tag:theconversation.com,2011:/us/topics/bob-day-12028/articlesBob Day – The Conversation2018-08-20T10:00:54Ztag:theconversation.com,2011:article/1018402018-08-20T10:00:54Z2018-08-20T10:00:54ZExplainer: is Peter Dutton ineligible to sit in parliament?<figure><img src="https://images.theconversation.com/files/232648/original/file-20180820-30596-1vhs9in.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">There is enough in the Dutton case to raise questions about whether disqualification has occurred.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Section 44 of the Constitution has struck down many a politician in the past year – but is it powerful enough to <a href="https://tendaily.com.au/news/politics/a180820xwi/constitutional-cloud-emerges-over-peter-duttons-business-interests-20180820">take down the Minister for Home Affairs</a>, Peter Dutton? This time it is not dual citizenship under s44(i) that is at issue. Instead, it is the more obscure <a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s44.html">s44(v)</a> in the spotlight.</p>
<h2>What is section 44(v) about?</h2>
<p>Section 44(v) says that any person who “has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth” is disqualified from sitting as a member of parliament.</p>
<p>Dutton, as recorded in the parliamentary register of interests, is the beneficiary of a discretionary family trust. This trust, through its trustee, apparently owns two childcare centres in Queensland. The allegation is that since July 2, 2018, the trust, through its childcare centres, has agreements with the public service to provide childcare services in exchange for childcare subsidies.</p>
<p>Dutton may argue the childcare centres merely receive the subsidy on behalf of the parents and do not have an agreement with the public service. But if it is found there is such an agreement, it would appear Dutton has a beneficial interest in a trust that has an agreement with the public service, potentially triggering the application of s 44(v).</p>
<p>Last year, in a <a href="https://theconversation.com/explainer-why-the-high-court-ruled-bob-days-election-to-the-senate-invalid-75556">case concerning Family First senator Bob Day</a>, a majority of the High Court held that the beneficiary of a trust which, via its trustee, is party to an agreement to which section 44(v) refers, has an indirect pecuniary interest in the agreement, and is therefore disqualified from sitting in parliament. If the facts set out above are correct, this would place Dutton into the realm of potential disqualification.</p>
<h2>Exceptions for certain types of agreements</h2>
<p>The key qualification is the reference to “an agreement to which section 44(v) refers”. Not every agreement with the public service will trigger the application of section 44(v). This is because otherwise ordinary agreements that everyone engages in, such as paying for a passport or a stamp, could cause disqualification from parliament.</p>
<p>In <a href="http://www.hcourt.gov.au/assets/publications/judgment-summaries/2017/hca-14-2017-04-05.pdf">the Day case</a>, Chief Justice Kiefel and Justices Bell and Edelman said there can be “no relevant interest if the agreement in question is one ordinarily made between government and a citizen”. But does an agreement between a childcare centre and the public service fall into that category? It is less ordinary than the purchase of a passport or a stamp.</p>
<p>Justices Gageler and Keane took the view that section 44(v) has no application to agreements entered into by the Commonwealth in the execution of a law of general application enacted by the parliament. As the provision of the childcare subsidy comes under a law of general application, which applies equally to all childcare centres, Dutton would not, on this basis, be disqualified from parliament. But two judges do not make a majority of the Court.</p>
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<a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">Explainer: what is the challenge to Bob Day's Senate seat all about?</a>
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<p>Two other judges, Justices Nettle and Gordon, rejected the attempt to exclude agreements authorised by statutes of general application. In their view, the issue was whether the direct or indirect pecuniary interest in an agreement could conceivably influence a parliamentarian to prefer their private interests over their public duty.</p>
<p>A similar view was taken by the other three judges, Chief Justice Kiefel and Justices Bell and Edelman, who considered that one of the purposes of s44(v) was to ensure that parliamentarians do not seek to benefit from agreements with the public service or “put themselves in a position where their duty to the people they represent and their personal interests may conflict”.</p>
<p>In the case of Dutton, there is no suggestion of any attempt to use political influence or that the arrangements with the two childcare centres are any different from those applying elsewhere. It is therefore different from the Day case, where Day had asked the government to move his electorate office to a particular building, giving rise to an indirect pecuniary interest in the rent.</p>
<p>But it is still possible to argue that Dutton may benefit financially from these agreements with the public service. Is this enough to establish the kind of potential conflict of interest – where a person might prefer their private interests over their public duty – that concerned the High Court in the Day case?</p>
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<a href="https://theconversation.com/the-high-court-sticks-to-the-letter-of-the-law-on-the-citizenship-seven-85324">The High Court sticks to the letter of the law on the 'citizenship seven'</a>
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<p>This is a matter of judgment for the High Court. It would depend on how strictly it chose to apply the provision. But we do know from recent experience that the High Court has been <a href="https://theconversation.com/the-high-court-sticks-to-the-letter-of-the-law-on-the-citizenship-seven-85324">particularly strict in applying section 44</a>. So even though this case falls within the grey border-area of section 44, it is enough to raise a substantial concern that disqualification has occurred.</p>
<h2>What are the consequences of disqualification?</h2>
