Victoria’s Coalition government is tottering this morning following yesterday’s announcement by Liberal-turned-independent MP Geoff Shaw that he would be prepared to vote with the Labor opposition in support of a no-confidence motion, potentially bringing forward an election which is scheduled for November 29. The situation is a legacy of the narrowness of the Coalition’s win at the November 2010 election, from which it emerged with 45 seats to 43 for Labor and, for the first time in any Australian federal or state parliament since 1993, no seats for minor parties or independents. That changed in March last year when Shaw resigned from the parliamentary Liberal Party to sit as an independent, which precipitated Ted Baillieu’s resignation as Premier the following day. The Liberals were thus left in equality with Labor on the floor, with the mercurial Shaw holding the decisive swing vote. Shaw’s support for a Labor-backed no-confidence motion would enable it to pass by 44 votes to 43, with Liberal Speaker Christine Fyffe left stranded with a casting vote she can only use in the event of a tie.
Dramatis personae
Geoff Shaw’s victory in Frankston made him one of 12 Liberals to win seats off Labor at the 2010 election, that being the bare minimum required to dislodge John Brumby’s Labor government from office. Shaw promptly emerged as the new government’s loosest cannon, on account of his socially conservative enthusiasms and apparent tendency to find himself involved in physical altercations. However, his biggest trouble emerged in May 2012 with allegations he had used his parliamentary car to pursue business activities. As a police investigation proceeded, Shaw announced his resignation from the party last March, citing dissatisfaction with Baillieu’s leadership both on his own part and among the electorate at large.
Charges were laid against Shaw later in the year and dropped shortly afterwards, but the matter continued to be pursued by an inquiry of the parliament’s privileges committee. With the inquiry finally concluding last week, a minority report by the committee’s Labor members recommended Shaw be found in contempt of parliament, potentially triggering his expulsion. However, the Liberal majority recommended the softer option of finding Shaw in breach of the code of conduct and ordering him to repay $6838. The government’s applecart was then upset by an ongoing feud between Shaw and Liberal MP Ken Smith, who had launched a blistering attack on Shaw when he resigned as Speaker in February. Smith responded to the committee report by supporting Labor’s stance and saying he would vote with them in favour of finding Shaw in contempt, to the fierce displeasure of party colleagues who were expending considerable capital to keep Shaw placated. Shaw has responded precisely as the government would have feared, accusing Smith of acting with Napthine’s connivance and declaring his determination to pull the rug from under the government.
Napthine has accused Shaw of making “unreasonable demands” in a bid to “ransom” the government in exchange for his ongoing parliamentary support, most notably in respect to an assurance that he would suffer no sanction in response to the inquiry’s report. However, Napthine would appear not to be in a position to offer such a guarantee, should Ken Smith indeed remain set upon voting with Labor. Napthine expressed his determination to continue governing and challenged Labor to allow him to do so, arguing a no confidence motion would entail Labor accepting Shaw’s “tainted” vote. For its part, Labor appears set on playing for time, with Opposition Leader Daniel Andrews taking the rather puzzling position that he and Napthine should seek the advice of the Governor, Alex Chernov, in determining how to proceed.
The constitutional backdrop
Should Labor and Shaw vote to pass a no-confidence motion, there seems little doubt that an early election would have to ensue. Since 2006, Victoria has had a regime of fixed terms in which elections are set for the last week in November, but the legislation provides for escape clauses in the event of no-confidence motions and parliamentary deadlock. Crucial to the situation here is that the Legislative Assembly has an even number of seats, making the parliament unworkable in the event of a tie unless one side can persuade a member of the other to serve as Speaker.
Under the provisions which established fixed terms, notice of a no-confidence motion needs to be given three days before the event, with its passage to be followed by an eight-day cooling-off period in which the government has the opportunity to reassert control of the situation by passing a motion of confidence. Failing that, the prohibition on the Governor calling an election is lifted. There is also the potential for a no-confidence motion to be followed by the opposition taking over the reins of government, but that is not an outcome Labor could secure with the present parliamentary balance. A defeat for the government would thereby compel the Premier to advise the Governor to call an election, which the Governor would accede to after establishing Labor’s incapacity to form a government.
