View from The Hill: A shocker performance, even by coup standards



File 20180824 149490 1blk4xp.jpg?ixlib=rb 1.1
Scott Morrison is sworn in as the 30th prime minister of Australia by Governor-General Sir Peter Cosgrove.
AAP/Lukas Coch

Michelle Grattan, University of Canberra

When they turn nasty, politicians can be an extraordinarily ugly lot. This week, the Liberals looked hideous – feral, self-indulgent, thuggish and contemptuous of an electorate that would like to be able to have MPs respect its choice of the country’s prime minister.

No wonder ordinary people caught by the cameras in the vox pops were disgusted. This was a shocker performance, even by coup standards.

As Malcolm Turnbull said, an “insurgency” by the conservatives brought him down. But, in a sort of perverse justice, the insurgents were punished. Their reprehensible behaviour blasted out the leader they hated but failed to deliver them the prize they desired – installing their own man in the Lodge.




Read more:
How the hard right terminated Turnbull, only to see Scott Morrison become PM


Turnbull, by delaying the ballot, and getting the Solicitor-General to give an opinion on a question mark over Dutton’s eligibility to sit in parliament, helped to thwart them.

Dutton thought his prospects better than they were; Turnbull judged his own prospects to be worse than the reality.

The spill motion was carried 45-40, a tiny margin. In other words, 40 people wanted to keep Turnbull. Yet three cabinet ministers – Mathias Cormann, Mitch Fifield and Michaelia Cash – had previously insisted to Turnbull that he had lost the party room’s support and then resigned, ensuring his political death.

No wonder that after the spill numbers were given to the party room, Turnbull said “what a farce”.

In choosing Scott Morrison, the Liberals went for the safest option among the three candidates on offer. Dutton was seen as too risky and hardline; Julie Bishop started too far behind.

But while Morrison was the best of the trio, his elevation just further emphasised the bizarre nature of it all.

There is no compelling evidence to suggest Morrison will be much more competitive than his predecessor at the election. With some voters – Liberals on the progressive side – he might be less attractive.

And what about the gnashing of teeth over Queensland? After Longman, the Dutton people insisted he was needed to hold up the vote, because Turnbull was so unpopular.

In the new order, Queensland remains unrepresented in the leader/deputy team. And if Morrison has an advantage over Turnbull there, it would be a matter of degree, hardly worth ripping apart the party.

One vulnerable Queensland seat is Dickson, held by Dutton on a 2% margin. His actions may – and should – cost him votes, although they won’t cost him a position on the frontbench. Morrison has flagged Dutton will be in his cabinet.

Josh Frydenberg is a good choice as deputy leader, a unifying rather than a divisive figure, who’s done some heroic work on the National Energy Guarantee, the fate of which is up in the air.

Frydenberg becomes the new treasurer. He’s diligent and competent, but it will be a steep learning curve, facing a savvy and experienced opponent in Chris Bowen.

As he crafts his ministry, Morrison has to balance the factions and wrangle with the Nationals, out to get the most they can after the turbulence. Nationals leader Michael McCormack has every incentive to fight hard – he’s seen by his critics as not standing up strongly enough to the Liberals.

On the policy front, Morrison has an immense vacuum on energy, a major issue for the public, at the cutting edge of the ideological divide, and the catalyst for this week’s calamity.

Is he going to keep or reshape the NEG? He wouldn’t be drawn at his news conference. He said he’d talk to his cabinet.

Will he be able to get any sort of sensible energy policy through the party room? And will he want to?

Will he pursue an energy policy that is relatively bipartisan, as business desperately wants, to get investment certainty, or will he decide to go down the route of maximising the differences with Labor, in the hope of an electoral advantage and under pressure from the ideologues?

The energy wars will continue, one way or another.

A changing of the guard, especially in circumstances like these, is always disruptive – the ripples are felt through the administrative structure of government. New ministers have to learn new jobs. Initiatives in the pipeline must be paused and reviewed. All that alone is advantageous to an opposition that is already well organised.

Not surprisingly, Morrison flagged he doesn’t want an early election. But given Turnbull says he will leave Parliament “before too long”, he seems likely to face a byelection in Wentworth. It’s on a whopping 17.7% margin, but Turnbull had a strong personal vote, and a big swing would be a setback for the new leader.

Tony Abbott’s sister Christine Forster is being encouraged to seek Liberal preselection. Just another twist in this saga replete with dark irony.




Read more:
Memo Scott Morrison: don’t chase the ‘base’


How the disappointed conservatives behave will determine what internal trouble Morrison faces. One thing seems clear: they won’t be satisfied unless the change of personnel produces changes in policy, notable on climate and immigration.

Abbott seems unlikely to go silent. He harbours a deep resentment towards Morrison, accusing him of disloyalty in the 2015 coup.

It will be fascinating to watch Morrison construct his post-Treasury, pre-election persona. There are multiple Morrisons. The aggressive, shouty, attack dog tearing at Labor. The lower-key, more compromising negotiator. The knock-about bloke, always talking about “the (Sutherland) Shire” and the Sharks.

<!– Below is The Conversation's page counter tag. Please DO NOT REMOVE. –>
The Conversation

Then there is the Morrison who is ambitious to leave his mark as a reformer – who’d hoped to reshape the GST until Turnbull pulled the pin on him. Now he has his chance to set his own direction. But he will be buffeted by cross winds and has little time to plot his course.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Advertisements

The economics of Australia’s too-common leadership spills


Brendan Markey-Towler, The University of Queensland

At the end of another week of chaos in Canberra, we’re all asking why this keeps happening. Why are our leaders playing politics instead of governing?

A somewhat esoteric sub-field of economics known as Public Choice Theory suggests it really does come down to two things. First, the technological advances that have given politicians feedback in real time. Second, Australia’s comparatively small parliament.

Politicians aren’t mad or bad, they have an incentive to do what is necessary to hold their seat in parliament. They have no incentive to govern except insofar as it helps them keep their seat.




