Why a government would be mad to advise the refusal of royal assent to a bill passed against its will

Posted on January 29, 2019 by particularkev

File 20190125 108351 seklj3.jpg?ixlib=rb 1.1 — With the Morrison government now in minority, it is possible a bill for the transfer of asylum seekers from Nauru could pass against the government’s wishes.
AAP/Mick Tsikas

In both the United Kingdom and Australia there is speculation that controversial bills may be passed against the will of the government. If so, could the government advise that the bill be refused royal assent – the last formal step in turning a bill into a law?

This raises questions about whose advice the Queen or governor-general acts upon when giving royal assent, and whether it is constitutionally permissible or wise for ministers to advise that assent not be given to a bill that has validly passed both houses of parliament.

Could it happen with Brexit and Nauru?

In the UK, internal parliamentary dissent about the management of Brexit has led some cross-party parliamentarians to suggest they might support a bill that would require the deferral of Brexit, rather than allow Britain to crash out of the European Union without an agreement.

This has given rise to speculation in both the British popular press and academic blogs about whether the Queen could refuse assent to such a bill, acting on the advice of government ministers.

In Australia, the issue has arisen because the Morrison government has slipped into a parliamentary minority. This creates the potential for a bill, such as one concerning the transfer of asylum seekers from Nauru to Australia for medical care, to pass the House of Representatives and the Senate without government support.

In both the UK and Australia, the standing orders of the relevant houses of parliament impose impediments to the passage of bills without government support. This is done by giving the government effective control over parliamentary business. Other parliamentary tactics, such as filibustering, may also be used to prevent the passage of such bills.

But if such impediments are overcome and a bill passes both houses against the wishes of the government, can it advise the Queen or the governor-general (described here collectively as the “head of state”) to refuse royal assent, and what should the head of state do if so advised?

Royal assent

In both the UK and Australia, parliament is defined as having three constituent parts – the lower house, the upper house and the Queen. A bill does not become a law until it has been passed by both houses (subject to special procedures for certain bills that may not need to be passed by the upper house) and has received royal assent. Royal assent is therefore a critical part of the legislative process. It has not been refused in the United Kingdom since 1707.

In practice, in neither country is the head of state given ministerial advice to assent to bills. While there is a common belief that assent is advised in meetings of the Privy Council or the Federal Executive Council as the case may be, this is not so. It is done separately by the head of state as part of his or her normal paperwork, once the houses have passed the bills.

Indeed, in the UK, the formal words of enactment of a bill state that it is:

enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same.

In Australia the more succinct phrase is: “The Parliament of Australia enacts”.

The position is nicely illustrated by the controversy concerning Britain’s entry in 1972 into what later became the European Union. A British subject, Alan McWhirter, argued that the Queen should refuse assent to the European Communities Bill as it would fetter the powers of parliament.

The first draft reply prepared by the British government explained it was a constitutional convention that the Queen cannot refuse assent to bills passed by both houses, and which ministers advise should receive assent.

After legal advice from the Lord Chancellor’s Office that ministerial advice is not tendered in relation to royal assent, the draft letter was corrected to say that it is an established constitutional convention that:

the Royal Assent is not withheld from Bills which have been passed by both Houses of Parliament.

The relevant principles

If ministers were to advise the head of state to refuse assent to a bill that both houses had validly passed, it would potentially raise a clash between the principles of representative and responsible government. The principle of representative government requires the head of state to act in accordance with the will of the democratically elected parliament by giving assent to bills the houses have validly passed.

The principle of responsible government ordinarily requires the head of state to act on the advice of ministers who are responsible to parliament because they hold the confidence of the lower house. The corollary of this principle is that the head of state is not obliged to act on the advice of ministers who have ceased to hold the confidence of the house.

The principle of responsible government serves that of representative government by ensuring that the executive government is responsible to, and derived from, the representatives of the people in parliament. Both principles require that parliament prevails over the executive, and the executive can only function as long as it holds the support of the lower (representative) house.

As Nick Barber has argued, it would therefore be inappropriate to rely on the principle of responsible government to undermine parliamentary representative government by allowing ministers to defeat the will of the houses of parliament.

The consequences of advising refusal of assent

The defeat of a government on a bill, whether it be defeat of a bill proposed by the government or the passage of a bill opposed by the government, will not necessarily indicate a loss of confidence and require the government to resign or seek an election. But it will do so when the bill is one of major importance to the government.

There is therefore a strong argument that if a government regards a bill to be of such critical importance that it is prepared to advise the head of state to refuse assent to it, then the government’s defeat indicated by the passage of that bill amounts to a loss of confidence in the government.

