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Malcolm Mackerras
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Why John Alexander will win Bennelong

Tuesday, December 12, 2017

My last article here was published on Thursday, November 23, and titled “Is our High Court interested in fairness or justice?” to which question I gave a resoundingly negative answer. I concluded by promising that my next article would be on Bennelong in which I might make a prediction. When I appeared on SWITZER on Monday, December 4, I gave my prediction to Peter – John Alexander will win Bennelong because his electors will come to the same view as those of New England. Both Barnaby Joyce and Alexander are clear-cut cases of unfair dismissal. Electors, therefore, will hire again those two men who were legitimately, convincingly and democratically elected in July last year.

As I have pointed out in several articles, these cases illustrate the beauty of our democratic system for electing the House of Representatives. To the unrepresentative swill of the Senate (with its truly appalling voting system) is left the power of the judges to confiscate seats from those who were legitimately and democratically elected to those seats. In this term so far there have been ten Senate seat confiscations. You read that correctly – TEN confiscations, and counting. If I wanted to be pedantic, however, I could have noted “or resignations in expectation of confiscation”.

The inherent nature of Bennelong is that it is a highly marginal seat. I knew that when I saw the present map which was published in 2006. I had no difficulty in repeatedly predicting that John Howard in 2007 would be defeated in that highly marginal seat. All the surrounding seats (originally Berowra, Bradfield, North Sydney, Lowe, Reid and Parramatta) have seen their boundaries changed by subsequent redistributions but Bennelong has remained unchanged.

When created in 1949 Bennelong was a blue ribbon Liberal seat. The original proposal was that it be called Lane Cove but the map-makers realised that the suburb of Lane Cove would be removed at a subsequent redistribution – so the permanent name of Bennelong was given. The seat was so blue ribbon in its character that there was a notional majority for the Liberal Party on the 1946 voting when Ben Chifley stormed home to a great Labor victory in Australia as a whole.

During its blue ribbon phase there was just one close result. The seat was saved for its incumbent, Sir John Cramer, in 1961 by the votes of the suburbs of Hunters Hill, Lane Cove, Longueville, Northwood and Woolwich. All those polling places now vote in blue ribbon North Sydney, leaving Bennelong as the ultimate example of a marginal seat.

The great winner of 2007 was Labor’s Maxine McKew who turned out to be an inadequate member. Alexander, therefore, took it in 2010 on a swing of 4.5 per cent. He added to his 2010 majority a swing of 4.6 per cent in 2013, followed by a further swing in his favour of 1.9 per cent in 2016. Those three swings add together to create the impression of Bennelong returning to its status as blue ribbon Liberal but I can assure readers that it remains very much a marginal seat. In any circumstances but these ones Labor could easily win Bennelong. I would not object to that in any circumstances but these. Nor would I object if Kristina Keneally were to be a future member of the House of Representatives. However, not in these circumstances, thank you very much. Personally she is a delightful woman to meet.

The Greens will take from Labor the Melbourne inner-city seat of Batman at the next election, whenever it is held. That being the case it is probably best for Labor to get the pain over and done with by a Court-ordered by-election which would create two very safe adjoining seats for The Greens, Batman and Melbourne. Labor and, especially, Bill Shorten have been so cynical in their behaviour over the High Court’s recent rulings there will be no sympathy for them. Instead there will be a feeling that, given the high overall vote for the party of the far left, there really should be more than one Green in a House of Representatives of 150.

If there is any other Court-ordered by-election the result will be the same as in New England and Bennelong. The voters will say to themselves “this by-election is so totally and hopelessly un-necessary as to constitute a disgrace”. In all cases the member legitimately and directly chosen by the people in July 2016 will enjoy an easy win.

In three previous articles on this website (posted on Friday, September 8, Wednesday, November 1 and Thursday, November 23) I predicted the result of the Queensland state election would be 50 for Labor, 36 for the Liberal National Party, four for Pauline Hanson’s One Nation Party, two for Katter’s Australian Party (Hill and Traeger) and one Green member in the seat of South Brisbane. The result is 48 for Labor, 39 for the LNP, three for KAP (Hill and Traeger retained and Hinchinbrook gained from the LNP), one for PHON (Mirani, taken from Labor) and one Green, not in South Brisbane but in Maiwar.

Over the holiday break I shall do a proper analysis and that will be my first article in the New Year. In it I shall explain why I think this is a pretty good result for the LNP, contrary to the current conventional wisdom of it being otherwise. In the meantime I wish all readers and viewers of SWITZER a happy Christmas and a bright and prosperous New Year.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


Is our High Court interested in fairness or justice?

