Scott Morrison has appointed his one-time chief of staff Phil Gaetjens to head the prime minister’s department. He replaces Martin Parkinson, who finds himself out of a top public service job for the second time under the Coalition government.
Gaetjens has most recently been secretary of the Treasury, a position to which he was appointed when Morrison was treasurer.
Morrison told a news conference: “Following the election, the secretary of Prime Minister and Cabinet and I have agreed that it is an opportune time for new leadership of the Department of Prime Minister and Cabinet”.
Parkinson, a highly respected career public servant, was sacked as Treasury secretary by the Abbott government, and brought back to the public service as head of the prime minister’s department by Malcolm Turnbull. His current contract ran until early 2021.
He said in a statement to departmental staff on Thursday: “This timing works for me personally and allows the PM to make a transition to a secretary who will be able to support him through the full parliamentary term”.
He was quoted in Thursday’s The Australian as saying, “Absolutely I would not want anyone to think there was anything about my relationship with the Prime Minister that was leading me to leave”.
Although prime ministerial sources dispute that Parkinson was pushed, it had been rumoured since the election that Morrison wanted a change at the top of his department.
Gaetjens’ public service career appeared doomed only months ago when a Labor government seemed likely. Then-shadow treasurer Chris Bowen had criticised his appointment as political and made it clear he would be removed under a Shorten government.
The new head of Treasury will be Steven Kennedy, who is now secretary of the infrastructure department.
Earlier Kennedy was a deputy secretary in the prime minister’s department. In that position, he was in charge of innovation and transformation, as well as leading work on cities, regulatory reform, public data and digital innovation. He also served in the office of Julia Gillard when she was prime minister, seconded as the director of cabinet and government business and senior economic adviser.
Morrison pointed out both Gaetjens – who was also Peter Costello’s chief of staff – and Kennedy had had experience in the political realm, noting that while Gaetjens had worked on the Coalition side Kennedy had worked on the Labor side.
The PM was ready for a question suggesting the choice of Gaetjens would be seen as politicisation of the public service, reeling off appointments Labor had made of people who had worked in the political arena.
Morrison left the way open for further shake ups at the top of the service. “I will always reserve that right to make further changes where I believe they are necessary. I think these are the ones that are necessary right now”. There will be an acting secretary in the Infrastructure department for the time being.
Morrison is Minister for the Public Service and has strong ideas on how it should operate. At his news conference he once again stressed the emphasis he is placing on its responsibility for efficient implementation.
He summed up his attitude: “When it comes to the public service, my view is to respect and expect”.
Asked about the service’s role in giving advice, he said, “It is the job of the public service to advise you of the challenges that may present to a government in implementing its agenda. That is the advisory role of the public service. […] But the government sets policy. The government is the one that goes to the people and sets out an agenda, as we have”.
Parkinson in his statement to his departmental staff told them: “I want to continue to encourage you to have a view, be curious, understand what is happening at the forefront of policy and policy-related research, engage widely with stakeholders from all parts of the community, and be resolutely committed to advocating for truly evidence-based policy”.
Martin Parkinson, secretary of the Prime Minister’s department, has cleared Christopher Pyne and Julie Bishop of breaching the government’s code of ministerial standards with their post-politics jobs. But it’s doubtful the average voter would take such a literal or generous view of their conduct.
Scott Morrison had flicked to Parkinson the row over the part-time positions the two high flyers have taken that clearly overlap their previous portfolios, when the rules provide for a longer separation period.
Pyne, former defence minister, is advising EY, which operates in the defence area. Bishop, former foreign minister, is joining the board of Palladium, a global group working in aid and development.
The code says:
Ministers are required to undertake that, for an eighteen month period after ceasing to be a Minister, they will not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last eighteen months in office.
Ministers are also required to undertake that, on leaving office, they will not take personal advantage of information to which they have had access as a Minister, where that information is not generally available to the public.
The government on Monday was quick to gag an embarrassing opposition move in the lower House calling for Parkinson to probe further into the circumstances of Bishop, who told him she didn’t have any contact with Palladium while foreign minister. A video had been posted by the company, labelled “Australia’s Foreign Minister, Julie Bishop, commends Shared Value and Palladium’s Business Partnership Platform”. (Government sources said later that the video – in which Bishop did not use Palladium’s name – was a congratulatory one about a Foreign Affairs initiative.)
In the Senate, the government lacked the numbers to prevent the conduct of Pyne and Bishop being referred to a committee. The motion from Centre Alliance’s Rex Patrick won support from Labor, Greens and non-Greens crossbenchers, passing 35 to 29. The committee has three opposition members, two government senators and a One Nation representative. Pyne and Bishop will be invited to appear and could be required to do so.
The greyest area of the post-ministerial employment provision is the stipulation not to take advantage of private information acquired as a minister.
