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Victorian crisis primer

A rough and ready guide to the situation in Victoria, as I understand it.

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.

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  • 51
    caf
    Posted Wednesday, June 4, 2014 at 10:35 pm | Permalink

    If Shaw is expelled, would it then be open to Napthine to declare the Government has no further business for Parliament this term and request it be prorogued until the normally scheduled election?

  • 52
    mexicanbeemer
    Posted Wednesday, June 4, 2014 at 10:49 pm | Permalink

    Caf

    I am not sure if its budget as passed, it has a view policies which the government would consider as political positives

  • 53
    caf
    Posted Wednesday, June 4, 2014 at 10:58 pm | Permalink

    I suppose if they are such political positives then they would be just as happy to take them to an election as unlegislated policies. (Obviously Parliament would need to be kept in session until supply had been secured).

  • 54
    Tom the first and best
    Posted Wednesday, June 4, 2014 at 11:29 pm | Permalink

    51

    The Budget would have to be passed first.

    They also could get no further legislation through.

    If the ALP won a by-election in Frankston, the Governor would have the reserve power (which he should use if the Government was not advising him to) to recall Parliament to test the Government`s majority.

  • 55
    Andrew McIntosh
    Posted Wednesday, June 4, 2014 at 11:38 pm | Permalink

    “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.”

    Politics as usual, then.

  • 56
    caf
    Posted Wednesday, June 4, 2014 at 11:42 pm | Permalink

    Only supply would need to be secured. The main purpose of proroguing Parliament would be to provide political cover for not holding the by-election.

  • 57
    Tom the first and best
    Posted Thursday, June 5, 2014 at 12:00 am | Permalink

    56

    It would stifle the Government. For starters, if the Coalition cannot pass legislation, it cannot get the East-West Link contracts signed because legislation is needed to authorise various bits of the works.

  • 58
    deblonay
    Posted Thursday, June 5, 2014 at 1:24 am | Permalink

    The only expulsion from the Vic P’ment
    ______________________In 1901, a Labor member Ted Findley…the first Labor Membrt for the state seat of Melbourne,and editor of a labour journal :
    “The Tocsin” was expelled from the Parliament after he publiushed an article from the “Irish People” which the Vic Premier Peacock judged to be a criminal libel of King Edward 7th,although the stories were common knowledge in the UK press

    Findley was expelled and failed to regain his seat at the by-election
    He did however win a Vic Senate seat for the ALP in 1904 and had a long career in the Senate,and held a Ministry in the Fisher Labor Govt after 1910

  • 59
    RichardB
    Posted Thursday, June 5, 2014 at 1:28 am | Permalink

    48

    According to the NSW Parliament briefing paper ‘Four Members have been expelled from the NSW Parliament, three from the Legislative Assembly (in 1881, 1890 and 1917) and one from the Legislative Council (in 1969). Of the other Australian States, only the Victorian Parliament has used its power of expulsion. The last occasion was in 1901.’
    Details of the NSW expulsions can be found in ‘The Constitution of New South Wales’, Anne Twomey, Federation Press, 2004. Interestingly the three members expelled from the NSW lower house were all subsequently re-elected. One of them, William Crick (1890) went on, according to his ADB entry, to be Minister for Lands (1901-4). He resigned his seat on 6 December 1906, apparently pre-empting a second expulsion on 11 Dec. Twomey also gives details of some attempted expulsions. I can’t help you with the Vic expulsion(s).

  • 60
    mexicanbeemer
    Posted Thursday, June 5, 2014 at 2:25 am | Permalink

    Thanks Richard B and Deb

  • 61
    Bugler
    Posted Thursday, June 5, 2014 at 4:41 pm | Permalink

    Mexicanbeemer,

    The Labor Candidate for Frankston is Helen Costas, Chief Executive Officer of the Peninsula Community Legal Centre and Executive Officer of the Australian Neighbourhood Houses and Centres Association.

