• Two comments on this site regarding the government’s Queensland council amalgamations gambit deserve wider exposure. Electoral law authority Associate Professor Graeme Orr anticipates legal hurdles for the proposal that the AEC conduct plebiscites over the head of the state government (UPDATE: Graeme clarifies this point in comments):
The Feds can appropriate money for broad purposes, so I assume they will try to package any legislation to enable this as purely a matter of bespoke expenditure (like the Hospital ‘intervention’). But legislate they must: the AEC currently has several functions under the Electoral Act, but none of them involves holding plebiscites, let alone on state issues. How the Feds will be able to override the clear State legislative prerogative to determine Council activities is unclear. Councils are created by State law, and can only act within that law. It may be Howard is just goading Beattie to go further and appear undemocratic, by restricting Councils abilities to co-operate with the AEC. Or it may be Howard will just pay the AEC to run some half-baked plebiscite across Qld on election day, that says ‘do you approve of council amalgamations’.
Anthony Llewellyn detects the influence of recent practice in the United States, where ballot initiatives have been used as a ploy to mobilise voters on polling day (also noted earlier by Optimist). The most famous example was a 2004 initiative providing for a constitutional ban on gay marriage, which was seen to have given the President a boost in the crucial swing state of Ohio.
• PortlandBet is running a blog noting developments in its comprehensive federal electorate betting market. Of particular interest is a shortening of odds on Labor’s Sid Sidebottom in Braddon after the government announced its Mersey Hospital intervention, famously described by indiscreet Tasmanian Liberal Senator Stephen Parry as “a disaster”. Taken in aggregate, the agency’s electorate-level odds point to a result of 75 Coalition, 73 Labor and two independents.
• Sydney residents of a particular political persuasion might like to note a free presentation from 6pm on Monday from US poll maven Vic Fingerhut, who boasts “four decades’ experience in polling for progressive political parties and unions”. Fingerhut will discuss “the anti-WorkChoices campaign in the context of other international campaigns, including the campaign against Newt Gingrich’s Contract with America” (not a successful campaign so far as the 1994 congressional elections were concerned, but you can’t win ’em all). Presented by the Walkley Foundation and the Media Entertainment and Arts Alliance (whose card-carrying members include me), those wishing to attend must RSVP by Friday. More info here.
Re Independents with hung parliament
It is possible that an independent wins Calare as well with
Peter Andren’s support
given The National party’s bad relations with Mr Katter & Mr Windsor
I suspect neither would support an Anti- Labor government
I also suspect that all 2 or 3 would come to a joint agreement
together.
But still my take is as things are going there will be a majority
ALP government
^^^^^
Last sentence should read
Nobody in their right minds would suggest that the replacement of dozens of “roads and pothole repair†LGAs with larger financially viable councils based on regional areas of common interest has NOT revitalised both the management of the areas and in fact the politics.
BREAKING NEWS ON ABC RADIO:
Kevin Harkins withdraws as ALP candidate for Franklin.
Harry Quick wins, another potential headache for Rudd gone.
Pseph in regard to your question is that Government should not always be based on what’s popular, but what should be done. I’m yet to see any objective argument supporting the keeping of the current local governments. Recall the various council amalgamations brought about by former Victorian Premier Jeff Kennet, which at the time were extremely popular, but now has been shown to have been the best move. If you poll on any significant change you’re most likely to get a no vote, because people don’t like change.
I’d also be willing to bet most people aren’t too concerned with local councils. I couldn’t care less about mine. Back home in Perth they’re a joke (and highly corrupt) and are gotten rid of by both major parties from time to time without any public backlash.
Also note that polling on a state level has not shown any decline in support for the Beattie Government (that I’m aware of) since all this fuss about amalgamations. In fact the Oppositions showing in polling is quite embarassing.
Stop press: I’ve just heard Kevin Harkins has withdrawn as ALP candidate for Franklin according to the SMH.
On Franklin. Sounds like one fewer union official, and one more lawyer as MP. Shuffling crocodiles for alligators in the great Parliamentary swap.
umm I meant ‘swamp’ not ‘swap’
I guess Quick won’t be suspended from the ALP after all.