Parkinson says in his report to Morrison: “a distinction should be drawn between experience gained through being a minister and specific knowledge they acquire through performing the role. It is the latter which is pertinent to the Standards”.
In practice, however, this can fade into a distinction without a difference. As Parkinson also says: “It is not reasonable to think that former Ministers can or will ‘forget’ all information or knowledge gained by them in the course of their ministerial roles”.
Pyne initially said he would be “providing strategic advice to EY, as the firm looks to expand its footprint in the Defence Industry”. EY initially talked up his role but then quickly qualified it in the face of the controversy.
Parkinson spoke to both Pyne (who had already issued a long public written explanation) and Bishop.
In Parkinson’s account, Pyne seems to have done a lot of talking with EY about what he can’t do. EY is paying, of course, for what he can do.
Parkinson says he considers Pyne “has put in place mechanisms to ensure that, whilst his engagement with EY will appropriately draw on his 26 year experience as a parliamentarian, he will not impart direct or specific knowledge known to him only by virtue of his ministerial position”.
Bishop, who will have been out of the ministry for a year next month, has said little publicly about her non-executive directorship. She told Parkinson she had yet to attend a board meeting and that “Palladium does not expect her to engage on any Australian based projects”.
Patrick suggested the terms of reference given to Parkinson were limited – designed to fix a “political problem”.
This is not new ground. Former trade minister Andrew Robb took up employment (annual remuneration of $880,000) with the Chinese Landbridge Group soon after he was trade minister. He has strongly rejected criticism of his action (and since left the group).
Two former ministers with responsibility for resources, the Liberals’ Ian Macfarlane and Labor’s Martin Ferguson quickly accepted positions with the sector. Stephen Conroy, a former communications minister overseeing online gambling laws, came under fire on becoming a lobbyist for the gambling industry – he points out this was three years after he was a minister.
Going back further (when the ministerial code of conduct did not include a post-separation provision) Peter Reith segued from the defence portfolio into advising defence contractor Tenix.
The Senate inquiry, reporting by September 10, will look at “action taken by the Prime Minister and the Department of the Prime Minister and Cabinet to ensure full compliance by former Ministers” with the relevant section of the ministerial standards.
At the end of his letter to Morrison, Parkinson highlights the impotence of a PM once members of his team are out in the wide world.
“While there are certain actions available to you when considering the conduct of a current serving Minister, and a possible breach of the Standards, there are no specific actions that can be taken by you in relation to former Ministers once they have left the Parliament”.
Either some way should be found to make the code enforceable or, if that is too hard, let’s skip the hypocrisy and admit it is no more than an exhortation to departees to act properly – complying with not just its letter but its spirit.
In an enormous week for economic news at the start of the month, parliament passed the government’s three-stage personal income tax plan, and the Reserve Bank cut official interest rates to an unprecedented low of 1%.
It happened against the backdrop of a flagging economy in dire need of stimulus.
As the bank cut rates to a record low, its governor Philip Lowe again warned about the waning power of rates (monetary policy) to lift the economy.
Monetary policy does have a significant role to play and our decisions are helping support the Australian economy. But, we should not rely on monetary policy alone. We will achieve better outcomes for society as a whole if the various arms of public policy are all pointing in the same direction.
Lowe and many others – including yours truly – have repeatedly pointed out that spending on physical and social infrastructure can do what lower rates can’t do well – boost the economy while lifting its productivity. So, too would other productivity-enhancing reforms, particularly in the labour market.
And, of course, the government’s tax cuts will also stimulate the economy when they come into effect.
With tax cuts, timing’s the thing…
The obvious problem is that much of stimulus from those tax cuts will happen years from now, rather than today.
What the government should have done was insist on enacting all three stages of their tax plan immediately. Not staggered over several years, not in 2024-25. Now.
That would have, of course, pushed the budget into deficit in the short run, and that would would have run counter to the government’s narrative about being responsible economic managers.
But how responsible is it to prioritise one’s own political brand over the economic health of the nation?
Let’s not forget where the timing of the government’s tax plan came from. 2024-25 is outside the budget’s so-called “forward estimate” period and thus the impact on the deficit or surplus projections is not apparent.
It was the same rationale that underpinned the glacial, decade-long pace at which the government’s “enterprise tax plan” was to move to a 25% company tax rate. And it is the same set of dodgy accounting tricks that Wayne Swan was a master of for everything from health to education spending commitments.
…and the timing could be immediate
Productive infrastructure spending is hard to enact quickly. Spending on social infrastructure like education and training has a long lead time.
And structural reform of the industrial relations system might is probably the hardest and longest of all to put in place.
They are real constraints.
The Reserve Bank faces another, the so-called “zero lower bound” of conventional monetary policy and the complexities and uncertainties of unconventional policies such as quantitative easing.
But a government which won a mandate for its tax policies, and who frankly has the Labor opposition in a tailspin, could have insisted on all three stages of the tax cuts immediately.