<p>Disqualification is not just an issue prior to election. It can arise at any time within a member’s term in parliament. <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/coaca430/s45.html">Section 45 of the Constitution</a> says that upon a senator or member of the House of Representatives becoming subject to a disqualifying disability in section 44, “his place shall thereupon become vacant”. This means that disqualification is automatic at the moment that a disqualifying agreement with the public service is made.</p>
<p>Let’s assume for a moment that an agreement that triggered the application of section 44(v) came into effect from July 2, 2018. That would mean Dutton’s seat was automatically vacated at that time (although to be sure this had happened, a Court judgment would be needed).</p>
<p><a href="http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/coaca430/s64.html">Section 64 of the Constitution</a> also states that no minister shall hold office for longer than three months unless he or she becomes a senator or a member of the House of Representatives. That means Dutton could remain validly a minister for three months from July 2. After that, if he was still not a valid member of parliament, he would cease to be a minister.</p>
<p>This would have consequences for the validity of any decision he made as a minister from that point on. It also raises another difficult question in whether or not the <a href="https://theconversation.com/if-high-court-decides-against-ministers-with-dual-citizenship-could-their-decisions-in-office-be-challenged-82688">“de facto officer” doctrine</a> would apply to support the effectiveness of those decisions.</p>
<p>Given that as Minister for Home Affairs and Minister for Immigration and Border Protection, Dutton makes many decisions that affect the lives of many people, his possible disqualification from parliament opens up a Pandora’s Box of litigation possibilities.</p>
<h2>How to fix the problem?</h2>
<p>First, the matter could be referred by the House of Representatives to the High Court, as the Court of Disputed Returns, to determine, as occurred in relation to Barnaby Joyce. The benefit of doing so would be to clarify whether such interests give rise to disqualification. But the disadvantage is that it would take some time to get a judgment, leading to ongoing uncertainty.</p>
<p>Second, Dutton could terminate his indirect pecuniary interest in the agreement, resign his seat and be re-elected in a byelection. This would resolve the matter more quickly, but it is unlikely that the government would wish to hold such a by-election at this time.</p>
<p>Third, Dutton could terminate his indirect pecuniary interest, and an election could be called later this year. This would avoid or reduce any period in which he was performing the duties of a minister while possibly invalidly holding that office.</p>
<p>Fourth, Dutton could resign as a minister once the three months expires, so that there are no issues of validity concerning his ministerial decisions, but remain in parliament as long as the House decided not to refer him.</p>
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<a href="https://theconversation.com/if-high-court-decides-against-ministers-with-dual-citizenship-could-their-decisions-in-office-be-challenged-82688">If High Court decides against ministers with dual citizenship, could their decisions in office be challenged?</a>
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<p>Finally, the government could ignore the problem and tough it out, by not acting until an election was held next year, but risk a tsunami of litigation challenging the minister’s decisions.</p>
<p>None of these options is likely to be particularly palatable to the government, but nothing about section 44 has given the government great joy. However, it is another salient reminder of the importance of taking care to obey the terms of the Constitution.</p>
<p>All MPs with family trusts need to be as vigilant about the agreements entered into by the trustee on behalf of those trusts as they should be about their citizenship status.</p><img src="https://counter.theconversation.com/content/101840/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>It is possible the home affairs minister is in breach of Section 44(v) of the Constitution – and if the High Court were to find him so, it would cause yet another headache for the government.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/806712017-07-07T05:42:53Z2017-07-07T05:42:53ZExplainer: is a High Court challenge about to bring down the Turnbull government?<figure><img src="https://images.theconversation.com/files/177257/original/file-20170707-18915-ph813w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Labor will argue David Gillespie ineligible to be an MP based on Section 44(v) of the Constitution.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>Labor is set to <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-government-at-threat-as-labor-plans-high-court-challenge-20170706-gx6b7q.html">launch a High Court challenge</a> over the eligibility of Assistant Health Minister David Gillespie to sit in federal parliament. The case has been brought by Peter Alley, the ALP candidate who ran against Gillespie in Lyne at the 2016 federal election.</p>
<p>The action is based on Gillespie, a Nationals MP, owning a small shopping centre in Port Macquarie that contains an Australian Post outlet. As Australia Post is a government-owned corporation, Labor claims this results in Gillespie having an indirect pecuniary interest contrary to Section 44(v) of the Constitution. </p>
<p>If the High Court agrees, Gillespie would be ineligible to sit as an MP.</p>
<h2>What does the Constitution say?</h2>
<p><a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s44.html">Section 44</a> of the Constitution sets out several grounds of disqualification from holding parliamentary office. </p>
<p>Under Section 44(v), someone “shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives” if they have:</p>
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<p>… any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than 25 persons.</p>
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<p>Before this year, the High Court had only considered this section on <a href="http://eresources.hcourt.gov.au/showbyHandle/1/230248">one occasion</a>, in 1975. </p>