The Frankston situation
A wild card in the deck is the standing of parliamentary proceedings against Geoff Shaw, who appears to face a majority in favour of a contempt finding. A parliamentary library research paper asserts that the Victorian parliament’s contempt powers are “discretionary”, and run the gamut from reprimand to suspension to expulsion to imprisonment. Should the process result in Shaw vacating his seat, a by-election in his seat of Frankston would, depending on the result, either confirm the need for an early election or resolve the situation in the government’s favour. However, as Ken Smith pointed out by way of refuting the notion that his attitude has plunged the parliament into crisis, the government can evade the issue simply by declining to take the steps required to initiate a by-election. In leaving Frankston unrepresented until the election, that would put the Liberals in parity with Labor on the floor and allow their Speaker to exercise the casting vote in favour of the government as required. Labor is of course demanding that parliament consider the committee’s report as soon as possible, but a logical course for the government would seem to be to delay consideration until the election is close enough to render a by-election redundant.
The electoral environment
Lofty statements of high principle can be expected from both sides over the coming days, but few will amount to more than cover for the pursuit of political advantage. Looming large in Labor’s calculations will be the hostile response to the federal budget, which Liberals lament has negated the advantage accrued by the positive reception to the state budget a week previously. Labor’s efforts to engage the Governor in the process can perhaps be seen as an attempt to project willingness to resolve the matter in a co-operative spirit, to be followed by a regretful announcement that the situation is unworkable and an early election is the only thing for it. For its part, the government would be hoping that a few more months in office would give it time to steer the agenda back to state issues.
As illustrated by the poll aggregation chart featured below, the present indications are that Labor would enter an election campaign in the box seat, but not by such a margin that it could be entirely confident of holding off an effective Liberal campaign. Considerably complicating the situation is the first redistribution of electoral boundaries since 2005, which given the intervening population growth has required substantial changes. Whereas the Coalition was barely able to achieve a majority with 51.6% of the two-party vote in 2010, the same distribution of votes would, on Antony Green‘s reckoning, have netted them 48 seats to Labor’s 40 on the new boundaries. However, no fewer than eight of the Coalition’s seats are on margins of 1.6% or less, with a further four on margins of up to 5%. A uniform swing to Labor of just 0.4% would replicate the existing parliamentary deadlock with 44 seats each, with the threshold seat being none other than Geoff Shaw’s electorate of Frankston. The next seat up the pendulum on 0.9% is Bentleigh, which was also the seat the tipped the Coalition over the line at the 2010 election.
The redistribution has largely deprived the Coalition of the “sophomore surge” advantage that first-term governments generally enjoy, in which the key marginal seats are held by members who won their seats at the previous election and therefore enjoy the benefits of incumbency for the first time. Three seats which are notionally Liberal on the new boundaries will in fact be defended by Labor incumbents: Sharon Knight in Wendouree (hitherto Ballarat West), Danielle Green in Yan Yean and Lisa Neville in Bellarine. Frankston will of course be vacated by Shaw, at least as the Liberal candidate. However, Joe Helper will also be retiring as Labor’s member for the country electorate of Ripon, making it considerably tougher for them than the notional Liberal margin of 1.6% suggests.
Just thinking outside the square, could the parties (by agreement) repeal or amend the fixed term provisions of the Victorian Constitution Act (whatever it is actually called)?
This could be the fig leaf compromise for Napthine, as he surely needs one to attempt to shake off the shambles parliament, shambles government line.
No. The fixed term provisions were inserted and entrenched in the Constitution which means they can only be removed by referendum.
Doesn’t this just give an 8 day cooling off period for the parliament to change its mind? The governor is then free to do as required after this 8 day period?
Some observations copied from the main thread.
{Tom TFAB points out that if there is an early election now then the following one will be scheduled for Nov 2017}
“You’re right. So that is surely significant. If Andrews brings down the government and wins an early election he’ll only get a 3 and a bit year first term.”
On the possibility of Shaw being expelled:
“UIVMM, the power of the Vic parliament to expel a member is a common law power of the parliament and is also justiciable: Shaw would be able to appeal to the Supreme Court which would then have to determine whether Shaw’s actions had brought the house into disrepute or otherwise compromised him from fulfilling his duties. (Presumably if the vote was unanimous in the Assembly that would be persuasive.) I wonder how long that would take to resolve?”
Pardon the ignorance but is #4 true – a foreshortened term? Not a very short term ending in a Nov 29 2014 election?
