of charge.

It is in matters of national security, though, that John Howard's disregard for due process is displayed most spectacularly.

By mid 2002, John Howard decided to buy the Joint Strike Fighter, well before Defence completed its professional assessment of the contenders, which was due in 2005 or 2006. The department's study, Air 6000, was rendered irrelevant by Howard's decision. In June 2002, Robert Hill, the Defence minister at the time, announced the selection of the plane, which is being developed by the US aerospace giant Lockheed Martin. The news of Australia's largest military acquisition came only two weeks after Lockheed Martin briefed Howard in Washington, where the prime minister was seeing George W Bush. Perhaps it is only a coincidence that the Joint Strike Fighter is being built in Texas, but then, the decision could hardly have hurt Howard's burgeoning friendship with Bush. The decision certainly took Lockheed Martin's international-programs director for the Joint Strike Fighter by surprise: Mike Cosentino reportedly said he was "absolutely flabbergasted" that the company's plane was chosen so early in the development process.

Budgets and delivery timetables soon came under pressure, as is common when buying military technology that is still in development. The already staggering cost of $16 billion for "up to" 100 planes is expected to rise; deliveries are now due to begin in 2013, instead of 2012. And one rash decision was followed by another: late last year, Howard gave the current Defence minister, Brendan Nelson, the authority to buy a second type of plane, to cover any problems arising from the premature decision to buy the Joint Strike Fighter. The official announcement of the purchase of 24 Super Hornet fighters, for $6 billion, was made on 6 March this year. That figure far exceeds the already generous Defence budget.

Yet again, due process was not behind the decision to spend billions on planes which no one, other than the US Navy, wants to buy. South Korea and Singapore are buying the latest version of the highly capable US F-15, following exhaustive studies - studies in which the Super Hornet did not even make the short-list. Howard's willingness to give Nelson an extra $6 billion is not how responsible governments are supposed to operate. Standard fiscal rules require that ministers stay within their departmental budget, other than in an emergency. Ironically, Howard's principal justification for his early choice of the Joint Strike Fighter was that it would save money, by replacing two different types of plane currently operated by the RAAF, the F-18 Hornet and the F-111 fighter-bomber.

Before the Super Hornet announcement, the RAAF and the Defence department wanted to stick with the original proposal to buy only the Joint Strike Fighter, which they view as superior, as well as much cheaper. Although Nelson's announcement makes it hard for senior figures to go on the record, they insist that the Joint Strike Fighter will be delivered to the RAAF in 2013, obviating the need to go to the trouble and expense of buying a stop-gap plane such as the Super Hornet. Moreover, a cabinet submission made by Defence shortly before Christmas said that no decision on whether a stop-gap plane would be required has to be made until 2008. As a retired air vice-marshal, Peter Cross, pointed out in the Sydney Morning Herald, it is extraordinary for a government to make an extremely expensive military purchase "when the department of Defence is adamant that it did not ask for, or recommend, the aircraft". Cross also noted that a Pentagon report "is damning of the Super Hornet in areas critical to Australia's operational requirements".

Even if the F-111s are prematurely retired, the RAAF will still have 70 F-18 fighters, which are undergoing a $3-billion refurbishment. They are being equipped with a long-range missile which is better than anything that will come with either the Super Hornet or the Joint Strike Fighter. This was always intended to cover any gap in airpower. Not that a military attack is likely in the next decade, according to defence planners.

Why then was the Super Hornet decision taken before the department's 2008 timetable? Perhaps because 2008 is after the federal election, in the lead-up to which Howard wants to look strong on national security. Normally, traditional conservatives and military buffs alike would have no trouble with that. But the Super Hornet announcement has been attacked by almost every independent commentator, including those who usually like nothing more than the government buying a new fighter plane.