No matter what the election result is, win, lose, or draw, the Prime Minister remains Prime Minister until he resigns. There is no constitutional or legal rule that the Prime Minister has to resign if his party loses the election, it’s just that it would be politically (and personally) disastrous to do anything else.
Judging from the historical record, if the result is 75 Coalition, 73 ALP, and 2 Independents, the Prime Minister would probably first try to find out the intentions of the Independents. Depending on what information he could get, he might or might not decide to resign. If he did decide to resign (I think the less likely development), the usual thing, formally, is for a resigning Prime Minister (where the political circumstances are not clear-cut) to advise the Governor-General whom to invite to accept the Prime Ministership. In this particular context, the only name Howard could realistically suggest is Rudd’s, and even if he didn’t suggest a name the Governor-General would have no realistic option but to extend the invitation to Rudd. However, even if had absolute guarantees of support from both Independents, Rudd would be certain of defeat in the House of Representatives except in the (unlikely) event that a Coalition member agreed to be Speaker. Then he would have to go back to the Governor-General and tender his resignation, and from there the probable next step would be a caretaker government and fresh elections. Much more likely, however, Howard would not resign. The first order of business when the House of Representatives meets is the election of a Speaker. The ideal result for Howard would be persuading an ALP member to take the Speakership, but that would again be unlikely. Failing that, he would probably want to get one of the Independents to take the Speakership, which would give him a secure position in the House. If he couldn’t get that either, he would have to put up a Coalition member for the Speakership. After that, the Government would be in danger of defeat whenever both Independents joined the ALP to vote against it. However, there is nothing to stop the Government going on from vote to vote without definite long-term guarantees from the Independents, and even if some Government legislation is defeated, that doesn’t stop it carrying on, just as defeat of some Government legislation in the Senate doesn’t force it from office. Only if the Independents both deliberately decided to combine with the Opposition on a vote on a ‘matter of confidence’ would the Government have to resign. At that point, the Prime Minister would have the options of advising the Governor-General to call new elections (advice the Governor-General wouldn’t necessarily have to take if he thought a different Government was possible) and of advising the appointment of Leader of the Opposition as Prime Minister. In this particular instance, however, a Labor Government could hardly last long because the Coalition Speaker would (almost certainly) resign, and once the new Government had found a new Speaker it would be certain of defeat in the House.
In practice, I think that the Independents would want to avoid new elections, would be unable to bring about a Labor Government, and so would choose to provide at least qualified support to a Coalition Government, perhaps not agreeing to support it on all matters but at least supporting it on ‘matters of confidence’, possibly in exchange for concessions from the Government on some issues they considered important. The Government’s position would obviously be much stronger if one of the Independents took the Speakership, and they might well refuse it for precisely that reason. The Government would last until it either decided that new elections would be politically advantageous or decisively antagonised the Independents. The most interesting (and historically novel) aspect is that these circumstances would almost certainly prevent Howard from retiring and handing over to Costello (or anybody else) because of the danger of losing Bennelong at a by-election.
Quick has behaved very badly, but the fact is that he was right all along about Harkins. Those who call me an ALP hack should recall that I said here months ago that the ETU should be disaffiliated and Harkins disendorsed.
J-D that is a masterly asessment of the situation.
There is no explicit rule, but there is a sufficiently strong historical convention that the party with the majority of seats in the house of reps appoints the PM that I would think that the High Court (if it came to that) would undoubtedly find that a PM who refused to resign could be removed against their will, and that a G-G who refused to do so was acting irrationally or with actual bias.
The situation I was analysing was a hypothetical one where neither side had a majority in the House. I prefaced the whole discussion by saying that if the Prime Minister’s party loses the election (meaning, if the other side wins an actual majority of seats), it would be politically (and personally) disastrous to do anything but resign. I agree that a PM who did not do so, presumably out of insanity, would be dismissed by the Governor-General–unless the Governor-General were also insane. I don’t see how the High Court could come into it, though. Neither the High Court, nor anybody else except the Queen, has any constitutional power over the GG. But we’re talking about fantasies now, not practical politics. The chance of a hung Parliament, however, although slim, is real, and there are historical precedents to guide us in the history of the Commonwealth, the States, and other countries.