Thursday, November 23, 2017

By Malcolm Mackerras

Back on Wednesday 1 November I had an article posted on this website titled “Citizenship debacle dragged on too long.” It began this way, dealing with Queensland:
“Back on Friday September 8. . . I made a forecast which was that Labor would win an election I expected to be held on Saturday October 28. My prediction of the date was slightly out but my forecast of the result stands. It is 50 seats for Labor, 36 for the Liberal National Party, four for Pauline Hanson’s One Nation Party, two for Katter’s Australian Party (Hill and Traeger) and one for The Greens (South Brisbane). I shall contribute a detailed article on Queensland later this month.”
The first purpose of this article is to keep that promise. I begin by giving a list of the 50 seats I predict Labor will win on Saturday. They are: Algester, Bancroft, Barron River, Bulimba, Bundamba, Cairns, Capalaba, Chatsworth, Cook, Cooper, Everton, Ferny Grove, Gaven, Gladstone, Greenslopes, Inala, Ipswich, Ipswich West, Jordan, Keppel, Kurwongbah, Logan, Lytton, Macalister, McConnel, Mackay, Mansfield, Maryborough, Miller, Mirani, Morayfield, Mount Ommaney, Mulgrave, Mundingburra, Murrumba, Nudgee, Pine Rivers, Pumicestone, Redcliffe, Rockhampton, Sandgate, Springwood, Stafford, Stretton, Toohey, Toowoomba North, Townsville, Waterford, Whitsunday and Woodridge.
I now give the 36 seats I predict the LNP to win and the four I predict for One Nation. For the LNP: Aspley, Bonney, Broadwater, Buderim, Bundaberg, Burdekin, Burleigh, Burnett, Caloundra, Clayfield, Condamine, Coomera, Currumbin, Glass House, Gympie, Hervey Bay, Hinchinbrook, Kawana, Maiwar, Maroochydore, Mermaid Beach, Moggill, Mudgeeraba, Nanango, Nicklin, Ninderry, Noosa, Oodgeroo, Redlands, Scenic Rim, Southern Downs, Southport, Surfers Paradise, Theodore, Toowoomba South and Warrego. For the ONP I predict wins in Callide, Gregory, Lockyer and Thuringowa.
I am, of course, aware that this is a general election, not a series of 93 by-elections. Nevertheless, my opinion is that this has been a good campaign by Labor, The big issue is the Carmichael coal mine proposed by Adani Mining. I think the Labor campaign has handled this question skilfully. On the one hand Labor’s insistence that the mine will be built has helped to “sandbag” potential losses in regional Queensland. On the other hand, the possibility that the mine just might not be built if Labor wins has helped it in the south east. However, I think it is the personal popularity of Annastacia Palaszczuk which will do the trick for her party.
The second purpose of this article is to comment on something which has received very little notice, the decision by the High Court to confiscate the NSW Senate seat won fair and square by Hollie Hughes of the Liberal Party. It means that the seat will go to Retired Major General Jim Molan AO DSC. The only possible democratic justification for such favouritism would be the fact that, at the 2016 Senate general election, Molan received 10,182 first preference votes below the line compared with 1,126 for Hughes. However, when the Court deigns to gives us its reasoning I would be extremely surprised if such a justification is even mentioned.
My sympathies in this matter have been recorded several times on this website. The articles in question are: “My sympathy for Culleton, Day, Ludlam and Waters” (posted Thursday 20 July), “Why Section 44 of the Constitution needs fixing” (Thursday 27 July), “Barnaby Joyce should have resigned seat in August” (Friday 8 September), “Citizenship debacle dragged on too long” (Wednesday 1 November) and “High Court is to blame for political crisis” (Wednesday 15 November). Readers will know that I think the High Court has made a series of outlandish decisions. However, with the case of Hollie Hughes the Court has, in my opinion, graduated from the outlandish to the outrageous. This decision is outrageously unfair to Hughes. Our High Court has no interest in fairness or justice. It is interested only in its own power which it exercises with the certainty of a zealot.
Of course, I am aware that High Court idolatry is very strong in this country. There is a gaggle of so-called “respected” commentators who constitute a cheer squad for the Court. Their current line is to argue that the Court is “a black letter law” institution. Nothing could be further from the truth which is that the Court becomes a black letter law court when it wants to be but should not be described generally in that way. As I have argued, the Australian High Court has actually engaged in judicial law making but has been able to generate a popular opinion to the effect that certain politicians have trespassed against the Constitution. Actually, what has happened is that some blameless, worthy and patriotic politicians have not been aware of their situation and have trespassed against laws legislated by the High Court from the bench. It is not surprising that the Court (and its media cheer squad) want the general public to believe that such politicians have behaved badly.
One of my themes has been to repeat my belief that the voting system for our House of Representatives is vastly superior to that for the unrepresentative swill of the Senate. The High Court is involved in that fact. It can confiscate seats from senators who have trespassed against judge-made legislation – and get ordinary people to believe that the senators have disobeyed some commandment in the Constitution. The prime example of this lower house democratic superiority comes in the form of by-elections in New England on 2 December and Bennelong on 16 December.
In the case of New England, I have total confidence in the judgment of the people. They will cock a snoot at the Court by giving it a big, big, two finger salute. In modern language they will say “up you” to the gods and goddesses in question. I cannot, however, say that I am at all confident of the judgment of Bennelong electors.
Readers may be interested to know that I shall be out of circulation from Friday 24 November to Monday 4 December, inclusive. During that period I shall give serious consideration to my next article which will be on Bennelong. A question in my mind is whether I should make a prediction. That will require very serious thought!
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


