Section 44 – Otherwise known as the Australian Senator career destroyer

Yesterday with the resignation of Larissa Waters due to an negligent oversight of having dual citizenship of Canada; Section 44 of the Constitution claimed it’s 4th victim since the 2016 election and 2nd victim in the last week with the resignation of Scott Ludlum due to his dual citizenship of New Zealand. The loss of two highly respected and competent Greens senators in a week has seen for an overhaul of the section in the constitution by many in the public. Before I return to the specific cases of the senators who have been caught out by Section 44 of the Constitution it is worth looking at what the relevant section says.

(1) essentially states that to stand for parliament a Senator has to ensure they don’t do any of the following:
(i) Have dual citizenship or no citizenship of Australia and that where dual citizenship is present they do not make sufficient efforts to renounce their citizenship to a foreign allegiance.

(ii) That the member of parliament has committed treason or if you are current serving time for a criminal offence or are in the middle of criminal proceedings that is longer than one year in length.

(iii) Is currently bankrupt or insolvent

(iv) Is currently working and making a profit from the crown (i.e working in the public service).

(v) That the Parliamentarian is making a monetary arrangement in a Public Service of the Commonwealth of Australia, so for example in (2) Dr Gillespie has faced questions about his eligibility due to the fact that he leased out one of his owned businesses to Australia Post which is a Government owned entity.

So the first element of section 44 of the constitution is what has caused the resignation of Scott Ludlum and Larissa Waters. The reasoning for this part of the constitution is that it is a conflict of interest whether real or perceived to be voting on laws that are passing into land while also having citizenship of another nation. A fictitious example of this would be say we wanted to impose a tariff on the importation of lamb to New Zealand then it could be a conflict of interest to someone who still holds dual citizenship of New Zealand to be debating such a law. I also think that due to the public scrutiny that an elected member of parliament holds any perceived issues of conflict are as bad as if an actual conflict did exist.

Bob Day’s case which interestingly did not receive the same outrage for his removal from the Senate came under two sections of the constitution. Before (3) became an extra constitutional issue Bob Day had already resigned from the senate because of having to claim bankruptcy. However it was later discovered that Bob Day had been leased a building for his electoral office that was already privately owned which is in clear breach of line (v) of section 44 of the Constitution.

Rod Culleton one of the 4 One Nation Senators elected also fell foul of section 44 of the Constitution and his case again did not receive the same outrage that was levelled to the Greens Senators. Again (4) shows that Rod Culleton lost his seat in the senate due to two elements of section 44, firstly he was facing charges of larceny which carried a penalty of over 1 year penalty. He also was declared to be bankrupt when he failed to pay back an outstanding loan.

Line (iv) of the section is something that has not recently been tested. However in 1993 (5) Phil Cleary was ruled ineligible to stand in the by election of Wills which was caused by the retirement of Bob Hawke. Phil won the by election as an independent however because he was public school teacher at the time he was technically a paid member of the crown and therefore was ineligible, this is despite him being on unpaid leave at the time. This could trip up a number of potential parliamentarians although this part of the constitution has been worked around by public servants being allowed to quit their jobs, stand for election and if unsuccessful then be able to automatically reenter their jobs upon the completion of the election.

There are a few added points for me to make on this constitution given the public reaction to the Greens resignations. A lot of people have called for section 44(i) to be scrapped in the wake of the resignations, the biggest issue with that is that because it is part of the Australian Constitution then to change the section we would need a referendum. This of course brings a hefty cost of running the referendum as well as any advertising delegated to prosecuting the cases of a yes or no vote for the question. I have also seen a lot of fingers pointed at relevant Labor or Liberal members who were born overseas by the same people who are upset at the resignations of Scott Ludlum and Larissa Waters, the most noted example being Tony Abbott. I think that is hypocritical and points out that one of the big differences between major parties and smaller parties is that the major parties do a much better job of vetting potential candidates for potential issues that could preclude eligibility of election in comparison to smaller parties. There has also been questions raised as to whether votes taken by members should be excluded and if salary paid to the senator should be repaid. (6) which is another excellent post by the Psephologist Yoda Antony Green points out that the high court has previously ruled that votes taken by ineligible members can not be retrospectively discounted and that the practice of the government is not to push for salary to be chased from ineligible members. The reason for this I suspect is self preservation in that if you chase one senator for returned salary you open the pandoras box of having that come back to bite you if one of your pack are found to be ineligible. I think my last point would be that the Greens are facing some real issues at the moment. Now a lot of the attention has been on the infighting between Tony Abbott and Malcolm Turnbull, however if the Greens were a major party they’d be getting the coverage of a party in crisis. They have now lost two deputy leaders and senators in a week and have a member in Lee Rhiannon who has been excluded from attending contentious party room discussions. This same senator has responded by pulling on her state branch pushing back against that decision and by her calling the current leader a real disappointment. Now the two senators who will replace Ludlum and Waters will still be.Greens members due to the recount of the senate ballots flowing their votes onto the next eligible Greens ticket member but to lose roughly 15 years of parliamentary experience in a group of 10 senators/MPS is a real loss!