William,
i know this is a bit petty, but I’d like a bit of recognition for making the point about Howard’s proposed Qld plebiscites and U.S ballot initiatives. I refer you to comment number 445 under the thread “Newspoll 56-44” w- i realise i was perhaps not as articulate as Anthony Llewellyn, but I think the point is clear. Again, I feel a bit of a goose for making an issue outta this, but credit where its due right?
Any thoughts?
Re comment from Antony Green at # 42
1- The ‘prohibition’ only relates to a vote “held or taken under a law of the State.” As the vote would be held under a Commonwealth law (assuming John Howard wanted that) the section quoted is apparently of no consequence.
2- There is in any case nothing to stop the Governor General giving his consent, and he presumably would do so on the advice of the Prime Minister.
Praise from a genuine aficionado is always pleasant.
J-D you are no doubt aware of what happened in Tasmania in 1989 (I think) when the Governor effectively forced Robin Gray to resign when the Greens won the balance of power. Gray wanted an immediate fresh election but the Governor refused, as was his right. This is the one and only situation in which the Crown retains the right of independent action.
Actually, Adam, no I wasn’t (or I had forgotten). Thanks for alerting me to it. But I was aware of other instances of the general principle, which I referred to in these words above: ‘the Prime Minister would have the options of advising the Governor-General to call new elections (advice the Governor-General wouldn’t necessarily have to take if he thought a different Government was possible)’
The three recent cases of governments not resigning after an election were Robin Gray (Tasmania 1989), Don Dunstan (SA 1968) and Rob Kerin (2002). In each case it was to maximise the pressure on the cross bench members who held the balance of power. In all three cases, the government met the Parliament and was defeated on the vote for Speaker and promptly resigned.
However, that was not the course adopted by Jeff Kennett in 1999. Then the Liberal Party viewed the game was up and there was no point carrying on the fight.
If a hung parliament was the result, I suspect whether the government resigned or not would depend on public perceptions of who had won. Or try this one. The Coalition government looks to not quite have a majority, but Mr Howard loses his own seat. Even having lost his seat, he is legally allowed to stay on for a while as PM. But the constitutional nicities are that he would recommend to the G-G who should be asked to form a government. Would he recommend the newly elected Liberal Leader, or the Labor Leader? Or would parliament just be called quickly to resolve the matter by a vote on who should be Speaker.
Whatever scenario occurs, if there was no clear majority in the House, the incumbent PM is allowed to continue in a caretaker role until the Parliament met. Even if Labor was in a majority, this would be allowed for the existing government, but would be considered extremely bad form. In either case, the G-G would request that parliament meet as soon as possible.
Fargo61 – my comment was about states holding referendums on IR law in conjunction with the federal election. It was not in anyway a reference to commonwealth referendums being held in Queensland.
Adam, the Governor didn’t ‘force’ Gray to resign. He refused to accept Gray’s advice to call another election, asked that Parliament sit, and Gray resigned after losing the vote on Speaker. And he was right to refuse the advice, as Gray could not profure such advice without have first proved he had the confidence of the House of Assembly.
That should be proffer
And the Gray situation was incredibly muddied by the attempt by Edmund Rouse to bribe Labor’s Jim Cox into crossing the floor and supporting Gray.
re Adam, Kalgoorlie and Useless Loop (and its 46 electors): Ah, but I note the old booth of Barrow Island is not there anymore. That was an interesting booth – the last time it existed (in 1998) it vote 100% Lib. In (I think) 1996 it voted 100% Green…it had, I should add, 2 electors…
Peter Beattie says he will change legislation to sack any local council that decides to hold a “referendum” on amalgamation.
Game over.
I’m not sure that’s right. The High Court has repeatedly referred to itself as the guardian of the Constitution, and is undoubtedly prepared to assert a blanket right to determine all disputes arising from, and under, it, including those involving the Governor-General or even the Queen.
