Morrison’s foreign relations bill should not pass parliament. Here’s why


Melissa Conley Tyler, University of Melbourne

The Morrison government wants sweeping new powers to cancel international arrangements by universities, councils and state governments.
After announcing its intentions in August, it introduced a bill to parliament last week.

The government argues the bill is needed to “ensure a consistent and strategic approach to Australia’s international engagement”. Prime Minister Scott Morrison has said Australia must “speak with one voice”.

But the bill should not pass parliament.

Not only has the government failed to identify any specific problem with the status quo, the bill rests on a fundamental misunderstanding of the nature of modern diplomacy.




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Modern diplomacy is about multiple voices

For decades, Australia has had international agreements beyond the federal level. A huge number of actors interact internationally and affect how Australia is viewed. This can’t be exclusively managed from Canberra.

Over the past year, I’ve been researching new diplomatic actors – including sister cities, think tanks, sports diplomacy, international education, student mobility and corporate diplomacy.




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There are 87 state trade and investment offices overseas and 500 sister cities, including more than 100 with China. Each university would have hundreds of international agreements, including for students to study abroad for a semester and for research collaboration.

The proposed legislation mistakenly rests on the idea that speaking with “one voice” in foreign policy is a positive thing, when the modern idea of diplomacy emphasises broad engagement.

Australia benefits when multiple actors across society engage internationally to balance the ups and downs in official relations. As American author Parag Khanna memorably described it, “diplomacy is no longer the stiff waltz of elites but the jazzy dance of the masses”.

This bill overreaches

The legislation badly overreaches by seeking to regulate activities across education, culture, research and trade.

For example, it treats a visual artist exchange between Victoria and Jiangsu or a library agreement between the City of Sydney and Guangzhou as issues of foreign policy.

Including universities is also a step too far. It was originally thought the legislation would only cover arrangements between universities and foreign agencies, but it also covers universities that do not have institutional autonomy, which is a large number of foreign universities. This vastly increases the scope of regulation.




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Meanwhile, the test for vetoing a foreign arrangement is far too wide. The foreign minister can declare an arrangement invalid if it is likely to adversely affect Australia’s foreign relations (undefined) or be inconsistent with Australia’s foreign policy (defined as whatever the minister says it is, whether or not written or publicly available). “Arrangements” include anything in writing, whether or not legally binding.

We don’t actually need this bill

In sounding the alarm, the government has failed to pinpoint a real problem.

For example, there is zero evidence that a non-binding, symbolic memorandum of understanding between Victoria and China on to the Belt and Road Initiative has hampered the Commonwealth in pursuing Australia’s foreign policy.




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It is important to note Australia already has the ability to protect itself, with existing laws on espionage, foreign interference and foreign investment and a University Foreign Interference Taskforce. We made it through the Cold War without needing this type of legislation.

What will happen if the bill passes?

Apart from being unnecessary over-regulation, the bill will also create problems for Australia if passed.

Firstly, the Department of Foreign Affairs and Trade will have to divert resources to this new function when its funding is the lowest in history.

This means diplomats, who could be pro-actively working to promote the national interest, must check potentially tens of thousands of overwhelmingly non-controversial arrangements like the City of Warrnambool’s local export bureau with Changchun or the City of Darwin’s student English language competition in Haikou.

Secondly, the bill is likely to reduce international linkages due to uncertainty about what will be approved. Educational or cultural exchanges are the most at risk.

State and local governments will continue to promote trade, but they will waste time filling in the prescribed form to take, say, a delegation of Australian start-ups to pitch to investors in Nanjing.

Beyond this, the legislation sends exactly the wrong message to the wider community: to be uneasy about international engagement.

And all of this at a time of economic recession, when we need to find new avenues for growth. Sister cities have been shown to have measurable direct economic benefits, while state government export and investment promotion brings local jobs.

What could we do instead?

There are better solutions: more information-sharing between different levels of government; a one-page bill banning state governments from the Belt and Road Initiative.

Even giving the foreign affairs minister the power to request information on, and then cancel, any specific arrangement would be better than the overkill regulatory burden proposed.

And if, as many believe, the bill is directed at China, the irony is that fighting the Chinese Community Party seems to bring out the Australian government’s authoritarian tendencies.

Speaking with one state-approved voice is not what a open democracy like Australia should aim to achieve.The Conversation

Melissa Conley Tyler, Research Fellow, Asia Institute, University of Melbourne

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

Barnaby Joyce declares the COVID parliament curbs democratic rights


Michelle Grattan, University of Canberra

Former Nationals leader Barnaby Joyce has condemned the slimmed down, part-virtual COVID parliament as living “in a half life” and compromising democratic rights.

“No disease in 2020 should interfere in your parliamentary democratic rights. Parliament in a half life is not a parliament, it is merely a rather large building, kind of a new age palace in Canberra.”

Under rules agreed for the current sitting fortnight MPs can participate in parliament remotely and ask questions and speak but cannot vote.

The prohibition on remote voting reflects not just technological challenges but a desire to preserve the integrity of votes, represented by the tradition of the chamber doors being locked when votes are counted.

There are some differences in rules between the House of Representatives and the Senate – senators can move amendments remotely.

The House numbers in the chamber at any one time are limited not just to comply with social distancing but to avoid ACT health rules that would apply if the number was above 100. The parties have rosters. Numbers are managed to reflect the balances between the parties.

Writing on Facebook, Joyce said he was in Canberra but every second day he did not have a seat in the parliament to do his job.

“This is all very epidemiologically responsible but also a dangerous intrusion into your democratic rights.”

Legislation passed on a majority vote, but if he was “rostered off” on the day of a vote, how did the people in his New England seat have their wishes represented?