Even before the announcement, the head of Treasury, Ken Henry, had expressed concerns about the decision-making process. In a speech in February of this year, he said that the safeguards introduced by the 2003 review of Defence procurement provide a considerable measure of protection, "but only if you insist on those arrangements being followed". Although Henry did not say so, the choice of the Joint Strike Fighter in 2002, before the Air 6000 study was anywhere near complete, does not appear to meet these procedural requirements.

The Joint Strike Fighter decision of 2002 set a terrible precedent, but hardly anyone seemed to notice that John Howard had abandoned due process. He was soon to take the same approach with Iraq. These days, much of the discussion about the war focuses on how things have gone horribly wrong since the invasion in March 2003, while the radical decision to commit an act of military aggression against another country is left almost unexamined. Yet the prime minister decided to participate in the Iraq invasion without seeking professional, strategic advice from the relevant public-service departments. Nor did he seek a detailed assessment from the intelligence agencies on the likely consequences.

Several former officials, including retired departmental heads intimately involved in pre-invasion decision-making, have spoken to me, on condition of anonymity. Each says that ministers did not ask the public service for substantive submissions on strategy. One, who had full cabinet access, summed up what Howard expected from the public service: "It was not really a matter of advising on the strategic pros and cons, but what to do if the word was ‘go'." (Research by a former senior diplomat, Garry Woodard, has produced a similar picture.) It is always possible, of course, that senior public servants and intelligence analysts were keen to charge into war. But 41 retired senior military officers, diplomats, and Defence and intelligence officials signed an open letter in the lead-up to the invasion that strongly rejected the use of force. If their replacements in the top advisory jobs had enthusiastically advocated an invasion, it would have been contrary to most official thinking since World War II.

To this day, Howard appears to have no appreciation of the extent to which Australia's participation in the Iraq invasion defied long-standing commitments to reject aggression in the conduct of international relations. Given the chance, he'd do it all over again, he says. That is not what our international-treaty obligations state: following World War II, Australia's foreign-policy mandarins recognised that the nation's interests are clearly aligned with international efforts to ensure that no country should ever again invade another unless it is under imminent threat. This principle, clearly enunciated in Article One of the ANZUS Treaty, underpinned much of the strategic advice given to governments since the 1940s. (Little wonder, then, that the US Ambassador, Robert McCallum, told the National Press Club earlier this year that he had not read the treaty.)

According to Hugh White, a former deputy head of the Defence department and the principal author of the government's Defence White Paper of 2000, there is little understanding of the extent to which the invasion represented a "radical departure from established principles by Australia and the US". White says that Australian policy advisers "have always taken a cautious view of the use of armed force, rather than regarding war as a legitimate means for one country to impose its values on another". After the invasion, a former head of Defence, Bill Pritchett, made a similar point in a submission to a parliamentary intelligence committee chaired by the Liberal backbencher David Jull. Pritchett, who gave Australian governments strategic guidance over many years, said that avoiding "military aggression, unauthorised by the UN ... is still today basic to international affairs and of critical importance to lesser and, essentially vulnerable, nations like Australia".

Had Howard sought professional advice, he would have been told that George Bush senior chose not to attempt to depose Saddam Hussein in the Gulf War because of his concerns about increasing the influence of Iran. Yet Howard said in February this year, as if it were a fresh insight, "I don't think there would be a country whose influence and potential clout would be more enhanced in that part of the world than Iran's would be if the coalition was defeated in Iraq.'' Whether or not the coalition wins, Howard should have known that regime change in favour of Shi'ite politicians would enhance the influence of their co-religionists in Iran.

The pre-invasion rationale for war rested almost exclusively, of course, on the claim that Hussein's regime possessed weapons of mass destruction; Howard told the National Press Club on 14 March 2003 that human-rights abuses and regime change did not constitute a sufficient justification. Announcing the commitment of Australian troops six days later, he added a further reason for invading Iraq: the intelligence on terrorism that would be provided through the American alliance. Mentioning the alliance may have been politically appealing, but it overlooked the fact that the US, because it is in its interest to do so, provides detailed intelligence on terrorism to many countries which chose not participate in the invasion, such as Canada and Mexico.