Read more:
Moment after moment of madness: Liberals manage the ugliest, messiest leadership challenge in history


The trouble is, the vast volumes of data we generate create a never-ending tsunami of information. It’s not just traditional opinion polls such as Newspoll, but also Twitter and Facebook “trending” feeds and hashtags, Google search data, YouTube, endless online polls and petitions.

All of this changes the incentives politicians face almost in real time. Of course they’d be changing leader more often! And with a comparatively small parliament, it is comparatively easy to do just that.

The irony then is that for all we say we wish the politicians would respect our say and get on with governing, our revolving door prime ministers are the result of the politicians being too responsive to what we think, and our having too few of them.

The perverted incentives of spills

Public Choice Theory starts from the presumption politicians aren’t principled heroes or evil dictators in waiting. They’re just regular people like you and me. They face incentives to which they try to respond as rationally as they can.

Now it doesn’t really matter whether a politician has conviction, hunger for power or they’re simply a hack. They can’t do anything unless they win elections. Hence, as Anthony Downs realised in his seminal work on Public Choice Theory, they have an imperative incentive to do and say what they can to win elections.

What some might call slavish adherence to public opinion is actually, from the perspective of Public Choice Theory, perfectly reasonable behaviour. Politicians can’t do anything unless they can get the votes of the public first, so they need to know what to say and to do to get them.




Read more:
‘Balmain basket weavers’ strike again, tearing the Liberal Party apart


Our present trouble with “revolving door” prime ministers makes a lot of sense from this perspective.

In the internet age, politicians’ knowledge of what to do and what to say to get the votes and win the elections is changing almost in real time.

Release a National Energy Guarantee policy? You’ll find out within weeks what the public thinks about it. Make a statement about immigration? You’ll find out within hours how it’s playing with the kids on social media. You’ll find out day to day how your leader is performing relative to the other guy just by monitoring the news sites.

Now of course that’s not limited to Australia, and countries with similar systems haven’t had the same revolving door leadership as us.

What sets Australia apart is that our parliament is very small compared with other countries (because of an obscure part of the constitution known as the “nexus” provision). We have only 150 members of the lower house compared with, for instance, Canada (which has 338) and the UK (which has 650).

It’s therefore much easier in Australia to respond to changing incentives by building a faction in favour of changing the leader simply because there are fewer people to persuade.

Put that all together, and of course you’d have a revolving door prime minister! What else would you expect?

Can a stable majority exist?

So what’s to be done?

One possibility is to do as the ALP has done, and require a supermajority of the party room to spill the leadership. This (in theory) makes it much more difficult to change the leadership.

Another, probably unpleasant possibility, is to significantly increase the size of parliament. A larger parliament makes it much more difficult to build factions in favour of changing the leadership.

Another, more direct response is to simply break the cycle and for us to take responsibility for the state of our own democracy. That is, if we actually do care about stable government.




Read more:
Reporters or players? What is the media’s role in leadership struggles?


The politicians will always respond to their incentives. They’re people. It’s never going to change. So we need to stop changing the incentives they face in real time as much as we can.

You yourself can do something about that. Stop responding to pollsters. Stop “liking” and retweeting the political topics. Stop endlessly following the political clickbait. Ironically, stop paying attention to politics and get on with your life except where your civic duty absolutely demands it.

Public Choice Theory suggests our increasingly regular leadership spills are because politicians are, ironically, too responsive to what we think and there are too few of them. If we want stable government, we can tinker with party constitutions to disincentivise leadership spills: we can increase the size of parliament to make it harder to build factions for changing the leader.

<!– Below is The Conversation's page counter tag. Please DO NOT REMOVE. –>
The Conversation

But the most direct way to achieve it is to stop telling them what we think incessantly, and deliver judgement only where it matters most – the ballot box.

Brendan Markey-Towler, Researcher, The University of Queensland

This article was originally published on The Conversation. Read the original article.

Moment after moment of madness: Liberals manage the ugliest, messiest leadership challenge in history



File 20180823 149484 1hmdghs.png?ixlib=rb 1.1

Wes Mountain/The Conversation, CC BY-ND

Frank Bongiorno, Australian National University

Tolstoy’s famous remark in Anna Karenina may well apply to political parties: “Happy families are all alike; every unhappy family is unhappy in its own way.”

It certainly applies to spills. Each unhappy event is unique in its particular combination of ambition, rancour and absurdity. But the present debacle contains so many wheels within wheels that it is virtually impossible to imagine anyone being able to keep all of them in view at once.

Yesterday’s shutting down of the House of Representatives was one result. It is arguably the worst debauching of Australian parliamentary democracy since John Kerr refused to see the Speaker to receive the House’s no confidence motion in the Fraser Government on November 11, 1975.

The Liberal Party gained office, but would pay the price for its misdeeds. The Coalition’s decision to exploit its numbers yesterday to shut down the House because it had become an inconvenience is also likely to live on in infamy as the tawdry, desperate act of a failed government.




Read more:
‘Balmain basket weavers’ strike again, tearing the Liberal Party apart


The problem of the numbers in the House is an example one of the moving parts that have made this leadership contest the messiest in Australian history.

The Liberal Party has run the spill as if it were a political billionaire; in other words, as if it had a 30-seat majority in the House of Representatives. It doesn’t. It is already within a whisker of becoming a minority government, a prospect that is likely if Peter Dutton becomes prime minister and there is resulting movement from the government to the crossbenches. More than one National Party MP has already indicated they will, or might, go down this path.

The government prevented the referral of the matter of Dutton’s eligibility to sit in parliament under Section 44 of the Constitution by a single vote.

It won the subsequent division to adjourn the House by two votes. But as the government unravels, it is doubtful whether it can count on much of the crossbench in any vote on confidence and supply. And it will only take a couple of Coalition votes to peel away to bring down the government entirely. That, at least, would end our nightmare.

We have probably been closer, over the last 24 hours, to a government falling on the floor of the parliament than at any time since 1941, when two Independents combined with the Labor Party to put the Fadden government out of its – and Australia’s – misery.

