26 September 2010

Politicians behaving badly

It seems half a lifetime ago that we had Tony Abbott talking about a “kinder, gentler polity” and, even after it became clear that Julia Gillard had the numbers to form Government, declaring that the Coalition really wanted Parliament to function properly.

For example, at the 14 September media conference at which he announced his Shadow Cabinet (see transcript here), he said in response to questions:

- We’re certainly not going to be disruptive.

- I think it’s in the Coalition’s interest for the Parliament to be a well-functioning Parliament.

- I think it’s in the national interest that we have a far more independent Speakership than we’ve had in the past.

It is now clear that all of the above was simply part of Tony Abbott’s “whatever it takes” approach to politics, his preparedness to agree to anything necessary to get him what he wants, but all of it disposable if it fails to secure that end. The talk of a “kinder, gentler polity” came when he was seeking the support of the country independents, and it is now clear that the mask of the responsible parliamentarian that he was wearing at the announcement of Shadow Cabinet was an affectation associated with lingering hopes of persuading the country independents that in backing Julia Gillard they had make a big mistake.

Tony Abbott did not get what he wanted and now we see the real Tony Abbott, red in tooth and claw, as the case of longstanding Liberal Parliamentarian Alex Somlyay’s withdrawn candidature for the Deputy Speaker’s chair illustrates.

To understand the significance of what has happened to Mr Somlyay over the last few days it is necessary to go back to Annex A of the signed agreement between the Australian Labor Party and the country independents Mr Tony Windsor (New England) and Mr Rob Oakeshott (Lyne). This was signed on 7 September 2010, ten days before Messrs Windsor and Oakeshott announced which side of politics they would support to form government, so we may assume that an equivalent signed agreement exists between the country independents and the Coalition.

The relevant section of Annex A is paragraph 2, which refers to the Speaker. Here it is in full:


2.1 Independence

The role of the Speaker will be independent of Government.

If the Speaker is drawn from a political party then the Deputy Speaker will be drawn from an alternate political party and both the Speaker and the Deputy Speaker will:

•   abstain from attending their respective party rooms; and
•   when in the Chair, be paired for all divisions.

If the Speaker is non-aligned, then the same pairing arrangements would apply.

The Speaker and Deputy Speaker can participate in Private Members’ Business but cannot vote.

Members of the Speakers Panel will be temporarily paired when occupying the chair during votes.

2.2 Power of the Speaker

The Speaker will rigorously enforce the Standing Orders of his or her own motion.

That was back then.  When, pursuant to that agreement, independent Rob Oakeshott put his hand up as a candidate for the election of a Speaker, the Coalition raised doubts about the legality of the arrangement (something that doesn’t seem to have bothered them at the time they were negotiating with the independents). After a meeting with Tony Abbott and Christopher Pyne, Oakeshott announced that he was no longer a candidate and accused the Coalition of moving away from the reform agreement that had been hammered out during the negotiations about who would form government.

Mr Oakeshott was more polite than I might have been tempted to be under similar circumstances.  He referred to the arrangement under which he might be Speaker as requiring “good will” from Members of Parliament. I think what he means is “honourable behaviour”, something he is clearly not confident will be displayed by the Coalition.

According to Coalition spokesman Christopher Pyne it wasn’t the arrangement that was at issue, just the legality of it. As reported by ABC News here on 21 September:

Mr Pyne says the Coalition does support the agreement, but has concerns about its legality.
"We've got to make sure it's constitutionally valid," he said.

"What we've asked the Government is for the Solicitor-General to give an opinion, as the correct person, about the constitutional validity of pairing the Speaker.

"We'll get that in the next couple of days, the Government will get it and they should make it available to the Opposition.

"Then we'll all know whether the speaker has a deliberative vote and a casting vote or whether that's unconstitutional and they can only have a casting vote."

The Government did what the Coalition wanted and sought the opinion of Solicitor-General Stephen Gageler.  The Attorney-General’s website summarises Mr Gageler’s Opinion in the following terms (see here), a reasonable summary in my view but if you want to satisfy yourself a PDF of the Opinion is downloadable at the link at the foot of the page cited:

The advice considers whether there is any constitutional impediment to a pairing arrangement between the Speaker of the House of Representatives and another member from an opposing political party. The advice deals with a possible arrangement involving a pairing of members from opposing parties.

The Solicitor-General has advised that there are no necessary constitutional impediments in such an arrangement, subject to certain provisos.

One proviso is that the arrangement could not give the Speaker a deliberative vote nor deprive the Speaker of a casting vote. The arrangement entered into by the Government and the Opposition does not breach this proviso, as the Speaker would continue to exercise a casting vote only, consistent with the Commonwealth Constitution.

A further proviso is that adherence to the arrangement by the “paired” Member could only be voluntary. The pairing arrangements agreed to by both the Government and the Opposition are voluntary.

The Government notes the Solicitor-General’s advice that there is no necessary constitutional impediment to a pairing arrangement between the Speaker of the House of Representatives and another member from an opposing political party.

The Solicitor-General’s advice has been provided to the Opposition.

Now of course the arrangement doesn’t suit and the Coalition is adamant that none of its members will sign up to be Deputy Speaker (not that anyone is under any pressure, mind, Christopher Pyne just knows that no-one would want to).