This is why it would be madness for a government to advise the head of state to refuse assent to a bill that has been passed against its wishes. Such action would not only raise a serious question about whether it can continue governing, but it would place the head of state in an invidious position by forcing him or her to reject either the advice of the houses of parliament or of ministers.

Added to this would be enormous public controversy about the constitutional propriety of the government’s action. This would undoubtedly be damaging for a government in a subsequent election.

There is a reason why there is no precedent of a government in the UK or Australia advising the refusal of assent in such circumstances. It would not only be a constitutionally dubious thing to do, but would also be politically stupid.

Anne Twomey, Professor of Constitutional Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

View from The Hill: Day One of minority government sees battle over national integrity commission

Posted on November 27, 2018 by particularkev

Michelle Grattan, University of Canberra

Whatever it does, the Morrison government seems to find itself caught
on the sticky fly paper. As if it didn’t have trouble enough with
trying to decide about the embassy in Israel and the religious freedom
report, on Monday it became messily entangled in the issue of a
national integrity commission.

On the first day of formal minority government, the crossbench flexed
its muscle and the government bowed to the new reality.

Well, not quite bowed – but bought time by taking a line of least resistance.

After the independent member for Indi, Cathy McGowan, introduced her
private member’s bill for a national integrity commission, the House
of Representatives considered a motion from the Senate which called on
“the federal government to establish a national anti-corruption
commission”.

The government didn’t oppose the motion, which went through on the voices.

It was claimed that Attorney-General Christian Porter wanted to set out
the government’s objections to the McGowan bill, which he couldn’t do
in private members’ time.

The real reason was the government didn’t want to test its numbers on
the floor when there could be a defector or two from its own ranks.

Porter embarked on something of a lawyer’s frolic as he pointed to
dangers in the bill.

He warned that any public official who, it could be argued, had
breached public trust or impaired confidence in public administration
“would be liable to a finding of corruption”, even for a trivial
matter.

The ABC would come under the proposed body. So Porter conjured up the
scenario of ABC political editor Andrew Probyn (who, it will be
recalled, former ABC chairman Justin Milne wanted shot) being caught
under the bill.

On Porter’s account, that would be because Probyn was found in breach
of the ABC code of practice’s provision on impartiality for saying
Tony Abbott was the “most destructive politician of his generation”.

“Under this bill before the House—no ifs, ands or buts—Andrew Probyn
would be found to have committed corruption,” Porter declared.

He didn’t sound as if he were joking but maybe the Attorney has a very
dry sense of humour.

Not that McGowan is claiming her bill has the detail right. What she
and other crossbenchers are trying to do is force the government’s
hand.

How far they’ll succeed is not clear – they’ll get something but not
the full monty.

The government’s preference would be to do nothing. But that’s no
longer politically viable. Labor is committed to a new anti-corruption
body (once it didn’t believe in one), and the level of public distrust
of the political system makes this an issue that resonates in the
community.

The government now finds itself in the rather bizarre situation of
having voted for a “national anti-corruption commission” without
committing itself to one.

In fact, such a commission is the least likely to get a tick of the
three options before the government. Porter has all but written it
off.

The other options, according to Porter, are expanding one of the
existing 13 bodies that presently deal with integrity and corruption
(probably the Australian Commission for Law Enforcement Integrity),
or merging some of them to eliminate overlap.

Ideally the way forward would be by a bipartisan approach. The issues
are indeed complex and state experience suggests the need for careful
balances and protections. But bipartisanship not the way of things
before an election.

Attacking Shorten, Scott Morrison accused him of being preoccupied
with a “fringe issue”.

Morrison said the matter would be dealt with “through a normal Cabinet
process”. Porter says this process is well underway. Indeed a lot of
it happened under Malcolm Turnbull – Porter says he has been working
on it since he became attorney-general nearly a year ago.

Both the embassy question and the religious freedom report are in
“processes” at the moment.

The government received another prod on the latter when on Monday a
Labor-chaired Senate committee recommended in its majority report that
a ban on religious schools discriminating against gay teachers should
be considered.

This goes much further than the government’s plan – bogged down in
negotiations with Labor – for legislation to prevent discrimination
against gay students. The opposition is expected on Tuesday to push the
government to act immediately on its promise to protect students.

As the Liberals took in the devastating Victorian result, there was
the feeling that the Morrison government was just holding things
together.

Senate president and Victorian Liberal Scott Ryan, who rarely enters controversies given his position as a presiding officer, unleashed a restrained but pointed assault against the right of the party (and rightwing commentators).