 

References

(1) http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/Publications_Archive/archive/Section44

(2) http://www.abc.net.au/news/2017-04-07/opposition-intensifies-campaign-against-david-gillespie/8423600

(3) http://www.abc.net.au/news/2017-04-05/family-first-bob-day-election-ruled-invalid-by-high-court/8417204

(4)  http://www.theaustralian.com.au/national-affairs/rod-culleton-ineligible-to-be-elected-to-senate-high-court-rules/news-story/7eae79c15f652c2d3673c20c11d08c00

(5) https://en.wikipedia.org/wiki/Phil_Cleary

(6) http://blogs.abc.net.au/antonygreen/2017/07/scott-ludlam-resigns-what-happens-to-his-senate-seat.html#more

The Week that was in Politics – What were the Liberal Party thinking (Again!)

In last weeks blog I was rather scathing of the Labor and the Green Party, one week on and it’s the Liberal Party who have had a bad week. They say nothing good happens after drinking at midnight and Christopher Pyne may do well to heed that advice. Tony Abbott has been continuing to attack Malcolm Turnbull’s leadership openly and not so openly; and so Christopher Pyne’s late night admission that he wants to see marriage equality pass through the house sooner than later and that he never voted for Tony Abbott was just the opportunity Tony Abbott needed to come and attack the Liberal Party and it’s leadership under Turnbull again.

Earlier this year Scott Morrison would appear on Ray Hadley’s conservative radio program weekly to discuss politics however that appearance ended due to Scott Morrison appearing on a seperate ABC program to discuss the budget rather than to appear on his show. This opened up a slot for a Liberal MP to appear on the weekly spot and Tony Abbott happily accepted the opportunity to appear on the show. In a similar fashion to Kevin Rudd after the 2010 election Tony Abbott can now use that radio spot to advance his views on policy issues that are shaping the country and show how that differentiates from the leader, in this case Malcom Turnbull. The big difference between Tony Abbott and Kevin Rudd is that Kevin Rudd held public support in the period between his first leadership loss and regaining the leadership whereas Tony Abbott has not had that public support. So when Tony Abbott came out this week with a new manifesto a lot of the political issues he raised are popular with his political base however they don’t have broad public support besides a tougher stance on national security and that already is a policy shift that Malcolm Turnbull has been making this year. You don’t fix national security issues however by getting up on a national platform surrounded by flags lecturing people, it requires a delicate nuanced approach.