The only thing standing between the economy and the aggressive fiscal stimulus it needs is the government’s obsession with balancing the budget regardless of the circumstances.
We’re not in the best of times
Don’t get me wrong, I think debt and deficits most certainly do matter. The government deserves credit for chipping away at the structural budget deficit, and we shouldn’t be running deficits in good economic times.
But we’re not in good economic times. We’re standing on the precipice of the first recession in nearly three decades. We’re looking at highly uncertain global conditions, domestic economic growth that has slowed to a trickle, sluggish wages growth, persistently high underemployment, and even the possibility of Japanese-style deflation.
The irony is that if, with the failure to enact sufficiently bold stimulus, we do tip into a recession, the red ink will flow all through the budget. Unemployment benefits and welfare payments will rise, personal and corporate income receipts will fall, GST revenue will drop. And young people who enter the labour market during a recession will suffer for years to come.
The downsides of not enacting sufficient fiscal stimulus far outweigh whatever benefits there are of a glide to path to budget balance while avoiding a recession.
It’s certainly not the time for hand-wringing
Coming back to Lowe’s admonition that we need the “various arms of public policy…pointing in the same direction”, here’s where we currently stand: The bank has acted, but far too late. For years it told us that 5% unemployment was as good as it could get long-term, to be patient and to wait for higher wage growth and inflation.
It’s been a mere five weeks since Lowe stopped impersonating Charles Dickens’ character Wilkins Micawber, who was fond of saying “something will turn up”.
Now the treasurer Josh Frydenberg is giving us his version of the same routine. On one hand he says personal income tax cuts are crucial to boosting employment and spending. On the other hand, he says we’d better wait.
The Australian economy can’t afford to wait for aggressive stimulus. The government has shown more concern for its political brand than for our economic health.
His appointment of Wyatt, a man of Noongar, Wongi, and Yamatji heritage, was a statement in itself. The nomination of recognition for early attention was a surprise – and another indication that we have yet to get a grasp on Morrison as prime minister (as distinct from campaigner).
There has been much talk about his lack of an agenda, but the unveiling of a couple of significant priorities – industrial relations and now Indigenous recognition – suggests there might be more there than we suspected.
It’s important to be clear about what Wyatt – who outlined his proposals in a speech on Wednesday – is saying.
The government’s ambit hope is to put a referendum for recognition during this parliamentary term. But this will only happen if two conditions are met: it can get consensus on the content of what would go into the constitution, and there’s a high probability of a favourable outcome. The latter means winning not just the overall vote but the vote in four of the six states. Both content and potential support will present major problems.
What of the timetable? If the government really wants to give constitutional change a red hot go, there is a case for pushing it hard and quickly. Support doesn’t necessary build as time passes; beyond a certain point, it can erode.
But judging whether and when there would be sufficient likely public backing for a Yes vote would be tricky. Post May 18, everyone has become rather chary of polls. And things could quickly change in the final countdown.
History shows the voters’ penchant to say No. Despite the triumph of the 1967 referendum to give the federal government power to make laws for Aboriginal people and count them in the census (carried overwhelmingly in every state), referendums generally fail. Only eight have been passed – the last in 1977.
Formulating the question will be an extremely challenging hurdle to climb over.
A constitutional change that acknowledged Australia’s First Peoples but didn’t go much beyond that would be easiest to get through government ranks and the popular vote.
It is hard to see either Indigenous leaders or Labor accepting just that.
Aboriginal and Torres Strait Islander leaders in their 2017 Uluru Statement from the Heart called for “the establishment of a First Nations voice enshrined in the constitution”.
But the indications are a voice would not be part of the government’s constitutional model. Wyatt does want a voice at the national level, but he is vague about its form, and the official line is that Morrison has “no plans” for the voice.
Labor was committed at the election to putting into the constitution a voice – which would be an input to the political process, not any sort of third chamber of Parliament – and the ALP would come under attack from Indigenous leaders if it walked away from this.
Writing for the Sydney Morning Herald on Thursday, Labor’s Pat Dodson, shadow assistant minister for reconciliation and constitutional recognition (and an Indigenous man dubbed “the father of reconciliation”) declared:
We either deliver the Uluru Statement from the Heart in full or continue down the failed path of soft reconciliation measures.
The shadow minister for Indigenous Australians, Linda Burney (also Indigenous), who is working closely with Wyatt and will do some travelling with him, may be more flexible than Dodson. Nevertheless she said after Wyatt’s speech:
We are at a point in our development, in our history where a voice to the parliament absolutely has to be entrenched in the Australian Constitution.
Morrison has had talks with Anthony Albanese to pursue bipartisanship on Indigenous issues and the Labor leader was optimistic on Thursday that a successful recognition referendum in the next three years was “absolutely realistic and doable”.
But former Deputy Prime Minister John Anderson, a member of the review panel Abbott set up to examine possible pathways to constitutional recognition, says that while he’s sympathetic to what Wyatt is undertaking,
finding the necessary national unity to avoid hurt and disappointment will be far from easy.