Victorian Liberal backbencher Tim Wilson delivered a sharp message to the coal lovers. “If anybody thinks that there’s this great public sentiment out there that people really deep down hate renewables and they’re hugging something like coal, I say again — get real”.

That immediately encouraged a rerun of Morrison’s coal hugging in parliament.

In question time the Prime Minister was decidedly shouty and aggressive.

And, despite the crossbenchers now looming large in his world, he
didn’t make time to sit in the chamber for Kerryn Phelps’ maiden
speech. He had other engagements, his office said.

Michelle Grattan, Professorial Fellow, University of Canberra

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Hodgman rides Tasmanians’ disdain for minority government to a second term in office

Posted on March 13, 2018 by particularkev

File 20180303 65541 vtrnwv.jpg?ixlib=rb 1.1 — The Tasmanian election result was an emphatic win for Will Hodgman, but he lost a fair bit of skin along the way.
AAP/Julian Smith

Richard Eccleston, University of Tasmania

In an era of single-term governments and growing electoral volatility in Australia, the return of Will Hodgman’s Liberal government at Saturday’s Tasmanian election with more than 50% of the primary vote is significant – and will have national implications.

The Turnbull government will take comfort from a result that demonstrates voters – even in left-leaning Tasmania – are prepared to re-elect a competent Liberal government that has delivered strong economic and employment growth.

It was a strong result for the Liberals. However, the outcome was shaped as much by Tasmania’s distinctive political practices and local issues as it was by national trends.

Pokies, housing, hospitals, and – at the 11th hour – watering down gun laws might have been the specific issues that dominated the campaign, but the decisive factor was Tasmanians’ enduring apprehension about minority government.

The legacies of Labor-Green minority government of the early 1990s and between 2010 and 2014 cast a long shadow during the 2018 campaign. Both periods are associated with economic decline, rising unemployment, and budget cuts.

While there is little evidence to suggest minority government has been a cause of poor economic outcomes in Tasmania – it is more that these governments were unlucky and found themselves in charge after national downturns – the fact remains that Tasmanians have a strong preference for majority government.

Given this history, undecided Tasmanian voters tend to back the major party that’s most likely to form majority government. This was evident in both 2006 and 2014, and was always going to be a feature of the 2018 campaign given memories of the 2012-13 recession in Tasmania are still fresh in voters’ minds. And the Liberal government, which was elected in 2014, has delivered strong economic growth.

It is this bandwagon effect that helps explain why support for the government increased by ten points over the course of the campaign, rather than going to minor parties – as has been the case elsewhere.

What now for the Liberals?

The final result was an emphatic win for Hodgman. But it is also fair to say he lost a bit of skin along the way, due to the Liberals’ big-budget, brutally effective advertising campaign seeming to have been funded by gaming interests.

The reality is that Tasmania remains deeply divided on pokies and the means the gaming industry uses to protect its interests.

Tasmanians voted for political and economic stability on Saturday, but an overwhelming majority support Labor’s policy of phasing pokies out of pubs and clubs over a five-year period.

The pokies debate is far from over. Hodgman must commit to open and transparent government, and subject his gaming policies to full parliamentary scrutiny in an attempt to regain the electorate’s trust. Opposition parties also have a role to play, and must be willing to compromise to find some middle ground.

The election’s losers

The result wasn’t a disaster for Labor.

Rebecca White, after securing the Labor leadership only a year ago, performed strongly during the campaign and has consolidated her credentials as a future premier. That she will be leading a stronger opposition bolstered by handful of up-and-coming new MPs also bodes well for Labor’s future.

The real losers in the election were the Greens and Jacqui Lambie.

In contrast to their success in inner-Melbourne and Sydney, the Greens have been struggling in Tasmania in recent years. The explanation for their decline in their former heartland can be attributed to the legacies of the last government, the absence of a high-profile local environmental issue, and that Labor, under White, has championed many of their core progressive causes.

Lambie and her party could have been the wildcard of this election, but she has had a tough summer and will have to fight hard to salvage her political career. Had Lambie herself run as a candidate on Saturday, it’s likely she would have been elected – and could have held the balance of power in the lower house.

Strangely, given that personalities and name recognition are so important in Tasmanian elections, she ran a ticket of grassroots candidates under her Jacqui Lambie Network banner that, as expected, failed to secure any serious support.

Lessons for the future

As the dust settles, we can draw a few conclusions from the Tasmanian election result.

Above all else, Tasmanians are a pragmatic bunch and are prepared to reward a government that delivers political stability and good economic outcomes.