    Tom,

    For starters, if the Coalition cannot pass legislation, it cannot get the East-West Link contracts signed because legislation is needed to authorise various bits of the works.

    That’s interesting…

  • 62
    Graeme
    Posted Thursday, June 5, 2014 at 9:31 pm | Permalink

    Expulsion would be extraordinary and undemocratic for $6k misuse – think how many MPs would go under on that test or how it could be abused by partisans in tight parliaments. Short of a proper inquiry showing attempted blackmail, Shaw should not be expelled.

    I expect the government will want Shaw suspended (during which time no no confidence is possible).
    I’m not sure why Labor would prefer to run to an early poll (and take any public disdain for that – Labor introduced fixed terms after all and six months is more like a standard campaign period now than a long time to wait) rather than enjoy letting instability hang over the government.

  • 63
    Wakefield
    Posted Friday, June 6, 2014 at 10:01 am | Permalink

    There is no basis for early election currently. Napthine can govern until a no confidence motion is carried. Labor would be stupid to move a NCM and vote with Shaw.

    Suspending Shaw has no effect. Just gives the Speaker a casting vote. Only expelling Shaw has any impact.
    Hard to see why the Libs would support this (they would say lesser penalty appropriate) but apparently would get up with Smith vote.

    If Vic ALP win by-election then there is deadlock – 44 all and in theory neither party can govern. Early election possible but Labor can leave Napthine as a lame duck govet, defeat all legislation they don’t like while saying they will not put up a NCM to cause an early election. This sounds like a good option.

    If Labor doesn’t win its back to current position or even stronger for Napthine.

  • 64
    RichardB
    Posted Friday, June 6, 2014 at 11:03 am | Permalink

    60

    Some further information. My attention has been drawn to this report of an expulsion from the Vic Parliament in 1876:
    http://trove.nla.gov.au/ndp/del/article/5896693
    McKean lost his seat at the by-election.

  • 65
    Leroy Lynch
    Posted Sunday, June 8, 2014 at 11:07 am | Permalink

    http://www.news.com.au/national/victoria/geoff-shaw-could-be-entitled-to-150k-windfall-before-tax-if-suspended-from-parliament-for-2014/story-fnii5sms-1226946950295

    Geoff Shaw could be entitled to $150k windfall before tax if suspended from Parliament for 2014
    June 08, 2014 12:00AM
    Matt Johnston, Michelle Ainsworth
    Herald Sun

    A TAXPAYER-funded windfall worth almost $150,000 before tax could be awaiting embattled Frankston MP Geoff Shaw if he was suspended from parliament for the rest of the year.

    Part of the money he would be entitled to would be $8400 worth of gross fortnightly payments because he no longer has a taxpayer-funded car.

    This is about $2000 more than the fine the Privileges Committee recommends he pay for the misuse of his former parliamentary car – although it would be taxed.

    The Sunday Herald Sun understands that if an MP is suspended from parliament without being “named” by the Speaker, he or she would be eligible for full pay and entitlements.

    This would enable Mr Shaw to work in his electorate if he was suspended.

    http://www.abc.net.au/news/2014-06-06/abjorensen-victorias-political-bastardry-a-history/5501976

    Victoria's political bastardry: a history
    By Norman Abjorensen
    Updated Fri 6 Jun 2014, 7:06am AEST

    Geoff Shaw, who feels the Liberal Party has spurned him, is treading a well-worn path in the jungle of payback politics that is the Parliament of Victoria, writes Norman Abjorensen.

    Hell, indeed, hath no fury like a politician spurned - and in Victoria that is something akin to a credo, for many a career, and even a few governments, have fallen in the name of sweet revenge.

    Geoff Shaw, the renegade ex-Liberal on whom the Napthine Government relies for a majority, is merely following an old script if he holds to his threat and brings the Government down.