“On that day New England is disenfranchised and there is merely the presumption that their wishes are the same as the executive.

“It is difficult to be responsible for something I had no vote on and I don’t want to explain how I didn’t actually support something but … that was my RDO”.

Joyce said to bring on a private member’s bill required more than half of the actual 151 members of the House, posing a big problem when many members were not there.

“Nothing will be brought on against the wishes of the executive and don’t the ministers in the executive love that.”

He gave the example that the Senate might soon vote to restore the Northern Territory’s two lower house seats (one of which has been abolished due to population loss) but in present circumstances there would be no way to bring the bill on in the House unless the executive agreed.

“Our parliament can’t work on the presumption of the benevolence of the boss being all good. Whether right or wrong it is just too North Korea.”

“I am sure the PM and cabinet are doing the right thing, I don’t see them
as bad people, but if they went off the reservation then there is little or rather vastly less than there should be, to check them.

“This must stop because when the malady is hard to diagnose it is easy to cure, however when it is easy to diagnose – well it is then too late.”

Questioning why MPs could not vote remotely, Joyce said “a person can transfer millions of dollars back and forth in bank accounts but apparently it is too dangerous for a member of parliament to press ‘y’ for yes or ‘n’ for no, check that they have registered on the correct side for how they intend to vote and then press ‘enter’.

“Apparently it is too difficult to declare the empty public gallery, to allow social distancing, as being part of the chamber, so if you are in Canberra, you can vote responsibly.”The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

As the first ‘remote’ sitting starts in Canberra, virtual parliaments should be the new norm, not a COVID bandaid



Lukas Coch/AAP

Sarah Moulds, University of South Australia

Federal parliament is back today after a nine-week break. And it’s going to look a bit different.

Some MPs, unable to travel to Canberra for health reasons or COVID-19 border restrictions will participate via video.

It will be the first time MPs have been able to contribute remotely like this during a sitting week. This is a big leap for the parliament.

What will change in the chamber?

Federal parliament is adopting a hybrid model. Many MPs are still expected to attend the chamber in person. But others will be there via secure video link from their electorate office, with strict rules against slogans and novelty items in the background.




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Those attending via video won’t be able to vote or be counted for quorums. But they will be able to ask questions in question time and speak as part of debates.

There will not be a free-for-all on the video option. As Attorney-General and Leader of the House, Christian Porter explains, it will only be available to MPs who can prove the pandemic makes it,

essentially impossible, unreasonably impracticable, or would give rise to an unreasonable risk for the Member to physically attend.

The remote access will be via the existing system used for parliamentary committee hearings that frequently take place around the country.

Virtual parliaments around the world

This may be new for Australia, but it is not radical. Before COVID-19, other parliaments have been experimenting with remote proceedings and online participation.

Spain’s parliament has allowed remote voting since 2011 if people are seriously unwell or on maternity leave.

Brazil’s parliament – which covers a large geographical area, with more than 500 members in its lower house alone – had already begun using virtual discussion tools to conduct debates among MPs and between MPs and citizens. This is supported by an app, called Infoleg, which provides information on parliamentary business for both citizens and MPs and enables secure online voting.

Both Spain and Brazil were among the first parliaments to swap to hybrid and virtual sittings during COVID-19, thanks to their technical know-how and procedural flexibility.

What about Westminster parliaments?

Westminster parliaments were also making tentative online moves pre-COVID.




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The United Kingdom had introduced a CommonsVotes app, which shows how MPs have voted, following a division. There is also a HousePapers app which contains parliamentary papers.

The UK, New Zealand and Australian parliaments have been among those using video conferencing for committee work.

Question time is not the same

Despite some success, reconfiguring Westminster traditions into virtual parliamentary settings during COVID-19 has been challenging.

This is particularly so when it comes to facilitating the spontaneous scrutiny that should occur in question time. Or the visual drama that comes from voting together or calling a physical division.

House of Commons chamber with MPs spaced out on benches and appearing on video screens.
Video links were used when the UK Parliament sat in May.
Jessica Taylor, UK Parliament Handout/AAP

The UK parliament muddled through its post-Easter 2020 sitting, using online voting, Zoom and Microsoft Teams in the chamber and pre-prepared questions for ministers. But it has since backed away from virtual proceedings, citing the need for a “proper level of scrutiny”.

But there are ‘real positives’

The response to UK parliament’s decision has been mixed. British Labour MP Chi Onwurah has spoken of the need to be there in person.

Video engagement is not the same as being there face-to-face with a minister. You also lose the spontaneity, because you have to put in questions five days in advance, so you can’t ask a question about something a constituent emailed you about in the morning.

On the other hand, the Electoral Reform Society, has argued there are “real positives” to virtual methods. Such as,

Less booing and jeering during Prime Minister’s Questions, the ability to call Select Committee witnesses from afar through video-link […] MPs from far ends of the UK noted that they’d be able to spend more time in their constituencies if they could contribute remotely, or that they could spend more time on casework if voting times were cut down through online voting.

The House of Lords library also suggests there was more debate.

Almost 1,000 more contributions were made during the interim virtual/chamber phase than during a comparative period at the beginning of the year.

There were also more contributions from female MPs. Women made up a “slightly higher proportion” of those participating in the virtual chamber, up from 31% earlier in the year to 35%.

Scottish National Party MP Kirsty Blackman also noted the remote provisions made it easier for MPs with disabilities to participate.

Technology is key

The big lessons from these experiences are very similar to those facing other workplaces.

That is, the need to be flexible and invest in suitable technology. This includes secure and individually verifiable voting apps – such as Infolegpolitical discussion software and reliable, high-quality video conferencing facilities.