Thanks for the thread William – interesting to read how it all works
Sounds like Napthine won’t be meeting with Andrews today – opens the door to argue that it’s in the best interests of the state to have an election to resolve the matter. Let the people decide
Worry of course is that Shaw doesn’t follow through on what he has said and doesn’t support the no-confidence motion
Labor would almost be in a worse position if they get Shaw suspended with the help of Smith and the speaker gets a deciding vote on every issue
BRING IT ON
My notes on expulsion are based on this briefing paper from the NSW parliament (which derives its powers from the same common law basis) which notes court cases and rulings.
The briefing paper William has linked doesn’t seem to address that question directly but does note that when thr courts involve themselves tend to apply a principle of non-interference.
I can’t see the constitutional crisis.
The ball is in Anderson’s court and he needs to exercise a political judgement, that is, whether or not to bring on a no confidence motion which would, inevitably, bring forward the election.
This is a perfectly logical and reasonable outcome in a situation where the Parliament has become unworkable, and neither side can secure the support of the lower house. It is precisely what the constitution envisages should happen in such a situation.
Andrews!
6:
Yes. Section 38(2) of the Constitution Act 1975
[If the previous Assembly is dissolved, the subsequent Assembly shall expire on the Tuesday which is 25 days before the last Saturday in November which is nearest to the last anniversary of the election day on which it was elected that occurs not more than 4 years after it was elected.]
Labor need a genuine trigger to bring on a No Confidence vote. An internal spat of the Liberal Party is not a genuine trigger.
Shaw and Smith playing out childish games in public is something Labor should eschew.
The road to Government is not via gimmicks and a contrived crisis.
Great summary William.
PB at its best and well ahead of much of the MSM commentary on what the options are to resolve this crisis.
Former Premier John Cain was on Faine this morning and arguing strongly that Napthine has lost the authority of the Parliament, that the Parliament is effectively not functioning and therefore Napthine should be taking steps to resolve it … rather than hanging on by his fingertips.
Cain cited similar cases in the past (included his own – when he fell on his sword) when the Premier exercises his authority to resolve a crisis in government.
gg – I agree – Labor, don’t side with Shaw on no-conf vote,and don’t side with Smith to kick out Shaw.
In the 19th century they would probably have fought a “duel”!
I’ll bet John Cain was talking about his father’s experience as Premier. Cain Senior was forced from office in 1943 (after 4 days mind you) and replaced by a re-formed Country Party government. In 1947 his government had supply blocked in the Legislative Council as the Opposition demanded the Chifley government’s policy of bank nationalisation be tested by voters at a Victorian state election!! Cain had no option but to call an election
Cain’s third government, elected in 1952 as the first majority Labor government in the state’s history, and ending a decade of revolving door governments, fell apart in 1955 in the DLP split. Cain was forced to an election after a vote of no confidence. Labor didn’t come within cooee of government again until John Cain Junior was elected in 1982.
Cain Snr was unfortunate. The state coalition was blocking supply on accounts of federal Labor policy! I’m surprised subsequent Labor governments didn’t seek revenge through block of supply.
@16
Sorry I got my history mixed up. That was in 1947.
Uncle Antony, tell us again the story of the Victorian political crisis of 1952… 😉
16
The ALP has never had a majority in the Legislative Council except for after the 1985 (the lasted only a few weeks until the result in Nunawading was voided by the Court of Disputed Returns) and 2002 elections when the ALP had a majority government. These were also after 1975.
Antony Green, you say above regarding the fixed term provisions that the constitution requires a referendum to change. But this is not the case for the State constitution, is it? I thought it was just an act of State Parliament.
The details behind Thomas Tuke Hollway’s three day Electoral Reform Ministry in Victoria in 1952, and Labor’s decision to help block supply in the Legislative Council that year, are just a little too bizarre to explain.
Let me just say that the reasons the baton change procedures under fixed term parliaments are written with an 8 day cooling period is to avoid governments that last only 3 or 4 days. I don’t think modern government could cope with such traditional use of the reserve powers of Governors.
Pfft, I’ll go ask Costar. I’m sure he’ll be happy to go into great lengths about it… :-p
Shaw brazened his way through a doorstop complaining that he was being victimised given criminal charges were dropped.