  • 66
    Leroy Lynch
    Posted Sunday, June 8, 2014 at 7:35 pm | Permalink

    Adelaide Law Review article from 2005 is a good survey of the Victorian Parliament’s powers to punish contempt

    http://www.austlii.edu.au/au/journals/AdelLawRw/2005/2.pdf

    Professor George Williams’ advice to Victorian Labor on the Victorian Parliament’s powers to expel an MP

    http://resources.news.com.au/files/2014/06/08/1226947/375976-george-williams-advice-on-shaw.pdf

    Peter Costello’s great-great-grand-father Patrick was expelled from Vic Parliament & jailed for voter impersonation in 1861

    http://adb.anu.edu.au/biography/costello-patrick-12861

    The life of Edward Findley, the last MP to be expelled from the Victorian Parliament; went on to be a Senator

    http://adb.anu.edu.au/biography/findley-edward-6170

  • 67
    Steve777
    Posted Tuesday, June 10, 2014 at 8:25 am | Permalink

    Maybe the Speaker has instructions to chuck out a couple of Labor members today before any vote on the Shaw matter.

  • 68
    Tom the first and best
    Posted Tuesday, June 10, 2014 at 1:29 pm | Permalink

    67

    The ALP MLAs are likely to be on their best behaviour before the vote to reduce the chances of being suspended.

  • 69
    Raaraa
    Posted Tuesday, June 10, 2014 at 5:19 pm | Permalink

    Did Vic Labor just passed all the bills, including that bit with the EW link?

  • 70
    Martin B
    Posted Tuesday, June 10, 2014 at 8:49 pm | Permalink

    Ok, so it looks like Shaw is less likely to be expelled… but if he were, I’m sure the legal advice is right: the courts, if asked, would enquire into the existence and limits of the privilege but not the circumstances of its exercise.

    Still, I’m sure there’s scope for playing merry legal heck. For example Bradlaugh v Gossett, the case demonstrating exclusive cognisance of Parliament over expulsion wasn’t until 1882 – so presumably this had not been determined in 1855. Indeed the early case of Ashby v White, appeal upheld by the Lords could be argued to demonstrate that parliamentary privilege is subject to common law (although there may be a counter-argument that it is only the extent of the privilege that is).

    It seems to me that tying the privileges to those of the Commons at a historical date is the worst of both worlds. The argument for common law traditions is that they can adapt and evolve as the circumstances of society do, but this mechanism seems to freeze them in time, but without the (relative) clarity of statute.

    I’d welcome comments on this from anyone that actually knows what they are talking about ;-)

  • 71
    RichardB
    Posted Tuesday, June 10, 2014 at 10:41 pm | Permalink

    70

    The Victorian Parliament is the creation of an Act the Imperial British Parliament (The Victorian Constitution Act 1855 (Imp)). The original constitution of Victoria is laid out in schedule 1 of that Act. Art XXXV of the Schedule says: ‘It shall be lawful for the Legislature of Victoria, by any Act or Acts to define
    the Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Council
    and Assembly, and by the Members thereof.’ Bear in mind that the Imperial Parliament could not give to anyone powers that it itself did not have. That is the powers given to the Victorian Parliament could not exceed those possessed by the Imperial Parliament in 1855. The Imperial Parliament arguably did not (and does not) have the power to ‘expand’ its privileges. (The extent of these being arguably fixed by the – largely unwritten – British constitution.) The fixing (as in s19 of the Constitution Act 1975 (Vic)) by the Vic Parliament of its privileges by reference to those possessed by the Imperial parliament in 1855 is thus sensible.
    It gives the widest possible constitutionally allowable ambit to the Vic Parliament’s privileges. The extent of these privileges can always be cut down by an Act of the Vic Parliament to that effect, but further expansion of the privileges is probably not possible.
    There is a corresponding provision to s19 in the Commonwealth Constitution (s49). Note that the Commonwealth Parliament has legislated to give up its right to expel members (s8 of the Privileges Act 1987 (Cth)).