Another of the moving parts of this leadership crisis was the subject of that first vote: the matter of whether Dutton should be disqualified on the grounds that his family trust has an interest in two childcare centres who benefit from millions of dollars in government subsidies. Like all of the Section 44 matters that have arisen over the last couple of years, it is impossible to predict which way it would go if the High Court deliberated on it.

But the fact the Liberal Party is seriously contemplating the elevation to prime minister of a parliamentarian over whom such a cloud exists is nothing short of a folly.

That the parliamentarian concerned is Peter Dutton is another of those wheels within wheels. Dutton is not an ordinary centre-right politician; not in the Australian political context, at any rate. The polls tell us that as preferred prime minister, he barely registers. He is in serious danger of defeat in his own marginal Queensland electorate.

Dutton was among the tiny number of MPs who thought it would be a beaut idea to boycott Kevin Rudd’s Apology to the Stolen Generations. He opposed same-sex marriage. And, in a country that, so far, has largely resisted the populist revolt that has afflicted so many other Western countries – a country where recognition of the benefits of immigration and the value of multiculturalism has been robust – he has recognised the political capital to be gained from tapping into the darker recesses of the Australian imaginary.

There is not a shred of evidence on the public record that a Dutton prime ministership would make the slightest difference to the slide in public opinion being suffered by the Coalition in Queensland, as reflected in the LNP’s ghastly result in the Longman byelection.

Rather, this is one for what the Americans call the “base” – the bloc of right-wing opinion you’ll find well-represented in many Liberal Party branches – the kind of opinion that passes resolutions calling for the privatisation of the ABC.

It is one for the op-ed columnists and the radio shock-jocks who, if they can’t have their hero Tony Abbott back, are hardly less pleased by the prospect of elevating the latest version of the conservative tough guy. It is one for those who hate Malcolm Turnbull with an intensity that far exceeds their attitude to any other political leader of the modern era – on any side of politics – except perhaps Julia Gillard. It is one for those who believe that Australia can have its Brexit and Trump moments, and that Dutton is the man to deliver. It is one for the political fantasists, who believe that Australian voters would be attracted to hard-right policies if only they really understood their own interests.




Read more:
Your time starts now: how leadership instability and revenge became woven into our political fabric


They might be right. But it is difficult not to harbour the same suspicion that has always clung to the removal of Kevin Rudd in 2010 – that Malcolm Turnbull, far from being unable to win the next election, had been showing every sign of being competitive, if the party had only been able to get its loathing of him under control.

The 45-55 result in the recent Fairfax Ipsos poll was bad for the coalition, but its Newspoll results had been competitive – usually 49-51. And Turnbull was streets ahead of anyone else in the parliament as preferred prime minister.

How long ago that all seems. Whatever happens next – whether we have a Prime Minister Turnbull, Dutton, Morrison or Bishop – we can be certain it will not be sweetness and light among those who find themselves at the “out-group” when the dust begins to settle.

<!– Below is The Conversation's page counter tag. Please DO NOT REMOVE. –>
The Conversation

The government’s problem is not so much that it has produced yet another of Australia’s famous leadership crises. It is that it has looked like a government in an advanced state of political decay, and one that has largely forfeited its right to be taken seriously. It is hard to escape the conclusion that it is time the voters were given a say.

Frank Bongiorno, Professor of History, ANU College of Arts and Social Sciences, Australian National University

This article was originally published on The Conversation. Read the original article.

Solicitor-General’s advice on Dutton’s eligibility to come before Friday Liberal vote


Michelle Grattan, University of Canberra

Prime Minister Malcolm Turnbull will invite a leadership “spill” motion at midday Friday, once a majority of Liberals formally ask for a party meeting.

He will not contest the subsequent ballot if – as anticipated – the spill is carried, Turnbull announced to a lunchtime Thursday news conference.

Before the meeting, the Solicitor-General on Friday will provide an opinion on the constitutional eligibility to sit in parliament of challenger Peter Dutton.

Early Thursday afternoon, the final signatures for the party meeting request were being gathered.

The delay and the early provision of the Solicitor-General’s advice give Treasurer Scott Morrison extra opportunity to build support for his own bid for the leadership as an alternative to Dutton.

After a morning of chaos and multiple ministerial resignations, including that of Senate leader Mathias Cormann, Turnbull told his news conference that if he is ousted he will quit parliament – increasing the prospect of an early election.

He said he had “made it very clear that I believe former prime ministers are best out of the parliament”.

The government has a one seat of majority and his seat of Wentworth, although it has a strong margin, would be vulnerable in a byelection because Turnbull is personally very popular there. A byelection would not be needed if there were an early election.

Turnbull said that assuming the spill was carried, the new prime minister would “have to obviously satisfy the Governor-General that they can command a majority on the floor of the House of Representatives.

“In the case of Mr Dutton, I think he’ll have to establish that he is eligible to sit in the Parliament.”

Turnbull delivered a swingeing attack on those who have undermined him.

“A minority in the party room, supported by others outside the parliament, have sought to bully, intimidate others into making this change of leadership that they’re seeking.

“It’s been described by many people, including those who feel they cannot resist it as a form of madness,” he said.

“It is remarkable we’re at this point, where only a month ago we were [in the public polling] just little bit behind Labor and in our own polls a little bit ahead – but in any view thoroughly competitive.”

Turnbull has been under consistent assault not only from Tony Abbott and other Liberal critics over a range of issues, especially energy policy and immigration, but also from commentators in the Newscorp media, especially on Sky, and from shock jocks on 2GB.

Turnbull said that what was happening was “a very deliberate effort to pull the Liberal party further to the right.”

Stressing how vital it was to resolve the issue of Dutton’s eligibility, he said: “This is a very, very significant point. As we all know, section 44 has been a companion of this 45th parliament.

“I cannot underline too much how important it is that anyone who seeks to be prime minister of Australia is eligible to be a member of parliament – because a minister, let alone a prime minister, who is not eligible to sit in the House is not capable of validly being a minister or exercising any of the powers of a minister.”