Australia’s parliament can do better (it needs to)

Long before COVID-19, researchers have been calling for parliaments to make better use of technology, to be more efficient and enhance the quality of public engagement.

A 2009 parliamentary survey of MPs found most spent between 5% and 10% of their time travelling. It is a common refrain of MPs they would rather spend more time in their electorates than in Canberra.

Treasurer Josh Frydenberg pulling a sad face on the frontbencher, with Prime Minister Scott Morrison in foreground.
Is coming to Canberra really necessary?
Lukas Cosh/ AAP

There is also growing acknowledgement travel and work requirements on our MPs – particularly in such a geographically dispersed country – are unhealthy and unreasonable. Travel time and time away from family has also been identified as a particular barrier to attracting more more female MPs.




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So, this is our big chance to make a change

Yes, there are challenges when it comes to “going virtual”. But by forcing our parliaments to experiment with new ways of operating, COVID-19 presents a critical opportunity to reimagine how our democratic institutions can work better.

If we embrace this moment with energy and enthusiasm, we can create new spaces for new voices (as well as better spaces for those we already have).

Aged Care Minister Richard Colebeck appearing at a Senate hearing via video link.
Parliamentary committee have already been using video conferencing to conduct hearings.
Mick Tsikas/AAP

This might sound naïvely optimistic, but we have been here before.

About 40 years ago, someone stood in a dry Canberra paddock and imagined the light-filled, architectural wonder that is the current “new” Parliament House. And how MPs could be inspired by that environment to communicate their ideas with each other and their country.

Now, as we sit in front of our screens, we can begin to see a new parliamentary landscape. It might feel impersonal at first, but it has the potential to make parliament more user-friendly for MPs and citizens alike.The Conversation

Sarah Moulds, Senior Lecturer of Law, University of South Australia

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

Speaker and Senate president agree to chair working group on pandemic-safe parliament


Michelle Grattan, University of Canberra

Federal parliament’s Speaker Tony Smith and Senate President Scott Ryan have agreed to chair a proposed bipartisan working group on how parliament can meet safely during the pandemic.

Labor put forward the working group plan after Scott Morrison cancelled the two-week sitting that was due to start August 4.

The group would comprise the leader of the house and manager of opposition business and their Senate counterparts. The ALP suggested including the chief federal and ACT medical officers but Smith and Ryan said they should be called on as needed.

The group would not decide whether the next sitting, scheduled to begin August 24, goes ahead. The government determines the House sittings, and the Senate (where the government is in a minority) is in charge of its own meetings.

Smith and Ryan said in a letter to Labor: “At the outset, we believe the six parliamentarians should receive a joint briefing from the Commonwealth and ACT Chief Medical Officers regarding the discussions to date, and risks that need to be mitigated.

“Following this briefing, we will be in possession of all relevant facts, and in a position to discuss specific options.

“We will call upon the resources of the chamber departments and the Department of Parliamentary Services as necessary to address issues raised.”

The presiding officers pointed out they had previously engaged with the opposition about the operation of parliament during COVID.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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

The UK Supreme Court ruling on suspending parliament is a warning for Australian politicians



The UK Supreme Court ruled there was no good reason for Boris Johnson to advise the Queen to prorogue parliament.
Jessica Taylor/UK Parliament Handout/EPA

Anne Twomey, University of Sydney

The UK Supreme Court’s finding that Boris Johnson’s suspension of parliament (or prorogation) was unlawful has raised the question of whether similar judicial action could be taken to challenge a controversial prorogation in Australia.

There have been several occasions in the past when prorogation has been used in Australia to achieve political aims.

For example, in 2016, the Turnbull government used prorogation as a means of forcing the Senate to sit and reconsider a previously defeated bill in order for it to become a double dissolution trigger.

The Keneally government in NSW and the Rann government in South Australia both prorogued parliament for long periods prior to elections. The moves prompted allegations they were intended to shut down embarrassing inquiries, but no one sought to challenge them in court.

In light of the UK legal challenge to Johnson’s prorogation that impeded parliamentary action prior to the Brexit date of October 31, will similar court challenges to these types of suspensions be more likely in the future? And would Australian courts consider hearing such challenges?

What the UK Supreme Court ruled

The UK case potentially has relevance for Australia because it neatly side-stepped the more contentious question of whether the prime minister’s advice to the Queen could be the subject of judicial review on the ground it was given for an improper purpose.

Or as the British media more bluntly put it, whether Johnson lied to the Queen.

Instead, the Supreme Court focused on its judicial power to determine the existence and extent of the executive’s “prerogative” powers.

These are the traditional powers of the monarch that have been passed down over centuries rather than being conferred by law. Australian and UK courts have long recognised that it is up to the courts, through applying the common law, to determine the scope of these powers.




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In doing so, the UK court looked to fundamental constitutional principles, such as parliamentary sovereignty and responsible government, as imposing limits on the executive’s power to prorogue.

It recognised that parliamentary sovereignty would be undermined if the executive could prevent parliament from exercising its legislative authority for as long as it pleased.

It also expressed concern that responsible government would be undermined and replaced by “unaccountable government” if parliament were prevented by the executive from scrutinising its actions.

The Supreme Court held that advice to the Queen to prorogue parliament, and any decision based upon that advice, will be

unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive.

Whether or not the prorogation has this effect is a question of fact which falls well within the jurisdiction of the courts to determine.

‘Reasonable justification’ to suspend parliament

More controversial is the assessment of what is a “reasonable justification” to suspend parliament.

The Supreme Court pointed out that a short period of prorogation for the purpose of ending a session of parliament and starting a new one would not require further justification.