One huge problem, Anderson believes, will be getting Aboriginal people to come together on an agreed model.
Those in the Coalition party room and in the right wing commentariat who are critical of the move for recognition will use the spectre of the voice as a scare tactic.
The recognition issue will be one test of whether the right, though tamed since Malcolm Turnbull’s overthrow, will seriously arc up within the Liberal party in this term.
But Wyatt has attracted enthusiasm from some colleagues. NSW Liberal John Alexander was quick to declare
I’m with Ken on this, he has my full support for the process he has initiated and I hope it can conclude with a successful referendum vote and form of voice we can all be proud of.
Of particular importance, many big corporations, including mining companies, now have progressive positions on Indigenous affairs and will swing in behind the move. Wyatt has indicated he would be looking to them to help carry the debate, particularly in his home state of Western Australia, where a referendum would potentially be a hard sell.
He’d be encouraged by sentiments such as from Woodside, which said the company was
proud to give our support to this process as we continue to walk together with courage towards a reconciled Australia.
Recently, I wrote that Ken Wyatt’s appointment as the minister for Indigenous Australians was a momentous occasion in Australian history. The appointment showed the government is committed to doing things differently when it comes to its responsibilities and obligations to Indigenous Australians.
For Indigenous communities, the speech held much promise and provided key details on what the Morrison government’s approach to Indigenous affairs will look like over the next three years. This is major turning point that could result in real change after years of little progress.
New language on Indigenous affairs
Perhaps most significant was the rhetoric Wyatt used – it mirrored the language long used by many Indigenous Australians, but notably lacking in previous government addresses on these issues. Wyatt noted how previous governments have failed Indigenous Australians, acknowledging how even the
most well-intentioned modern policies and programs have still tended to take a top-down, command and control approach.
Wyatt echoed legitimate concerns with the way the government approached its Indigenous policies in the past, noting that it had been as
if Aboriginal people didn’t know what they needed or wanted.
He further noted that dominant attitudes toward Indigenous affairs had ignored “proud members of one of the world’s longest-lived civilisations,” pretending as if they
had nothing to say, no wisdom to offer, about what would help their families thrive and their communities flourish.
The significance of a cabinet minister, especially one responsible for Indigenous affairs, highlighting these aspects of Australian history and society is massive. The change in comparison to earlier ministers who ignored or dismissed these truths is remarkable.
While Wyatt demurred on specific details, emphasising a “consensus option,” he did otherwise commit to a referendum within three years. This is another significant step toward implementing the Uluru Statement from the Heart.
Also supporting the conclusions of the Referendum Council and the Joint Select Committee, Wyatt emphasised that “the constitution remains key.” Both found that current representative mechanisms for Indigenous peoples were not working. And both agreed that only a First Nations voice would provide the type of representation required to empower Indigenous peoples and communities.
A move away from top-down policy
Wyatt touched on many other issues that are important to Indigenous communities and are aimed at bringing more local input to policy-making.
On the issue of truth telling, he poignantly recognised that without truth
there can be no agreement on where and who we are in the present, how we arrived here and where we want to go in the future.
More details were also provided on the role of the new coordinating agency called the National Indigenous Australians Agency (NIAA). The NIAA aims to coordinate efforts across all levels of government and Indigenous communities to allow Indigenous peoples to empower themselves.
Wyatt specifically indicated that he doesn’t intend policy to come from the NIAA or his office. Rather, policy actions are to be supported by all levels of community and the state and territory governments to enable communities to own their own policy actions.
This is continued movement away from what Wyatt described as the history of
“a top-down, command and control approach” that has failed Indigenous Australians.
Wyatt emphasised this by saying that his intention is “to have genuine conversations, not only with Indigenous leaders and peak bodies, but with families, individuals and community organisations so that I can hear their voices.”
This addresses the long history of Indigenous peoples not being listened to and rather being told what will happen. Wyatt noted again that
the most important thing that I and the agency will do is to listen – with our ears and with our eyes.
One area of concern
The speech also raised the priority issues of youth suicide, the revival and maintenance of Indigenous languages (with a pledged A$10 million), and the expansion of programs aimed at supporting Indigenous businesses, such as the Indigenous Procurement Policy, which provides incentives for Indigenous businesses to grow.
Wyatt also reemphasised the creation of the new position of a national suicide prevention adviser to coordinate and advise on already announced funding and increased support service delivery.
It is still early and only time will tell whether these actions will help, but at least one area of the speech raises concern: Wyatt’s commitment to revamp the the Community Development Program aimed at employment, training and development for Indigenous communities. By creating community advisory boards, Wyatt claimed that the
CDP has been reformed to ensure communities have a say in the way the programme is run.
The problem, however, hasn’t just been how the program is run. Many have been advocating for the abolishment of the CDP, rather than its reform.