<p>In that case, Chief Justice Garfield Barwick took an extremely narrow interpretation of the provision, based on a finding that its historic purpose was to protect parliament’s freedom and independence from the influence of the Crown. </p>
<p>An “indirect pecuniary influence” would only be disqualifying where it involved a legal or equitable interest in a contract with ongoing obligations, and where the possibility of financial gain by the agreement’s existence or performance could conceivably allow the Crown to influence an MP in relation to parliamentary affairs.</p>
<p>Under this narrow interpretation – <a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">which had been subject to considerable criticism</a> – Gillespie would not be considered ineligible based on his interest in the shopping centre.</p>
<h2>The Bob Day case</h2>
<p>The High Court revisited the meaning of “indirect pecuniary interest” <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">in April</a> this year. It unanimously held that former Family First Senator Bob Day had an “indirect pecuniary interest” at the time of the 2016 federal election, and was therefore ineligible to be a senator. </p>
<p>Day had already resigned from the Senate before this ruling. But the High Court’s decision was significant for two key reasons. </p>
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<li><p>The first was its immediate importance in deciding how a replacement senator <a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">was to be selected</a>. </p></li>
<li><p>The second, which will now be critical when considering Gillespie’s future, was its reconsideration of what constitutes an “indirect pecuniary interest” under Section 44(v).</p></li>
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<p>The Day case concerned a lease agreement between the Commonwealth and Fullarton Investments Pty Ltd for premises Day used as his electorate office. There were a variety of ways in which Day was connected to both the company and property. However, a fact the court found to be particularly significant was that in February 2016, Fullarton Investments directed that rental payments be made into a Day-owned bank account.</p>
<p>The High Court declined to follow the 1975 precedent and adopted a broader interpretation of Section 44(v). Importantly, it found the section had a wider purpose than solely protecting parliament’s independence from executive influence. It was also intended as an anti-corruption provision, designed to protect against potential conflicts of interest by ensuring the public duties of MPs are kept separate from their personal interests.</p>
<p>Under this broader view, an individual would be disqualified where there was an expectation of financial gain if the agreement in question was performed. The court would look at the agreement’s practical effect when making this assessment. </p>
<p>High Court justice Patrick Keane <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">observed</a>:</p>
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<p>It is enough that the person’s pockets were or might be affected.</p>
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<p>However, <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">it was noted</a> there will be no relevant interest:</p>
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<p>… if the agreement in question is one ordinarily made between government and a citizen.</p>
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<h2>The case against Gillespie</h2>
<p>So, is Gillespie ineligible based upon this new, broader interpretation of Section 44(v)? </p>
<p>There is no question of a direct financial interest in this case. Rather, the information currently available suggest that a company owned by Gillespie and his wife leases space in a shopping centre it owns to an Australia Post licensee. </p>
<p>The possible financial interest in this case certainly seems to be more remote than in Day’s case. However, there is still sufficient uncertainty surrounding the outer limits of section 44(v) for this case to be of real concern to the Turnbull government.</p>
<h2>What happens now?</h2>
<p>If the High Court finds Gillespie is incapable of sitting as an MP under Section 44(v) there would necessarily be a by-election in Lyne. </p>
<p>Given the Turnbull government only has a one-seat majority, the immediate stakes are as high as they could possibly be.</p>
<p>There is also a broader issue worth considering. Gillespie is the third member of the 45th parliament – after <a href="https://theconversation.com/explainer-what-is-the-challenge-to-bob-days-senate-seat-all-about-68046">Day</a> and <a href="https://theconversation.com/high-court-confirms-rod-culleton-is-not-a-senator-so-what-happens-next-72349?sa=pg1&sq=culleton&sr=2">Rod Culleton</a> – to have their constitutional eligibility challenged before the courts. In Day’s case, High Court Justice Stephen Gageler emphasised the importance of certainty in this area, so candidates and MPs know where they stand. </p>
<p>Given recent controversies, it would seem an opportune time to review Section 44 to make sure the disqualification provisions in our Constitution are clear, fair, and reflect voters’ real concerns.</p><img src="https://counter.theconversation.com/content/80671/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Lorraine Finlay is affiliated with the Liberal Party of Australia, being a member of the WA Division.</span></em></p>Given the Turnbull government only has a one-seat majority in the lower house, the immediate stakes of the challenge to David Gillespie’s eligibility are as high as they could possibly be.Lorraine Finlay, Lecturer in Law, Murdoch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/766932017-04-27T20:06:06Z2017-04-27T20:06:06ZMerged minor parties chase votes on the right as identity crisis grips Coalition<figure><img src="https://images.theconversation.com/files/166919/original/file-20170427-1843-1ujl1qs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cory Bernardi's Australian Conservatives party has amalgamated with Family First, which shares similar social conservative values.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Cory Bernardi entered a new phase of his political career by <a href="http://www.smh.com.au/federal-politics/political-news/family-first-takeover-cory-bernardi-looks-for-more-mergers-after-great-day-for-conservatives-20170426-gvstv2.html">announcing this week</a> that his nascent Australian Conservatives party was to merge with Family First.</p>