There is no doubt that there is no possible area of Constitutional dispute for which the High Court is not the final arbiter. For it to be otherwise would be to create a niche of unreviewable power within the Constitution which is the antithesis of the separation of powers model adopted by the framers. For any party to attempt to assert that would also represent a constitutional crisis of the most fundamental kind.
It’s a pity Useless Loop is in Kalgoorlie and not in O’Connor – the match of location and member would then be perfect…
Antony, “forced Gray to resign” was shorthand for “brought about a situation in which Gray was forced to accept defeat rather than call another election.” The relevance I think is that (as I recall) the Governor sent for the Greens and asked them for a guarantee that they would support a minority Labor government and thus ensure stability. I think the GG did same thing in 1941 when Coles and Wilson agreed to support Curtin after Fadden resigned. I also think the Governor did the same thing in Victoria in 1999. Presumably the GG could ask Windsor and Katter for a guarantee that they would support either a minority Howard or a minority Rudd government (depending on the numbers) and ensure stable government.
A historical note: the Westminster convention that a PM defeated at the polls did not resign until he had met the House and been defeated there was seen in the 19th century as a democratic convention. If a defeated PM resigned at once, the Crown could then appoint his successor. Democrats argued that it was up to the people’s representatives, not the Crown, to decide who would be PM. Once the Commons was elected more or less democratically after the 3rd Reform Act of 1886, however, this argument lost its force.
The WORLD TODAY Program on ABC Radio just ran a report claiming Federal ALP candidates in QLD are worried the council amalgamation issue is costing them votes
And the Liberals claiming Kevin Harkins was induced in some way to quit as an ALP candidate.
Adam, I think you’ll find that Green undertaking was given AFTER Gray lost the vote of no confidence. I’ll stand corrected, but I don’t think the Governor spoke to the opposition until the debate became one of forming the new government. If the Greens had not given that undertaking at that point, the Governor might have accepted Gray’s advice to call another election. Governor’s don’t talk to the opposition leaders without the agreement of the Premier. Lesson from that situation is that the Parliament must meet and resolve the matter.
I think that once the head of government has lost his majority in the legislature, the Crown is free to take advice where it wishes. My recollection is that when Bjelke-Petersen went mad in 1988 and tried to sack his entire cabinet Sir Walter Campbell met with various MPs without Sir Joh’s consent including Gunn, Ahern and Goss to resolve the impasse.
This discussion is all a bit technical for my liking. Personally, I don’t think it’ll be a hung Parliament; judging by the current polls a Labor landslide is much more likely. I’m tipping 100 seats for Labor.
As to Qld, a fervent minority won’t like the amalgamations, but the great majority won’t care at all. The majority of Qld’s pop is now in the South-East, which is really where Labor needs to make up ground, and where the council issues will hardly matter. In that region, there may actually be a reaction against the Feds for trying to take over a Qld state issue.
Victoria’s recent amendments took away even the last vestiges of independence from its’ Governor – now he/she must *always* act on ministerial advice.
Many states are also eliminating references to the Crown in conjunction with similar constitutional reform.
Adam, what is your view on fixed terms and will Howard bring them up if re-elected?
Technical, yes, and a refreshing return to objective discussion.
Entirely true Adam, but I stand by my point, that the Governor assesses the numbers after an election by calling together the Parliament. Gray used the fact that standing orders do not apply on the speaker’s vote to extend the debate well into the night to ramp up pressure on the Labor and Green MPs. But once he lost the vote, the Governor was then free to seek advice other than Gray’s. Two years later, Michael Field lost a vote of no confidence, went and saw the Governor, assured him he retained the confidence of the House, returned to the chamber and successfully moved closure and the crisis was over.
My favourite loss of confidence was the end of the second Dunstan government in Victoria in 1945. John Cain moved an ‘I vary the approriation bill by one pound” motion, which was passed. Dunstan refused to resign and refused again two weeks later when the amendment was moved again. He came close to being sacked, but a comprise was worked out behind closed doors with the appointment of a brief Macfarlan government, consisting of Independents and retiring MPs, with the sole task of holding office until the election. Everyone was happy, Dunstan was out of office, and neither Holloway or Cain was appointed Premier in his place.
