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 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.
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.
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.
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”.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.
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.
Tony Abbott and Barnaby Joyce have each accepted job offers from new Prime Minister Scott Morrison to serve as his special envoys.
The prime minister’s offers may have been a clever way to keep these two former leaders busy and put their abilities to use. But these jobs may have inadvertently rendered both Abbott and Joyce disqualified from parliament under section 44 of the Constitution. That section disqualifies any MP who accepts a paid job in government that is not a ministerial position.
The special envoy jobs
Tony Abbott is now the prime minister’s Special Envoy for Indigenous Affairs, whereas Barnaby Joyce is Special Envoy for Drought Assistance and Recovery.
Special envoys are not ministerial positions. Neither Abbott nor Joyce is part of the Morrison ministry. Their roles are to work with the relevant ministers and the prime minister to advance policy in these respective areas. The precise details of what they will be doing are not yet clear.
Section 44 of the Constitution sets out several grounds on which a politician will be disqualified from membership of parliament. Being a dual citizen is only one of them.
Another ground for disqualification is set out in section 44(iv). That provision disqualifies anyone holding an “office of profit under the Crown”, unless the position is that of a minister.
The special envoy roles look suspiciously like offices of profit under the Crown.
What is an office under the Crown?
There is no doubt the special envoys hold offices under the Crown.
In Re Lambie (No 2) from March this year, the High Court decided that Jacquie Lambie’s successor, who was the Mayor of Devonport in Tasmania, was not disqualified under section 44(iv).
The High Court held that a position is under the Crown if hiring or firing decisions are made by the executive government. Mayors are voted in and out by the people, rather than hired and fired by governments.
The prime minister, who is the effective head of the executive government, appointed Abbott and Joyce to their special envoy roles. The prime minister can also sack Abbott and Joyce as special envoys if he wants.
Positions like Speaker of the House of Representatives, Leader of the Opposition, and Chairperson of a Parliamentary Committee are not “under the Crown”. They are parliamentary positions.
The key issue is whether the special envoy positions are “of profit”.
Is the position of special envoy “of profit”?
It has been reported that Abbott and Joyce were offered remuneration for their special envoy roles.
ABC Radio National Presenter Patricia Karvelas tweeted:
Access to staff does not make a position “of profit”. Nor does covering of work expenses. But a salary, however small, definitely makes a position “of profit”.
On the same day, having already accepted the special envoy job, Tony Abbott told 2GB radio host Ray Hadley that he would not be receiving any pay for his role as Special Envoy. Abbott said: “The other thing I want to say, Ray, is that I certainly don’t expect any extra pay”.
Hadley had not asked Abbott about payment. Abbott simply made the comment off his own bat.
This all suggests that Abbott may have been offered remuneration for the special envoy job, but decided to decline that offer.
The High Court has said that to fall foul of section 44(iv) it does not matter whether a person is actually paid. What matters is “the character of the office”.
In the 1992 case of Sykes v Cleary, the High Court held that Philip Cleary, who had won the federal seat of Wills, was disqualified under section 44(iv). Cleary was a teacher who was on leave without pay at the time of the election.
The High Court decided that it doesn’t matter whether a person is actually receiving payment. What matters is whether payment attaches to the position. Cleary held an office of profit under the Crown even though he was not receiving any payment.
Chief Justice Anthony Mason and Justices John Toohey and Michael McHugh said:
The taking of leave without pay by a person who holds an office of profit under the Crown does not alter the character of the office which he or she holds. The person remains the holder of an office, notwithstanding that he or she is not in receipt of pay during the period of leave.
Logically, the same reasoning applies to an office-holder who waives their right to payment or declines to take a salary. A person is not saved from disqualification because they are not currently receiving payment.
Abbott and Joyce will be disqualified if, and this is the crux of the issue, remuneration was originally part of the special envoy job offers.
It doesn’t matter if Abbott and Joyce never asked for payment. It doesn’t matter that they declined an offer of payment. And it doesn’t matter that they aren’t actually being paid now.
If a non-ministerial position answers the description of an “office of profit under the Crown” then the holder of that position is disqualified.
Could Abbott and Joyce really be disqualified?
A clear answer is needed to the question of whether Abbott and Joyce were offered payment as part of their special envoy roles. Morrison, Abbott or Joyce could each easily answer that question.
If payment was indeed offered as part of the roles, the only way the issue of disqualification could be decided authoritatively is for the House of Representatives, where the government has a slim majority, to refer Abbott and Joyce to the High Court.
It is unlikely the government will refer Abbott and Joyce to the High Court, and quite likely that the opposition will pursue the issue – and also Peter Dutton’s potential section 44 problem – when parliament resumes in September.