  • 72
    Martin B
    Posted Wednesday, June 11, 2014 at 11:29 am | Permalink

    Hi RichardB (are we related? :-) )

    Thanks for the reply.

    The Imperial Parliament arguably did not (and does not) have the power to ‘expand’ its privileges. (The extent of these being arguably fixed by the – largely unwritten – British constitution.)

    Is it the case that in a common law system these privileges can, if not expand, at least evolve to cover situations that did not exist earlier (say, as an eg tweeting from the chamber)?

    If that is so, can the privileges of the Victorian parliament evolve similarly with the Victorian/Australian common law?

    It gives the widest possible constitutionally allowable ambit to the Vic Parliament’s privileges

    Well, not really if the answers to the earlier questions are yes and no respectively.

  • 73
    RichardB
    Posted Wednesday, June 11, 2014 at 2:38 pm | Permalink

    Of course it is also arguable that the Imperial Parliament had in 1855 the power to make any law at all that it saw fit to make. But to more or less get to your point …
    The common law is a set of principles applied by the courts to the circumstances of particular cases. It is supposedly the customary law of England as it has existed “from time immemorial,” that is, so long that “the memory of man runneth not to the contrary” to quote Blackstone. As it happens the courts also tell us what those principles are. But the principles themselves are (supposedly) immutable. Occasionally judges may say that previous judges have erred and mis-stated the principles, and set about correcting their misconceptions. And occasionally too new principles come to light that, for some reason, it had never been necessary to previously apply. (These things might, in another schema, be considered as ‘evolution’ of the principles.) Judges stating the common law are like priests revealing the will of God. It’s all a fiction but it is a useful one. From time to time these immutable principles are applied to new circumstances.
    Strictly speaking the privileges of the Houses of the UK Parliament are not part of the common law. They are more like prerogative powers. But the idea is more or less the same. So, for example, the courts have from time to time since 1855 made various decisions concerning the privileges of the Parliament. These did not, in theory, alter the privileges, they merely elucidated more clearly what they were and had always been. Likewise the Houses have ‘always’ had the power to punish ‘contempt’. That is the principle. It is immaterial that the contempt be communicated by way of tweet or semaphore. That does not require any ‘evolution’ of the principle.
    Are we related? Could be. All Bs together.

  • 74
    Martin B
    Posted Wednesday, June 11, 2014 at 3:12 pm | Permalink

    So, for example, the courts have from time to time since 1855 made various decisions concerning the privileges of the Parliament. These did not, in theory, alter the privileges, they merely elucidated more clearly what they were and had always been.

    Ok, so as above, Bradlaugh v Gossett, the case that establishes exclusive cognisance over admission is 1870, and the SCV/HCA would find this precedent persuasive but not determinative: is that right? So is it possible, in principle, that the courts would find that Australian parliamentary prerogative differed in this respect? I know they never would.

    My personal (and irrelevant) sense of justice feels that B v G is wrong. However much they control what goes on inside, and even if they can just suspend indefinitely, there should be restraint on the simple majority barring a lawfully elected member from taking their seat (and by extension from being expelled).

  • 75
    RichardB
    Posted Wednesday, June 11, 2014 at 5:48 pm | Permalink

    Yes to both questions.
    As to the second para, Parliament needs the power to control its own business without interference by the executive or the courts, and we elect our members of parliament pertly to oversee each other’s behaviour. The power of the majority to expel for various misbehaviours is not inherently undemocratic, although obviously it can be subject to abuse. Indefinite suspension is probably more undemocratic in that it denies representation to the electorate in question. Expulsion on the other hand results in a by-election, where the matter is subject to the judgment of electors. Expelled members have often been re-elected.
    Anyhoo, it seems that Smith has backed down, and that Shaw is safe, and there will be no expulsion (for the moment) and no embarrassing by-election.