Here are a few of questions that deserve an answer.
Why were the criminal charges dropped?
Did it have anything to do with the change made to the rules governing car use AFTER the charge were laid where the word “shall” as in shall not use your car for commercial purposes was replaced with the word “must”?
Who made this change?
Why was the change made when charges under the old wording were on foot?
Was this a stuff up or conspiracy?
Can this matter be examined by our IBAC?
As a matter of principle, having the Parliament majority expel an elected member is a slippery slope IMHO.
I must have masochistic tendencies as, when in Melbourne, I have visited Question Time on several occasions. Each time I’m hoping the standard of behaviour may have improved – alas, of four different state Parliaments I’ve witnessed, the Victorian is the most vociferous & out-of-control rabble. It’s nigh impossible to hear the proceedings amongst the constant caterwauling, grandstanding, taunting & interjecting.
Last week was the latest attempt &, more than ever, I left the chamber feeling that Victorians were severely short-changed when voting the majority of the current MPs into power – a pox on both parties, neither deserves the privilege of serving Victoria.
Shaw is a selfish idiot.
@Martin B, you say:
However, that briefing paper says NSW is alone in this respect. At p11:
Can you explain why you say their source of power is the same, when the paper you refer to says the opposite?
I had this to say about the matter of parliamentary explusions a few months ago in relation to Scott Driscoll, who quit the Queensland parliament to forestall such action against him:
[Driscoll cited health reasons for his decision to resign, but it was obviously no coincidence that this followed immediately after a parliamentary ethics committee found him guilty of 42 counts of contempt of parliament, with the recommendation that he be expelled and fined $90,000. The charges relate to Driscoll’s failure to declare income received through his and his wife’s involvement in local retailers’ and community associations, and his claim in parliament to have ended his role as voluntary president of the retailers’ association, which the committee found “on the balance of probabilities” to be untrue.
The prospect of Driscoll’s expulsion, which Campbell Newman had called upon the committee to recommend in September, raises interesting questions about the right of a parliamentary majority to reverse decisions made by voters, particularly in circumstances where no criminal charges are pending. Expulsion of members is an ancient prerogative of the British parliament which its two houses retain to this day, but which our own federal parliament saw fit to deny itself through legislation passed in 1987. The only time the federal parliament had exercised such power was in 1920 after Labor MP Hugh Mahon made “seditious and disloyal utterances” in relation to British policy in Ireland. Mahon was nonetheless able to contest the ensuing by-election for his seat of Kalgoorlie, but was narrowly unsuccessful (which to this day remains the only occasion of a government winning a seat from the opposition at a federal by-election).
Today’s Courier-Mail reports that the only precedent for expulsion from the Queensland parliament goes all the way back to 1869, and even that would seem to belong in the separate category of disqualification. This occurred after voters in the central Queensland district of Kennedy, who were still new to the practice of democracy, saw fit to honour the renowned English radical parliamentarian John Bright by electing him at a by-election by a margin of 79 votes to 78. The Queensland parliamentary website relates that Bright’s election had been championed by advocates of a separate colony for central and northern Queensland, who hoped he might pursue their cause in the House of Commons. Bright never visited Australia and was naturally unable to assume his seat, and indeed “probably was unaware of his connection with the Queensland parliament”.
More concrete examples of expulsion emerged from the New South Wales and Victorian parliaments resulting from bribery, electoral fraud and “seditious libel”, though none occurred more recently than 1901. However, a modern precedent with parallels to the present situation emerged in New South Wales in 2003, when Malcolm Jones of the Outdoor Recreation Party — who had foreshadowed the result of the recent Senate election by preference-harvesting his way to a seat with 0.2% of the vote — was found by the Independent Commission Against Corruption to have engaged in corrupt conduct relating to parliamentary entitlements. The chamber commenced proceedings to follow up on ICAC’s recommendation that it consider expelling Jones, who like Driscoll solved the problem by resigning. But whereas Jones’s position was filled by another member of his own party as a casual vacancy, Driscoll’s departure will entail the expense and inconvenience of a by-election.]
To make this Shaw thing go away-permanently-wouldn’t it take a refusal to support a critical bill, or a ‘blocking of supply’ to justify such a move?