The court would only need to consider additional justification in “unusual circumstances”. In doing so, it would need to be sensitive to the responsibilities and experience of the prime minister.

In this particular case of the prorogation of the UK parliament for five weeks, the court deemed the circumstances to be not only “unusual”, but “exceptional”.




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This was because a “fundamental change” in the Constitution of the United Kingdom is to occur on October 31 when the country is due to leave the European Union. In addition, the House of Commons had already demonstrated that it does not support the government on Brexit, and the prorogation would prevent parliament from carrying out its constitutional role for a significant period before that date.

The Supreme Court was also not offered a reasonable justification by the UK government for the length of the prorogation. It was merely told that a new session of parliament was desired so the government’s agenda could be set out in the Queen’s Speech.

Moreover, there was no consideration by the government of how much time was needed to scrutinise and enact legislation prior to the October 31 deadline, or the competing merits of adjourning or proroguing parliament.

The court pointed to the prime minister’s constitutional responsibility to take into account all relevant interests, including those of parliament, when advising the Queen. In an unusually pointed observation, it noted there was “no hint” of Johnson exercising that responsibility.

Based on this evidence, the court ruled it was impossible to conclude there was “any reason, let alone a good reason” to prorogue parliament for five weeks.

This meant that not only was the advice to prorogue parliament unlawful, but also that parliament would be able to continue in session.

Boris Johnson sought the Queen’s approval to prorogue parliament for five weeks. The Supreme Court ruled there was no reason for him to do so.
Victoria Jones/EPA

Will the UK ruling set a precedent in Australia?

Would the same kind of challenge occur if a government prorogued parliament in Australia?

Proroguing parliament for a short time to ensure it sits to exercise its functions, as was done by the Turnbull Government in 2016, would clearly be acceptable.

Proroguing parliament for a long period would be much more vulnerable to challenge if it prevented parliamentary inquiries from continuing, for example, or delayed the tabling of embarrassing documents.

The government would have to be prepared to provide evidence to the courts showing “reasonable justification” for the period of prorogation, if it were challenged.




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Is Boris Johnson’s prorogation legal? Why Scottish and English judges don’t agree – and why it matters


Would Australian courts be prepared to follow the UK Supreme Court precedent?

They would certainly give serious consideration to it, as this is the only precedent on the prorogation of parliament in a Westminster-style system of government, and the unanimous judgement of a significant court.

Moreover, the UK court’s reasoning is very similar to existing Australian cases in which courts have ruled that the common law must be interpreted in a manner that is consistent with constitutional principles.

This means that Australian governments should, in the future, be quite careful when proroguing parliament. They will need to ensure they do not do so for unnecessarily long periods of time and to prevent parliament from fulfilling its legislative and scrutiny functions, especially during periods of political controversy.

If their action is challenged in the courts, they will also need to be prepared to provide evidence of a reasonable justification for doing so.The Conversation

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.

Boris Johnson has suspended the UK parliament. What does this mean for Brexit?



UK Prime Minister Boris Johnson’s decision to suspend the parliament at a crucial time for Brexit negotiations may stymie his opponents.
AAP/UK Parliamentary Recording Unit handout

Anne Twomey, University of Sydney

Boris Johnson has secured the prorogation of the British parliament, which means it will be prevented from sitting for much of the crucial period between now and the Brexit date of October 31.

So what options do those opposed to a no-deal Brexit now have in parliament to prevent it?

A cunningly placed and timed prorogation

If a majority of the House of Commons were opposed to a no-deal Brexit, two primary routes are open to it. One would be the enactment of legislation requiring the government to seek a further deferral of the Brexit date until after some circuit-breaking event could be held, such as a new referendum or general election. The other would be a vote of no-confidence in the government and an early general election.

Both would be extremely difficult to achieve within the now very tight parliamentary timeframes – which presumably was the point. This prorogation is cunningly timed and placed. The fact that parliament has not been prorogued for the entire period leading up to the Brexit date makes it harder to argue in the courts that the prorogation is unconstitutional.




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The fact that Johnson gave prorogation advice to the queen before a court could decide on whether to issue an injunction to prevent the giving of such advice (with a hearing on the matter having been scheduled for September 6) also potentially stymies the use of the courts to prevent prorogation. This is because the main avenue for legal attack is in relation to the giving of the advice by ministers, rather than the action of the queen in giving effect to that advice. The latter would normally be regarded as “non-justiciable” – outside the appropriate exercise of judicial power.

In addition, slicing up the sitting period with prorogation in the middle, from September 10 to October 13, means it is now likely there is too little time to achieve all the procedural steps necessary to pass legislation or the resolutions necessary to secure a change in government.

This is exacerbated by the fact that the government largely controls the order of proceedings in the House of Commons and prorogation effectively wipes the parliamentary slate clean of any uncompleted action. Any partially completed action would have to start again once parliament resumes.

Confidence, fixed-term parliaments and an election

One alternative that has previously been raised is a vote of no confidence in the government and an early election. The UK has fixed five-year terms for its parliament. But an early election can be held if a two-thirds majority of the House of Commons votes for it, or if there is a vote of no confidence in the government and after 14 days there has been no vote of confidence in the government.

In either case, the Fixed-term Parliaments Act 2011 states that the election is to be held on a day appointed by the queen on the recommendation of the prime minister.

A senior government source reportedly told The Guardian:

We have been very clear that if there’s a no-confidence vote, [the prime minister] won’t resign. We get to set an election date. We don’t want an election, but if we have to set a date, it’s going to be after 31 October.

What could be done to avoid that outcome?