Legal experts suggest Dutton could be ineligible under the constitution’s section 44 provision on pecuniary interests. This says a person is incapable of sitting if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”.

Dutton through a family trust has an interest in child care centres that receive Commonwealth funding. The key question is whether this involves an agreement with the public service.

Dutton’s legal advice is that he has no constitutional problem, and on Thursday he issued updated legal advice.

The government shut down the House of Representatives but does not command the numbers in the Senate so had to endure question time with senior ministers who had resigned on the backbench.

3:15pm

UPDATE: JULIE BISHOP JOINS THE RACE

Liberal deputy and Foreign Minister Julie Bishop will throw her hat into the leadership ring.

Bishop, from Western Australia, has been deputy Liberal leader since 2007 under multiple leaders. She is a moderate, rates well in the opinion polls, and has a high profile internationally as well as locally. She is in much demand from backbenchers to visit their seats and is a good fund raiser.

But she will go into the ballot with the disadvantage of having made many enemies in a long political history.

<!– Below is The Conversation's page counter tag. Please DO NOT REMOVE. –>
The Conversation

Her entry into the field complicates the situation and makes the outcome even less certain.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Dutton camp presses for quick second leadership ballot


Michelle Grattan, University of Canberra

The Dutton forces mounted a push on Wednesday night to get a quick second vote on the leadership, seeking names to petition Malcolm Turnbull to call a meeting.

Peter Dutton and his supporters do not want Liberal MPs to disperse late Thursday without a vote, fearing a loss of momentum for his campaign.

Having to wait until after a fortnight’s break for the next pariliamentary sitting could put Dutton under much more scrutiny over policy, and risk negative feedback when MPs return to their electorates.

Delay could also possibly see the emergence of other contenders, such as Treasurer Scott Morrison.

But on Wednesday night the government whip’s office said there was no special meeting planned and “there never has been any special meeting”.

Rumours circulated during the evening about the number of names that had been gathered for the petition for the meeting, which requires 43 signatures.

Turnbull supporters accused the Dutton camp of generating “fake news”.

As the Dutton forces ramped up the pressure, frontbencher James McGrath, assistant minister to the Prime Minister, announced he had met Turnbull to “insist” he accept the resignation offered by McGrath on Tuesday.

McGrath was one of multiple frontbenchers who offered their resignations after voting for Dutton on Tuesday.

McGrath said his resignation had now been accepted. “Like Peter Dutton has said, we must do everything in our power to stop Bill Shorten ever becoming Prime Minister,” he said.

His Tuesday letter said: “The people who have for all their lives counted on us to look after them and their families are now questioning our commitment to them. Our people feel forgotten, ignored and spoken down to. As a Liberal National Party senator for Queensland, this is an intolerable situation.”

This takes the actual frontbench resignations to three – the others being Dutton and a junior minister Concetta Fierravanti-Wells.

Turnbull on Wednesday told a news conference that a number of frontbenchers had offered to resign and “I’ve had discussions with all of them.

“Look, what I’m endeavouring to do is to obviously ensure that the party is stable, to maintain the stability of the government of Australia. That’s critically important,” he said.

“And so, the cabinet ministers, apart from Peter Dutton of course, who came to me and told me that they had voted for Mr Dutton in the leadership ballot, have given me unequivocal assurances of continuing loyalty and support.”

In parliament a number of ministers who voted for Dutton on Tuesday – Greg Hunt, Michael Keenan, Angus Taylor, Alan Tudge and Steve Ciobo – were asked whether they retained enough confidence in the prime minister, the government and its policies, to remain a minister.

All eyes have been on Senate leader Mathias Cormann, who had not been in the Dutton camp. A switch by Cormann would be fatal for Turnbull. Sources believed he was concerned about the impact a switch would have on business confidence.

Another complication for Dutton is the attention that has come on questions around his eligibility to sit in parliament.

Labor in the House of Representatives pursued the suggestion that he could be ineligible under the constitution’s section 44 on pecuniary interests. This says a person is incapable of sitting if they have “any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth”.

Dutton through a family trust has an interest in child care centres that receive Commonwealth funding. The key question is whether it involves an agreement with the public service.

Dutton maintains his legal advice is that he has no constitutional problem. Turnbull told parliament he had not seen the advice and the Solicitor-General had not been asked for an opinion.

Subsequently Attorney-General Christian Porter said in a statement that given the matter had been raised in question time and in the media “I determined to seek advice from the Solicitor-General on the issues raised.”

Peta Credlin, Tony Abbott’s former chief of staff said this week: “it’s well known about his interests in childcare centres … he recused himself from any conversations we ever had in policy terms.”

Craig Laundy, a junior minister and a Turnbull supporter, said Dutton should release the advice “just to allay any concerns”.

Labor released advice from Bret Walker SC and James Mack that argued Dutton was incapable of being chosen for the parliament and therefore not entitled to continue to sit. They said if the issue were referred to the High Court there was a “reasonable prospect” he would be disqualified.

Dutton on Wednesday started to be tested on policy, after he proposed the GST should be taken off electricity bills.

<!– Below is The Conversation's page counter tag. Please DO NOT REMOVE. –>
The Conversation

Morrison said this would cost some $7.5 billion over four years. “That would be a budget blower, an absolute budget blower”, Morrison said. Dutton also favoured a royal commission into power companies.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Turnbull holds off Dutton challenge – for now – by 48-35



File 20180821 30590 aleynm.jpg?ixlib=rb 1.1
Malcolm Turnbull called on the vote in this morning’s meeting, and won.
AAP/Lukas Coch

Michelle Grattan, University of Canberra

Malcolm Turnbull has defeated Peter Dutton 48-35 after throwing the leadership open in a dramatic surprise move to catch his party enemies off guard.

Dutton, the Home Affairs minister, has resigned from the frontbench, which will trigger a reshuffle.