Too many Indigenous people in the program work significant hours for less than minimum wage and face punitive punishments for non-compliance with regulatory requirements. This includes being fined for failing to show for work, which impacts the participants’ ability to purchase life necessities.
In attempting to force participants into work, the CDP fails to understand the challenges of remote communities and, as such, unfairly discriminates against Indigenous people. The CDP is effectively a “work-for-the-dole” program that punishes poverty rather than empowering communities.
Overall, Wyatt’s speech continued to build on the early optimism surrounding his appointment. His notable change in rhetoric from previous governments and his commitment for early action to build on reforms, such as the Council of Australian Governments’ partnership agreement with peak Indigenous organisations to close the gap in health, education and employment opportunities and the Indigenous Advancement Strategy Evaluation Framework, are welcome.
Most importantly, Wyatt’s recommitment to constitutional reform moves the nation one step closer to achieving those important reforms of voice, treaty and truth from the Uluru Statement from the Heart. As Wyatt noted, this is
too important to get wrong, and too important to rush.
The Morrison government plans to hold a referendum in the next three years on whether to enshrine constitutional recognition of Australia’s Indigenous people.
Announcing the proposal on Wednesday, the minister for Indigenous Australians, Ken Wyatt, said he would:
develop and bring forward a consensus option for constitutional recognition to be put to a referendum during the current parliamentary term.
He said he had begun seeking the counsel of Indigenous leaders on the best way forward. But Wyatt made it clear that the final decision on whether the referendum goes ahead this term will depend on achieving a high degree of consensus and the prospect of it having a very strong chance of success.
Constitutional recognition is too important to get wrong, and too important to rush.
Wyatt stressed the importance of bipartisanship, and will establish a cross-party parliamentary working group to assist with engagement to develop a “community model” for the referendum.
Labor’s shadow minister for Indigenous affairs, Linda Burney “will be integral to this process”, Wyatt told the National Press Club in a major speech outlining the Morrison government’s approach to Indigenous affairs. Both Wyatt and Burney are Indigenous.
Prime Minister Scott Morrison has recently shifted course and begun speaking with Labor leader Anthony Albanese about a bipartisan approach to constitutional recognition. Without bipartisanship, any referendum is doomed to failure; passage is difficult enough even with agreement of the major parties. The last successful referendum of any sort was in 1977.
Changing the constitution through a referendum requires an overall majority of votes and a majority in a majority of states. When Prime Minister Tony Abbott wanted to hold a referendum on Indigenous recognition, the plan slipped away amid arguments over its content and doubts about getting the necessary support.
On the treaty issue, he said it was important for states and territories to take the lead.
Wyatt said the significance of symbolism must never be forgotten but “it must be balanced with pragmatism that results in change for Indigenous Australians”. He highlighted the new National Indigenous Australians Agency, which was set up by Morrison to oversee Indigenous affairs policy.
With the establishment of the agency on 1 July, we began a new era for the government to work in partnership with Indigenous Australians. It will provide opportunities for growth and advancement in education, employment, suicide prevention, community safety, health and constitutional recognition.
The most important thing that I and the agency will do is to listen – with our ears and with our eyes.
I intend to have genuine conversations, not only with Indigenous leaders and peak bodies, but with families, individuals and community organisations so that I can hear their voices and work together to agree to a way forward for a better future for our children.
He also wanted businesses “to sit with me around boardroom tables – and around campfires – and discuss how they can contribute”.
Yesterday, the government introduced a bill into Parliament that, if passed, would allow the home affairs minister Peter Dutton to temporarily exclude some Australian citizens – including children – from returning to Australia.
The bill is aimed at mitigating threats posed by foreign fighters coming back to Australia from conflicts in Syria and Iraq. It was first put before Parliament in February, and has now been reintroduced with some amendments.
National security laws must continue to adapt to changing circumstances. But the government has not made it clear how the bill would fill an identified gap in Australia’s already extensive national security regime.
How would the bill work?
If passed, the bill will allow the minister to issue a Temporary Exclusion Order (TEO) preventing an Australian citizen who is overseas from re-entering Australia. These exclusion orders aren’t designed to exclude citizens from Australia forever, but rather to provide a system that manages their return.
A TEO can be imposed on a citizen outside Australia if they are at least 14 years old, and:
the minister reasonably suspects that issuing the TEO would substantially help prevent terrorism-related acts, or
ASIO has assessed the person to be a direct or indirect risk to security, for reasons related to political violence. ASIO doesn’t need to be satisfied to any standard of proof when making this assessment.
But neither of these criteria actually requires a TEO candidate to have engaged in any wrongdoing.
A person may not enter Australia while a TEO is in force against them. If they do, they can face up to two years behind bars. A TEO may also require the person to surrender their Australian passport.
Each TEO can be issued for a maximum of two years, but a person may have multiple TEOs issued against them. This means the actual period of exclusion from Australia can be much longer.
