Exit Ted Baillieu

In the culmination of a fast-moving crisis that appeared on the radar less than 48 hours ago, Ted Baillieu has stepped down as Victorian Premier.

In the culmination of a fast-moving crisis that appeared on the radar less than 48 hours ago, Ted Baillieu has stepped down as Victorian Premier. More on that to follow, but for the time being here’s a thread to discuss it.

UPDATE (30 SECONDS LATER): Denis Napthine?!

UPDATE 2: Lacking any substantial understanding of my own concerning Victorian Liberal factional politics, I await further explanation as to why Denis Napthine in particular was left holding the parcel when the music stopped. As Lefty E relates in comments, Barrie Cassidy has apparently told Lateline that Baillieu threatened he “wouldn’t go quietly” if it was anyone but Napthine. Leadership talk had been primarily focused on Planning Minister Matthew Guy, but this was presumably predicated on some scheme to move him to the lower house, which events have moved far too quickly to accommodate (on which note, PB’s resident legal authority Graeme Orr argues in comments that while it’s purely a convention that leaders come from the lower house, it’s sufficiently entrenched a convention that a Governor faced with swearing in a leader from the upper house would likely be advised not to proceed).

Also yet to be explained are the substantial reasons why Baillieu felt resignation the best course of action available to him, and what exactly Geoff Shaw had to with it. For the time being, we are left to suspect that it may have involved Shaw flexing the muscle he has fortuitously acquired as a result of the delicate parliamentary balance. John Ferguson of The Australian offers the following exhaustive list of Shaw’s accomplishments in public life:

Police late last year launched a criminal investigation into Mr Shaw after he was allegedly found to have rorted his taxpayer entitlements over the use of his parliamentary car. In other controversies, Mr Shaw made lewd gestures at the opposition during a question time; likened legalising homosexuality to legalising child molestation, speed driving and murder; was involved in a roadside punch-up with a young motorist in 2011; was fined and put on a good behaviour bond after being charged over a 1992 assault at a Frankston nightclub; and allegedly called Labor MP James Merlino a “midget” in question time.

Having been supported through all this by the leadership of the government, Shaw announced today he could “no longer support the leadership of the government”, taking it upon himself to diagnose a “general loss of confidence Victorians are feeling”.

The situation raises thorny questions about the circumstances in which one should advocate an early election. Although I criticised Tony Windsor and Rob Oakeshott for overlooking the wishes of their constituents when they cut their deal with the Prime Minister, I have been of the view that their transparent arrangement provided a workable basis for the government to go about its business and answer to its constituents in due course. It seems quite a different matter for a government to be at the fickle mercy of a single opportunist with all manner of question marks surrounding his probity.

That’s not to say an election is realistically in prospect, at least for now. Presumably Shaw will need to stand by the government if he wants to see out his term, and a government that badly needs to right its ship will be entirely content to tolerate the arrangement.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

272 comments on “Exit Ted Baillieu”

  1. “I read that comment in the sense of ‘it would be advisable that they not do this’ rather than that there would be formal advice from a specific person.”

    But “it would be advisable that the Governor not do this” doesn’t mean the Governor couldn’t or wouldn’t, it only means that Graeme personally thinks the Governor shouldn’t, which would be irrelevant to a discussion of the legal position.

    “As is the subject of this conversation, the existence of unwritten conventions can still guide the actual practice of politics.”

    True, and so it would be correct to say that a member of the upper house would not be chosen to be Premier except in the case where that member was going to transfer to the lower house. But if you make it more specific and ask ‘WHO is going to avoid choosing a member of the upper house to be Premier?’, the answer ‘the relevant parliamentary party’ is RIGHT and the answer ‘the Governor’ is WRONG.

    “It’s all beautifully moot”
    Granted.

    “Premier tenders resignation – he’s in no position to advise Governor – so Governor is obliged to consult the precedents built up in his office and further legal advice.”

    Sorry, but that’s wrong again. Firstly, it’s absolutely standard for a head of government who is tendering a resignation to offer advice about the appointment of a successor. For example, in this case Baillieu could have (and for all I know he actually did this) written to the Governor saying “I tender my resignation from the office of Premier and I advise you to commission as Premier, to succeed me, the newly elected leader of the parliamentary Liberal Party, Denis Napthine”. Secondly, if the outgoing head of government can’t offer advice or chooses not to, and if the Governor then seeks legal advice, no lawyer can offer legal advice on the subject except to the extent that it’s based either on a written law or on a court decision, and in this case there’s no written law and no court decision that says a member of the upper house can’t be appointed as Premier. Section 51 of the Victorian Constitution says “A responsible Minister of the Crown shall not hold office for a longer period than three months unless he is or becomes a member of the Council or the Assembly” and that’s as far as LEGAL advice could go.