High Court is to blame for political crisis

Wednesday, November 15, 2017

By Malcolm Mackerras

In the period since Friday 27 October (the day the High Court handed down its outlandish decision confiscating the seats of certain senators) I have searched high and low and here and there and everywhere to find a sensible comment on that decision. My search was a case of finding a needle in the haystack but eventually I found such a needle. It was a letter to the editor published in The Australian on Monday 13 November and it was by John George of Terrigal, NSW. It reads as follows:
“The absurdity of the dual citizenship saga has long been apparent but it was capped off at the weekend by John Alexander’s forced resignation. Few in the parliament can hold a candle to Alexander’s authenticity as an Australian. He has represented this country as a sportsman, and as both a businessman and family man he has been a beacon of decency; a man dedicated to Australia and its values. To see this man having to resign because his father failed to renounce his British citizenship is just crazy stuff.
“When you think the very people who wrote our Constitution were themselves British, you have to wonder what the hell we are doing here. Our whole legal system is British, our head of state is British, and our system of government is British. Yet we have a bunch of overpaid lawyers sitting on the High Court bench who seem to think being a dual British citizen makes you a foreigner who endangers the security of the parliament.”
Were John George and I ever to meet and have a conversation I imagine that he would agree with me that nine-tenths of the blame for this political crisis lies with the seven judges of the High Court. The other tenth of the blame lies with Malcolm Turnbull. I say that because he loudly predicted that the High Court would make a sensible decision based on the dissenting judgment of Sir William Deane back in 1992. He should have known that such arrogance would provoke the judges into making the reverse decision. What a fool!
Looking back on my own contribution to this debate I am struck by my own moderation. In my commentary (“Citizenship debacle dragged on too long” posted Wednesday 1 November) I wrote of various High Court decisions with the words “I do not condemn them” but noted that “I am not a fan of the High Court”. How could I have been so moderate? Of course I condemn the decisions I have discussed! Furthermore, I have been a non-fan of the High Court for a very long time, as I now explain.
Back in 1995 I joined the Samuel Griffith Society, of which I have been a financial member ever since. I did that because the scales had fallen off my eyes in relation to the High Court and I knew that the Society’s members were the most severe critics of the Court in Australia. I realised then that various decisions of the High Court which had been praised by me at the time of their making were nothing more nor less than judicial legislation for which certain words in the Constitution were the cover. I also understood what the future would hold. Judges would use their power to enforce the laws they had made. That is exactly what they have done since 1995.
In 1995 I also realised the truth of then Prime Minister Paul Keating’s description of the Senate as “unrepresentative swill”. It was that because of the Senate voting system. Today it is even more clearly unrepresentative swill because the then system, bad though it was, found itself replaced by an even worse system legislated by the politicians and unanimously approved by the High Court in the autumn of 2016. The men and women who gave us this present constitutional abomination were Malcolm Turnbull, Barnaby Joyce, Richard Di Natale, Nick Xenophon, Chief Justice Robert French and Associate Justices Susan Kiefel, Virginia Bell, Stephen Gageler, Patrick Keane, Geoffrey Nettle and Michelle Gordon. Six of those seven gods and goddesses are still on the Court participating in this recent citizenship decision.
Section 24 of the Constitution commands that “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. . .” and that has been the case since Federation. Every member has been and is directly chosen by the people and, in my opinion, every member was properly elected by the people in July 2016 in a direct election. However, two members now require re-election at by-elections forced by the High Court. I sincerely hope that the people of New England and Bennelong decide to cock a snoot at the Court. In modern language I hope the people of the two electoral divisions say “Up You” to the gods and goddesses sensibly described by John George of Terrigal as “a bunch of overpaid lawyers.”
Meanwhile on Monday 13 November various new senators were sworn in and the most interesting of them was a certain Fraser Anning who immediately chose to be an independent senator. He has that right because, under the system supported by a majority of the federal politicians and all the High Court judges, he is deemed to have been directly chosen by the people of Queensland as though the system were candidate-based. So, let me tell readers of his record. Polling just 19 votes in July 2016 the re-count ordered by the High Court saw his vote build up to 207,193 which saw him duly (and properly!) elected.
Finally, here are the cases of senators elected with ridiculously low first preference votes since the set of above-the-line contrivances was introduced. In 1984 Amanda Vanstone (Liberal, South Australia) was elected with 253 first preference votes. In 1987 Noel Crichton-Browne (Liberal, Western Australia) was elected with 155. In 1993 Chris Ellison (Liberal, WA) was elected with 262 primary votes and Dominic Foreman (Labor, SA) was elected with 256. In 2010 Glenn Sterle (Labor, WA) was elected with 156.
However, that system had to be replaced because it proved a tad inconvenient for the machines of big political parties. Under the much-vaunted “reform” (so loved of politicians and judges) in 2016 the two Xenophon deputy senators, Stirling Griff and Skye Kakoschke-Moore, enjoyed the support of 103 and 129 votes, respectively. With those votes Griff has a six-year term and Kakoschke-Moore has three-years. The big daddy of them all, however, was the senator “directly chosen by the people of Queensland” in 2016, Malcolm Roberts, who thought he was elected to a three-year term. However, his record was surpassed by Anning who is now a senator with 19 first preference votes, an all-time record low. His term expires on 30 June 2019. And yet there are people who dispute the description of the Senate as “unrepresentative swill.”
The solution is actually quite simple. The politicians and the judges should get together and devise a decent system under which senators truly are directly elected, like every member of the House of Representatives is. All the politicians and judges need to do is apply to me and I can tell them how to do it.
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