<p>The merger makes sense. Both parties advance a socially conservative agenda; both have origins in South Australia. And the merger is a savvy response to the <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">changes to the Senate voting system</a> that were introduced in 2016.</p>
<h2>Benefits of minor parties merging</h2>
<p>The changes to the Senate voting system abolished the group voting ticket. So, parties can no longer <a href="http://blogs.abc.net.au/antonygreen/2013/09/the-preference-deals-behind-the-strange-election-of-ricky-muir-and-wayne-dropulich-.html">make the same preference deals</a> they had in the past. </p>
<p>Merging, however, will provide like-minded minor parties with benefits.</p>
<p>First, they will be able to consolidate their human and financial resources for election campaigns and the party’s day-to-day operations.</p>
<p>Second, by merging into a “super” minor party, they maximise their chances of winning Senate representation: they pool their electoral support.</p>
<p>This sense of electoral fragmentation has been a greater problem for minor parties on the right of the political spectrum. The Greens, after decades of evolution, appear to have consolidated their role as the lightning rod for voters from the left who are unhappy with the choices provided by the major parties.</p>
<p>No such party, however, exists on the right, where myriad minor parties with competing agendas are clamouring for attention.</p>
<h2>Social conservatism</h2>
<p>The Australian Conservatives and Family First shared similar policies on a range of issues. In particular, they opposed same-sex marriage and abortion, and expressed deep suspicion about the role humans have played in climate change.</p>
<p>Both parties also sought to advance “traditional” family values and have been sceptical of the socially progressive policies promoted by the likes of the Greens.</p>
<p>But their opposition to same-sex marriage contrasts with others on the right of political spectrum – such as <a href="http://www.theaustralian.com.au/national-affairs/new-senator-david-leyonhjelm-says-samesex-marriage-is-a-liberty-issue/news-story/3153dbcbb7b2fbd61958ca72e8a35c9f">Liberal Democrat senator David Leyonhjelm</a>, who supports it.</p>
<p>In 2016, Family First <a href="http://www.abc.net.au/news/federal-election-2016/results/senate/#snational">won a national primary vote</a> in the Senate of 1.38%. Its best performance was in South Australia, where Bob Day – who is to be <a href="http://www.abc.net.au/news/2017-04-05/lucy-gichuhi-to-relace-bob-day-in-senate/8417598">replaced in the Senate by Lucy Gichuhi</a> – won a seat after polling 2.87% of the statewide primary vote. Gichuhi, however, will <a href="http://www.abc.net.au/news/2017-04-26/cory-bernardi-unwilling-to-wait-for-gicuchi-for-amalgamation/8472754">sit as an independent</a> – not as an Australian Conservatives senator.</p>
<h2>Race and immigration</h2>
<p>Pauline Hanson’s One Nation <a href="https://theconversation.com/defiant-hanson-will-test-a-coalition-government-61985">made a remarkable return</a> to the Senate in 2016, almost 20 years after it first emerged. Reflecting an approach common to right-populist parties in other liberal democracies, One Nation was deeply concerned about race, migration and religion.</p>
<p>Led by the charismatic Hanson, the party sought to advance the interests of “ordinary” Australians in a political system that it believed was over-run by professional politicians and political elites.</p>
<p>At the 2016 election, One Nation won a national primary vote in the Senate of 4.29%. Its best performance was in Queensland, where 9.2% of the statewide vote garnered it two Senate seats. It holds four seats in the Senate.</p>
<h2>Libertarian</h2>
<p>In 2013, Leyonhjelm led the Liberal Democrats to an unexpected triumph when he won the party’s first seat in the Senate. Since then, he has built a high public profile by advancing his party’s agenda, which focuses on individual liberties and freedoms.</p>
<p>The Liberal Democrats advance free trade, freedom of choice, and winding back the welfare state. The party supports euthanasia, the use of cannabis, and same-sex marriage.</p>
<p>It is also <a href="https://ldp.org.au/policy/">in favour</a> of citizens having the right to own firearms as well as ending prosecutions for victimless crimes, which it describes as illegal but not threatening the rights of anyone else. These <a href="https://ldp.org.au/policy/victimless-crimes/">include “crimes”</a> such as abortion, public nudity and the consumption of pornography.</p>
<p>However, Leyonhjelm differs from One Nation’s positions on some economic issues. For example, he supports cuts to <a href="http://www.theaustralian.com.au/national-affairs/industrial-relations/pauline-hanson-backflips-on-weekend-penalty-rates/news-story/b9ed205701fb26d7ef8db01cc1ea8e12">weekend penalty rates</a> and the <a href="http://davidleyonhjelm.com.au/is-pauline-hanson-a-communist/">privatisation of state assets</a> – in contrast to One Nation’s opposition to both of these measures.</p>
<p>In 2016, the Liberal Democrats won 2.17% of the national vote in the Senate. Leyonhjelm held onto his seat after winning 3.1% of the statewide vote in New South Wales.</p>
<h2>Liberal-National Coalition</h2>
<p>While the minor parties mentioned above are advancing specific policy agendas, the major right-of-centre force appears to be grappling with internal divisions about the direction of its policies.</p>
<p>The belief that One Nation, Family First and the Liberal Democrats are chipping support off the Coalition has prompted some MPs to agitate for the party to promote more <a href="http://www.watoday.com.au/good-weekend/leader-of-the-oppositionwhy-its-time-to-take-george-christensen-seriously-20161130-gt1cu0.html">socially conservative policies</a>. Former prime minister <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbotts-fivepoint-plan-for-the-winnable-next-election-will-infuriate-malcolm-turnbull-20170223-gujkft.html">Tony Abbott</a> has continued to advocate for the Liberal Party to shift to the right.</p>
<p>As a major right-of-centre force, however, the Liberal Party risks alienating socially progressive voters who have supported the party in the past. And the sense of a growing threat from minor parties on the right may be overstated. </p>