One big claim by right wing commentators and Corey Bernadi/ Tony Abbott is that by moving to the centre on issues the Liberal Party have lost votes to the One Nation and Conservatives Party. As (1) shows this is a valid claim however it’s use is exaggerated in it’s impact on the Liberal Party vote share. I think it’s clear that Liberal are leaking votes to right wing parties like the One Nation Party and other conservative parties however if the Liberal’s move to far to the right then they risk losing votes to the Labor Party or the Greens particularly in more metropolitan seats. At first glance Wentworth, Bennelong, Higgins, Brisbane, Sturt and Reid are all potential greens targets longer term that the Liberal Party risk losing if they were to move to far too the right. The One Nation threat shouldn’t be an issue in a preferential voting system because most of the lost votes should come back to the Liberal Party through preferences, however this didn’t happen in 2016, the preferences split closer to 50-50 between the Liberal Party and the Labor Party. This is the real problem for the Liberal Party, that unlike the Labor Party who receive about 80 percent of Greens preferences when disenfranchised voters are voting away from the Liberal Party they aren’t getting those votes back. This means you can’t just assume that taking on a more right wing approach will get you all of these votes back, because you are essentially chasing protest votes and they don’t split as logically to one particular party. I think it’s important to look at the polls going into Tony Abbott’s demise as PM; The Liberal Party were anywhere from 55-45 to 58-42 behind in two party preferred votes and were in real danger of losing all South Australian seats to match the wipeout that eventuated in NT and Tasmania. With this in mind it’s a bit disingenuous of right wing commentators to attack Malcolm Turnbull’s leadership in the face of 53-47 polls because he won the 2016 election despite that looking impossible before the 2015 leadership spill and a lot of Malcolm Turnbull’s issues have come from needing to placate the party to avoid losing his leadership again. I know speaking to voters they say well Turnbull show just muscle up and show some leadership but this would then lead to captains calls and this was something that the public despised Tony Abbott for. There’s also no point taking a position on an issue that can’t pass the party room because all that will do is leave you without the leadership and with the issue then reversed to an even less favourable position. I also think the public share some blame for the paralysis on big policy issues. I remember when Mike Baird introduced the greyhound ban there was not much of a whimper from those who supported the decision but the opposition groups were very loud and manifested a strong opposition to the policy. As a result of this and an Orange By Election loss Mike Baird reversed his policy decision and only then did animal rights groups speak up about what a horrible decision this was from Mike Baird. Well if you had spoken up with your views earlier Mike Baird might of had a stronger position to defend his decision.

How do I think the latest Abbott vs Turnbull dispute will end. Well I think Malcolm Turnbull will continue to spin the line that he is only focussed on policy outcomes and not the distractions of the personal politics, this is evidenced by (2) however the last 7 years suggests that the media will continue to chase the sound bite and there are going to be a lot of these sound bites still to come. I don’t think Tony Abbott will return to the leadership, I think he only gets 10-15 votes now in a leadership spill however I don’t think this concerns Abbott. He has such a personal vengeance against Malcolm Turnbull that he would rather lose the next election than let Turnbull implement his chosen policy platform. The problem this has then is who leads the Liberal Party should they lose the next election, Malcolm Turnbull has pledged to leave Parliament if the Liberal Party lose the next election and Scott Morrison has lost a lot of his shine from his not so effective stint now as Treasurer. That leaves Peter Dutton who is a popular base candidate but who is very divisive in the public and holds a marginal seat, there is a possibility he loses his Queensland seat at the next election. After that your next candidates are probably still a few years off with Christian Porter probably the most likely to be the next Liberal Prime Minister when Liberal re take office.

Elsewhere in Politics the Greens have had another difficult internal week and would indeed be in some crisis if they were a major party with the increased media criticism. Senator Lee Rhiannon has been suspended from attending contentious party room meetings for the foreseeable future although has not been expelled from the Greens as some sources were expecting. This has led to an Insiders appearance by Lee Rhiannon this morning to reiterate her criticism on Richard Di Natale as party leader and an insistence that the Greens are a party for the members and not for the MPs. This statement is essentially why the Greens have split at the moment. As I have alluded to in previous posts Di Natale seeks to make the Greens more electable and be able to win seats from both the Labor and Liberals in metropolitan seats. This is opposed to Lee Rhiannon and the more left wing of the New South Wales division particularly who want to see the party reach it’s members and let policy be influenced by their base. This split became public when Lee Rhiannon supported the Greens Base members for their opposition to the Liberal’s Gonski policy while Di Natale and Sarah Hanson Young were working on amendments to support the governments policy. The fact that 9 MPs were in favour of this approach and 1 Senator opposing the deal stops any progress on the matter suggests to me that the Greens have some issues to deal with going forward.

 

References

(1) http://www.abc.net.au/news/factcheck/2017-06-19/fact-check-did-the-coalition-lose-a-million-votes-last-election/8538370

(2) https://twitter.com/TurnbullMalcolm/status/881258930361344001/video/1