Turnbull called the vote at the Liberal party room meeting, declaring the leadership vacant, and Dutton nominated as the only candidate. While the margin was clear, Dutton’s numbers are strong enough to produce lasting instability and immediate speculation of a second challenge.

Given the short run up to this vote, the Dutton forces can hope to muster additional numbers now the battle is out in the open. Reportedly, the Dutton camp had not expected Turnbull to bring on a Tuesday vote.

The leadership crisis followed Turnbull’s Monday capitulation to the Coalition rebels over energy policy. But deep discontent has been brewing for a while, with Turnbull’s critics unhappy with him on a range of fronts, and the Coalition losing 38 consecutive Newspolls.

The dissent has been actively fomented by Tony Abbott and his supporters. The concerns have been fuelled by fear among Queensland seat holders, who have been thrown into a panic after the plunge in the Liberal National Party vote in the recent Longman byelection.

<!– Below is The Conversation's page counter tag. Please DO NOT REMOVE. –>
The Conversation

There was also a vote on the deputy leadership but Foreign Minister Julie Bishop was the only candidate, despite speculation that Health Minister Greg Hunt had his eyes on the post.

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Three reasons why the decisions of Joyce and Nash may be difficult to challenge



File 20171030 17711 1p8hzgp.jpg?ixlib=rb 1.1
Can decisions made by former deputy prime minister Barnaby Joyce while he was invalidly in parliament be challenged?
AAP/Mick Tsikas

Anne Twomey, University of Sydney

Now that Barnaby Joyce, Fiona Nash and three other senators have been declared invalidly elected, questions are being asked about whether close parliamentary votes still stand and decisions made by the disqualified ministers can be challenged.

As the issue has not arisen in Australia before, there is no direct judicial authority on the question. We can, however, draw some reasonable conclusions based on how the courts have dealt with analogous issues in the past.

Parliamentary votes

Over the years, quite a few MPs have been disqualified at both the Commonwealth and state levels, but no-one has ever challenged the validity of a law passed in reliance on the vote of a disqualified member.

The only Australian authority is the 1907 case of Vardon v O’Loghlin. In this case, Chief Justice Griffith and Justices Barton and Higgins stated that even though a senator was disqualified at the time of his election, “the proceedings of the Senate as a House of Parliament are not invalidated by the presence of a senator without title”.

Justice Isaacs added that while Vardon had not been validly elected, the “validity of his public acts as a senator prior to the declaration is, of course, unaffected”.

Although neither statement directly addressed the effectiveness of his vote in the house, the case has been taken as sufficient authority to suggest that past votes will stand, even though disqualified senators or MPs participated in them.

This view is supported by the general principle that a court will not interfere in the internal proceedings of parliament. Although courts will enforce “manner and form” requirements for a special majority to pass a particular type of bill, the courts will not look behind the parliamentary record of the votes, even when those records may be inaccurate.

If, therefore, anyone challenged the validity of a law on the basis that it was not passed by a majority of qualified MPs, it is most unlikely that a court would be prepared to hear the case and strike down the law.

Ministerial decisions

Section 64 of the Constitution provides that “no minister of state shall hold office for a longer period than three months unless he is or becomes a senator or a member of the House of Representatives”.

During the entirety of Joyce’s ministerial career – starting on September 18, 2013 – he was not validly a member of either house. Similarly, Nash was not validly a senator at any time during which she was assistant minister from 2013 and minister from 2015.

When each was first sworn in as a minister, and sworn in again after the July 2016 election, the three-month period would have run. But, after that, both Joyce and Nash would have been ministers invalidly.


Further reading: If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?


Does this mean that the decisions they made during this period could be challenged? There are three important factors at play.

Standing

First, a person would have to have legal standing to bring a challenge. This means they would have to have a special interest in the decision, above that of the rest of the community, which goes beyond a mere intellectual or emotional interest in the matter.

For example, if the property or financial interests of a person are affected by a decision, then they may have standing.

There is uncertainty as to whether simply being an MP is enough to gain standing to challenge government decisions. This issue was raised in the case concerning the postal survey on same-sex marriage, but the High Court did not need to resolve it because the challenge failed anyway.

So, there is doubt as to whether opposition MPs would have the standing to challenge any decisions made by Nash or Joyce in their ministerial capacities.

The source of the decision-making power

Second, the decision would have to be one made by Joyce or Nash in accordance with a power conferred upon them as ministers by statute or another legal source.

The waters have been muddied by statements concerning the fact that ministerial decisions are often approved by cabinet.

The cabinet is a policymaking body. It does not have the power to give legal effect to its decisions. This is done through other bodies or persons. A decision to enact legislation is given effect by parliament. Many other decisions concerning appointments, the compulsory acquisition of property, and the making of regulations are given effect by the governor-general through the Federal Executive Council.

It is only those decisions made directly by Joyce or Nash on the basis that they were exercising a power conferred upon them in their capacity as a minister that could be challenged.

Timing and the de facto officer doctrine

The third issue concerns timing and the possible application of the “de facto officer” doctrine.

This is a common law doctrine that protects the validity of decisions made by a person who is clothed with the authority of an office, but is later found not to have been validly appointed to it.

If that person acts under the “colour” of the office, there is public acceptance of that authority and the government holds out that person as having the authority to exercise that power, then the doctrine is likely to give a measure of protection to exercises of that power, if they were otherwise validly made.


Further reading: The High Court sticks to the letter of the law on the ‘citizenship seven’


The doctrine is directed at protecting those who rely on the decisions in good faith, rather than protecting the decision-maker. The policy behind it is to avoid the chaos that might ensue if decisions are invalidated due to a defect in the appointment of the decision-maker.

For example, when the governor-general of the Solomon Islands was held to have been invalidly appointed as he did not meet the required qualifications, the High Court of the Solomon Islands relied on the de facto officer doctrine to uphold his actions, including the dissolution of parliament and the appointment of ministers.

In 1938, Owen Dixon wrote that there “are questions outstanding as to the limits of this principle or the conditions controlling its operation”. That remains true today. One of those questions is whether the doctrine operates when the disqualification of the office-holder is a result of a breach of the Constitution.