  • 76
    Martin B
    Posted Wednesday, June 11, 2014 at 8:30 pm | Permalink

    Well, I think I am coming to a better understanding of this obscure branch of constitutional law, so again I thank you.

    Parliament needs the power to control its own business without interference by the executive

    That is at best an ‘aspirational goal’ in a Westminster system with party discipline…

    The power of the majority to expel for various misbehaviours is not inherently undemocratic, although obviously it can be subject to abuse.

    No, I probably wouldn’t rule it out, if codifying the privilege, but a party-line vote in favour of the majority party seems to me, in general, to be inadequate. If it’s a cross-party near-unanimous decision that’s another matter.

    Indefinite suspension is probably more undemocratic in that it denies representation to the electorate in question.

    Without really disagreeing, how much representation goes on on the floor of parliament? Surely most real representation comes from making enquiries with agencies, setting up meetings, contributing to policy development, providing information etc.

    Expelled members have often been re-elected.

    And in the worst abuses have immediately been expelled by the majority again.

  • 77
    RichardB
    Posted Thursday, June 12, 2014 at 1:35 am | Permalink

    I assume that your last sentence is a reference to Bradlaugh v Gossett. B was indeed re-elected by his constituents about four times in the course of his various exclusions over the oaths issue, but it is difficult to argue that there was any ‘abuse’ in his matter. One might disagree with the decisions – and beliefs – of the Commons majority (and it is not clear that judicial review ultimately would have resulted in a different decision), but everyone appears to have acted in good faith, and the eventual outcome was the passage of a new improved Oaths Act in 1888.
    I think it is possible to get a little too precious about these things. If we are content to allow these people to make laws for us (on a majority rules basis) we ought to trust them to govern their own procedures on the same basis. If one thinks that our elected representatives are inherently unfit as a collective to govern without adult supervision then it becomes a case of quis cusdotiet ipsos custodes – or perhaps we need an entirely new system?
    In fact the decline in expulsions in the 20th c is possibly due to increased party discipline. Governments with sound majorities seldom bother in expelling opposition members when they may have good grounds for doing so. It is usually more politically productive to let them swing in the breeze. When they have poor grounds the action is often electorally counter-productive. On the other hand misbehaving government supporters are best got rid off (although they are more usually tapped on the shoulder and asked to go as quietly as possible) as indeed are misbehaving opposition members asked to do so by their own party. It may be noteworthy that all the expulsions from the British Commons in the 20th c were of government members.

  • 78
    Martin B
    Posted Thursday, June 12, 2014 at 12:41 pm | Permalink

    I assume that your last sentence is a reference to Bradlaugh v Gossett.

    Also John Wilkes in the 18th century.

    but it is difficult to argue that there was any ‘abuse’ in his matter. One might disagree with the decisions – and beliefs – of the Commons majority (and it is not clear that judicial review ultimately would have resulted in a different decision), but everyone appears to have acted in good faith

    I’m afraid I have to differ in my interpretation. While some of Bradlaugh’s opponents, especially amongst the Irish members, were clearly motivated by sincere belief it is also clear that for many others, like the leader of the opposition to Bradlaugh, Randolph Churchill, it was an opportunity to exploit those beliefs to cause division amongst the Liberals, and between the Liberals and the Irish Nationalists.

    the eventual outcome was the passage of a new improved Oaths Act in 1888.

    Well, yes, in the new parliament after the new Speaker had taken some leadership. The extent to which Bradlaugh’s former opponents in the Conservatives voted in favour of the idea they had so vigorously opposed a few years earlier indicates the depths of their conviction to the matter.

    I think it is possible to get a little too precious about these things.

    Yeah, maybe :-)

    If we are content to allow these people to make laws for us (on a majority rules basis) we ought to trust them to govern their own procedures on the same basis. If one thinks that our elected representatives are inherently unfit as a collective to govern without adult supervision then it becomes a case of quis cusdotiet ipsos custodes – or perhaps we need an entirely new system?