It’s not the voting that’s democracy, it’s the counting

Wednesday, November 08, 2017

By Malcolm Mackerras
Published on this website on Monday 16 March 2015 was an article by me titled: “The political future for NSW and NZ”. In that article I made this dogmatic statement: “If Winston Peters wins in New Zealand and if Mike Baird fails to get a decent win in Australia’s most populous state, we can read this as the verdict of the people: the cause of further economic reform is dead on both sides of the Tasman.” I can now record that Baird did get a decent win and Peters won the then Northland by-election. However, there has been a recent general election across the Tasman at which Peters was the real winner. I now pronounce again: the cause of further economic reform is dead on both sides of the Tasman.
There was a National Party government in New Zealand which ruled from November 2008 to October 2017 and which won general elections in November 2008, November 2011 and September 2014. It established an excellent record of economic management and reform, first under John Key (2008-2016) and then under Bill English (2016-17). English was the Finance Minister (what we would call Treasurer) for the whole period Key was Prime Minister.
The National Party was defeated at the general election held on Saturday 23 September 2017 – though it took a month for the defeat to become the settled news of the election. Labour’s Jacinda Ardern was sworn in as Prime Minister on Friday 20 October in a Coalition government of Labour, Greens and the New Zealand First Party led by Winston Peters. This result illustrates a proposition I often advance: the “will of the people” is always expressed through an electoral system. If New Zealand’s House of Representatives had been elected under the system we use to elect our House of Representatives, the National Party would clearly have retained power. Tom Stoppard had an actress saying in his 1972 play “Jumpers” this famous line: “It’s not the voting that’s democracy, it’s the counting”. The purpose of this article is to illustrate why that is so.
Electoral systems for lower houses of parliament around the world are conventionally divided into two classes, single member constituency systems (United Kingdom, India, Japan, Canada and Australia) and proportional representation systems which have now become the most common. For my part, there is a further division of PR systems – good and bad. In my book both the Australian Senate and the New Zealand House of Representatives systems are bad, but the Australian Senate system would be technically easy to reform into a good system along the lines I have proposed. I regret to say, however, that the New Zealanders are stuck with their system permanently.
The idea of the New Zealand system is to distribute seats strictly proportionately between parties according to a “party vote”. Consequently, in the old House of Representatives the National Party had 59 seats, Labour 32, Greens 14, New Zealand First 12, the Maori Party two and one each for two right wing “micro parties”. That made for a total of 121 members. Since the two members from right wing “micro parties” and the two from the Maori Party were willing to grant supply to the National Party government in the outgoing parliament, the effective majority was five seats, 63 to 58.
The result of this recent election is 56 for National (a net loss of only three seats, let it be noted), 46 for Labour (a gain of 14), 9 for New Zealand First (a loss of three), 8 for the Greens (a loss of six) and one for the right wing party known as “Act” which is a pro market party always supporting National. So now there is a majority of six for the left, 63 to 57, where previously there was a majority of five for the right.
It is worth noting that Labour made good gains but the other parties in the new government both lost ground. Having lost ground, however, their influence has increased because they are critical to Labour being now in power. From all the above it would not be clear to readers why I say that National would have won under the Australian system so I must now explain my detailed reasoning.
They call this a “two vote system” but I call it a “two ticks, one vote system” because only the party vote really counts. It is technically called Mixed Member Proportional (MMP) because there are two classes of member. There are 71 electoral districts (constituencies) the boundaries of which are exactly the same in 2017 as they were in 2014. These are “topped up” by party list seats to produce overall proportionality – according to the party vote. These men and women are nothing but party machine appointees. There were 50 such seats in 2014 and 49 in 2017, thus reducing the overall size of the House from 121 to 120. MMP is a truly awful system – though only a smidgin worse than our Senate system!
In the old House the 71 members directly elected by the people comprised 40 for National, 27 for Labour, one each for NZ First (Northland), Act (Epsom), the Maori Party (Waiariki) and United Future (Ohariu). The situation now is 41 for National, 29 for Labour and one seat for Act, Epsom. The Maori Party and United Future have been wiped out and NZF has been wiped off the map, except for its nine party machine appointees, technically known as “party list seats”.
The situation of Peters is interesting – but tells us all we need to know about the system. He was, in the New Zealand way of saying, “voted out on Saturday, back in on Monday”. He was a directly elected member leading a party of 12. He is now a party machine appointee leading a party of a miserable nine members – but he is Deputy Prime Minister, the equivalent of our Barnaby Joyce who will soon resume his status as a directly elected member of our House of Representatives.
My statement above about the directly elected members tells us surely that National would have easily won an election under the Australian system. I am aware that there is a difference between our preferential vote and their first past the post. Nevertheless, I have analysed all the results and make the assertion I do. I am not aware of any analysts who disagrees with my analysis. All I am able to say is that, regrettably, most analysts think New Zealand’s system is a better reflection of the “will of the people” that the Australian. I beg to differ from the majority.
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


Citizenship debacle dragged on too long

Wednesday, November 01, 2017

By Malcolm Mackerras
Back on Friday September 8 there was posted on this website my article “Barnaby Joyce should have resigned seat in August.” It referred to the citizenship cases - a subject to which today’s contribution returns. However, expecting a Queensland state election to be called during my absence overseas I made a forecast which was that Labor would win an election I expected to be held on Saturday October 28. My prediction of the date was slightly out but my forecast of the result stands. It is 50 seats for Labor, 36 for the Liberal National Party, four for Pauline Hanson’s One Nation Party, two for Katter’s Australian Party (Hill and Traeger) and one for The Greens (South Brisbane). I shall contribute a detailed article on Queensland later this month.
I ask readers to pardon my bragging but can now say: “I told you so.” It would have been far better for Joyce, Malcolm Turnbull and the government generally if he had taken my advice which was to resign his seat of New England on Monday 14 August, the day New Zealand’s then prime minister, Bill English, told the world that Joyce was a New Zealand citizen. I repeat another comment I made in that article, namely: “He can thank his lucky stars (and his own good judgment) that he is a member of the House of Representatives. He would remember that he began his political career as a senator. Indeed, he took his Senate seat (representing Queensland) on the same day as Fiona Nash took her seat as a New South Wales senator. The date was 1 July 2005, both Nationals having been elected in October 2004.”
I have contributed several articles to this website on the question of members of federal parliament seeing their seats confiscated from them by the power of the High Court. They have been “What will happen with Bob Day’s vacant Senate seat”  (Monday November 7 2016), “Will Family First retain its Senate seat?" (Friday April 7 2017), “My sympathy for Culleton, Day, Ludlam and Waters” (Thursday July 20) “Why Section 44 of the Constitution needs fixing” (Thursday July 27) and the most recent article, noted above. I now add this thought: the sympathy I expressed for former senators Culleton, Day, Ludlam and Waters is hereby joined by my sympathy for Nash.
It is to be noted that neither Joyce nor The Nationals generally get any sympathy from me. Joyce will win New England handsomely and be back in the job of deputy prime minister early in December. The Nationals suffer a short-term loss of a Senate seat to the Liberal Party’s Hollie Hughes – but they will recover that seat in July 2023. In the meantime I do not believe the Liberal Party should (or will) try to use this situation to take a ministerial position from The Nationals. As a party they deserve no sympathy. Their lack of due diligence has created a quite un-necessary degree of trouble for the Liberal Party.
I notice that these decisions of the Court have, generally speaking, been praised by the commentariat. I decline to join the praise. I am not a fan of this Court. I admit that, in one sense, these are “black letter law” decisions. To that extent I do not condemn them. Most pundits expected exactly what has happened. Turnbull was very foolish to predict otherwise. The only defence for his behaviour – and the folly of Joyce – could be the possibility that the Court might otherwise have made a finding against Matt Canavan. I don’t think so. His position was so strong I think he would have survived whatever Turnbull and Joyce did.
It is true that on this occasion the Court did not engage in judicial law-making. It worshipped instead at the shrine of precedent. However, it should be remembered that just two decades ago the Court did engage in judicial law-making when it confiscated the Senate seat won by Heather Hill of One Nation. In 1998 she was elected for Queensland to a six-year term with a quota in her own right. She never served as a senator because the seat was confiscated before she could even begin her term. The whole idea that birth in New Zealand or Canada makes you an agent of a foreign power is absurd. The same argument which created my sympathy for Ludlam and Waters applies to Nash – hence my sympathy for her. I felt very sorry for Hill in 1998.
When Joyce wins New England in December it will create a perfect historical law – very rare in the social sciences. The law is that whenever the Court confiscates a seat from a member of the House of Representatives the people reverse the Court’s decision. It shows the fair mindedness of ordinary people. It happened with Phil Cleary in 1993 and with Jackie Kelly in 1996. Unlike those poor former senators, the lower house member can get rid of the impediment discovered by the Court – as Joyce has now done.
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