Section 44 of the Constitution has struck down many a politician in the past year – but is it powerful enough to take down the Minister for Home Affairs, Peter Dutton? This time it is not dual citizenship under s44(i) that is at issue. Instead, it is the more obscure s44(v) in the spotlight.
What is section 44(v) about?
Section 44(v) says that any person who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth” is disqualified from sitting as a member of parliament.
Dutton, as recorded in the parliamentary register of interests, is the beneficiary of a discretionary family trust. This trust, through its trustee, apparently owns two childcare centres in Queensland. The allegation is that since July 2, 2018, the trust, through its childcare centres, has agreements with the public service to provide childcare services in exchange for childcare subsidies.
Dutton may argue the childcare centres merely receive the subsidy on behalf of the parents and do not have an agreement with the public service. But if it is found there is such an agreement, it would appear Dutton has a beneficial interest in a trust that has an agreement with the public service, potentially triggering the application of s 44(v).
Last year, in a case concerning Family First senator Bob Day, a majority of the High Court held that the beneficiary of a trust which, via its trustee, is party to an agreement to which section 44(v) refers, has an indirect pecuniary interest in the agreement, and is therefore disqualified from sitting in parliament. If the facts set out above are correct, this would place Dutton into the realm of potential disqualification.
Exceptions for certain types of agreements
The key qualification is the reference to “an agreement to which section 44(v) refers”. Not every agreement with the public service will trigger the application of section 44(v). This is because otherwise ordinary agreements that everyone engages in, such as paying for a passport or a stamp, could cause disqualification from parliament.
In the Day case, Chief Justice Kiefel and Justices Bell and Edelman said there can be “no relevant interest if the agreement in question is one ordinarily made between government and a citizen”. But does an agreement between a childcare centre and the public service fall into that category? It is less ordinary than the purchase of a passport or a stamp.
Justices Gageler and Keane took the view that section 44(v) has no application to agreements entered into by the Commonwealth in the execution of a law of general application enacted by the parliament. As the provision of the childcare subsidy comes under a law of general application, which applies equally to all childcare centres, Dutton would not, on this basis, be disqualified from parliament. But two judges do not make a majority of the Court.
Two other judges, Justices Nettle and Gordon, rejected the attempt to exclude agreements authorised by statutes of general application. In their view, the issue was whether the direct or indirect pecuniary interest in an agreement could conceivably influence a parliamentarian to prefer their private interests over their public duty.
A similar view was taken by the other three judges, Chief Justice Kiefel and Justices Bell and Edelman, who considered that one of the purposes of s44(v) was to ensure that parliamentarians do not seek to benefit from agreements with the public service or “put themselves in a position where their duty to the people they represent and their personal interests may conflict”.
In the case of Dutton, there is no suggestion of any attempt to use political influence or that the arrangements with the two childcare centres are any different from those applying elsewhere. It is therefore different from the Day case, where Day had asked the government to move his electorate office to a particular building, giving rise to an indirect pecuniary interest in the rent.
But it is still possible to argue that Dutton may benefit financially from these agreements with the public service. Is this enough to establish the kind of potential conflict of interest – where a person might prefer their private interests over their public duty – that concerned the High Court in the Day case?
This is a matter of judgment for the High Court. It would depend on how strictly it chose to apply the provision. But we do know from recent experience that the High Court has been particularly strict in applying section 44. So even though this case falls within the grey border-area of section 44, it is enough to raise a substantial concern that disqualification has occurred.
What are the consequences of disqualification?
Disqualification is not just an issue prior to election. It can arise at any time within a member’s term in parliament. Section 45 of the Constitution says that upon a senator or member of the House of Representatives becoming subject to a disqualifying disability in section 44, “his place shall thereupon become vacant”. This means that disqualification is automatic at the moment that a disqualifying agreement with the public service is made.
Let’s assume for a moment that an agreement that triggered the application of section 44(v) came into effect from July 2, 2018. That would mean Dutton’s seat was automatically vacated at that time (although to be sure this had happened, a Court judgment would be needed).
Section 64 of the Constitution also states that no minister shall hold office for longer than three months unless he or she becomes a senator or a member of the House of Representatives. That means Dutton could remain validly a minister for three months from July 2. After that, if he was still not a valid member of parliament, he would cease to be a minister.
This would have consequences for the validity of any decision he made as a minister from that point on. It also raises another difficult question in whether or not the “de facto officer” doctrine would apply to support the effectiveness of those decisions.
Given that as Minister for Home Affairs and Minister for Immigration and Border Protection, Dutton makes many decisions that affect the lives of many people, his possible disqualification from parliament opens up a Pandora’s Box of litigation possibilities.
How to fix the problem?