So how does a return to Australia work?
The return of citizens with TEOs against them is managed through “return permits”. This is designed to allow the government to monitor and control foreign fighters’ entry and presence in Australia. A return permit must be issued if the person applies for one, or if a foreign country moves to deport them to Australia.
A return permit may prescribe various conditions. Significantly, it doesn’t guarantee an immediate right to return to Australia – a person may be prohibited from entering Australia for up to 12 months after the permit is issued.
Once in Australia, a range of post-entry conditions may also be imposed. These can include passport surrender, and requirements to report changes to residence or employment, contact with particular individuals and technology use.
Breaching the conditions of a return permit is an offence, punishable by up to two years in prison.
Are the proposed laws constitutional and compatible with international law?
But the High Court has never ruled on the question of whether a constitutional right of this nature exists, so it’s impossible to say for certain whether the bill, if passed, would be unconstitutional. Still, it’s likely to face constitutional challenge.
In any case, international law protects an individual’s right to voluntarily return to their country of citizenship. The government acknowledges that TEOs restrict a person’s capacity to do this, but says the bill is justified because it’s “reasonable, necessary and proportionate”. This, however, isn’t clear.
Does the bill contain adequate safeguards?
In April, when reviewing the original bill, the Parliamentary Joint Committee on Intelligence and Security recommended 18 changes, aimed at improving safeguards.
But the new bill only took on seven changes in full, including requiring the minister to consider specific criteria when imposing a TEO on a child, and providing independent oversight of decisions to issue TEOs.
Importantly, some of the committee’s most significant recommendations have been ignored, such as narrowing the criteria for issuing a TEO. And others have only been partially implemented.
Given the significant impact a TEO has on a person, the bill should adopt the committee’s recommendations in full.
Is the bill even necessary?
In parliament, Dutton said national security agencies advise that many Australians who have travelled to conflict zones in Syria and Iraq to support extremist groups are “likely to seek return to Australia in the very near future”, and the bill is needed to keep Australians safe.
But the government hasn’t explained why Australia’s extensive suite of existing anti-terrorism mechanisms doesn’t already adequately protect against threats posed by Australians returning from conflict zones.
Australia’s 75 pieces of legislation provide for criminal penalties, civil alternatives to prosecution, expanded police and intelligence powers, and citizenship revocation.
And they protect Australia from the risks posed by returning foreign fighters in a variety of ways.
For example, a person who returns to Australia as a known member of a terrorist organisation can be charged with an offence punishable by up to 10 years’ imprisonment. Where the person has done more – such as fight, resource or train with the organisation – penalties of up to 25 years each apply.
Although gathering sufficient evidence to prosecute returning foreign fighters can prove challenging, there are mechanisms in our legislation that already account for this.
For instance, a control order may be imposed on a person in cases where they are deemed a risk but there is not enough evidence to prosecute. This restricts the person’s actions through measures such as curfews and monitoring requirements.
Arguably, this suggests Australia has not only the capacity, but also the responsibility to use the full force of our laws to bring foreign fighters to justice in Australia, rather than leave them stranded in conflict zones where their only connections may be to terrorist groups, thereby weakening global security.
Of course, if it’s to remain fit for purpose, Australia’s national security framework must continue to adapt to changing circumstances. But with extensive, demonstrably effective mechanisms in place, the government must clearly explain what gap this bill would fill. This has not been done.
Sangeetha Pillai, Senior Research Associate, Andrew & Renata Kaldor Centre for International Refugee Law, UNSW Law School, UNSW
The first stage of the tax relief – in the form of an offset for low- and middle-income earners when people submit their returns – will be available as soon as the Tax Office makes the necessary arrangements over the next few days. Getting the legislation through this week means there is only minimal slippage from the July 1 start date that was promised in the budget.
The numbers fell into place with Tasmanian crossbench senator Jacqui Lambie declaring she would vote for the package. She had negotiated with the government on her demand that it forgive the $157 million social housing debt her state owes the Commonwealth. This would save Tasmania $15 million a year, which Lambie wants used to deal with issues of homelessness and social housing.
Lambie said: “The good will is there and they know that we’ve got housing problems down there.”
While Finance Minister Mathias Cormann, who had said there would be no horse-trading over the package, was publicly coy about the deal, Lambie is confident it will be delivered.
She said some details still had to be sorted out.
What I don’t want to be doing is rushing out saying here’s the money and that’s it. We want to make sure that that money is targeted […] we’re still dealing on good faith. And I look very forward to that over the next four to six weeks.
Cormann told Sky News: “Senator Lambie has been a very forceful advocate.
She has raised issues with us. We are very happy to work through these issues with her. When we are in a position to make further announcements down the track we will.
The other crossbench votes needed for the package come from independent Cory Bernardi and the two Centre Alliance senators.
Centre Alliance extracted a deal over action on gas prices.