I’ll bet this storm in a tea cup is not at all critical as is made out to be. And, no matter the opinion of the electorate or the parliamentarians involved, Geoff Shaw has a huge advantage. He is a fundamentalist religionist and is sure to believe god is on his side.
I’m interested to hear that Robert. I’m not in a position to check at the moment but in paper I linked in the post it seems that the Victorian parliament’s powers of expulsion are not statutory but derived from those of the House of Commons.
Martin B @ 11: ss. 38(2) is horribly drafted, but I would have read it as providing for another election in 2018, not 2017, if there is an early Victorian poll.
“If the previous Assembly is dissolved, the subsequent Assembly shall expire on the Tuesday which is 25 days before the last Saturday in November which is nearest to the last anniversary of the election day on which it was elected that occurs not more than 4 years after it was elected.”
Suppose there’s an election in August this year, say 16 August, for the purposes of argument (I haven’t checked whether this is possible given the statutory timetable for elections, but assume so.)
Suppose also that the date on which an Assembly is “elected” from a legal point of view is election day, rather than the return of the writs. (This may be debatable, but doesn’t affect the argument which follows.)
The anniversaries of that date will then be 16 August 2015, 16 August 2016, 16 August 2017, 16 August 2018 and so on.
The last such anniversary “not more than 4 years after” 16 August 2014 is 16 August 2018. (Note that the first year “after” 16 August 2014 starts on 17 August 2014 and ends on 16 August 2015, and so on.)
The nearest “last Saturday in November” to 16 August 2018 is 24 November 2018.
The Tuesday 25 days before is 30 October 2018.
[Can you explain why you say their source of power is the same, when the paper you refer to says the opposite?]
Well, because I can’t see any statutory construction of the Victorian power: it’s not in the Constitution and doesn’t seem to be in the Standing Orders.
I could be wrong on this, and would welcome any clarification as such, but William also doesn’t seem to find a statutory basis.
pedant: I think the interpretation is clearly meant to be
[ [last-Nov-Sat closest election-anniv ] not>4y ]
not
[last-Nov-Sat closest [election-anniv not>4y] ]
The minority Privileges Committee report is enough to kick Shaw out, the House has to weigh up both reports and then vote on them.
Napthine is getting legal opinions, I am sure the will be the same as Andrews.
Shaw gone next Tuesday. Then Napthine will be in a stronger position in the House but under immense pressure to hold a by-election. The longer he refuses to name a date the more votes he loses.
31 & 33.
38(2) looks to my (non-lawyer) eyes to be ambiguously drafted. The only way to sort it out for good, without a referendum to reword it, is to have an early election (that is not on the last Saturday in November) and then someone challenge the election or lack thereof in November 2017 (substitute the appropriate year hear if it is a term latter than this one that is shortened).
Martin B @ 33: Indeed, it comes down to a question of whether “occurs” refers to the “anniversary” (my reading) or to the “last Saturday” (your reading). I wish I could agree that it’s clear, but for mine it’s an ugly piece of drafting (and I say that as a non-lawyer who did a lot of instructing of parliamentary counsel in a previous life). The Explanatory Memorandum for the relevant constitutional amendments (at http://australianpolitics.com/2003/03/27/victorian-parliamentary-reform-explanatory-memorandum.html) isn’t very well drafted either, but probably supports your reading more than mine. It would be interesting to see if the parliamentary debates at the time addressed the issue.
The majority Privileges Committee report is clearly political in not seeking to expel Shaw, with the grounds for that expulsion evident in the minority report. (yeah, of course it’s all political when the parliament is on a knife-edge)
However, Labor cannot gain votes out of a bruising four months in its own unstable government and it may not force the no-confidence motion. I believe that the coalition will follow Ken Smith and try to claim the moral high ground. (Ken Smith! Moral high ground! Who’da thunk) There are enough in that party who believe it’s the correct approach.
Three factors would make Napthine reasonably confident about this path: 1. Shaw will take it to court, delaying any further action. 2. Labor’s reluctance to take power in these muddled circumstances with the public likely to turn against them; Labor anticipates a clear victory in November. 3. The public wants Shaw gone, and Napthine would love to get credit for it
I don’t think the drafting is at all clear, certainly it is formally ambiguous, but I think the intent is clear. I don’t think you would make the sentence that convoluted if the other reading was meant.