    Well, we do draw boundaries around Parliament’s authority in a number of areas – limitation of power is as much a part of a democratic system as the means of delegating it. So it’s not, in principle silly to enquire about the precise location of those boundaries.

  • 79
    RichardB
    Posted Thursday, June 12, 2014 at 5:34 pm | Permalink

    Hmm. Wilkes probably deserved everything he got and more than probably relished the getting. You may know more about the Bradlaugh affair than I, but I would have thought that there was more fertile ground on which to split the Liberals in the 1880s and it wasn’t really an issue that was likely to cause division between the Liberals and the Home Rulers, the treatment of ‘Irish question’ in itself being more than enough to pre-occupy them in that respect. Bradlaugh wasn’t a crucial issue for either the Liberals or the Irish Nationalists. (But then again Churchill was not the most conspicuously brilliant politician of his day.) It was also B himself who provoked the controversy. I remain inclined to the view that the main initial opposition to B was based around the view that he was insincere, disrespectful, not entirely trustworthy being an atheist, and trying to get away with something.
    There are relatively few restraints on the laws our Parliaments can make. I am not sure that a State law specifying the sacrifice of first-born males would be un-constitutional. But no, it is not silly to inquire about the precise location of the boundaries you talk about. Nice to have been able to have had a relatively urbane conversation on PB.

  • 80
    Martin B
    Posted Friday, June 13, 2014 at 2:02 pm | Permalink

    Bradlaugh wasn’t a crucial issue for either the Liberals or the Irish Nationalists.

    It wasn’t some grand strategy, but, in the wake of a disappointing election loss, the opportunity arose, and Churchill (and his close colleagues) seized on it with considerable success. Churchill later said that they were in fact surprised by how long it dragged out.

    It was also B himself who provoked the controversy.

    Yes and no. Bradlaugh asked to take the affirmation, as a test, but fully expected to take the oath if this request was refused. It was the decision of the commons to say no, he couldn’t take the affirmation but then no, he couldn’t take the oath either that was surprising and unprecedented – it was clearly understood by those voting for this motion that they were deliberately preventing him from suitting. B didn’t ‘provoke’ anything at this stage – he didn’t denounce, or disparage the oath, and he stated clearly that he would consider it binding. All of the material drawn upon by his opponents were things that he had previously said or done.

    I remain inclined to the view that the main initial opposition to B was based around the view that he was insincere, disrespectful, not entirely trustworthy being an atheist, and trying to get away with something.

    Sure there was popular (amongst the tory constituency) opposition to Bradlaugh. But that is hardly reason for barring someone from parliament, is it? {Not that it matters, but note that the opposition was to his principles, not based on personal qualities. In fact after he was finally seated he won the personal respect of many opponents for his hard-working, sincere, considered approach.}

  • 81
    RichardB
    Posted Saturday, June 14, 2014 at 1:26 am | Permalink

    You clearly know more about Bradlaugh than I do, but I am struggling to unravel the exact nature of your objection(s). Most, if not all Australian jurisdictions have legislation that prohibits ‘undischarged bankrupts’ from sitting as members of Parliament. I consider that legislation archaic, given the nature of modern bankruptcy, but I find myself in the minority and nobody seems overly exercised about the matter. Suppose a person is elected who has government sympathies, but there is a view, on the basis of certain facts admitted by the person, about whether they are an ‘undischarged bankrupt’. The person seeks to take their seat, but a majority of the House, consisting of almost all the opposition, some independents, and a not insignificant minority of government members decides, having regard to their views as to the nature of ‘undischarged bankruptcy’ that the person is in fact an undischarged bankrupt, and accordingly the House decides not to admit that member. What is your objection? This is not unlike Bradlaugh.