It said in a Thursday statement that it had “worked with the government on both short- and long-term reforms to deal with gas market concerns.”
The government would announce the full package in coming weeks, it said.
It would include
changes to the Australian Domestic Gas Security Mechanism (ADGSM) to deal with current pricing, market transparency measures, measures to deal with the monopoly nature of East Coast gas pipelines and longer term measures to ensure future gas projects deliver surplus supply to the Australian market.
The gas agreement, canvassed publicly in recent days, has caused some blow-back from the industry.
Faced with the inevitability of the tax package passing, Labor said it would continue to pursue its attempt to split the package and then consider its options.
Eyes are now on Lambie’s position on the government’s bid to repeal the medevac act. Home Affairs minister Peter Dutton on Thursday introduced legislation for the repeal. Lambie said she was still making up her mind on how she will vote when the legislation arrives in the Senate. She is set to be the crucial vote.
When Malcom Turnbull was challenged by Peter Dutton in August 2018 for the leadership of the Liberal Party, and ultimately the prime ministership, Turnbull apparently asserted that the governor-general would not appoint a person whose eligibility to hold the office was in doubt.
His attorney-general, Christian Porter, reportedly replied that Turnbull was “wrong in law” and that the governor-general could only have regard to issues of confidence.
Who was right, and what might have happened if Dutton had been chosen as leader of the Liberal Party?
Not a choice between Dutton and Turnbull
The governor-general can only act to fill a vacancy in the prime ministership if there is one. If Dutton had defeated Turnbull in a leadership challenge, this would not itself have vacated the office of prime minister. Turnbull would have continued as prime minister until he resigned (or in extreme circumstances, was dismissed). So the governor-general would not have faced the question of whether or not to appoint Dutton as prime minister until Turnbull had indicated he was going to resign.
The choice would then have been between Dutton and whoever else the governor-general considered was most likely to hold the confidence of the house. It would be unlikely that the governor-general would seek to reappoint the prime minister who had just resigned, unless he was the only person who could hold the confidence of the lower house.
This would seem most unlikely in the circumstances.
What if Turnbull had advised the governor-general to appoint someone else?
The more plausible scenario would have been that Turnbull resigned as prime minister but advised the governor-general to appoint someone other than Dutton, such as Julie Bishop, due to concerns about Dutton’s possible disqualification under section 44 of the Constitution. This raises the question of whether the advice of an outgoing prime minister about who should be his or her successor is conventionally binding on the governor-general.
Ordinarily, the principle of responsible government requires the governor-general to act on the advice of ministers who are responsible for that advice to parliament, and through parliament to the people.
But that principle only works when the minister continues to be responsible for that advice. An outgoing prime minister necessarily ceases to be responsible to parliament for advice about his or her successor. The governor-general is instead obliged, by convention, to appoint as prime minister the person who is most likely to command the confidence of the lower house, regardless of what the outgoing prime minister advises.
While this is the orthodox constitutional position, there is still some controversy about it. When Kevin Rudd defeated Julia Gillard for the leadership of the Labor Party in 2013, it was not clear whether the crossbenchers who supported the minority Gillard government would support Rudd.
The then governor-general, Quentin Bryce, sought advice from the acting solicitor-general as to whether to appoint Rudd as prime minister on the basis of Gillard’s advice. The acting solicitor-general advised that the governor-general should do so, and appeared to take the view that the outgoing prime minister’s advice was conventionally binding.
He did not advise the governor-general that her sole consideration should be who held the confidence of the house.
Who advises the governor-general on legal issues?
If, in 2018, the governor-general had sought legal advice about his powers and the conventions that govern them, two questions would have arisen. First, who should provide the advice? Should it be the solicitor-general, the attorney-general, or the even the prime minister?
In 1975, when the governor-general asked for legal advice, the prime minister, Gough Whitlam, said it could only come through him. The attorney-general and the solicitor-general prepared a joint draft advice, but it was not provided promptly.
When a frustrated governor-general, Sir John Kerr, called in the attorney-general to get the advice, he was presented with a draft that the attorney-general apparently said he had not carefully read and did not necessarily reflect his views. Kerr later, controversially, sought the advice of the chief justice, Sir Garfield Barwick.
In more recent times, the solicitor-general has provided advice to the governor-general, as occurred in 2013. Even then, that advice was controversial, as it addressed how the governor-general “should” act, rather than simply advising on the powers and conventions that applied and leaving the governor-general to decide how to apply them.
There is currently no clear position in Australia on who should provide legal advice to the governor-general and the constraints upon the type of advice that should be given. This needs to be addressed in the future.
What happens when advice conflicts?
The second question is how the governor-general should deal with conflicting advice, which in 2018 was a real possibility.
For example, the solicitor-general could have taken the same view as the previous acting solicitor-general – that the advice of the outgoing prime minister is binding. The attorney-general, Christian Porter, apparently took the view that it was not binding, and that the governor-general should only consider who held the confidence of the house.