Could the speaker ban someone from the house for a few hours during the eight day cooling off period, and then have a confidence motion be passed during those few hours? If so, that would restart the clock, requiring another 3 day notice no-confidence motion followed by 8 day cooling off, with potential for the government plus speaker to drag it out indefinitely. Wicked, but the rules seem to allow it.
Rourke,
You seem to be conflating two issues as one.
Firstly, the Privileges Committee inquiry and findings in to Shaw. Labor have flagged they will move some motion to punish Shaw which Smith seems to be in favour.
This motion not being resolved or challenged legally will allow Labor to keep the issue alive.
A No Confidence motion in the Government is unlikely just yet. Labor has said repeatedly that they respect the decison of the voters from 2010. So, unless something huge occurs they probably won’t force the issue. To grasp for Government using tricks and games is no substitute for a smashing victory come November.
I favor the not more than 4 years interpretation, ie. a 3 and a bit year term if Andrews forces an election.
Which he probably should. Expelling a member for anything less than gross misconduct, and potentially allowing 1/88th of the state to go unrepresented for a considerable length of time is a bad look, regardless of how Andrews might try to politic it by claiming it’s Napthine’s fault for not allowing a by-election. If the Parliament is clearly non-functional, playing games when you could just force a poll is bad policy and, I suspect, bad politics.
William @ 30
I think the confusion arises because the privileges of the Victorian Parliament are statutorily defined by s19 of the Constitution Act 1975 (Vic)(by reference to the privileges of the House of Commons in 1855). A similar provision occurs, as far as I know, in the Constitutions of the other States, with the exception of that of NSW which, I think, not having looked all that carefully, is silent on the matter. The privileges of the NSW Parliament, not being defined by statute, are thus prerogative.
40
If the ALP gets there way and Shaw is expelled on Tuesday, the ALP are supporting a by-election. The Speaker has to issue writs because of the relevant provision in the Constitution and would get a lot of attack if she then withdrew it.
Ok, well I could be wrong 😉
So if the parliament’s powers are statutorily defined to be the same as Commons in 1855, and this power of the Commons in 1855 was justiciable, does that mean that the power as defined statutorily is justiciable? Or is constitutional law a bit more subtle?
Subtle is one word you could use to describe it. I have not read Armstrong v Budd, so you should read my comments subject to that admission. But You need to bear in mind that that was a case on the privileges of the NSW Parliament, which may just possibly perhaps be different from those of the Vic Parliament. Nor is it really a question of whether the privilege to expel is justiciable, but whether a particular exercise of that privilege is justiciable. If Shaw were expelled it is possible he would take his expulsion to the Vic Supreme Court. Whether the court would agree to hear the case is a matter for it that it would undoubtedly determine after listening to extensive legal argument. What decision it might make if it were to agree that the matter was justiciable and to proceed to hear the case on its merits is another matter altogether. And then there are the potential appeals …
In the abstract I agree with Sprocket that Parliament expelling members is generally undesirable. On the other hand so is a court attempting to interfere with the internal workings of Parliament.
If the Liberals take the mean and sneaky option of expelling Shaw from Parliament, and then preventing Frankston voters from electing a replacement so that they have the numbers to govern for 5 months, they will deserve to be slaughtered at the next election.
Thanks. Certainly I agree with both of those principles.
I’m not really interested in trying to think though the legal reasoning of it per se – more just what the practical effect is: parliament votes to expel Shaw (though I note that Andrews has been a bit cagey about what the precise wording might be and what the implications of that would be); Shaw goes to court and gets an injunction; court hears argument on jurisdiction; etc. seems at bare minimum a 1-2 week delay and could be 4 weeks, or more with appeals.
Two things
Would anyone know anything about the earlier cases of Victorian & NSW MP’s being removed from the parliament
The Victorian Parliament list of MP’s seem to be missing George Swinburne and I image maybe one or two others.
I see the Liberals are running in Frankston the candidate that contested Melbourne at the last federal election, I am not sure who the ALP candidate is.
Regardless if the current or new boundaries are used I image it will be won by the ALP.
Frankston despite its reputation does have some solid areas particularly south of Frankston-Cranbourne Road which runs through the middle of the seat.
Frankston despite its reputation does have some solid Liberal voting areas particularly south of Frankston-Cranbourne Road which runs through the middle of the seat.
Re posted for accuracy