Barnaby Joyce should have resigned seat in August

Friday, September 08, 2017

By Malcolm Mackerras
Today I make reference to three subjects. First, in mid-October we shall know the decisions of the High Court in relation to the citizenship (and therefore eligibility) of various members of the federal parliament. I do not pretend to have any idea what those decisions will be but I do wish to make some observations about Barnaby Joyce. The first is that if he had asked me for advice I would have advised him to resign his seat of New England on Monday 14 August. That was the day when New Zealand prime minister Bill English announced that Joyce was/is a citizen of New Zealand. In matters of this kind it is usually better to take the initiative. Joyce would surely have won the by-election which could have been held quite quickly. That would have prevented the nonsense which is going on in federal parliament at present.
However, having not done that, he must now wait for the High Court judges to exercise their power over him and the others. He can thank his lucky stars (and his own good judgment) that he is a member of the House of Representatives. He would remember that he began his political career as a senator. Indeed he took his Senate seat (representing Queensland) on the same day as Fiona Nash took her seat as a New South Wales senator. The date was 1 July 2005, both Nationals having been elected in October 2004.
Today the positions of Joyce and Nash stand in great contrast. If Nash is ruled not eligible to stand for federal parliament her seat is confiscated from her and given to a Liberal Party candidate, Holly Hughes, whose term would last until 30 June 2022. That is because Nash was one of the top six elected for NSW in July 2016 and, therefore, is a long-term senator. The point is that with senators the voters are given no right to reverse the decision of the Court. Their seats are confiscated by the Court and that is that.
A contrasting situation arises with members of the House of Representatives. If Joyce has his seat confiscated he can appeal to the voters of New England who, surely, would re-elect him. In that regard the situation of Joyce has the precedents of Phil Cleary in 1993 and Jackie Kelly in 1996. Their electorates of Wills and Lindsay, respectively, did indeed reverse the judgment of the Court because both Cleary and Kelly could get rid of the impediment which the judgment of the Court discovered. Meanwhile Joyce, having made his choice, must stick by it and hope the sittings of parliament help to discredit Labor. There are signs of that happening.
Second, I predict that a Queensland state election will be held on Saturday 28 October. It will be on new electoral boundaries, there being 93 seats in the next Legislative Assembly compared with 89 at present. The result of the last election (held on 31 January 2015) was 44 for Labor, 42 for the Liberal National Party, two for Katter’s Australian Party and one Independent. My prediction for this election is 50 for Labor, 36 for the LNP, four for Pauline Hanson’s One Nation, two for KAP (Hill and Traeger) and one for The Greens (South Brisbane).
The third subject I raise today covers my personal obsession – Senate reform. There has been a development in this area since I last wrote about it and, on balance, the development is welcome. There has been a reform of the voting system for the Legislative Council of South Australia. The important point is that the SA parliament rejected the view of the Liberal Party that the SA Legislative Council system should copy the (new) Senate system. That is a good thing – especially given that the view rejected by the SA Parliament was heavily promoted by Nick Xenophon. There was another plus in this development. It cost Xenophon his only supporter in the state parliament, a certain John Darley, who continues in the Legislative Council as an independent until 2022. In my opinion any development which weakens Xenophon’s influence is a good thing. While there is still a long way to go before we get a decent Senate voting system I record this SA development as a very small step in the right direction.
This will probably be my last contribution to Switzer for two months. The reason for my absence is that my wife and I have a son Patrick who is to marry his English lady friend later this month in the Cotswolds and we are not merely going to the wedding. We are taking a British Isles holiday while we are at it. Readers may, therefore, expect my next contribution to be on about 7 November.
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


My latest thoughts on the same-sex marriage plebiscite

Monday, August 14, 2017

By Malcolm Mackerras

This article sets out my latest thoughts on the matter of the same-sex marriage plebiscite. I begin by noting that my first article carried the self-explanatory title Same-sex plebiscite a waste of money and my second article made a prediction: Same-sex marriage referendum on February 11. The first article was posted on Friday 4 September 2015 and the second on Thursday 3 November 2016. I note that the second article made a wrong prediction but contained useful material none-the-less. It is the first article I wish now to re-visit.

