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Victorian Politics

Jun 4, 2014

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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84 comments

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Martin B
Guest

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.

RichardB
Guest
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… Read more »
Martin B
Guest
[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… Read more »
RichardB
Guest
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… Read more »
Martin B
Guest
[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,… Read more »
RichardB
Guest
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… Read more »
Martin B
Guest
[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… Read more »
RichardB
Guest
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… Read more »
Martin B
Guest
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… Read more »
RichardB
Guest
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… Read more »
Martin B
Guest
[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)… Read more »
RichardB
Guest
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… Read more »
Martin B
Guest
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… Read more »
RichardB
Guest
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… Read more »
Martin B
Guest
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… Read more »
Raaraa
Guest

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

Tom the first and best
Guest
Tom the first and best

67

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

Steve777
Guest

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

Leroy Lynch
Guest

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

Leroy Lynch
Guest
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… Read more »
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