The campaign also highlighted the power of sectional interests – be they mining, gaming or other actors – in Australian politics. The collective health of our democracy depends on curbing the influence of these groups at both the state and federal level.

Given the distinctive dynamics of Tasmanian politics, not too much can be read into the swing away from minor and protest parties and back to the majors. Perhaps the real test of the national political mood will come in South Australia on Saturday week.

Richard Eccleston, Professor of Political Science; Director, Institute for the Study of Social Change, University of Tasmania

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

As Tasmania looks likely to have minority government, the Greens must decide how to play their hand

Posted on February 27, 2018 by particularkev

File 20180222 65236 2h6v3v.jpg?ixlib=rb 1.1 — Tasmanians Greens leader Cassy O’Connor (centre) on the hustings.
AAP/Rob Blakers

Narelle Miragliotta, Monash University

According to Tasmanian Greens leader Cassy O’Connor, “minority government is government for grown-ups”, whereas “majority government is government for vested interests, corruption and corporate deals”.

The Greens’ pitch to voters at Saturday’s Tasmanian state election is not being couched in policy terms alone. It is also based on a vision of a more desirable governing context for Tasmania. But is minority government good for the Greens?

The likelihood of minority government

There is a high probability that the Greens will get their wish and a minority government will be returned at this election.

Tasmania elects its lower house using a form of proportional representation known as the Hare-Clark system, where parties are awarded seats roughly in accordance with their levels of support within the electorate. Unless a party can win an overall majority of votes, it will not attain the necessary majority of seats to form a government in its own right.

In recent decades, the two major parties have struggled to secure governing majorities. In the eight Tasmanian elections since 1989, majority governments have been elected on only five occasions.

There is general agreement among commentators that a majority government at this election is far from certain. The Liberal Party attained 51.22% of the vote in 2014, and lead Labor in most polls. However, according to analysis by Ben Raue, the Liberals polled above 40% in just one of five polls held in the last year. If these figures are translated into actual votes, minority government is inevitable.

One might think that the possibility of minority government would render the major parties open to working with the Greens to form government. Yet the incumbent premier, Will Hodgman, has already declared that the Liberals “will govern alone or not at all”.

Likewise, Labor leader Rebecca White has also confirmed that her party “will not govern in minority”.

Much of this talk should be taken seriously but not literally. The major parties will be under pressure to negotiate an agreement of some description in the likely event of a hung parliament.

Any party that seeks to govern without the support of opposition forces will be perpetually at risk of defeat on the floor of the lower house. This reality is likely to weaken the resolve of even the most stubborn party leader – even more so once Governor Kate Warner makes the necessary entreaties.

However, it is not certain that the Greens will be the only parliamentary grouping in the mix to form a minority government. The most recent polling data (based on a MediaReach internal poll commissioned by the Liberal Party) has the Greens’ statewide primary vote at under 13%, which may not prove sufficient to secure the all-important “hinge seat” in each of the five multi-member electorates.

One of the particular challenges the Greens are confronting in 2018 is Labor’s capacity to outmanoeuvre them. As psephologist Kevin Bonham has observed, the Greens are being squeezed by the appeal of Labor’s “left-wing leader”.

Labor has also stolen the Greens’ thunder on the pokies issue, and its energy policy – complete with 120% renewable energy target – is likely to find favour with environmentally concerned voters.

Adding to the uncertainty is the prospect – albeit faint given recent polling – of the Jacqui Lambie Network (JLN) electing one, possibly two candidates. The JLN might make more attractive legislative partners for the major parties than the Greens.

Is minority government good for the Greens?

There is a deeper question that the Greens must ask: whether it is prudent for them to enter into any kind of formal arrangement with either major party.

There are advantages in the short term, such as policy concessions and even the possibility of executive office. But the longer-term consequences are far less clear.

The Tasmanian Greens suffered swings against them following the three previous occasions that they entered into some form of agreement to support a minority government: -3.9% in 1992, -2.1% in 1996, and -7.8% in 2014.

Though there were unique circumstances surrounding each of these agreements, it is unclear if the benefits outweigh the costs for the Greens. One international study concluded that participation in government “is not necessarily bad for Green parties”, which falls well short of a ringing endorsement.

If, following this election, the Greens are needed to form a stable government, then the party will have to think strategically about the terms on which it does so. Is participation in executive office a higher prize than consistency of electoral performance?

If the Greens value the former, then securing a formal agreement is the best way forward. But if they value the latter, then a “confidence-and-supply agreement” is their best option. This would allow the Greens to demand additional parliamentary resources and to shape the fate of legislation, without having to shoulder responsibility for government failures at a critical time in the party’s development.