The prime minister is likely to have taken the view that the governor-general was bound to act on his advice not to appoint Dutton as prime minister, or that if the governor-general had a discretion, he should take into account the doubts about legal eligibility and refuse to appoint a person who might be disqualified from parliament.
There is no rule book that tells the governor-general how to deal with conflicting legal and ministerial advice. Ultimately, in this case, it was a reserve power that was in question and the discretion was a matter for the governor-general to exercise.
Confidence and eligibility when appointing a prime minister
Assuming the governor-general accepted the orthodox view that the appointment of a prime minister is a reserve power governed by the convention that the prime minister should hold the confidence of the lower house, what should he have done in this scenario?
The first issue is one of confidence. It is not certain that even if Dutton had been appointed leader of the Liberal Party, he would have held the confidence of the house. There may well have been defections that altered the balance of power.
Hence the governor-general, as occurred in 2013, could have required an assurance to be given by the prospective prime minister that he would immediately face the house to allow it to determine confidence.
The second issue concerns eligibility. The governor-general is obliged to obey the Constitution. If the Constitution plainly prohibits action, such as appointing a prime minister in certain circumstances, the governor-general is obliged to obey it.
But where the legal question is contestable, it is not up to the governor-general to determine it. In this case, the Constitution and the law confer the power on the relevant house, or the High Court acting as the Court of Disputed Returns, to determine disqualification from parliament.
Further, the Constitution allows a person to be a minister, without holding a seat in parliament, for up to three months. So the governor-general could legally have appointed Dutton as prime minister, but might first have required his assurance that he would ensure his eligibility was resolved by a reference to the High Court.
In this way, the governor-general would have protected the Constitution and the rule of law while still complying with the principle of responsible government. Of course, he may have had some difficulty persuading Dutton to give those assurances. But this is precisely why we appoint as governor-general people with the authority and gravitas to ensure that the Constitution is respected and upheld.
Malcolm Turnbull has accused Attorney-General Christian Porter of providing advice to him that was constitutional “nonsense”, as the divisive events around the former prime minister’s removal are revisited.
Turnbull launched his acerbic Twitter attack following reports that the day before he was deposed last August, he clashed with Porter over trying to involve Governor-General Peter Cosgrove in the leadership crisis. Turnbull was seeking to ensure Peter Dutton did not become prime minister if he won the leadership.
Meantime, Dutton has revealed that before the May election he removed himself from involvement in a family trust – an involvement that last term had raised doubts about his eligibility to sit in parliament. The trust received money from his wife’s child care business, and child care receives government subsidy.
Dutton always maintained he was on safe constitutional ground and his spokeswoman on Thursday reaffirmed that he had had legal opinions saying he was not in breach of section 44. During the leadership crisis the Solicitor-General provided advice, taking the view Dutton was eligible, though he left some doubt.
“Nonetheless, to silence those who are politically motivated and continue to raise this; prior to the minister’s nomination at the May election, he formally renounced any interest in the trust in question,” she said.
Accounts of the contretemps between Turnbull and Porter were published in Thursday’s Australian and by Nine newspapers.
Turnbull argued Cosgrove should refuse to commission Dutton, if he won the leadership, on the grounds he might be constitutionally ineligible to sit in parliament.
Porter insisted Turnbull’s suggested course would be “wrong in law” – that the eligibility issue was not a matter for the governor-general – and threatened to repudiate Turnbull’s position if he advanced it publicly at an imminent news conference.
The Attorney-General had a letter of resignation with him, in case he needed to provide it.
The events of last year will be extensively raked over in coming weeks in books by journalists Niki Savva and David Crowe. They featured in a Sky documentary this week.
Turnbull refought his battle with Porter on Thursday, tweeting: “The discretion to swear in a person as PM is vested in the Governor General. The proposition advanced by Mr Porter that it is none of the GG’s business whether the would be PM is constitutionally eligible is nonsense. The GG is not a constitutional cypher.
“During the week of 24 August 2018 there was advice from leading constitutional lawyers Bret Walker that Dutton was ineligible to sit in the Parliament and thus ineligible to be a Minister, let alone Prime Minister. I ensured we sought the advice of the Solicitor General.
“I took the responsible course of action, obtained the necessary advice, published it and the Party Room was informed when it made its decision to elect Mr Morrison, rather than Mr Dutton, as leader.”
Porter, speaking on radio on Thursday, confirmed the accuracy of the media reports, including the tense nature of the meeting. “Sometimes meetings in government aren’t all potpourri and roses,” he said.
Porter said an attorney-general’s role was to provide advice they considered accurate and legally correct.
“Sometimes that advice is not always what people want to hear. But I’ve always taken very seriously the role and the fact that the role requires to give advice to the best of your legal knowledge and ability you think is accurate and correct.
“And that’s what I’ve always tried to do, that’s what I did during the course of that very difficult week.”