In 2000, the High Court unanimously held in Bond v The Queen that a question arising under the Constitution as to the powers exercisable by an officer of the Commonwealth “cannot be resolved by ignoring the alleged want of power on some basis of colourable or ostensible authority”.

The doctrine also ceases to apply when the mantle of authority is removed by the public expression of doubt as to the validity of the office of the decision-maker.

Accordingly, the decisions made by Joyce and Nash that would be most vulnerable to challenge are those made after they were referred to the Court of Disputed Returns, due to doubts as to the validity of their election to parliament. One would expect, however, that they were sufficiently prudent not to make contentious decisions during that period.

Where does this leave us?

It is most unlikely that any challenge to a law on the basis of votes in parliament by disqualified members would succeed in the courts.

There is a greater risk that a challenge to a ministerial decision, made by a disqualified MP when he or she did not validly hold a ministerial office, could be successfully challenged. But this would depend upon the action being brought by individuals or corporations that have a sufficient interest to attract standing and whether the decision was actually made by the disqualified minister (as opposed to another body, such as the Federal Executive Council).

It would also depend on the extent to which the de facto officers doctrine applied.

The ConversationIt may be the case that no decisions fall into this category, despite the feverish speculation. We can only wait and see.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article was originally published on The Conversation. Read the original article.

Making voting both simple and secure is a challenge for democracies



File 20171019 32358 1wb6z4y.jpg?ixlib=rb 1.1
The US compares relatively poorly with equivalent countries when it comes to voter registration.
Reuters/Bria Hall

Pippa Norris, Harvard University; Sarah Cameron, University of Sydney, and Thomas Wynter, University of Sydney

Recent elections around the world have raised concerns about the procedures used for voter registration and their potential consequences. The effects include disenfranchisement (voters being prevented from casting a ballot) and voter rights, fraud and security, and mismanagement and accuracy.

It’s critical to strike the right trade-off between making registration accessible and making it secure. But how many countries are affected by these sorts of issues? And which is more problematic – lack of security or lack of inclusion?

Our study

Our Perceptions of Electoral Integrity survey asked experts for their assessments of electoral integrity in 161 countries that held 260 national elections from January 1 to June 30, 2017.

The study used three criteria to monitor the quality of the voter registration process: inclusion, accuracy, and security.

These aspects can be considered equally important to ensure all and only eligible citizens are able to vote. The items can be analysed separately and also combined into an index.

As illustrated below, the results show the quality of the voter registration process in Northern Europe and Scandinavia performed well, as did several Latin American countries like Brazil.

At the same time, voter registration proved problematic in many countries in Africa and the Middle East, as well as in India and parts of Asia.

The US compared relatively poorly with equivalent liberal democracies on voter registration. This is in no small measure due to the partisan polarisation over the issue, and past reliance on self-registration. By contrast, governments in many other countries register voters on their behalf.

The quality of voter registration worldwide.
Authors

Inclusiveness versus security

The global comparison below shows mean ratings on the measure of inclusion on the vertical axis. The measure of security is shown on the horizontal.

Some countries performed well on both indicators – notably Sweden, Denmark and Finland, as well as Slovakia, Costa Rica and the Czech Republic.

By contrast, many other places (located in the bottom left quadrant) performed poorly on both measures, such as Syria (which failed to allow citizens to vote if they had fled to neighbouring states as refugees), Haiti (which lacked the capacity to administer elections), Bahrain (with internal conflict), and Afghanistan (with high levels of electoral corruption).

Finally, several countries scored worse on inclusiveness than on security. In these elections, experts thought the more serious problem was the exclusion of eligible citizens.

These problems can arise for many reasons – such as disputed citizenship rights, attempts at voter suppression, lack of capacity to include young people, women, linguistic or ethnic minorities and hard-to-reach rural populations, or failing to maintain up-to-date electoral rolls.

Monitoring inclusion and security worldwide. Scale ranges from strongly agree (1) to strongly disagree (5). Regimes classified according to Freedom House.
Authors

Responding to the challenges

So, the challenge is to strike the optimal balance between security and accessibility, to make ensure eligible citizens – and only eligible citizens – cast a ballot. Doing so strengthens public confidence in the electoral process and democracy.

Easier registration processes, such as the availability of online applications and same-day registration, usually strengthens voter turnout. But the introduction of more accessible registration without sufficient verification raises security risks of abuse and fraud.

In the US, parties are deeply polarised over whether the use of strict photo ID at polling places helps maintain accurate and reliable lists, or whether this suppresses voting rights for eligible citizens who lack such ID.

A 2012 report found many American states faced major challenges of accuracy, cost, and efficiency in their voter registration systems. Since then, they have made many efforts to upgrade electronic procedures by allowing citizens to register and check their records online.

An initiative sweeping the US – led by Oregon in 2015 – is states requiring citizens to opt-out rather than opt-in to being registered to vote.

But new risks have also became evident, not least Russian meddling and cyber-security threats to official voting records. To tackle this, the US Electoral Assistance Commission has recently issued new guidelines, working with the states and the Department of Homeland Security to implement them. Yet the overhaul of America’s ageing voting equipment will carry a hefty price tag.

Foreign attempts at interference in voting have been reported in other countries, including Germany and France.

Following the 2017 UK general election, the Electoral Commission expressed concern about the risks of double voting and duplicate registration applications.

In populous developing countries like Afghanistan and the Democratic Republic of the Congo, without reliable census information or identification documents, the challenges are even greater. Poor quality records can create opportunities for vote manipulation.

The ConversationStrict registration processes, such as those relying on biometric technologies for ID, may remove ineligible applicants but simultaneously throw out legitimate voters and make the list less accurate, not more. And biometric voter registration, which many African countries have adopted, presents challenges for the protection of personal information.