The House of Commons could instead act to force the resignation of the prime minister, secure the appointment of a caretaker prime minister, bring about an early election and authorise the new prime minister to seek to defer Brexit until after the election was held so the people could make the ultimate decision on Brexit.

The Fixed-term Parliaments Act deals solely with issues of confidence in relation to the holding of an early election. It provides that only a resolution “that this House has no confidence in Her Majesty’s Government” can cause an early election. It does not deal with other expressions of no confidence in the government.

As the then clerk of the House of Commons advised the House of Commons Public Administration and Constitutional Affairs Committee in 2018, the House could pass a “no confidence motion in other terms than those in the Act”, including no confidence in a specific minister.

This would have a “massive political effect but [would] not trigger the terms of the Act”.

So if, for example, the house expressed no confidence in Boris Johnson to hold the office of prime minister, he would be forced, by convention, to resign.

In addition to passing a vote of no confidence in a prime minister, the house may pass a “constructive motion of confidence”, which states that it has confidence in someone else to form a government.

This may be a compromise candidate who is trusted by both sides to run a caretaker government, which makes no significant policy decisions or appointments but simply undertakes necessary ordinary business until an election is held.

The formation of a caretaker government is consistent with British parliamentary practice. Winston Churchill formed one and popularised the “caretaker” term in 1945.

When a prime minister resigns, he or she might give advice to the queen as to whom to appoint as his or her successor. But the queen is not bound by this advice, as the outgoing prime minister ceases to be responsible to parliament for it.

Instead, the queen is obliged to appoint as prime minister the person most likely to hold the confidence of the House of Commons. If the House of Commons has declared, by resolution, who this person is, then the queen has clear evidence, so her appointment of that person cannot be questioned.

The next consideration is that a caretaker prime minister is by convention constrained in undertaking significant acts. If parliament wanted the prime minister to renegotiate the Brexit date so the people could decide on Brexit as a key policy in a general election, it would be prudent for a parliamentary resolution to authorise this action.




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Finally, in the United Kingdom it has historically been the case that fundamental constitutional change has been put to the people in a general election. An example is the equally divisive debate over Home Rule for Ireland and the limitation of the powers of the House of Lords.

This means the House of Commons would need to pass a formal resolution that “this House has no confidence in Her Majesty’s Government”, referring to the government established by the new prime minister. This would allow an early election to be held.

In addition, to ensure the caretaker government was for the shortest possible time, the house could resolve that the prime minister should set a particular date for that election.

A series of resolutions could achieve this, but it would require a united front from those opposed to a no-deal Brexit and clever parliamentary tactics to achieve it within the very limited sitting time available.

It may prove that prorogation was the masterstroke to prevent this from occurring.The Conversation

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.

The Section 44 soap opera: why more MPs could be in danger of being forced out


H. K. Colebatch, UNSW

One thing we learned from the recent election campaign is that the political crisis over Section 44 of the Constitution has not gone away.

Many candidates in the election had their eligibility to stand for parliament questioned and some were even forced to withdraw from their races.

Despite all the attention given to this matter over the last couple of years, and the various procedures introduced to address it, Section 44 will only continue to be a problem until the parliament steps in to address it.

To do that, we first need to address seven myths about Section 44.

1. Everyone knows their citizenship, they just need to do their paperwork

Section 44 is about more than just citizenship – it covers a variety of restrictions on who can serve in parliament.

For instance, a GP who bulk-bills a patient could be considered to have a “pecuniary interest in an agreement with the Commonwealth.” And a postman or a nurse in a public hospital could be deemed to hold “an office of profit under the Crown.”

On citizenship, the section doesn’t just disqualify dual citizens, it also bars those “entitled” to citizenship elsewhere (even if they haven’t applied for it) and those “entitled to the rights and privileges” of citizenship (basically, the “right of abode”, or being entitled to enter a country and live there).

Such entitlements are not easy to discover and almost impossible to remove, because they’re embedded in foreign legislation.




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2. It doesn’t affect many people

On the contrary, the parliamentary committee investigating the matter estimated half the adult Australian population, or more, could be disqualified by law or impeded in practice from standing for parliament.

In the recent election, we saw one potential candidate withdraw because she was an Australia Post employee and another because she was entitled under Indian law to some privileges of Indian citizenship.

As a result, the Australian parliament becomes even less representative of the Australian people.

3. The constitution framers knew what they were doing

The original text agreed to at the constitutional convention in 1898 simply said anyone who had acquired foreign citizenship by their own act was disqualified from standing for parliament.

The text that eventually became Section 44 was inserted surreptitiously by one of the key architects of the constitution (and Australia’s first prime minister), Edmund Barton, as a drafting amendment. He introduced 400 amendments on the second-to-last day of the convention, but made no mention of this change, and expressly denied there had been any changes to Section 44 apart from a minor one to another subsection.




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4. The High Court has sorted it out

Far from it. Very few cases challenging Section 44 have made it that far, partly because the court has done everything possible to fend them off, including trashing the constitutional provision giving citizens the right to challenge the eligibility of parliamentarians. Politicians have also refused to refer cases to the court unless it’s advantageous to their party.

And when the court has heard a case, it has construed its task so narrowly as to give little guidance to future action on the section. In particular, it has said nothing about the disqualification of those MPs “entitled to the rights and privileges of citizenship” in other countries.

In fact, when Senator Matthew Canavan’s eligibility was challenged because Italian laws had changed to permit citizenship to descendents of native Italians, the High Court noted that the law was fairly generous, but one had to apply. Canavan hadn’t applied, therefore couldn’t be an Italian citizen.

But if he had applied and then received Italian citizenship because he was eligible (as his brother had done), he would have been disqualified by Section 44.