<p>As the electoral performances demonstrate, these minor parties were successful in 2016 thanks primarily to the <a href="https://theconversation.com/so-how-did-the-new-senate-voting-rules-work-in-practice-63307">double-dissolution election</a> making it easier to win seats in the Senate. These parties would struggle to have as much success under the new electoral system at an ordinary half-Senate election.</p>
<p>Notwithstanding these elements, Prime Minister Malcolm Turnbull’s recent announcements of <a href="http://www.abc.net.au/news/2017-04-20/migrants-to-face-tougher-tests-for-australian-citizenship/8456392">changes to citizenship laws</a> suggest the Coalition leadership is responding to demands of the right from within the partyroom. Whether these will be enough to placate those seeking greater shifts to the right remains to be seen.</p><img src="https://counter.theconversation.com/content/76693/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zareh Ghazarian does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>While minor right-wing parties are advancing specific policy agendas, Australia’s major right-of-centre force appears to be grappling with internal divisions about its policy direction.Zareh Ghazarian, Lecturer, School of Social Sciences, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/755562017-04-05T02:33:15Z2017-04-05T02:33:15ZExplainer: why the High Court ruled Bob Day’s election to the Senate invalid<figure><img src="https://images.theconversation.com/files/163566/original/image-20170403-19435-oyhmp1.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The issue before the court was whether Bob Day was disqualified from being elected because of Section 44(v) of the Constitution.</span> <span class="attribution"><span class="source">AAP/Mick Tsikas</span></span></figcaption></figure><p>The High Court, sitting as the Court of Disputed Returns, <a href="http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/14">unanimously decided</a> on Wednesday that former Family First senator Bob Day was not eligible to be elected to the upper house. The case demonstrates that courts adopt a strict approach to determining whether candidates are disqualified from standing for election. </p>
<h2>What was the case about?</h2>
<p>The issue before the court was whether Day was disqualified from being elected because of <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s44.html">Section 44(v) of the Constitution</a>. This says anyone who “has any direct or indirect pecuniary interest in any agreement with the public service of the Commonwealth” is ineligible to be elected to federal parliament. </p>
<p>This section’s purpose is to prevent conflicts of interest. The theory is people who have financial dealings with the government might not act independently as MPs. There is an exception covering cases where the interest exists only because a person is a member of a company with more than 25 shareholders. </p>
<p>The case was to some extent academic: Day resigned from the Senate even before hearings began, when his building company <a href="http://www.abc.net.au/news/2016-11-01/bob-day-resigns/7983088">went into liquidation</a>. </p>
<p>However, it was still necessary to decide whether he was eligible to stand for election in the first place. It was also necessary to decide how the resulting vacancy should be filled.</p>
<p>The issue of whether Day had had an interest in a contract with the Commonwealth was complex. Day occupied electorate offices owned by a company, Fullarton Investments, which leased the offices to the Commonwealth Department of Financial Services. In turn, the Commonwealth provided them to Day as part of his parliamentary entitlements. </p>
<p>The problem arose because the Day family trust had previously owned the building, which it then sold to Fullarton, lending Fullarton the money to buy it. The trust guaranteed a bank loan to Fullarton, which was secured by a mortgage over the property, and also serviced the mortgage. </p>
<p>Fullarton was expected to pay to the Day trust rent, which Fullarton received from the Commonwealth in exchange for the Day trust servicing the loan. The Day trust would then use that money to service the loan. If no rent was received, then the fact the Day trust had guaranteed the loan would mean it was liable to the bank.</p>
<p>In practice, Day paid the rent himself. But that did not remove the problem because – on paper at least – the Day trust had a financial interest in the lease Fullarton had with the Commonwealth.</p>
<p>The question the court had to decide was whether these intricate financial arrangements meant Day had a “direct or indirect” interest in Fullarton’s contract with the Commonwealth. </p>
<h2>What did the court find?</h2>
<p>The court adopted a strict interpretation of Section 44(v). </p>
<p>It held the section was designed not only to prevent the Commonwealth from using contracts an MP held to pressure them, but also to ensure an MP would not try to benefit from such agreements, or put themselves in a position where their financial interests conflict with their duty to the people they represent. </p>
<p>The court pointed out that MPs are supposed to question and criticise government on behalf of the people, and hold government to account. So, if an MP has a financial interest in a contract with the government, there is a risk they might not be rigorous in doing this.</p>
<p>The court said that because Section 44(v) prohibits not only direct but also indirect interests in agreements, the fact the Day trust stood to receive the rent, even via an indirect route, meant Day himself had an interest in the lease. </p>
<p>For this reason, his election was invalid.</p>
<h2>Who will replace Day?</h2>
<p>The next issue to be decided was how the resultant vacancy should be filled. </p>
<p>The court had the power to order a recount. How it would be conducted depended on a test in an <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1988/22.html">earlier High Court decision</a>, which was that the method used should reflect:</p>
<blockquote>
<p>… the true result of the polling – that is to say, the true legal intent of the voters. </p>
</blockquote>
<p>Labor candidate Anne McEwan, who could potentially win the seat depending on how the count was done, argued before the court that because of Day’s high profile, simply allocating his preferences would distort the result. She argued that, if a special count was done, the votes received by Day’s Family First group above the line – and the votes he received below the line – should be ignored. </p>