  2. While I can understand the Libs wanting Shaws vote in the short term, surely he is now electoral poison and will be gone in the next election? Any leader making a deal with him will be severely compromised.

  3. Mitchell on 3AW this morning was apoplectic about Shaw’s MP super demands. I hope the ALP are smart enough not to go along with any changes to Victorian MPs super arrangements.

  4. [At 1pm, Mr Baillieu went to a joint Coalition party room meeting. He updated MPs about Geoff Shaw and gave a rousing speech, a call for unity. ”It was one of the best speeches I ever heard him make,” said one senior minister.

    But as he looked around the room, Mr Baillieu would be able to have seen his plea was falling flat. It wasn’t so much what the MPs said, it was their body language. For a self-conscious premier with a love of performing arts, it was probably clear to Mr Baillieu that he had lost his audience. ”That meeting was a turning point,” says another senior supporter. ”He would have come to his own conclusion that there was evaporating support.”…

    …Fairfax Media understands Mr Baillieu decided that instead of testing his leadership at a damaging ballot – which could have dragged on for days at a time when Geoff Shaw’s defection had left the government precariously positioned – he would step down. According to sources he formed a view that Denis Napthine would be a consensus alternative. This followed discussions within the party throughout the afternoon in which it emerged Napthine could be the person that the party’s disparate groupings could support. Mr Baillieu consulted the National Party and the decision was made: he would resign…

    …Regardless of the talk around Parliament on Wednesday afternoon, the 7pm party meeting, and Mr Baillieu’s decision, came as a shock. A backbencher loyal to Mr Baillieu said most MPs had no idea the premier was set to resign when the Liberals entered the party meeting on Wednesday evening. ”No one knew, not even senior people.”…

    … Many backbenchers, such as Christine Fyffe, had also been unhappy about superannuation. There were also factional power plays going on, Jeff Kennett’s tough assessment of the government and the constant speculation about the ambitions of Matthew Guy. This was all in the mix and on Wednesday afternoon things began to coalesce. And by 10.40pm Victoria had a new premier.

    Read more: http://www.theage.com.au/victoria/bombshell-that-ended-teds-rule-20130307-2fomi.html#ixzz2MuM2vyes%5D

    A very good article. It’s things like this that made the Age such a good paper.

  5. Another good article, for those interested in the internal machinations that lay behind it.

    http://www.theage.com.au/comment/a-party-long-divided-over-leadership-20130307-2fnu1.html

    [All of this begs the question about what is going on in the Victorian Liberal Party. The Liberals reject any claim that their operational culture includes factionalism, but events clearly indicate that the party is divided at least on the fundamental question of its parliamentary leader. If division exists over the question of leadership, other considerations will also come in to play. Baillieu and Napthine are clearly identifiable as part of a group within the Liberal Party who have been around for a long time (suggesting that the question of generational tensions might arise), are thought of as “moderates” especially with regard to social and industrial relations policy and were identifiable as part of the Kennett legacy.

    We also know that there was a division between Kennett and sections of the party organisation when Michael Kroger was its president, and that these divisions have tended to reverberate on even though both of these gentlemen have moved on from the confines of state politics.

    What we might hypothesise is that there is a group within the party – both in the parliamentary wing and in the broader organisation – who have such antipathy towards the idea of an old guard moderate leadership that it is prepared to risk voter support in a bid to have someone younger, more socially conservative and much harder line on industrial relations as leader.

    The antipathy is so great they are prepared to risk being seen to be like the federal Labor Party and its problem with leadership politics. This would suggest that the divisions are very deep and potentially very destructive. It is also a fair bet that the transition of the Liberal leadership from Baillieu to Napthine won’t quell the potential for a future rebellion.

    Nick Economou is a senior lecturer in politics at Monash University.]

  6. J-D. I apologise for being elliptical. By ‘in no position to advise’ I meant advise in the sense of definitively/binding advice, ie assert ‘my position is Premier, you do what I say’. From now on I won’t risk bloviating on legal questions on the run on an iphone…

    Sure, if Rudd goes to the GG and says ‘Gillard is now parliamentary leader, you should commission her’, no GG will think twice about that advice.

    But if the advice is constitutionally suspect (including for conventional reasons) the GG/Governor is not simply a rubber stamp. If not, an outgoing leader can just say ‘I advise you to call an election’. Recall the Bjelke-Petersen stand off: Governor Campbell was criticised for not immediately installing Ahern; Campbell took advice, which was to let Joh fall on the floor of the house first; and if still Premier Joh had demanded a new election of course Campbell should have ignored that.