    This discussion of Bradlaugh causes me to recollect (somewhat irrelevantly) certain advice I was once given in my (comparative) youth. It was to the effect that witnesses appearing before certain judges, or a jury of any kind, should be sounded beforehand about their preference with respect to affirming or taking the oath. If they indicated a desire to affirm, they should be encouraged instead, if their consciences would allow it, to take the oath. I also recall being present at an admissions ceremony for new practitioners where one of the applicants made affirmation, and this was afterwards remarked upon adversely by another of the applicants, who themselves took the oath and whom I knew to be an atheist, as betraying an undesirable attention-seeking trait.

  • 82
    Martin B
    Posted Saturday, June 14, 2014 at 8:39 am | Permalink

    Suppose a person is elected who has government sympathies, but there is a view, on the basis of certain facts admitted by the person, about whether they are an ‘undischarged bankrupt’. The person seeks to take their seat, but a majority of the House, consisting of almost all the opposition, some independents, and a not insignificant minority of government members decides, having regard to their views as to the nature of ‘undischarged bankruptcy’ that the person is in fact an undischarged bankrupt, and accordingly the House decides not to admit that member. What is your objection?

    Well, I would regard that as an abuse of their powers by Parliament, in fact even more so than B. Determination of bankruptcy is a well-defined legal procedure and I wouldn’t consider it appropriate for parliament to take upon itself this determination. If members think the person is a bankrupt they should find the creditors and go to the FCA.

    There should be a strong presumption in favour of seating a lawfully elected member. The potential reasons for disbarring them should be, as far as possible, well-defined and independently determined.

    I accept that there are limits to this: a member wilfully obstructing the business of parliament can’t be well defined and will have to be determined by the parliament itself. But neither of the examples of B, or your undischarged bankrupt (or for that matter Wilkes) are about the actions of those people with respect to parliament. They are all about what sort of person should be allowed to sit in parliament.

  • 83
    RichardB
    Posted Monday, June 16, 2014 at 12:07 am | Permalink

    Although it may not matter much, I think you may have mis-apprehended the example. An ‘undischarged bankrupt’ is a bankrupt whose bankruptcy has not been discharged.

    The assertion that there ‘should be a strong presumption in favour of seating a lawfully elected member’ is not particularly well put. It not only begs the question – an undischarged bankrupt cannot be lawfully elected – but the reference to a ‘presumption’ is irrelevant, given that a majority of the House has found that the person is an undischarged bankrupt. To the satisfaction of the majority, if there is any presumption, it has clearly been rebutted. (The null position is not that the person is a undischarged bankrupt. Some resolution has been put, debated, and passed that they are and therefore they should not be admitted. I am sorry if I am labouring this point.)

    All ‘sorts’ of people are in fact prohibited from sitting as members of Parliament. See for example s44 of the Commonwealth Constitution and the corresponding (non-entrenched) provisions of the various State Constitutions. (As far as I know, nothing prohibits the State Parliaments from legislating wide categories of people as being ineligible to sit as members. Incidentally, I find most of the existing prohibitions obnoxious. But then there are lots of validly enacted laws I disapprove of, almost as many as there are judicial decisions I disapprove of.)

    Be all this as it may, I feel your objection seems to be that the relevant house is not a fit forum for determining the issue because it is not ‘independent’. If that is so, then you need to point to the perceived conflict of interest or collateral advantage or whatnot that taints the majority.

    At this point, I don’t think there is much more to be said profitably by either of us, and it is probably time to draw a line under the discussion, but thank you for providing the opportunity to have it.

  • 84
    Martin B
    Posted Monday, June 16, 2014 at 9:46 am | Permalink

    Ok, but just to clarify, is it not the case that an undischarged bankrupt is someone who has

    a) been declared bankrupt by the Federal Court and
    b) has not received a certificate of discharge from the same.

    I was thinking of the case where neither a) nor b) had yet happened but perhaps you were thinking of a) but not b). In either case my general position stands, but I won’t press the point.

    My point about ‘strong presumption’ refers to the general legal arrangement, rather than to a specific hearing begore the House; I take your point there.

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