<p>In other words, McEwan was saying that most of the votes received by the other Family First candidate, Lucy Gichuhi, were received only because Day was on the ballot. McEwan argued that only votes received below the line by Gichuhi should be counted, which would have reduced Gichuhi’s chances of being elected – and enhanced McEwan’s. </p>
<p>The court rejected this argument. It held that to ignore the votes cast for Family First just because Day was a high-profile candidate would be unfair to voters, as it would distort their real intentions. The court held voters would know that if, for any reason, Day was not elected, his votes would flow to Gichuhi.</p>
<p>If that preference flow occurs as expected, the likelihood is Gichuhi will win the seat. </p>
<p>The key importance of the Day case is that courts interpret the eligibility requirements for election strictly. Even the most tenuous financial interest in dealings with the Commonwealth will be enough to disqualify a candidate.</p><img src="https://counter.theconversation.com/content/75556/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Bede Harris does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The key takeaway from the Bob Day case is that courts interpret the eligibility requirements for election strictly.Bede Harris, Senior Lecturer in Law, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/682322016-11-04T03:26:30Z2016-11-04T03:26:30ZVIDEO: Michelle Grattan on the Senate crossbench<figure>
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<p>The departure of up to two crossbench senators and the uncertainty over who might replace them has provided the government with fresh obstacles in their efforts to pass legislation. </p>
<p>Michelle Grattan and University of Canberra deputy vice-chancellor (education) Nick Klomp discuss how Bob Day’s resignation and the legal problems confronting One Nation’s Rod Culleton will impact the numbers in the Senate. </p>
<p>“It means that we have one less senator because Bob Day is gone. It’s not clear whether the One Nation senator is going to vote on bills - or not vote on bills. He’s given signals both ways and there’s also the complication that the government is clearly having a lot of trouble with its negotiations on the industrial legislation which it’s particularly anxious to get through,” Grattan says.</p><img src="https://counter.theconversation.com/content/68232/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The departure of up to two crossbench senators and the uncertainty over who might replace them is giving the government fresh obstacles in their efforts to pass legislation.Michelle Grattan, Professorial Fellow, University of CanberraNicholas Klomp, Deputy Vice-Chancellor, Education, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/681872016-11-03T12:28:42Z2016-11-03T12:28:42ZGrattan on Friday: Industrial bills test Turnbull’s negotiating skills – and backbone<p>Malcolm Turnbull laughs off the suggestion that this week’s extraordinary developments mean the Senate is in chaos. Okay, let’s humour the Prime Minister. The upper house looks a teeny bit messy and the future composition of the crossbench a tad uncertain, right?</p>
<p>To strip this down to its essentials – here’s the situation.</p>
<p>Family First’s Bob Day, from South Australia, is gone, exiting amid the financial disaster of his business, which turned out not to be his only problem.</p>
<p>Depending on how the High Court rules on whether he was eligible to be elected on July 2, his party could get to choose Day’s successor (then likely be Rikki Lambert, Day’s former staffer, or Robert Brokenshire, a SA MP); the second candidate on the Family First ticket (Lucy Gichuhi) could be installed; or the seat could go to Labor.</p>
<p>The first scenario is if Day wins the case; the latter two are if he is found to have been ineligible. ABC electoral analyst Antony Green predicts the most likely outcome is the elevation of Gichuhi, a Kenyan-born lawyer.</p>
<p>If One Nation’s West Australian senator Rod Culleton doesn’t survive the judgement the High Court will make on his eligibility, his place will go on the recount to the next candidate on the party’s ticket, Peter Georgiou, who is Culleton’s brother-in-law, neatly keeping the seat in the family.</p>
<p>When the Senate resumes on Monday, Family First will have no one there. To pass bills opposed by Labor and the Greens the government will need eight of ten crossbenchers, where previously it required nine of 11.</p>
<p>The government is putting to the Senate next week its legislation for the same-sex marriage plebiscite, destined to go down. But unless it has a change of heart, the industrial bills – to restore the Australian Building and Construction Commission and toughen union governance – would be waiting until the final sitting fortnight, starting November 21. That is, if they are to be considered this year.</p>
<p>Turnbull on Thursday left up in the air whether the bills would come to a vote before the parliament gets up for the summer recess. “It will depend on our discussions with the crossbench. The reality is, as John Howard always said, politics is governed by the iron law of arithmetic,” he said.</p>
<p>The government would present the industrial legislation “when we believe there is a majority that will support it and on terms that we will accept”, he said. “It is important that we commit to a vote that we can win in the Senate.”</p>
<p>There is another important consideration in politics and that’s demonstrating leadership and resoluteness. The government made these bills triggers for a double dissolution. It has previously been very hopeful of getting them through. Turnbull’s own credibility surely requires that the bills go to a Senate vote before Christmas, whatever the outcome.</p>
<p>At worst the government suffers a defeat, which admittedly would be a blow for Turnbull. But at least he would be making a gesture on the legislation he argued is so critical.</p>
<p>As double dissolution bills, they are eligible to go to a joint sitting, but the government believes they would fare worse there than in the Senate.</p>
<p>Turnbull desperately needs some policy achievements by year’s end, and these bills are the obvious candidates. If they are pushed to a vote, this would concentrate the minds of the crossbenchers, who otherwise might just procrastinate endlessly.</p>