My important point is that the article was published during the last parliamentary term. It was reasonable for me to argue the “waste of money” line at that time. However, a general election has intervened. At that general election, Prime Minister Turnbull made a clear-cut promise of a plebiscite on same-sex marriage. Several members and senators from the Liberal Party and the Nationals have told me of that promise they made personally to individual voters. They would be very angry if Turnbull cut them loose by joining the ranks of Julia Gillard and Tony Abbott among the notorious promise-breakers.

Earlier this year, the government presented the Plebiscite (Same-Sex Marriage) Bill 2017, which passed the House of Representatives and went to the Senate. In that chamber, a majority of senators (being Labor, the Greens, the Nick Xenophon team and Derryn Hinch) decided it was not the role of the Senate any longer to “keep the bastards honest”. Its role was to play politics to embarrass Malcolm Turnbull. On this subject, as on so many, the Senate majority ensured that this will be recorded as our worst-ever Senate. It has truly deserved its reputation as unrepresentative swill.

The thinking of that majority was bloody-minded and irresponsible. It thought Malcolm Turnbull would welcome an excuse to break his promise to the people and blame the Senate. They were very wrong. They should have passed the Bill which would have given the same-sex marriage supporters the best chance to win by having a “normal” vote by attendance at polling places with compulsory voting.

They mis-read Turnbull and played their politics badly. That is what so often happens when politicians are too clever by half. Turnbull was determined not to join the ranks of the Gillard-Abbott promise breakers. He thought, and received the over-whelming backing of his party, that the Senate should be given another chance to let him keep his promise to the people. On Wednesday 9 August, the Senate majority refused. They are now hoist on their own petard. Consequently, we shall have a postal vote plebiscite under the worst possible set of rules for the same-sex marriage advocates.

They are now squealing. Well they might. They have kicked an own goal. Both Turnbull and Tony Abbott are delighted. For Turnbull it probably means that it will be recorded by historians that it was HIS parliament (the 45th Parliament) which enacted same-sex marriage. That will mightily disappoint the Turnbull-haters on the left. For them, the last thing they want is for Turnbull to get any credit for being the progressive he is. For them, this issue was tailor-made for his embarrassment. It will so annoy them that he gets the credit – as he will.

On a personal note, I record that there was a referendum in 1999 when John Howard, Tony Abbott and I campaigned together against Turnbull and the Labor Party. We won. We protected the Australian Constitution – or, to be more precise, we protected that institution which lies at the apex of our Constitution, the constitutional monarchy. For this plebiscite, by contrast, I shall campaign with Turnbull and the Labor Party against Abbott and Howard. I wish to see Australia join every other country of the Anglosphere in being a modern democracy. I am confident of our victory.

So my opinion of Turnbull has risen sharply. However, I have still not forgiven Turnbull for his “Senate reform” last year – foisting upon the Australian people the worst-ever Senate voting system. He created the present unrepresentative swill. However, having noted that fact, it is pleasing to see him down face the moralising so and sos who people that place of unrepresentative swill.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


Why Section 44 of the Constitution needs fixing

Thursday, July 27, 2017

By Malcolm Mackerras

This article contains my latest thoughts on constitutional reform and my views are simply stated. At the next federal election in 2019, there should be a referendum to fix section 44 of the Constitution. That should be done regardless of whether or not the High Court decides to confiscate the Senate seat from Matthew Canavan (Nationals, Queensland). I believe the referendum for a new section 44 would be carried. There would be a significant negative vote from the many people who would see this as the politicians helping themselves. However, I believe reason would prevail and the change would be made. I return to this subject below.

Apart from the above, no change to the Constitution should even be considered, let alone a referendum be held, during the next three years. I am totally opposed to the idea of a fixed four-year term for the House of Representatives under the present circumstances. My reasons are many, but let me state just one. There would be no chance for such a referendum to be carried.

The argument most commonly put is that the six states and both territories have four-year terms, so the Commonwealth should follow suit. Let me remind readers, however, that Victoria, Tasmania, South Australia, Western Australia, the Northern Territory and the ACT introduced four-year terms by simple act of parliament. The people were never consulted.

In New South Wales, the present situation (fixed four years for the Legislative Assembly and fixed eight years for the Legislative Council) has prevailed since 1995, but that is not analogous in any way to the situation of the Commonwealth. The NSW situation has been the consequence of a series of legislative decisions and referendums going back sixty years. The first relevant referendum occurred in April 1961 and I lack the space to explain all the subsequent developments beyond noting their total lack of relevance for the Commonwealth.

In Queensland, there was a referendum on Saturday 19 March 2016, at which voters were asked whether or not they approved “A Bill for an Act to provide for fixed four-year terms for the Legislative Assembly in Queensland.” There were 1,302,398 affirmative votes (53%) and 1,157,043 negative votes (47%). However, note the lack of an upper house in Queensland!

My main objection federally is to the idea of giving senators terms of eight years. Like many other people, I think the present Senate voting system is the worst in Australia and is the worst-ever Senate voting system. Senators who get their places under such a system should not have their terms extended. In this regard, I commend readers to the article on Tuesday July 25 in “The Australian” newspaper by Paul Kelly titled “Con job: four-year terms good only for pollies”. His conclusion on the Senate is: “What should change is the voting system.”

I wrote a long e-mail letter of congratulations to Kelly in which I noted, among other things, that all his examples of the undemocratic nature of the system were taken from Tasmania, our least populous state. “What about South Australia?” I thought. Consequently, I hope readers will not object to my quoting two paragraphs from my letter to Kelly:

“Permit me, however, to add this thought to your present very straight thinking. It concerns Nick Xenophon whose name you did not mention. An important reason for my intense hostility to the change last year to the Senate voting system was my knowledge that the change was DESIGNED to increase the number of Xenophon senators from one to three. That was the only part of its design which succeeded and it caused me to be very hostile to Xenophon, a man to whom I had previously been quite friendly. The new system was NOT designed to shift a net two Senate places from Liberal to Labor! It was NOT designed to resurrect the political career of Pauline Hanson and give her a parliamentary party of four! It was NOT designed to cause the re-election of David Leyonhjelm, Bob Day and Jacquie Lambie. Those were predictable but unintended consequences. However, the new system WAS designed to increase the number of Xenophon senators from one to three.