As I said in Tony Abbott has a point I think that the arrangements for pairing an independent speaker would become rather messy, but it was the Coalition that signed an agreement to this effect, and the Coalition that said “Let’s ask Stephen Gageler”. When the chosen arbitrator returned the wrong verdict the Opposition took its marbles and went home.

The point of this low-rent campaign to reduce the Government’s margin from two to one becomes clear when we see what the Opposition has in mind regarding the normal processes of granting pairs to enable Ministers to perform their duties and the Parliament to operate. The Opposition is going to reserve to itself the right to deny pairs to Ministers who are absent from the Parliament – always its prerogative, but only used as an act of bloody-mindedness.

According to a report in today’s edition of The Sunday Age (see here), the Coalition’s response to accusations by the Government that it was failing to act on a guarantee of creating a pair for its MPs absent from Parliament is:

But new Liberal whip Warren Entsch said he informed the government last week that in situations like pregnancy, genuine illness, bereavement or family issues, a Coalition pair would be offered to preserve equity in Parliament.

He said that when ministers were absent a partner would be offered when it was ''in the national interest'' and relevant to responsibilities.

''There'd have to be a bloody good reason for them not to be present,'' Mr Entsch told The Sunday Age.

Two points are noteworthy here:

(i) The Opposition is apparently going into business as a medical authority, because it will be in the business of deciding when a Government MP has a “genuine illness”.  There would appear to be some important issues here, not least the privacy issue – what information will a member unable to attend Parliament on grounds of illness have to provide to the Opposition in order to satisfy them that there is a “genuine illness”? And if the Government MP’s medical adviser counsels the MP that he/she is not fit (or would be unwise) to attend, but the Opposition decides otherwise, presumably the Opposition’s view will prevail? Will we see Government MPs carried into the Chamber on stretchers?

(ii) The Opposition is also setting itself up to be the arbiter of the national interest when it comes to Ministerial travel. This is an odd Constitutional notion for an Opposition that displays such delicate sensibilities about the spirit of the Constitution that it cannot form a pair with the Speaker even when the Solicitor-General says that there is no Constitutional impediment to doing so, subject to certain provisos.

The whole basis of our Constitutional practice is that it is governments, not oppositions, that determine the national interest. Each individual Minister has a commission from the Governor-General that makes him or her the lawful decision maker in relation to all legislation which he/she administers in accordance with the Administrative Arrangements Order, and all matters relating to his/her Department. That means by definition that if Ministers decide that their duties require them to be elsewhere, then that decision is final, subject of course to the views of the Prime Minister. We cannot have a situation in which lawfully empowered Ministers have to satisfy a test set by Mr Warren Entsch before they may be absent from the Parliament.

All of this is constitutes a very bleak outlook for the effective operation of the Parliament, which is of course the whole idea. Apart from the prospect of constant mischief about pairs (could the Government safely have the Foreign Minister and the Defence Minister away as at present? – pairs are a purely voluntary, non-binding arrangement and could be withdrawn at any time, even after a Minister leaves for overseas), expect the Division bells to be working overtime. Motions are normally carried on the voices, but any member is entitled to demand a division, and it is a classic tactic for disrupting Parliament.

I had hoped for a significant improvement in the workings of Parliament when the country independents negotiated the reform arrangements, but I was overlooking the fact that Tony Abbott is a one-trick pony; he is a wrecker, not a builder.


Nardijha said...

Amazing analysis. I expect to hear the words 'division required' more often than 'order'. Great blog. Keep it up!

Casablanca said...

I have been wondering during these protracted discussions about an independent speaker whether it is possible under the Constitution to appoint a non-parliamentarian, say a retired Speaker, to the position.

Thanks for your excellent blog.

Ian Whitchurch said...


No, not unless they get elected, and for that to happen without issues that would require some party or other to give up a safe seat, and under the current circumstances thats not going to happen.

Ian said...

I'm actually pretty relaxed and comfortable about the actual operation of Parliament, because Tony Abbot has, as usual, badly overplayed his hand.

The first and most important point is he has made it clear his word isn't worth s**t : he has ratted on a deal.

This becomes important on future dealings, like when the independents have to deal with a motion regarding a point of order that they, frankly, don't understand.

Not understanding stuff is fine : you dont understand if the Horn Valley Siltstone is a viable source, but with time to think and some decent advice from people you trust, you could probably make a guess that is better than 50:50.

When you dont understand stuff, you go with the word of someone you trust.

As has been pointed out above, Tony Abbott is not that person, because his word isn't worth s**t.

So, if push comes to shove, and there's a vote on the floor on some obscure point you don't understand, you are going to vote with the person you trust and against the person you don't.

Oh, and for the record, as far as I can tell, Julia Gilliard has never ratted on a deal, and I'd be happy to be corrected on this.

The second important point is for most of the last thirty years, ever since the Democrats broke off from the Liberal Reform Movement and won some senate seats, is that the prospects for legislation has almost always been dodgy, and that means the APS has found many, varied and dodgy ways for the government of the day to operate without legislation (I could tell you Job Network stories, but most of them would be illegal).

So, Opposition bullshit procedural motions are going to die in screaming heaps. The Government is mostly going to operate without legislation.

So, what else is new ?

Ian Whitchurch