Or Labor Premier William Holman in 1916. He was censured by the Labor conference, so resigned to caucus who elected John Storey as the new Labor Leader. Storey then rocked along to the Labor conference as Labor leader, at which point the conference decided this had all become much more serious than they originally intended. Holman resumed the Labor leadership, but his next meeting with Governor Strickland was particularly frosty. Strickland thought it very constitutionally improper that his advisers go resigning in homage to an outside body without first discussing it with the Governor.
Adam, on the Joh case. Walter Campbell did something very proper that stumped Bjelke-Petersen. He asked if he had the support of his government and therefore the Assembly when making his request to sack five senior ministers. He stalled and asked for proof and Joh couldn’t provide it. But I think that Queensland in 1987 was a classic “What if the head of government/state goes mad” situation. It’s a bit hard to write a constitution to cover that.
“Neither the High Court, nor anybody else except the Queen, has any constitutional power over the GG.”
Is it really the case that the High Court could not grant an injunction requiring the GG to do (or refrain from doing) certain things? Why? Is it some sort of Crown immunity?
“you are no doubt aware of what happened in Tasmania in 1989…”
Also Queensland in 1987. Joh attempted to remove ‘disloyal’ ministers by resigning his commission as Premier, then seeking immediate reappointment with the subsequent appointment of a whole new ministry. The Governor refused to go along with it and sent Joh away to obtain the resignations of the ministers he wanted to drop.
d
Ruwake – game not over, and I suspect Howard wanted Beattie to do just this, to continue the sparring of Democratic PM vs Dictatorial Premier. Beattie’s laws can stop a council or councillors (as councillors) co-operating in such plebiscites. But they probably can’t stop Howard holding some half-baked vote.
Howard can probably have the AEC perform any plebiscite he wants, providing the Electoral Commissioner is pliant. The Cth government just becomes a ‘client’ of the AEC, and contracts for the AEC to run the plebiscites. As Antony suggested, a robustly independent Commissioner might get his back up and simply use his discretion to decline the contract. But even if he did, the Cth Parliament could legislate to REQUIRE such plebiscites to be held, although then there may be some constitutional issues – are they incidental to the core functions that constitutionally justify the AEC’s existence? Who would have standing to challenge them?
We have had federal plebiscites before: notably 2 on conscription in WWI and one on the ‘national song’ but both were clearly federal issues.
Assuming they go ahead, god knows how they do it in practice without the Qld administration’s co-operation. I assume that local govt rolls are kept by the QEC, not the AEC. (Antony might know this). We could end up with a soup-like set of plebiscites, covering all the marginal semi-regional electorates Howard wants, asking a bald ‘Do you approve of the (recent) Beattie government imposed council amalgamations’ – or whatever leading question Howard wants.
Ah, what I get for spending too long with a half-written comment in the editor :^)
Adam: “…Sir Walter Campbell met with various MPs without Sir Joh’s consent including Gunn, Ahern and Goss to resolve the impasse.”
The Qld Constitution Act provides that the Governor’s power to appoint and dismiss ministers “is not subject to direction by any person and is not limited as to the Governor’s sources of advice.” That’s from the current Act, the sentiment is the same in the old Act. Ironically, it was an insertion by Joh, back in the day.
Antony: “[Campbell] asked if he [Joh] had the support of his government and therefore the Assembly when making his request to sack five senior ministers. He stalled and asked for proof and Joh couldn’t provide it.”
Joh’s failure at the first instance was being too clever by half in trying to kill off the entire ministry without warning anyone. That’s what Campbell refused to do, saying if Joh resigned, he would not automatically reappoint him and would speak with other MPs and he might recall parliament to settle the question. Joh came back the next day (Tuesday) with a letter requesting the sacking of five ministers which Campbell did. The new Ministers were sworn in on Wed in a ceremony boycotted by every other minister.