This was all too much for the court to sort out. As a result, it offered no clarity on the large number of MPs whose eligibility hangs on what sorts of “entitlement” would disqualify them.

Senator Matthew Canavan was not disqualified after the High Court ruled his Italian citizenship was ‘potential,’ not actual.
Mick Tsikas/AAP

5. But there are administrative checks now, too

Well, yes, but nobody does anything about them. In 2017, all MPs were asked to fill out a form documenting their ancestry and citizenship, and the responses were then logged in a citizenship register. This showed some 15-20 MPs were entitled to foreign citizenship and a total of 59 had the “right of abode” in the UK, which the High Court has decided is the key to the “right and privilege” of citizenship.

But no action was taken on any of these cases. The register appears as a matter of record only.




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Enough is enough on section 44: it’s time for reform


Similarly, although the Australian Electoral Commission is now requiring candidates to complete a similar form, it does not take action against those who refuse to submit it, or leave sections blank. One candidate was referred to the police, but this was clearly a pointless face-saving exercise.

6. We want our MPs to be unequivocally Australian

Having foreign ancestry does not make you un-Australian. Section 44 does nothing to establish the strength of identity or loyalty – it simply prevents an undefined, but potentially very large, slice of the population from standing for parliament.

One case illustrates the ludicrous reach of the present wording.

After Lithuania regained its independence in 1990, it passed a citizenship law that gave people born outside the country to Lithuanian parents the right to citizenship. In 2016, this provision was expanded to cover those with Lithuanian grandparents. As a result, Senator Doug Cameron, whose Scottish burr we are used to hearing on news broadcasts, became eligible for Lithuanian citizenship.

While Cameron could (and did) renounce his British citizenship to qualify for election to the Australian parliament, he cannot renounce his entitlement to Lithuanian citizenship. And while some people have very strong views about Cameron, I have never heard it suggested he was working to a Lithuanian agenda rather than an Australian one.

Senator Doug Cameron was born in Scotland, but his grandparents are from Lithuania – a fact he had to disclose on the new citizenship register.
Mick Tsikas/AAP

7. It’s too hard to change the Constitution

The same thing was said about amending the Marriage Act to permit same-sex couples to marry. The public recognises there’s a problem with Section 44 and it expects the politicians to fix it.

The best shot came with the Joint Standing Committee on Electoral Matters, which recommended adding the words “until the parliament otherwise provides” to Section 44. This would not change the law, just where the law is made.

Instead of disqualifications being defined by the laws in foreign countries, as the High Court has interpreted Section 44, they could be determined by the Australian parliament. This is how qualifications of senators and members are currently decided. It’s also how women got the vote in 1902.

If this proposal was strongly supported by all the parties and clearly explained to the electorate, it would likely pass in the next election.

So where does this leave us?

It all comes down to leadership. Up to now, both the Coalition and Labor have been primarily motivated by partisan advantage: how can we use Section 44 to score a political point?

The Joint Standing Committee showed that with a willingness to collaborate, there is a path forward to solving the problem. The best we can hope for is that after the trauma of the last few years, and the evidence of the continuing decline in support for the main parties, political leaders will see that acting constructively on Section 44 might actually be in the best interests of both parties.The Conversation

H. K. Colebatch, Visiting Professorial Fellow, UNSW

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

Can a senator be expelled from the federal parliament for offensive statements?


Anne Twomey, University of Sydney

In the wake of comments about the Christchurch massacre, members of the public have raised the question of whether a senator can be expelled from the Senate for making offensive statements.

It is now well known that members of parliament can have their seat vacated in the parliament due to their disqualification under section 44 of the Constitution for reasons including dual citizenship, bankruptcy, holding certain government offices or being convicted of offences punishable by imprisonment for one year or longer.

But there is no ground of disqualification for behaviour that brings a House of Parliament into disrepute. This was something left to the house to deal with by way of expulsion.




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What powers do the houses have to expel?

Section 49 of the Commonwealth Constitution provides that until the Commonwealth parliament declares the powers, privileges and immunities of its houses, they shall be those the British House of Commons had at the time of federation (1901).

The House of Commons then had, and continues to have, the power to expel its members. The power was rarely exercised, but was most commonly used when a member was found to have committed a criminal offence or contempt of parliament. Because of the application of section 49 of the Constitution, such a power was also initially conferred upon both houses of the Australian parliament.

The House of Representatives exercised that power in 1920 when it expelled a member of the Labor opposition, Hugh Mahon. He had given a speech at a public meeting that criticised the actions of the British in Ireland and expressed support for an Australian republic.

Prime Minister Billy Hughes (whom Mahon had previously voted to expel from the Labor Party over conscription in 1916), moved to expel Mahon from the House of Representatives on November 11 – a dangerous date for dismissals. He accused Mahon of having made “seditious and disloyal utterances” that were “inconsistent with his oath of allegiance”. The opposition objected, arguing that no action should be taken unless Mahon was tried and convicted by the courts. Mahon was expelled by a vote taken on party lines.

In 2016, a private member’s motion was moved to recognise that his expulsion was unjust and a misuse of the power then invested in the house.

The power of the houses to expel members, as granted by section 49, was subject to the Commonwealth parliament declaring what the powers, privileges and immunities of the houses shall be. This occurred with the enactment of the Parliamentary Privileges Act 1987.

It was enacted as a result of an inquiry by a parliamentary committee, which pointed out the potential for this power to be abused and that as a matter of democratic principle, it was up to voters to decide the composition of the parliament. This is reinforced by sections seven and 24 of the Constitution, which say that the houses of parliament are to be “directly chosen by the people”.