“That is a bad thing. The present position is that the Greens and the Nationals regret voting for this system. It is now “owned” by the Liberal Party, the Xenophon party and that serial pest Antony Green. If you doubt my word I invite you to read recent debates in the parliament of South Australia where it is seriously proposed that the voting system for their Legislative Council should COPY the Senate system.”

Finally, I return to the topic of my opening paragraph. My most recent article on this website was My sympathy for Culleton, Day, Ludlam and Waters posted on Thursday July 20. With further thinking on it, I realise that I should have asked for it to be titled “My sympathy for senator-elect Hill and for senators Culleton, Day, Ludlam, Waters and Canavan”. The High Court decision which really outraged me was in 1999, when the judges confiscated the Senate seat from One Nation senator-elect, Heather Hill. I lack space to give details beyond noting that she was elected for Queensland in October 1998, but was never allowed to take the seat to which she was elected with a first-preference quota in her own right. That is why I think we need a new section 44 which is fool-proof against the kind of judicial law making of the High Court which that case exhibited.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


My sympathy for Culleton, Day, Ludlam and Waters

Thursday, July 20, 2017

By Malcolm Mackerras

This is an article about former senator Scott Ludlam, a man I have never met. Readers, therefore, may wonder why I would think to write an article about a single former politician. The answer is that I have known former senator Bob Day for many years. This website contains two articles by me on Day, the first expressing my admiration for him (Why I admire Bob the Builder) posted on Monday 11 April 2016, the second expressing my sympathy with him (What will happen to Bob Day’s vacant Senate seat?) posted on Monday 7 November 2016. Finally, I had published a third article on Friday 7 April 2017 titled Will Family First retain its Senate seat? Given the striking similarity between the Day and Ludlam cases, I feel a duty to write one article on Ludlam.

Day is a man of the hard right, while Ludlam is a man of the hard left. It is not surprising, therefore, that neither man would express admiration for, or sympathy with, the other. That fact would be no excuse for me to fail to express my admiration for, and sympathy with, BOTH men. They did exactly the same thing. In expectation that the High Court would confiscate their seats from them, they resigned in dignity. Then their detractors threw as much mud at them as possible.

I dissented from all the High Court decisions in these cases. They have been for Senate-seat winners Robert Wood in 1987, Heather Hill in 1998, Rodney Culleton in January 2017 and Day in February 2017. However, my opinion does not matter. High Court judges have power, I have none. The interest for me lies in my ability to demonstrate the superiority of the electoral system for the House of Representatives over that for the Senate. The same thing has happened in recent times in respect of two members of the lower house, Phil Cleary in 1992 and Jackie Kelly in 1996. In effect, the electors of Wills (Victoria) in March 1993 and of Lindsay (NSW) in October 1996 were allowed to express their dissent from the ruling of the High Court. In both cases, the decision of the Court was over-turned by the people. That cannot happen in respect of senators. The seat is confiscated, and that is that.

The commentary on Ludlam to which I object is that which I have heard from a Liberal senator and a right-wing independent commentator. Neither expressed any sympathy for Ludlam. Both drew attention to the fact that he was told three years ago that he was a New Zealand citizen and he should, therefore, have renounced his “foreign” citizenship at that time. What these commentators should acknowledge is that if Ludlam had so renounced, he would have told his enemies that he had not been eligible to contest the April 2014 re-election of senators for Western Australia. To do that would have been a gift to his enemies. Consequently, I think a description of the various elections of Ludlam is called for – so that people can understand his unique predicament.

He was first elected in November 2007. His first preference vote was two-thirds of a quota but he received enough preferences to be elected and he took his seat on 1 July 2008. He was re-elected in September 2013, again with two-thirds of a quota and again receiving enough preferences to be declared elected. Then, the High Court voided the election of all six senators so declared elected, of whom he was one. 

In recent years, that decision of the High Court is the only case of interest to me where I have agreed with the decision. It was handed down on 18 February 2014 and the judgment was written by then Justice Kenneth Hayne, sitting as the Court of Disputed Returns. It gave an affirmative answer to this question: “Did the loss of the 1,370 ballot papers between the fresh scrutiny and the re-count mean that the 1,370 electors who submitted those ballot papers in the poll were ‘prevented from voting’ in the Election for the purposes of section 365 of the Commonwealth Electoral Act 1918?”

The story of the re-election in Western Australia on 5 April 2014 was of such interest to me that I devoted a special article to it on this website, Senate election the best exercise in democracy”, posted on Wednesday 9 April 2014. The star performer was Ludlam – so let me give some statistics. In September 2013, there were 1,310,278 formal votes and the quota was 187,183 votes (14.3 per cent). In April 2014 there were 1,277,804 formal votes and the quota was 182,544 votes (14.3 per cent). Ludlam received 122,752 first preference votes in 2013 (9.4 per cent) so he needed preferences to be elected. In 2014, however, he received 198,845 first preference votes which was a quota in his own right. At the 2016 Senate general election, Ludlam again received a quota in his own right, but that was not so difficult since, with 12 being elected, the quota was only 7.7 per cent. Nevertheless, he was given a six-year term, unlike all the other cases who were given short terms.