Ah, the good ol’ days…
d
We do not in fact have a “robustly independent Commissioner”, we have a Howard stooge.
I’m not aware of the legislation Peter Stephens refers to, but legislation cannot force the Crown to accept the advice of a minister who has lost the confidence of the Legislative Assembly, either by way of a confidence vote or an election. (I’m a republican by the way, but the same convention would apply to a ceremonial president and whatever lieutenant-president we had in Victoria.)
I’m in favour of fixed four-year terms for the House and fixed eight-year terms for the Senate. A re-elected Howard government will do nothing about this issue. A Rudd government will probably try to (although it will not be a front-rank issue), but will be blocked by the Coalition-controlled Senate, creating another DD trigger.
Of course, we could move to fixed three-year terms simply by having the PM announce the date of the next election after they are elected. I’d much rather have fixed three-year than unfixed four-year, which is what I think the previous referendum on four-year terms proposed.
d
One question is: would Rudd do a Gough and “bank up” a lot of bills as DD triggers so he could get them passed in a Joint Sitting?
Graeme
My view is that it cannot happen now, unless John Howard wants to fund a community group to organise a poll.
For example, the Noosa council agrees to run a poll, the State Govt sacks the council and appoints an administrator. The administrator then calls off the poll.
I notice Alex Somlyay (member for Fairfax, Noosa is now in Fairfax not Wide Bay as someone stated earlier) was the person who asked John Howard to intervene. If Fairfax needs some help to retain its sitting member then the Govt. is really in deep deep trouble.
Albert Ross,
No need to refer to my question as ‘silly’. I am not here to debate the merits of the council amalgamations. My point is that, being down in Sydney, I have no idea of what plays in Qld and what doesn’t. The press I come across has been that the electorate at large is incesenced with the amalgamations. Quite frankly, I don’t understand why, but such are the pecularities of Qld politics. Now, if you care to answer my question rather than criticise it, feel free. If not, why bother writing anything at all?
1920 NSW Parliament was split 45:45 left and right, Labor persuaded a Nationalist to serve as speaker.
1989 Tasmania, the democratic legitimacy of the Labor/Green govt was doubtful. The next election was an emphatic judgment by voters.
From the safety of a great distance it seems to me that most of the council amalgamations are a good idea – some of these councils really are too small to be practical. However, the way Beattie is doing it looks appalling and I do think it might save the Coalition a number of seats. If Howard gets back into government as a result Beattie will never be forgiven.
The idea of banning councilors from organising plebiscites strikes me as a breach of freedom of speech as bad as anything Howard has done (although I don’t know the details). It would have been far better for Beattie would be far better off saying “you can keep your councils if you want, but you have to pay a financial penalty as a result of the extra costs involved” Given the choice between a serious rise in rates and council amalgamations most people would probably vote for the latter. A handful of councils might elect to stay independent, but the bulk of the issue would be dealt with and the anger would disappear.
Well, I’m not sure _that_ is right.
1. Can you quote chapter and verse on the High Court referring to itself as ‘the guardian of the Constitution’?
2. Even if the High Court has used that phrase, has it also explicitly asserted a blanket right to determine all disputes arising from/under the Constitution?
3. There definitely is _doubt_ about whether there are possible areas of constitutional dispute for which the High Court is not the final arbiter. Look at paragraph 11 here, , which points to a traditional (although admittedly disputed) view that some constitutional issues are _not_ justiciable, meaning not susceptible of resolution in the courts.
4. I don’t know exactly what you mean by the ‘separation of powers’, but in the sense I understand it I don’t think it’s accurate to say that the framers of the Australian Constitution adopted it as a model.
“1989 Tasmania, the democratic legitimacy of the Labor/Green govt was doubtful.”
What? How? Labor + Green had a majority of the popular vote and a majority of the seats in the Assembly.
My recollection is that the Queensland position is special because Bjelke-Petersen put legislation through in 1975 explicitly stating the right of the Governor to take advice from whomever he or she liked, presumably as a symbolic anti-Whitlam gesture.