Pippa Norris, ARC Laureate Fellow, Professor of Government and International Relations at the University of Sydney and McGuire Lecturer in Comparative Politics, Harvard University; Sarah Cameron, Electoral Integrity Project Manager and Postdoctoral Research Fellow, University of Sydney, and Thomas Wynter, Research Associate, University of Sydney

This article was originally published on The Conversation. Read the original article.

Australia’s Human Rights Council election comes with a challenge to improve its domestic record



File 20171015 1509 2qi6re.jpg?ixlib=rb 1.1
Australia’s campaign for a seat on the Human Rights Council opened it to further scrutiny of its record on such issues.
Reuters/Denis Balibouse

Amy Maguire, University of Newcastle and Georgia Monaghan, University of Newcastle

Australia has been elected to a seat on the United Nations Human Rights Council. It will serve on the council from 2018 to 2020.

The announcement overnight formalised an assumed result: Australia and Spain were the only two countries seeking election to the two available seats for the Western Europe and Others group. Most of the other newly- elected council members similarly ran uncontested.

However, all campaigning countries required the support of a majority of voting countries to ensure their election. Australia received 176 votes and Spain 180 – both survived grilling by an expert committee.

How did Australia present itself as a candidate?

Foreign Minister Julie Bishop led Australia’s campaign, which had a particular focus on freedoms, free speech, and equality. The “five pillars” of Australia’s bid were:

  • gender equality

  • good governance

  • freedom of expression

  • the rights of Indigenous peoples

  • strong national human rights institutions and capacity building.

Australia presented itself as a “pragmatic and principled” candidate for the council position. Bishop cited Australia’s “strong track record for human rights” as well as its active and practical involvement in international affairs.

Such active and practical involvement can be seen in Australia’s advocacy for the abolition of the death penalty, as in the case of Myuran Sukumaran and Andrew Chan. Furthering global advocacy for death penalty abolition is one of Australia’s primary pledges as a new council member.

Australia’s involvement in multiple UN treaties and its anticipated adoption of the Optional Protocol to the Convention against Torture were also cited as evidence of its worthiness for election.

//platform.twitter.com/widgets.js

Australia’s bid and opportunities for human rights advocacy

However, Australia’s campaign opened it to further scrutiny of its human rights record. Human rights organisations in Australia and overseas have been lobbying to ensure that Australia’s practices are well publicised and subject to oversight and critique.

In December 2016, Bishop sought to pre-empt such criticism, claiming “no country is perfect”. Bishop pledged to be “honest and open” about Australia’s human rights record during the campaign.

Yet the campaign’s pledges failed to acknowledge Australia’s human rights abuses. As such, Australia remains open to accusations of hypocrisy on human rights.

Australia’s human rights track record is more chequered than it would claim. The UN has condemned Australia for its asylum-seeker policies and treatment of Indigenous peoples.

Bishop frequently praised Australia for its success in building a multicultural society and valuing the diverse background of migrant settlers. Yet asylum seekers arriving by boat continue to be dehumanised.


Further reading: ‘Fake refugees’: Dutton adopts an alternative fact to justify our latest human rights violation


Another key area of human rights controversy is the current postal plebiscite to survey public opinion on marriage equality. Australia’s council bid promised the protection of LGBTQI rights. But as was forewarned, the plebiscite campaign has exposed LGBTQI people to harmful fear campaigning and social exclusion.

It is incongruous for a claimed champion of human rights to put the rights of a minority group to a popular vote, potentially in an effort to prevent that group from gaining marriage equality.

Australia strikes a similarly dissonant note in relation to its treatment of Indigenous people. A key pledge of the council bid was the recognition of Indigenous Australians in the Constitution. However, a constitutional convention rejected the form of “recognition” the government-sponsored Recognise campaign had promoted.

The Recognise campaign has since been abandoned, and the future of the proposed referendum is unclear. The Australian government is yet to embrace the Referendum Council’s proposals for treaty, truth-telling and a First Nations Voice.


Further reading: Listening to the heart: what now for Indigenous recognition after the Uluru summit?


France’s withdrawal was a loss to the election campaign

Given Australia’s record, France’s withdrawal as a third candidate for the two available seats was unfortunate. The lack of competition reduced pressure on Australia to extend its human rights commitments.

The weight of international disapproval of Australia’s practice in relation to refugees, in particular, could well have weakened the bid had France stayed in the race.

No doubt this was also true for Spain. The recent Catalan independence referendum exposed Spain’s problematic record in relation to self-determination and political rights for minority groups.


Further reading: As Spain represses Catalonia’s show of independence, the rest of Europe watches on nervously


In interesting company

The UN’s orientation is to promote inclusion rather than marginalisation of member countries on international bodies. The UN is committed to universal values and obligations, and seeks to enforce these through universal involvement in its processes.

It is undoubtedly difficult to countenance egregious human rights violators participating in human rights processes. But it is at least arguable that their involvement promotes the progressive realisation of human rights more effectively than their marginalisation would.

However, in some cases, it may be that a country’s membership should be postponed until it can show improvement in a deplorable record. Leading up to the election, Human Rights Watch campaigned against promoting the Democratic Republic of the Congo to the council due to its grave human rights violations.

Meanwhile, the US warned it may withdraw if the council continued to elect countries responsible for gross abuses.

Australia is not in this category. It aspires to be an exemplary member of the council. And its election should act as impetus for progressive gains in its human rights performance.

The value of Australia’s election for human rights

Human rights advocates will take the opportunity to draw attention to any gaps between Australia’s international legal obligations and its domestic practices.

Bishop was right to highlight the value of Australia becoming the first Pacific country to join the council. Strong diplomatic and trade relationships will hopefully enable Australia to influence human rights development in its region. It is the only place without a regional human rights treaty or institution.

An important focus in this context will be Australia’s advocacy for the abolition of capital punishment. Allied to that concern for the right to life, perhaps Australia might also consider lobbying other countries – notably the US – for gun laws that prioritise human life and wellbeing.

Australia could substantially increase the legitimacy of such efforts, though, by working to build adequate domestic human rights architecture. Without federal human rights legislation, Australia cannot demonstrate the social and legal value of building human rights protections into law.

