There was a political crisis last year which ran from Friday 14 July to Saturday 16 December. The first date is that on which Scott Ludlam of The Greens resigned his Senate seat. The second date is when John Alexander stormed home to a magnificent by-election win in his seat of Bennelong. Readers will immediately recognise the political crisis to which I refer. It is known in much of the media as “the citizenship scandal”, a misnomer if ever there was one.

In order to understand the way forward, we need to understand who is to blame for starting the crisis and to whom the credit should be given for ending it. I gave my view in an article titled “High Court is to blame for political crisis” published November last year and “Why John Alexander will win Bennelong” published on December 12. Perhaps I should begin by explaining why I have it in for the High Court. I do that because many people think I am being unfair to the Court. They say the blame lies with the politicians whose seats have been confiscated by the Court. Others say the blame lies with Perth barrister John Cameron. It seems as though he had a grudge against Ludlam so he took it out on him by making very public Ludlam’s lack of attention to detail when he filled out his nomination forms. Barnaby Joyce and Alexander were caught up in the mess, but the rules allowed them to win their seats again. Not so Ludlam!

My objection to two recent High Court judgments (this being the second) is that the Court pays far too much attention to the precedents set by earlier High Court judgments and far too little attention to the intentions of the men who wrote the words being interpreted. Thus the immediate effect of the judgment Sue versus Hill (handed down on 23 June 1999) was most unfair to Heather Hill who was not allowed to serve the six-year term to which she had been elected. However it also reflected a view of history by the Court which was very contentious at the time and ever since. Thus the Court determined in 1999 that the United Kingdom (the country whose parliament actually enacted Australia’s Constitution) became a foreign power when the High Court proclaimed it to be a foreign power.


There were two by-elections late last year, New England and Bennelong. The two were held a fortnight apart but may be considered to have been a mini general election. The combined by-election votes were 110,837 (64.5 per cent) for the Coalition and 61,136 (35.5 per cent) for Labor. At the July 2016 general election the numbers were 118,177 for the Coalition (63.1 per cent) and 69,058 for Labor (36.9 per cent). So there was a swing towards the Coalition of 1.4 per cent, a disastrous result for Labor.

So why would Labor, well ahead in the opinion polls for more than a year, do so badly when actual votes were cast and counted? My view is that Labor identified itself with what was, actually, a very unpopular decision by the High Court, in addition to being a bad one! Labor told the world that it had a strategy to deprive Malcolm Turnbull of the victory he had earned at the July 2016 general election. It was to be done by causing a series of by-elections, all of which were totally and hopelessly un-necessary.

So what is the lesson? My strong advice to the federal Coalition is not to pursue by-elections in the Labor-held seats they presently contemplate asking the High Court to cause, Braddon (Tasmania), Fremantle (Western Australia) and Longman (Queensland). If by-elections were to occur it would do the Liberal Party no good whatsoever for the same reason that by-elections in New England and Bennelong did Labor no good whatsoever.

A far better course for the Coalition would be simply to allow Labor to wallow in its own drink over the Batman case. Labor will lose Batman to The Greens at the next election whenever that election is held. The sensible thing for the Coalition to do would be just to watch Labor suffer from its own folly when David Feeney is forced out of the seat prematurely. There is a 90 per cent chance of that happening and Coalition supporters will enjoy the spectacle – even though it will be The Greens who actually take the seat.

There is a reason why I say the crisis ended on the night of 16 December 2017. On that night it became clear that, as a consequence of the sound judgment of Bennelong electors, there is no way the Turnbull government will lose its majority in the House of Representatives prior to the 2019 general election.

But what about the Senate? Here my answer is simple. The Senate is unrepresentative swill in any event, it does not determine who holds government and government majorities are rare anyway. What can be said is that the High Court has taken a scythe through the ranks of senators and it really does not matter much that such has been the case.

So far there have been ten (repeat 10) Senate seat confiscations brought about by the High Court. In that list there is included the cases (for example Ludlam’s) where the senator resigned in expectation of the Court’s confiscation of the seat. In almost every case the quality of the replacement senator is lower than that of the departed senator. However, there are two exceptions and I give details of them.

The first exception is Retired Major General Jim Molan AO DSC AM who is now a Liberal senator for New South Wales. He is the highest ranked former military commander to enter the federal parliament in the last fifty years. He has been elected from the unwinnable 7th place on the Coalition ticket replacing Fiona Nash (from The Nationals) who polled 5,689 first preference votes from 3rd place, but also Hollie Hughes (Liberal, 6th) who polled 1,126 first preference votes. Molan polled 10,182!

The second has not yet resumed his rightful place as a senator but I am assured he will. He is Richard Colbeck who was the only Tasmanian minister in the Turnbull government until his defeat which was engineered by the conservative Tasmanian Liberal Party machine. Under any decent voting system he would have been re-elected in July 2016. Anyway, at the general election Colbeck polled 13,474 votes compared with 1,994 polled by Stephen Parry, the man he is expected to replace. When all the Senate changes are finally revealed I shall contribute an article with a fuller Senate-seat analysis than I can give here.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.