<p>The prospect of success is not likely to be much improved by delay and there is the outside risk that, if things turn out badly for the government, the ALP might pick up an extra number in the Day replacement.</p>
<p>The negotiations underway on the bills will be watched closely after the revelation of the horse trading on migration legislation that Abbott government ministers did with Liberal Democrat David Leyonhjelm, giving him a sunset clause on the Adler import ban (which the government later got around, to Leyonhjelm’s anger).</p>
<p>The government has made it clear it is willing to be flexible on amendments. It knows that is its only chance.</p>
<p>As matters stand on the ABCC legislation, which is the more difficult part of the industrial relations package to get through, One Nation is mostly on side, although there is confusion about whether and how Culleton (who has been critical) would vote. At the other end of the spectrum, Tasmanian independent Jacqui Lambert won’t support it.</p>
<p>Nick Xenophon has a plethora or amendments. Leyonhjelm, still smarting over his “dudding” on the Adler, had discussions with Turnbull on Thursday. “I could go either way at the moment,” he said afterwards. He is looking for a trade off on some other issue on his economic or social agenda. Derryn Hinch, who has concerns, will have amendments and demands.</p>
<p>Labor is also busy lobbying the crossbenchers, trying to prevent them being swayed.</p>
<p>Turnbull on Thursday was again attacking the Construction, Forestry, Mining and Energy Union, describing it as “a union whose lawlessness is one of the great scandals, one of the great handbrakes on economic development around Australia”. If, after all the talk, he didn’t stand up and let the numbers be counted on these bills by year’s end, it would surely be seen as a lack of backbone.</p>
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<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Malcolm Turnbull laughs off the suggestion that this week’s extraordinary developments mean the Senate is in chaos. Okay, let’s humour the Prime Minister.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/680462016-11-02T03:46:19Z2016-11-02T03:46:19ZExplainer: what is the challenge to Bob Day’s Senate seat all about?<figure><img src="https://images.theconversation.com/files/144146/original/image-20161102-12173-1hof7cr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family First senator Bob Day, who has now resigned his Senate seat.</span> <span class="attribution"><span class="source">AAP/Sam Mooy</span></span></figcaption></figure><p>Family First Senator Bob Day has resigned from the Senate, but <a href="https://theconversation.com/now-resigned-bob-day-may-have-been-ineligible-to-sit-in-senate-67984">controversy now rages</a> about whether or not he was validly elected. The argument is that he was disqualified under <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s44.html">Section 44(v)</a> of the Constitution for holding an indirect pecuniary interest in an agreement with the Public Service. This matter concerns whether Day had such an interest in a contract with the Commonwealth. </p>
<p>The facts involved remain unclear, and it is hard to judge whether or not a breach of s 44(v) is likely to have occurred. It is especially difficult because his interest in the agreement was only indirect. The one High Court authority on the issue, <a href="http://www.austlii.edu.au/au/cases/cth/HCA/1975/22.html">the Webster case</a>, is a judgment of a single judge back in 1975. </p>
<p>As it is quite old and has been the subject of much criticism, it is unknown whether the High Court would follow it or develop different criteria for determining what is a disqualifying pecuniary interest.</p>
<h2>Why does it make a difference, given that Senator Day has resigned from the Senate?</h2>
<p>Normally such cases are brought for the purpose of removing a person from the Senate. </p>
<p>The answer in this case is that it makes a difference in relation to who is chosen to replace him in the Senate. This is a particularly sensitive issue in a Senate that the government does not control.</p>
<p>If Senator Day was validly elected on July 2, 2016 and then resigned his seat in November 2016, <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s15.html">section 15</a> of the Constitution would apply. It states that where the place of a senator becomes vacant before the expiration of his term of service, his replacement is chosen by the houses of parliament of the state from which he was chosen, in a joint sitting. So the South Australian parliament would choose Senator Day’s replacement. </p>
<p>Section 15 was amended in 1977 to make it clear that the South Australian parliament can only choose a person from the same party to which the outgoing senator belonged at the time of his or her election. The rationale is that if the people vote for a representative of one party, the replacement of that senator should come from the same party. So it would be up to the Family First party to nominate their choice of senator, which the South Australian parliament, in a joint sitting, would then formally choose.</p>
<p>During the period of the Whitlam government, there had been some fudging of the convention about appointing a person from the same party. For example, the Queensland Parliament <a href="http://www.abc.net.au/stateline/qld/content/2005/s1504841.htm">appointed Albert Field</a> to fill a Senate seat vacated by a Labor member. Field was technically a member of the Labor Party, but was opposed to the Whitlam government. </p>
<p>In order to avoid this type of problem, the Constitution was amended so that if a person is appointed from the relevant political party, but then expelled from that party before taking up his or her seat, he or she “shall be deemed not to have been so chosen”. This means that the party effectively chooses a senator’s replacement where there is a casual vacancy.</p>
<h2>What if Senator Day was not validly elected?</h2>
<p>If Senator Day was never validly elected at the July 2016 election, then it is more complicated. In the past, the High Court has resolved the issue by ordering a re-count of the vote, distributing the votes as if the disqualified senator did not exist. This usually means that it is the next person on the party’s ticket who is elected. On this basis, the second person on the Family First ticket in South Australia would most likely be elected. </p>