As a consequence, the power to expel was removed from the houses. Section 8 of the Parliamentary Privileges Act 1987 says:

A House does not have power to expel a member from membership of a House.

This means that currently neither house of the Commonwealth parliament has the power to expel one of its members.

Could the position be changed?

Just as the parliament had the legislative power to limit the powers and privileges of its houses, it could legislate to amend or repeal section eight so that a house could, in future, expel one of its members, either on any ground or for limited reasons.

Whether or not this is wise remains doubtful. The reasons given by the parliamentary committee for the removal of this power remain strong. The power to expel is vulnerable to misuse when one political party holds a majority in the house. Equally, there is a good democratic argument that such matters should be left to the voters at election time.

However, expulsion is still an option in other Australian parliaments, such as the NSW parliament. It’s used in circumstances where the member is judged guilty of conduct unworthy of a member of parliament and where the continuing service of the member is likely to bring the house into disrepute.




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It is commonly the case, though, that a finding of illegality, dishonesty or corruption is first made by a court, a royal commission or the Independent Commission Against Corruption before action to expel is taken. The prospect of expulsion is almost always enough to cause the member to resign without expulsion formally occurring. So, actual cases of expulsion remain extremely rare.

Are there any other remedies to deal with objectionable behaviour?

The houses retain powers to suspend members for offences against the house, such as disorderly conduct. But it is doubtful that a house retains powers of suspension in relation to conduct that does not amount to a breach of standing orders or an “offence against the house”. Suspension may therefore not be available in relation to statements made outside the house that do not affect its proceedings.

Instead, the house may choose to censure such comments by way of a formal motion. Such motions are more commonly moved against ministers in relation to government failings. A censure motion is regarded as a serious form of rebuke, but it does not give rise to any further kind of punishment such as a fine or suspension.

The primary remedy for dealing with unacceptable behaviour remains at the ballot box. This is a pertinent reminder to all voters of the importance of being vigilant in the casting of their vote to ensure the people they elect to high office are worthy of fulfilling it.The Conversation

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.

Australia can do more to attract and keep women in parliament – here are some ideas


Brendan Churchill, University of Melbourne

The resignation of Kelly O’Dwyer, Federal Minister for Women, Jobs and Industrial Relations, tells us what we have known for some time: Australia’s parliament is a hostile workplace for women and working mothers.

O’Dwyer’s desire for a bigger family and more quality time with her young children reflects, in some respects, the challenges ordinary working mothers in Australia face everyday. It also highlights yet another example of the difficulties faced by women in politics.

As Liberal senator Linda Reynolds wrote in an opinion piece: O’Dwyer’s resignation “ …is not simply a gender issue. It is a parent issue”.

But for every Tim Hammond (the federal Labor Member for Perth who quit politics last year for family reasons) there is a Kelly O’Dwyer or a Kate Ellis .

Women by and large are still the primary caregivers in this country regardless of whether they are an MP or senator.




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Institutionally, Australia’s parliament has made significant progress over the past decade to accommodate parents. Parliament House now has childcare services and a breastfeeding room off to the side of both chambers for new mothers.

Breastfeeding mothers can vote by proxy in the House of Representations. And in 2017, former Greens Senator Larissa Waters became the first federal MP to breastfeed in parliament.

But there is still progress to be made. Parliament remains family-unfriendly. Sitting hours often extend well beyond childcare hours and sitting weeks are often scheduled during school holidays.

Fewer options than other working women

These issues affect all working parents but must surely impact heavily on parliamentarians who have to travel from their electorates to Canberra. Ordinary working mothers often opt for part-time work to manage the demands of work and family. This is because we haven’t quite figured out how to help women and families best manage their competing workloads.

An MP or senator does not have the option of working part-time. While women politicians do take maternity leave, a part-time MP or senator might not meet community expectations about politicians and service. We also know women in part-time work often end up feeling more stressed as they take on more domestic work or end up working outside of their set part-time hours.

But the idea of job sharing seems less remote. Historically, job sharing, which involves two people sharing what is normally a full-time role, has been seen as an alternative way for women to stay in the workforce. Some preliminary research in the UK suggests that might be a viable option for politicians. And evidence shows it works at the highest level of business, so this is perhaps one way parliaments can learn from the business community.

However, like all flexible working arrangements, job sharing cannot be seen as a solution or alternative for women alone – swapping the political sphere for the private. Male politicians with children would need to be encouraged to adopt these arrangements should they ever eventuate. And getting men to take up flexible working arrangements is not always successful as evidenced by policymakers’ attempts to get new dads to take up parental leave.




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As we enter the next decade, politicians, political parties and the parliament should consider how best to support working mothers (and fathers).

This must begin with a shift in culture. In her resignation speech, former Liberal now Independent, Julia Banks, stated:

equal representation of men and women in this parliament is an urgent imperative which will create a culture change.

Advances towards equal representation are lopsided in the parliament. While Labor is on track to reach equal representation with almost half of its parliamentarians women, the Coalition’s ratio is only one in five. It’s expected with O’Dwyer’s resignation along with recent announcements by other women, female representation in the Liberal and National parties will be proportionally lower than when John Howard left office in 2007.

Regardless of political persuasion, fewer female MPs can only slow progress towards gender equality.

Tim Hammond’s experience is an example of the toll experienced by fathers in federal parliament, but this is still the exception rather than the rule. Greater female representation will help shift cultural ideas about women and working mothers.

But shifts in ideas about working fathers in parliament are needed too. Images of male politicians working with their children at their side is a rarity saved only for election campaigns.