First, the matter could be referred by the House of Representatives to the High Court, as the Court of Disputed Returns, to determine, as occurred in relation to Barnaby Joyce. The benefit of doing so would be to clarify whether such interests give rise to disqualification. But the disadvantage is that it would take some time to get a judgment, leading to ongoing uncertainty.
Second, Dutton could terminate his indirect pecuniary interest in the agreement, resign his seat and be re-elected in a byelection. This would resolve the matter more quickly, but it is unlikely that the government would wish to hold such a by-election at this time.
Third, Dutton could terminate his indirect pecuniary interest, and an election could be called later this year. This would avoid or reduce any period in which he was performing the duties of a minister while possibly invalidly holding that office.
Fourth, Dutton could resign as a minister once the three months expires, so that there are no issues of validity concerning his ministerial decisions, but remain in parliament as long as the House decided not to refer him.
Finally, the government could ignore the problem and tough it out, by not acting until an election was held next year, but risk a tsunami of litigation challenging the minister’s decisions.
None of these options is likely to be particularly palatable to the government, but nothing about section 44 has given the government great joy. However, it is another salient reminder of the importance of taking care to obey the terms of the Constitution.
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All MPs with family trusts need to be as vigilant about the agreements entered into by the trustee on behalf of those trusts as they should be about their citizenship status.
Under Section 44(i) of the Australian Constitution – which has been given a strict interpretation by the High Court of Australia in recent cases – a person is not eligible to nominate for, or be elected to, the federal parliament if they are a dual citizen. The removal of such a large number of parliamentarians in such a short space of time is unprecedented.
Throughout this controversy, it has been assumed that any dual citizenship problems are confined to the federal parliament. Certainly, it is widely acknowledged that state constitutions do not contain the same general prohibition of dual citizenship, and that dual citizens are at least initially eligible to be elected to state parliaments.
Unfortunately, the analysis generally stops at this point. There has been little consideration given to the important follow-up question of whether there are any other disqualification provisions that might affect any dual citizens sitting in our state parliaments.
An examination of state constitutions (and relevant electoral laws) reveals that while a dual citizen is eligible to be elected, this citizenship status may subsequently put them at risk of disqualification if they engage with that foreign citizenship while serving in the parliament.
In particular, in New South Wales, Queensland, Western Australia and Tasmania, the state constitutions, or relevant electoral laws, provide that a parliamentary seat will become vacant if a member commits any act that acknowledges allegiance to any foreign power.
This disqualification does not apply in Victoria, the ACT or the Northern Territory, and in South Australia it has been expressly limited to make it clear it doesn’t apply in particular circumstances.
Clearly, these state provisions are substantially different from the dual citizenship prohibition at the national level. A dual citizen is eligible to be elected as a state member of parliament, and will only be disqualified if there is a positive action taken by them that acknowledges a foreign allegiance.
And that’s the pertinent question: what exactly constitutes an “acknowledgement of allegiance”?
A plain reading of this phrase would seem to suggest that any positive act that seeks to exercise any right arising from citizenship would be disqualifying. In essence, a person who seeks to rely on their foreign citizenship in some way (however trivial) is making an acknowledgement of that foreign allegiance. Some obvious examples would be travelling on a foreign passport, or even renewing a foreign passport.
If a state MP from NSW, Queensland, WA or Tasmania did either of these things, they would appear to be in breach of the state constitutional requirements, resulting in their disqualification from parliament.
This broad interpretation is further reinforced by the fact that South Australia saw a need back in 1994 to insert a qualifying provision into its state constitution to provide that members would not be disqualified simply because they acquired or used a foreign passport.
The fact that such a qualification was thought necessary highlights that acquiring or using a foreign passport will ordinarily fall into the category of being an “acknowledgement of allegiance”.
It is important to note these issues have never been tested before the state courts, and there is no particular evidence to suggest any current state parliamentarians are in breach.
It is also worth noting that some jurisdictions – notably Queensland – have provisions that allow parliament to resolve to disregard a “trivial” disqualifying event.
But given we are having a national conversation about dual citizenship and the Australian Constitution, it seems an opportune time to consider the constitutional impact of dual citizenship at the state level as well. Otherwise, we may find we are still left with a constitutional cloud hanging over a number of state parliaments.
At the very least, the affected state parliaments should introduce a citizenship register like the one introduced last year by the federal parliament. Requiring citizenship information be disclosed is a necessary first step to reassure the public that the dual citizenship controversy will not expand to disqualify any of our state parliamentarians.
When the prime minister referred the question of Section 44 to the Joint Standing Committee on Electoral Matters, he did so on the basis that:
Australians must be assured that all members of the Australian Parliament are constitutionally eligible to serve.
The same principle must also apply to our state parliaments.