Australia’s election also calls for a renewal of political commitment to the value of international human rights review processes. Recent years have seen expressions of frustration, dismissal and poor faith that undermine Australia’s strong record of commitment to international human rights treaties.

Nowhere was this troubling attitude toward human rights protection more clear than in efforts to tarnish the reputation and work of former Human Rights Commission president Gillian Triggs.

Such mixed messages sit poorly with Australia’s continued efforts to review the practices of other countries – particularly now that it has an official role on the Human Rights Council.


Further reading: Why does international condemnation on human rights mean so little to Australia?


Australia has claimed leadership in the areas of gender equality, good governance, freedom of expression, the rights of Indigenous people, and strong national human rights institutions.

Imperfect performance in these areas indicates key targets for immediate focus – for example through human-rights-informed approaches to gendered violence, and concern for limitations on the freedom to express views about politically sensitive matters.

Considerable progress will be required on the rights of Indigenous people for Australia to claim success on that key pillar of its council campaign. The federal government could look to progress on a treaty in Victoria as evidence that such a conversation can be inclusive and productive.

The ConversationImportantly, Australia must also be held accountable in the key area its bid sought to avoid: the treatment of asylum seekers and refugees. Its election provides an ideal opportunity for Australia to show leadership and commitment to durable regional and global responses to refugee flows.

Amy Maguire, Senior Lecturer in International Law and Human Rights, University of Newcastle and Georgia Monaghan, Research Assistant, University of Newcastle

This article was originally published on The Conversation. Read the original article.

Explainer: is a High Court challenge about to bring down the Turnbull government?



File 20170707 18915 ph813w
Labor will argue David Gillespie ineligible to be an MP based on Section 44(v) of the Constitution.
AAP/Mick Tsikas

Lorraine Finlay, Murdoch University

Labor is set to launch a High Court challenge over the eligibility of Assistant Health Minister David Gillespie to sit in federal parliament. The case has been brought by Peter Alley, the ALP candidate who ran against Gillespie in Lyne at the 2016 federal election.

The action is based on Gillespie, a Nationals MP, owning a small shopping centre in Port Macquarie that contains an Australian Post outlet. As Australia Post is a government-owned corporation, Labor claims this results in Gillespie having an indirect pecuniary interest contrary to Section 44(v) of the Constitution.

If the High Court agrees, Gillespie would be ineligible to sit as an MP.

What does the Constitution say?

Section 44 of the Constitution sets out several grounds of disqualification from holding parliamentary office.

Under Section 44(v), someone “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives” if they have:

… any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons.

Before this year, the High Court had only considered this section on one occasion, in 1975.

In that case, Chief Justice Garfield Barwick took an extremely narrow interpretation of the provision, based on a finding that its historic purpose was to protect parliament’s freedom and independence from the influence of the Crown.

An “indirect pecuniary influence” would only be disqualifying where it involved a legal or equitable interest in a contract with ongoing obligations, and where the possibility of financial gain by the agreement’s existence or performance could conceivably allow the Crown to influence an MP in relation to parliamentary affairs.

Under this narrow interpretation – which had been subject to considerable criticism – Gillespie would not be considered ineligible based on his interest in the shopping centre.

The Bob Day case

The High Court revisited the meaning of “indirect pecuniary interest” in April this year. It unanimously held that former Family First Senator Bob Day had an “indirect pecuniary interest” at the time of the 2016 federal election, and was therefore ineligible to be a senator.

Day had already resigned from the Senate before this ruling. But the High Court’s decision was significant for two key reasons.

  • The first was its immediate importance in deciding how a replacement senator was to be selected.

  • The second, which will now be critical when considering Gillespie’s future, was its reconsideration of what constitutes an “indirect pecuniary interest” under Section 44(v).

The Day case concerned a lease agreement between the Commonwealth and Fullarton Investments Pty Ltd for premises Day used as his electorate office. There were a variety of ways in which Day was connected to both the company and property. However, a fact the court found to be particularly significant was that in February 2016, Fullarton Investments directed that rental payments be made into a Day-owned bank account.

The High Court declined to follow the 1975 precedent and adopted a broader interpretation of Section 44(v). Importantly, it found the section had a wider purpose than solely protecting parliament’s independence from executive influence. It was also intended as an anti-corruption provision, designed to protect against potential conflicts of interest by ensuring the public duties of MPs are kept separate from their personal interests.

Under this broader view, an individual would be disqualified where there was an expectation of financial gain if the agreement in question was performed. The court would look at the agreement’s practical effect when making this assessment.

High Court justice Patrick Keane observed:

It is enough that the person’s pockets were or might be affected.

However, it was noted there will be no relevant interest:

… if the agreement in question is one ordinarily made between government and a citizen.

The case against Gillespie

So, is Gillespie ineligible based upon this new, broader interpretation of Section 44(v)?

There is no question of a direct financial interest in this case. Rather, the information currently available suggest that a company owned by Gillespie and his wife leases space in a shopping centre it owns to an Australia Post licensee.

The possible financial interest in this case certainly seems to be more remote than in Day’s case. However, there is still sufficient uncertainty surrounding the outer limits of section 44(v) for this case to be of real concern to the Turnbull government.

What happens now?

If the High Court finds Gillespie is incapable of sitting as an MP under Section 44(v) there would necessarily be a by-election in Lyne.

Given the Turnbull government only has a one-seat majority, the immediate stakes are as high as they could possibly be.

There is also a broader issue worth considering. Gillespie is the third member of the 45th parliament – after Day and Rod Culleton – to have their constitutional eligibility challenged before the courts. In Day’s case, High Court Justice Stephen Gageler emphasised the importance of certainty in this area, so candidates and MPs know where they stand.

The ConversationGiven recent controversies, it would seem an opportune time to review Section 44 to make sure the disqualification provisions in our Constitution are clear, fair, and reflect voters’ real concerns.

Lorraine Finlay, Lecturer in Law, Murdoch University

This article was originally published on The Conversation. Read the original article.