In his explanation on 20 March of why Australian troops were headed to war, Howard said, "We are determined to join other countries to deprive Iraq of its weapons of mass destruction, its chemical and biological weapons, which even in minute quantities are capable of causing death and destruction on a mammoth scale". Had the speech been checked with relevant scientists in Defence, they would have explained that "minute quantities" of chemical and biological weapons do not cause physical destruction, and typically don't kill on a "mammoth scale". He also went much too far in a major speech to parliament on 4 February 2003, when he said, "The Australian government knows that Iraq still has chemical and biological weapons and that Iraq wants to develop nuclear weapons." The government knew no such thing.

The report from David Jull's 2004 parliamentary inquiry found that Australia's intelligence agencies were not as bad as their US and UK counterparts, which made grotesque errors about Iraq having weapons of mass destruction. The report said that Howard's speeches drew heavily on US and UK dossiers which contained "stronger, more emphatic statements than Australian agencies had been prepared to make"; all the Office of National Assessments had said was that any stocks would only be small, posing a threat which was far from immediate. The Defence Intelligence Organisation was even more circumspect. While Howard insists that all his major speeches were vetted by the Office of National Assessments, the Jull report found that the speeches often derived from intelligence which "ONA had not seen". The organisation, therefore, could not verify the accuracy of the claims made in them. Instead, it confined itself to checking that the speeches quoted accurately from the published US and UK documents.

Clearly John Howard could not be expected to undertake a forensic critique of the intelligence material he relied upon. But he should have been aware that limits placed on the Office of National Assessments' vetting process meant that the organisation was not vouching for the accuracy of his speeches. Even a sampling of the material that came into his office from the Office of National Assessments and the Defence Intelligence Organisation should have alerted him to the overstatements in his claims about Iraq possessing weapons of mass destruction. At the very least, his staff should have told him that a highly qualified Australian weapons inspector, John Gee, had told the media that he had tested Iraqi nerve agent after 1991 and found it degraded so rapidly that it was useless.

Then there is the treatment of alleged terrorists. The David Hicks case is now widely seen as a disturbing example of John Howard's willingness to ignore the principle central to our justice system: that no one should be imprisoned without a fair trial. Unless there are further delays, Hicks will soon front a special military tribunal. But this does not address the core problem: that the tribunal fails to meet the standards required for a fair trial, as the UK's Law Lords have declared unequivocally. Lord Steyn called the process a "monstrous failure of justice". It is difficult to believe that Sir Robert Menzies would have dismissed the findings of the Law Lords, but Howard remained unmoved. Earlier this year, he told a party-room meeting that he could have Hicks returned to Australia with one phone call (to Bush), but he wouldn't. This was a stunning declaration of his ability to exercise a power that was previously the preserve of the justice system. Not that this was how he put it. No, he wanted Hicks to face a trial, even though such a trial would manifestly fail the test of due process in the Australian legal system.

John Howard's lone-ranger approach to government will no doubt continue until he is defeated in an election. He has made the assessment - correctly, until now - that infractions of the Liberal Party's original credo assist his prospects of re-election. And there is nothing to stop him: not the conventional checks and balances, nor an insipid Opposition that has only recently displayed some muscle, nor the now-pliant bureaucracy. That bureaucracy was once run by a staunchly independent Public Service Board, chaired with distinction by Sir Frederick Wheeler in the 1960s. The board was abolished by the Hawke government, and the public service is now run by Howard's hand-picked head.

Is there something sinister about John Howard's  expansion of governmental power? Not in the sense that a would-be dictator lurks behind his reassuringly dull façade. Yet to flagrantly disregard long-established safeguards against abuses of power is no way for the leader of a government, whether conservative or liberal, to behave. True conservatives have always warned that, in the absence of effective checks and balances on executive power, politicians would do this. John Howard, we now see, is no exception.

Cover: April 2007
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