    My point was simply if the Libs elected Guy and Bailieu had turned up saying ‘make Guy Premier’, the Governor would not be bound to immediately follow that as he was when Bailieu turned up saying ‘make Napthine Premier’. We can argue about my opinion as to whether that convention is strong; but the process of considering precedent and if necessary seeking other advice is orthodox and desirable.

  7. The Tea Party comes top Spring Street
    Casey Council come to Town
    __________________________________
    Small”l” liberals in Melb face t

    The Rogue MP for Frankston Shaw is a pentecostal christian and like some US christian nuttters he is against abortion/homosexuality/evolution ..in his posts to his local voters
    It’s said he wants the new premier to “tighten up” on Abortions.. and .one looks forward to his attack on our Gay friends…what a political battle that will be for the Libs
    One of the maddest is Bernie Finn MLC the hardest of hard line anti-abortionists……
    He is not alone in the party and he’s an old friend of Margaret Tighe the Grand Dame of the movement

    There is also Inge Pulich..the Dragon Mother..whose son is on the rather crazy Casey Council on the S E side of Melb. Her efforts .were recently exposed in The Age after a failed effort to get her son…very much Munny’s darling ……elected by his Lib colleagues to the Mayoralty.. by threatening their politicial careers(throat cutting gestures from the public gallery to Lib council members seated below which aroused some anger.)..in the end sonny-boy got one vote for the job…his own I suppose…all this now bubbles along like so much lava under the feet of the new leader…not to mention Mr Tilley MLA ..a former cop and a plotter against Overland,the former police chief…Overlabd now in the safety of Hobart… who must be laughing fit to burst
    …and there is more to come…. Neil Mitchell on 3AW at 8.30…re his demands for a new richer bigger super scheme for MLAs

    Grand days in Marvellous Melbourne

  8. The correct answer to the question ‘what would happen if the Governor were advised to allow the government to be led by a Premier from the upper house?’ is the same as the correct answer to the question ‘what would happen if the Governor were advised to appoint his horse as consul?’. In both cases, the correct answer is ‘the Governor wouldn’t be advised to do that’. Since the correct answer is that the advice wouldn’t be given, the answer that the Governor would refuse to take the advice must be incorrect.

    There is (in the current state of the law) nothing illegal about a government being led from the upper house. However, although it’s legally possible it’s politically impossible in present political conditions. The barrier to it is a political one, not a legal one, and the decision not to do it is based on political considerations, not legal ones. Because it’s a political impossibility for a government to be led from the upper house, no governing party would choose a leader who was a member of the upper house except in the special case where that leader is expected to make a prompt transition to the lower house (as, most recently, in the case of Barrie Unsworth). It’s not consideration of the potential attitude of the Governor that would rule out such a decision; the potential attitude of the Governor is irrelevant.

    There’s only one way it would be possible for advice to come to the Governor to appoint a Premier from the upper house with the expectation that Premier would continue to lead the government from the upper house and not transfer to the lower house. That would be if political conditions changed so drastically from what they are now as to make that politically possible. I see nothing whatever pointing to any likelihood of conditions moving in that direction, but if in some way I can’t imagine it did come about that political conditions changed to allow it, there’s no reason to expect that the Governor’s decision alone would block it.

  9. J-D. We are in furious agreement, except that you are drawing a black line between ‘law’ and ‘conventions’ that really belongs to the distinction between enforceable constitutional law and mere practice.

    Precisely because reserve powers aren’t challengeable in court, conventions (accreted, rationalised/normative precedent) are the governing rules. That’s law.

    As to an outgoing leader’s advice being not binding and hence the Governor needing to exercise his own mind see Prof Anne Twomey at 339-342 of this recent article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009686

  10. J-D. We are in furious agreement, except that you are drawing a black line between ‘law’ and ‘conventions’ that really belongs to the distinction between enforceable constitutional law and mere practice.

    Precisely because reserve powers aren’t challengeable in court, conventions (accreted, rationalised/normative precedent) are the governing rules. That’s law.

    As to an outgoing leader’s advice being not binding and hence the Governor needing to exercise his own mind see Prof Anne Twomey at 339-342 of this recent article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009686

  11. J-D. We are in furious agreement, except that you are drawing a black line between ‘law’ and ‘conventions’ that really belongs to the distinction between enforceable constitutional law and mere practice.

    Precisely because reserve powers aren’t challengeable in court, conventions (accreted, rationalised/normative precedent) are the governing rules. That’s law.