Narelle Miragliotta, Senior Lecturer in Australian Politics, Monash University

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

Under McCormack, the Nationals need to accept they are a minority and preserve their independence

Posted on February 26, 2018 by particularkev

File 20180225 140178 14sui79.jpg?ixlib=rb 1.1 — New Nationals leader and Deputy Prime Minister Michael McCormack (front) talks to the media, while former leader Barnaby Joyce (left) listens in.
AAP/Lukas Coch

Gregory Melleuish, University of Wollongong

The demise of Barnaby Joyce as leader of the National Party is an event of considerable importance in the long-term trajectory of Australian politics.

While his successor, New South Wales MP Michael McCormack, appears to have good conservative credentials, he is largely unknown to the Australian public, having held relatively minor ministerial portfolios such as Veterans’ Affairs.

Joyce was the last high-profile conservative leader left in mainstream Australian political life. With his banishment to the backbenches, it would appear that the triumph of left liberalism in Australian public life has been complete.

This needs to be explained a little further. There was a time when the Australian Labor Party espoused a mixture of what it called “socialism”, or social justice, and conservative social values. In part, this reflected the strength of the Catholic Right in the party. Those days are now gone, as can be seen in the way that the party so enthusiastically embraced marriage equality.

John Howard once famously described the Liberal Party in terms of liberalism and social conservatism. However, recent events would seem to indicate the continued ascendancy of the moderate, or social liberal, faction within the party. Like Barnaby Joyce, Tony Abbott sits on the backbench, hurling the occasional hand grenade at the moderate hegemony.

Two possible conclusions could be drawn from these developments. One is that the Australian population is increasingly adopting left liberal values; the postal survey on marriage equality could be cited as evidence, as even many National Party electorates voted in favour. A counter argument could be mounted that the political class has moved in a left liberal direction, even if the people they represent have not.

Even if left liberalism has become more dominant, this does not mean it has been universally embraced. Many Australians still adhere to more traditional values and do not want their voices to be silenced by what threatens to be a left liberal hegemony.

Of course, the primary role of the National Party is to represent the interests of rural Australia, which it has been doing for some 100 years. The only problem is that, during that time, rural Australia has become an ever-decreasing part of the Australian population. In 1922, when the then Country Party first entered into a coalition with the then Nationalist Party, it won 12.56% of the vote in the House of Representatives and held 14 seats in a 75-seat Parliament.

In 2016, the Nationals hold 16 seats in a 150-seat House of Representatives. The outlook is even gloomier, as the increased immigration of recent years has largely gone to the large cities. The number of National Party members can only decline over time. The rural voice will be heard less and less.

One option for the Nationals would be to merge with the Liberal Party. This has been tried in Queensland, where it seems to have benefited the Liberals while failing at last year’s state election to deliver government to the Liberal Nationals.

The trajectory of Australian social development means that rural Australia is forever doomed to minority status. One consequence of this development is that those holding conservative values are also condemned to being in a minority. One can only say that this is a very difficult situation.

One solution would be to embrace the dominant left liberal ideology. This, however, raises significant problems, as the Nationals represent a constituency that remains quite traditional in its values. The more liberal it becomes, the more open it also becomes to having its constituency stolen by parties espousing more traditional values, such as Pauline Hanson’s One Nation.

The reality of any democracy is that the majority should prevail, but minorities need to have protection from the “tyranny of the majority” and the tendency of majorities to impose their desires and values on everyone else. The reality in Australia is that the majority is based in urban areas and will increasingly come to hold left liberal values.

In such circumstances, the situation of those who are either conservative and/or rural becomes increasingly difficult. Their values and outlook will often be at odds with the majority, and their chances of prevailing on any major issue are not great.

The same is true for the National Party. It must recognise that it is a minority and that its constituency can only get smaller over time. This does not mean that it should embrace the left liberal hegemony. If it were to do so it would only risk being displaced by a competitor.

Rather, it needs to embrace its minority status, establish clearly what it stands for, and recognise that perhaps the best it can do is soften the harshness that the tyranny of the majority might seek to impose. It would be foolish to rush into the arms of the Liberal Party and suffer what conservatives within the Liberal Party have suffered at the hands of the moderates.

Independence has long been a primary virtue of rural Australians. It is a value they should continue to embrace. For all his faults, Barnaby Joyce was an embodiment of that spirit of rural independence. Judging by his background, McCormack is cut from similar cloth. It remains to be seen how he will portray himself to the Australian public.

Gregory Melleuish, Professor, School of Humanities and Social Inquiry, University of Wollongong

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