FRANK BRENNAN. Consolations from the Liberal Party mess.

Aug 27, 2018

What a mess! Poor Fellow My Country. Today is not a day for reckoning about any big policy issues, because none of them was in play when members of the Liberal Party cast their votes in the party room.

And the reckoning on issues like climate change, energy policy, tax reform, school funding, the NDIS, migration and population policy, Indigenous constitutional recognition, multiculturalism and freedom of religion requires a functioning parliament and party rooms where deliberation and compromise within the contours of the various party philosophies are possible. To start the policy reckoning for the good of the country, the rules of political engagement need to be clear. And perfidy needs to be punished.

There are three consolations and a couple of abiding concerns about the vote in the Liberal Party’s party room meeting. The first and major consolation is that Peter Dutton was not elected leader and thus is not our new prime minister. I say this, not because of any aversion I have to his policies or because of his political philosophy, but because of his reckless, wrecking behaviour in working assiduously to terminate the prime ministership of Malcolm Turnbull.

Dutton’s behaviour this past week is not to be rewarded with the ultimate political prize. In these leadership battles, there is next to no political morality at play. It’s about winning the individual prize (and presumably trying along the way to maximise the prospects that the party will win the next election). It’s about raw power and getting the numbers.

It would be even more consoling if there had been at least three self-described ‘conservative’ members of the Liberal Party who voted for anyone but Dutton and who would have otherwise voted for Dutton but for his wrecking behaviour this week. But that’s probably too much to hope for. If it were true, it would mean that Dutton would have had the numbers were an assessment made only on the basis of political philosophy and capacity for leadership, and that he was deprived the top job by 40 votes to 45 as punishment for his engaging in self-promoting wrecking behaviour.

Had Dutton become prime minister, he would never have enjoyed any legitimacy given the tactics he employed to get there, and such behaviour would have been repeated and rewarded yet again in the future. The consolation is that even in the derelict state of Australia’s contemporary politics, Dutton’s perfidy augmented by Tony Abbott’s desire for revenge are no longer to be rewarded.

The second consolation is that the last of the 43 signatures on the petition seeking the spill was that of Warren Entsch who specified that he was doing it for Brendan Nelson. Nelson was the first Liberal leader to suffer at the hands of a wrecker who happened to be none other than the then political novice Malcolm Turnbull. You live by the sword, you die by the sword.


“Political revenge, personal perfidy, and a rolling series of by-elections might feed the 24-hour media cycle, but they do nothing for the common good.”


On both sides of politics, we have now experienced a cyclical blood lust which has done nothing to assist the nation confront the big policy issues confronting us. Rudd, Gillard, Abbott and Turnbull all failed to achieve their potential, being brought down by one of their own. Entsch was prepared to bring on the spill so that a line might be drawn, with both sides of politics and both wings of each major political party putting an end to political fratricide which makes party unity and cabinet solidarity all but impossible to maintain.

The third consolation is that neither of the victors, Scott Morrison nor Josh Frydenberg, has blood on his hands. There is some prospect of a fresh start, and on both sides, given that Bill Shorten is secure in the wake of the recent by-elections.

There are two abiding concerns. Malcolm Turnbull was able to buy time for ‘anyone-but-Dutton’ by invoking the pesky section 44 of the Constitution which sets out the qualifications for membership of the Parliament. This outdated section continues to wreak havoc with the democratic legitimacy of the Australian Parliament, undermining the public’s trust in their elected representatives. Neither side of politics shows any appetite for amending this troublesome provision.

For the last couple of years, the Parliament has been paralysed and the public troubled with an unnecessary series of by-elections because of the operation of s44(i) of the Constitution. The 1988 Constitutional Commission, which included Gough Whitlam and Rupert Hamer as members, recommended that section 44(i) of the Constitution be deleted and not replaced. They further recommended that the Constitution ‘be altered to make Australian citizenship a necessary qualification for membership of the Parliament’.

They also thought the Parliament should have the power to impose a qualification requiring members ‘to comply with reasonable conditions as to residence in Australia’. It’s now 30 years since the Constitutional Commission reported to Parliament on the very problem which confronted all the members in the recent spate of by-elections. The Constitutional Commission reported:

‘Even though a person who is granted Australian citizenship may have taken all appropriate steps to relinquish the non-Australian nationality so far as he or she is able, the person may have retained the status of a subject or citizen because of the laws operating in that country. In that case a person may at present be incapable of being chosen or of sitting as a member of Parliament. The person’s right to take the fullest part in our representative democracy could be impaired by being ascribed a status by a foreign system of law that does not permit voluntary relinquishment of that status.’ The Commission further recommended: ‘Any Australian citizen, including a person with dual citizenship, should be able to stand for Parliament. Accordingly, section 44(i) should be deleted.’

This week, the concern has been about the operation of the equally vague and problematic section 44(v). The suggestion was that Dutton was standing to gain a pecuniary benefit under an agreement with a Commonwealth government department because he has an interest in a family trust which runs child care centres and which ‘by agreement’ is in receipt of Commonwealth funds. Once again, only the High Court could give a definitive ruling on the operation of this part of section 44. The House of Representatives voted against a motion referring the matter to the High Court.

Prime Minister Turnbull sought ‘urgent’ advice from the Commonwealth Solicitor General. This request bought the anti-Dutton forces the necessary additional 24 hours they needed to garner support after the Dutton ambush earlier in the week. Meanwhile the office of Solicitor General was exploited for political purposes with the Solicitor General going as far as he responsibly could, giving his opinion that ‘the better view is that Mr Dutton is not incapable of sitting as a member of the House of Representatives by reasons of s 44(v) of the Constitution’.

The Solicitor General said that ‘it is impossible to state the position with certainty’, in part because ‘There is a possibility, consistently with the approach that the High Court recently took in the context of section 44(i) of the Constitution, that the Court might endeavour to create a clearer line in the interests of certainty, which might involve a broader reading of section 44(v)’ than in earlier decisions of the court. It’s time for our politicians to lead the people and propose sensible constitutional change to section 44. But they won’t. And they will continue to exploit ambiguities and uncertainties in this outdated section for their own political advantage.

The second abiding concern is that a by-election in the seat of Wentworth prior to any general election will create further instability and distraction disabling our major parties and the parliament from reckoning with the big policy issues confronting us. We don’t need any more by-elections. We need parliament to work between now and the next general election which will be in May 2019 at the latest. For the good of the country, either Scott Morrison or Bill Shorten needs to be given some clear air and a realistic political horizon for passing substantive legislation for the good of the country and as soon as possible. Political revenge, personal perfidy, and a rolling series of by-elections might feed the 24-hour media cycle, but they do nothing for the common good.

This article was published by Eureka Street on the 24th of August 2018. 

Frank Brennan SJ is the CEO of Catholic Social Services Australia.

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