    As to an outgoing leader’s advice being not binding and hence the Governor needing to exercise his own mind see Prof Anne Twomey at 339-342 of this recent article: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2009686

  12. Graeme, you say we’re in agreement, but you also say that I am ‘drawing a black line between “law” and “conventions”‘, when I have written nothing about ‘conventions’.

    If we really are in agreement otherwise, that has to mean that you’re agreeing with my assertion that the Governor’s potential attitude is not one of the relevant factors in this particular case, which on the face of it contradicts what you posted originally.

  13. I think everyone agrees that political parties are not in any forseeable future going to attempt this, and so the primary barrier is political.

    If they did, however, I think you are wrong about this:

    the Governor’s potential attitude is not one of the relevant factors in this particular case

    Commissioning a premier is an exercise of the reserve powers. You seem to be arguing that the governor is effectively a rubber stamp here, and has no discretion in the matter. This is emphatically not the case, and has been demonstrated by precedent. The article Graeme has referenced provides a number of these, where it is clear that the governor is not obliged to accept as definitive informal advice, a party room vote, a letter from MPs, or indeed anything short of a vote on the floor of parliament.

    Far from the Governor’s potential attitude not being relevant, in the exercise of reserve powers, the Governor’s attitude is definitive. Of course the same kind of argument comes in here – an actual governor is not going to decide these matters on a whim. This is where the conventions come in.

  14. I take it J-D was exercised to claim the Governor’s attitude was irrelevant in ‘this particular case’. Perhaps because s/he sees any conventions as purely political, but clear in this particular case (no MLC as ongoing Premier).

    But yes, it sounds like we’re in disagreement – or in my case bemusement – over the epistemic source of this. J-D said the only ‘LEGAL’ advice here could be a reading of the black letter Constitution. I and others say in questions of govt formation the conventions are a source of guiding norms for the decision maker. To not call that ‘legal’ is more than semantics. If J-D is claiming the Governor’s attitude (ie decision informed by reflectionof on convention) is always irrelevant, then how would s/he explain such recent events as (a) Queen rejecting UK PM Brown’s resignation straight after 2010 UK poll, insisting a duty to stay on until new govt was settled; or (b) Gov Underwood batting away Tas Premier’s attempt to pass the hot potato last time. In both cases the caretaker PM/Premier was motivated Politically but the Crown asserted a clashing convention (and prevailed). None of this is to say all asserted conventions are clear or strong. But neither case looks like a rule that there’s only one über rule or convention (follow advice of current commissioned but outgoing PM/Premier) and the rest is nothing but political restraints on that leader’s advice.

    If as J-D claims proposing Guy without a pathway to LA was unthinkable here, it certainly wasn’t because of ‘P’olitics in the sense of numbers or what might be community accepted, but because of institutional ‘p’olitics : what makes a firm convention is the confluence of established practice and constitutional principle – a bit like customary international law.

  15. I am not asserting that the attitude or potential attitude of the Governor (or Governor-General or monarch) could never be a relevant factor, and in the interests of greater clarity I specifically disavow that view.

    I did make the narrower assertion that in present circumstances it is not possible for a government to be led by a Premier (or Prime Minister) from the upper house and that the potential attitude of the Governor is not a relevant factor in that.

    Pointing to other cases in different circumstances where the Governor’s attitude has been a relevant factor does not justify an assertion that the Governor’s potential attitude is a relevant factor in this particular case. It isn’t.

    Some decisions can be partly or entirely explained by ‘convention’, in the sense that they are decisions to do the same thing that was done on parallel previous occasions. But by definition any such convention must have been established originally by the earliest decision or decisions of the kind, which by definition can’t themselves have been based on convention, but must have been based on other factors, factors which don’t necessarily cease to exist or to be relevant even when repeated practice has established something which might be called a ‘convention’.

    A number of factors, including the attitude of the monarch (George V), have been mentioned as possibly affecting the decision in 1923 not to appoint a member of the upper house, the first Marquess Curzon of Kedleston, as Prime Minister, but there’s no useful explanation in terms of ‘convention’. One might say that later decisions could have been affected by the ‘convention’ established when Curzon was passed over, but one might equally say that the same factors (or some of them) which influenced the decision in 1923 also influenced later decisions. A more encompassing analysis is more illuminating than talking narrowly in terms of ‘convention’.

    An explanation which says nothing except that there is a convention that governments not be led from the upper house is not as useful as an explanation which says why there is a convention that governments not be led from the upper house–and there must be a reason why, or else the convention would never have become established in the first place. In 1868 the Governor of Victoria was not prevented by any convention from appointing a member of the upper house as Premier. Obviously times have changed since 1868, but saying that there’s a different convention now is only another way of saying that times have changed, it doesn’t do anything to help explain how times have changed.

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