Like ordinary working women, female politicians need not only supportive workplaces but supportive families. Former Queensland premier Anna Bligh relied on her partner and mother for support during her time in office. However, not every female politician has a Greg Withers or a Clarke Gayford, partner of New Zealand prime minster Jacinda Arden, to care for their children while their partner gives a speech to the United Nations.

Ideas from other nations

Jacinda Arden provides one example of greater flexibility for mothers who are parliamentarians. She has broken up her schedule into three-hour slots so she can breastfeed. But not every woman in parliament has as much control over her schedule as a prime minister.

New Zealand is perhaps leading the pack in making parliaments work for parents. Recently, the Speaker of the New Zealand parliament has sought to make it even more family-friendly with a raft of measures, including the installation of highchairs in the cafe and a playground.




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In Europe, things are also progressive with women politicians in the European Parliament – including most famously Italian MEP Licia Ronzulli – taking their children to parliamentary debates and meetings.

In the US, the number of mothers in congress has doubled following the mid-term elections in 2018, which saw a record number of women run for office. Last year, Tammy Duckworth of Illinois became the first senator to have a baby in office, which necessitated changes to allow a baby on the senate floor.

Only ten women have given birth while in Congress and of those, six in the last 11 years.

The presence of children, especially mothers breastfeeding in parliamentary chambers, continues to be worldwide news, suggesting it’s still a novelty. Japanese local government member, Yuka Ogata, has a number of times been forced to leave the assembly as irritation grows around her demanding more family-friendly policies.

At the press conference announcing O’Dwyer’s resignation, the prime minister said he supported:

[…] all women’s choices. I want women to have more choices and all the independence that comes with that.

But choices are always made in the context of individuals’ lives. This is especially true for women who are working mothers. To ensure they make the choice to enter and stay in parliament we must ensure these issues are addressed.

It’s important parliament be made up of working mothers so policies and laws that affect families and in particular working women are informed by those who experience these challenges.The Conversation

Brendan Churchill, Research Fellow in Sociology, University of Melbourne

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

Party leaders need to address federal parliament’s intolerable workplace culture: Phelps


Michelle Grattan, University of Canberra

High-profile activist Kerryn Phelps, who is considering whether to join the battle in the Wentworth byelection, has condemned federal parliament’s toxic political culture and called on all major party leaders to address it.

As the fallout from Liberal MP Julia Banks’ condemnation of bullying continues, Phelps told The Conversation: “Some of the behaviour in the Australian parliament of late would not be tolerated in any other workplace”, saying it seemed to have gotten worse. This made for an unhealthy workplace which was ill-suited to getting the best performances from MPs.

Phelps, a City of Sydney councillor who was very active in the same-sex marriage debate, practices as a GP in the Wentworth electorate, and could be expected to attract a substantial vote if she ran as an independent.

The seat, formerly held by Malcolm Turnbull, who had a strong personal vote, is on a 17.7% margin but the Liberals are worried about a big protest vote.

The fallout from the leadership coup is already being felt there with Turnbull’s son Alex encouraging people to donate to the campaign of Labor candidate Tim Murray.

The younger Turnbull tweeted: “Best bang for the buck you’ll get in political donations in your life. Tight race, tight margin for government, big incremental effect whatever happens. If you want a federal election now this is the means by which to achieve it.”

While the focus in the bullying debate last week was on women, Phelps said some men suffered equally and “don’t perhaps get recognised in terms of the emotional cost [to them].”

She said the “toxic nature of parliament as a workplace” needed to be addressed, and she rejected the message sent by some Liberal players that people should toughen up or, in the words of backbencher Craig Kelly, “roll with the punches”.

If any business leader said “just toughen up”, they wouldn’t be there for long, Phelps said.

She said that a quantitative improvement in the political culture had to be generated by the leaders of the large parties. “You have to have the leaders of the major parties draw a line in the sand,” and say that bad behaviour would not advance people’s careers. At present, the opposite seemed to be the case, she said.

Earlier on Sunday, Labor frontbencher Clare O’Neil said “there’s a level of aggression, of conflict, of egocentrism that dominate parliament house and I think that that is quite hard to handle”, in particular for women.

O’Neil, spokeswoman on financial services, told the ABC her experience as an MP was “that there’s increasingly a culture in Canberra and in parliament house that feels really toxic”.

Attention is coming on the Minister for Women Kelly O’Dwyer, who issued a general statement last week condemning bullying, to take a stronger stand. O’Dwyer is expected to say more this week.

Some current and even former Liberal MPs women are reluctant to speak out for fear of blowback.

Labor has had its own controversy centred on one of its female MPs: Emma Husar has said she will not run again, after allegations of her bullying staff and other misbehaviour. A Labor inquiry upheld some allegations but not others.

Labor’s spokesperson on women, Tanya Plibersek, said that while the way parliament worked was adversarial, debates should be conducted with decency and respect.

“A positive culture is critical, and each one of us has the duty to help foster that both within parties and across the parliament.

“I believe the closer the parliament reflects our community – a more equal representation of women and men, and a greater diversity of backgrounds – the better that culture will be.

“I actually think something that really helps is more people working on issues in a bipartisan way, for example on committees,” Plibersek said.

Meanwhile, Christine Forster, Tony Abbott’s sister, has dropped out of the race for Liberal pre-selection for the Wentworth byelection.

She said in a statement the commentary about her candidacy “has focused on the suggestion that it was a proxy for division within the Liberal party. That is not the case, but to avoid any such perception, I will be standing aside and giving my full support to the successful candidate.”

Forster had not been regarded a frontrunner in the contest, which is considered to be between a former ambassador to Israel, Dave Sharma, and Andrew Bragg, who was briefly acting Liberal federal director.The Conversation

Michelle Grattan, Professorial Fellow, University of Canberra

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