So, is there a come-back for Ludlam? Probably not. His successor will be Jordon Steele-John, a 22-year old university student who has cerebral palsy. While there are several scenarios of a Ludlam comeback, they seem to me to require such unselfishness on the part of Steele-John and the other WA Greens senator, Rachel Siewert, that I cannot see any of them happening. These scenarios are too complicated for me to describe here.

Even as I was writing this article, the news came through that Larissa Waters (Greens, Queensland) had resigned her Senate seat – for the same reason as Ludlam. Having expressed such sympathy for two men (Day and Ludlam) I now feel I must express equal sympathy for the one woman, Waters! However, her replacement, Andrew Bartlett, will be an effective performer for the Greens, given his previous membership of the Senate and the fact that he was once a highly effective leader of the Australian Democrats.

There have now been six cases of this phenomenon, Wood, Hill, Culleton, Day, Ludlam and Waters. All six had their seats confiscated from them by the High Court, or resigned in expectation of such confiscation. None could appeal to the voters against the decision. None is likely to have a comeback. That must surely be a warning to future aspirants for political office. Beware the power of the High Court – and do what you need to do to be on the right side of the judges!

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.


Will we see a reformed Senate voting system?

Friday, July 07, 2017

Back on Tuesday 21 April 2015 there was published on this website under my name an article titled ”What do the Americans and the Liberal Party have in common?” The article began by quoting the famous quip from Sir Winston Churchill that “The Americans can always be relied upon to do the right thing – but only after they have exhausted every alternative.” It then went on to say I was hopeful that one day Australia’s Liberal Party would eventually do the right thing in relation to reform of the Australian Senate voting system.

So far I have waited in vain in that respect. However, recently there arose a piece of news on another front, which tells me that there is a definite chance I shall live to see that hope realised. A feature of our electoral system, for which I pressed strongly in 2003, is now to bear fruit. So I have waited fourteen years for this. Being now 77 years old, if I live to the age of 91 (of which there is a possibility), I may see the Australian people given a decent Senate voting system along the lines I have advocated in several articles on this website.

One of my peculiarities is that I live in Canberra. For that reason, I wish to see the Australian Capital Territory treated fairly when it comes to representation in the Australian federal parliament. Since the ACT is not a state, I have never expected our Senate representation to be decent. The Senate, after all, is the house of the states. Not surprisingly, neither the ACT nor the Northern Territory is properly represented there. However, I have always thought the people of both the ACT and the NT should get the same “fair go” in the House of Representatives as is the case for the six states.

Back in 1949, the ACT was given one seat in the lower house. In 1974, that was increased to two, the number at which it has remained ever since. In 1974 the Division of Canberra had 50,039 electors and the Division of Fraser had 52,689. Those were roughly the same numbers as elsewhere. By 2016, however, the numbers had increased so that Canberra had 138,233 electors and Fenner had 131,391. The name Fraser was changed to Fenner to allow a new seat of Fraser to be created in Victoria, called after Malcolm Fraser. Deceased prime ministers always have a seat called after them – in the state of their representation.

Back in 2001, there were two members in the ACT (Canberra and Fraser – both Labor) and two members in the NT, the marginal Liberal seat of Solomon (Darwin area) and Lingiari, safely Labor and majority indigenous since it covers 98% of the area of the NT. Then something happened of interest to me. Population statistics were issued and entitlements calculated. The ACT became entitled to 2.4209 seats and the NT to 1.4978 seats. So the Northern Territory would revert to having one member only.

The then Country Liberal Party member for Solomon, David Tollner, tabled a bill in the House of Representatives which simply asserted that no Territory have less than two members. That was wanted by the Liberal Party but annoyed people like me who believe in this principle: “Let the chips fall where they may”. That is the proper approach to these matters.

The upshot was that the federal parliament’s Joint Standing Committee on Electoral Matters sought submissions which were considered properly. A mathematical genius was able to come up with a new formula for doing these things, the details of which I lack the space to explain here. The point is that in 2003, the EFFECT of this brilliant formula would be that each of the two territories would continue to have two members, and Tollner would win again in 2004. So the Liberal Party would keep a seat in 2004, which it would otherwise have lost if the NT, went back to a single seat. However, Labor was also happy because the new formula would make it more likely that the ACT would regain its third seat in the future. Thus was enacted the Commonwealth Electoral Amendment Act 2004 with a formula, which is still in place.

I can see why the Liberal Party thinks Canberra SHOULD be under-represented. When the ACT had three members (at the 1996 election, and only at that election) Labor won all three seats. That is very likely to happen again in 2019. However, when that formula was adopted in 2004 it was known that some day it would help the ACT to have its third member returned to it. That day has now come.

While the Liberal Party will not be happy to know that, in 2004, it agreed to a new formula which would EVENTUALLY give Labor another seat it must surely acknowledge that the ACT should have three seats. It should also acknowledge that the time will come when the ACT returns two Labor members and one for the Liberal Party. In 1996, Labor easily won two seats, but the third was quite close. In the third seat, the Labor winner polled 32,542 votes (51.5%), while the Liberal loser polled 30,628 votes (48.5%).

All the above comes in the national context caused by census statistics becoming available. In the present House of Representatives, New South Wales has 47 seats, Victoria 37, Queensland 30, Western Australia 16, South Australia 11, Tasmania 5 and the Territories two each. That makes a total of 150. However, new maps will now have to be drawn up to divide Victoria into 38, South Australia into 10 and the ACT into 3. That will make a total of 151.

Now notice this detail. South Australia is now the country’s failed state. It cannot keep up with the rest. Back at the 1949, 1951 and 1954 elections, SA then had 10 seats. So back in those days, SA had 10 out of 123 seats, or 8.1%. In 2019 it will have 10 out of 151, or 6.6%. Of course, its population has grown but its SHARE of Australia’s population has shrunk significantly, as illustrated by these statistics.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.



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