<p>This is complicated on this occasion, however, by two factors. First, it is possible that there are enough “below the line” votes for Senator Day personally that then went to different candidates, rather than the second Family First candidate, to alter the outcome. </p>
<p>Secondly, there would be doubts about the validity of the “above the line” votes for Family First, because a party requires two candidates to register its ticket above the line. If Day was disqualified, this would mean there was only one. It would therefore be arguable that all the above the line votes for Family First would not be counted, with preferences instead being passed on to the candidates of the next party preferenced on each ballot paper. </p>
<p>This could result in Labor or One Nation picking up Senator Day’s seat. As the Senate <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">voting laws have recently changed</a> to an optional preferential above the line system – a system that <a href="https://theconversation.com/high-court-unanimously-rejects-challenge-to-senate-voting-reform-59170">Senator Day challenged</a> in the High Court – we have no relevant precedent as to how his disqualification would affect the recount in these circumstances.</p>
<p>The time for challenging the validity of the election of a candidate has now expired. However, the houses of parliament can still refer to the High Court, sitting as a Court of Disputed Returns, any question concerning the validity of the election of a senator or member. </p>
<p>The government proposes to ask the Senate to make such a referral on Monday. If the Senate agrees, it will be up to the High Court to decide these difficult constitutional issues. One way or the other, the outcome will have an impact upon the composition of the Senate.</p>
<p><em>This article has been corrected to accurately reflect the pecuniary interest issue.</em></p><img src="https://counter.theconversation.com/content/68046/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>Changes to Senate voting laws and the particular case of Senator Bob Day make for an unprecedented constitutional tangle, and one that will change the make-up of the Senate.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/674562016-10-21T03:39:18Z2016-10-21T03:39:18ZVIDEO: Michelle Grattan on the political gun debate<figure>
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<p>The Turnbull-Abbott hostilities erupted in a very public manner this week over the terms of a ban on the importation of the Adler seven-shot lever-action shotgun. While the fallout from their conflict over the matter is expected to continue, Michelle Grattan tells University of Canberra vice-chancellor Deep Saini these events highlight that when you have a Senate that’s not in the government’s control, compromises are needed.</p>
<p>“Now everyone says ‘well that’s a good thing isn’t it – compromise is what we want in the political system’. But the darker side of compromise is that there can be some questionable deals in the sense that many people would think ‘well to be talking about some concessions in relation to guns isn’t a very good thing’,” Grattan says.</p><img src="https://counter.theconversation.com/content/67456/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Turnbull-Abbott hostilities erupted in a very public manner this week over the terms of a ban on the importation of the Adler seven-shot lever-action shotgun.Michelle Grattan, Professorial Fellow, University of CanberraPaddy Nixon, Vice-Chancellor and President, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/610192016-08-07T20:09:31Z2016-08-07T20:09:31ZThe new Senate looms as a serious problem for a damaged Malcolm Turnbull<figure><img src="https://images.theconversation.com/files/133194/original/image-20160805-466-1rcug2q.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We will get an early insight into the Turnbull government’s likely approach to dealing with the Senate crossbench.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Prime Minister Malcolm Turnbull and his Liberal colleagues have had a very poor election. The <a href="https://theconversation.com/final-senate-results-30-coalition-26-labor-9-greens-4-one-nation-3-nxt-4-others-63449">result in the Senate</a> only confirms just how bad the 2016 contest was for the Coalition. </p>
<p>One seat away from being in minority government, the returned Turnbull government can now add arguably one of the most diverse and potentially volatile senates ever elected in Australia to its list of political problems.</p>
<p>When the Senate finally convenes, the Coalition will hold 30 seats – nine short of the majority it would need to have legislation passed. Across the chamber will sit 26 Labor senators, nine Green senators and a further 11 crossbench senators from six different political parties. </p>
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<h2>Upper house woes</h2>
<p>When Turnbull took over as prime minister, the government had to that point been struggling with a non-Green crossbench of nine. </p>
<p>So difficult had these senators become, Turnbull resorted to doing deals with the Greens on occasion to get some bills through. This included one to <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">alter the Senate voting system</a> to do away with party tickets. Turnbull justified this as a reform that would assist in eradicating “micro” parties. </p>
<p>This reform has not delivered on its promise, although Turnbull contributed to its failure by calling a double-dissolution election and, in so doing, demonstrating yet again just how poor his political judgement can be. </p>
<p>One wonders if Liberal strategists planning the double dissolution foresaw that not only would Pauline Hanson <a href="https://theconversation.com/defiant-hanson-will-test-a-coalition-government-61985">return to the Australian parliament</a>, but that she would bring three fellow senators with her. </p>
<p>Turnbull’s upper house woes don’t stop there. There are now two more acolytes of Nick Xenophon in the Senate – and one in the lower house – and two of the micro-party senators who were the target of Turnbull’s changes to the voting system, Bob Day from Family First and David Leyonhjelm from the Liberal Democrats. They are back and presumably angry with the government for the way it treated them in the previous parliament.</p>
<p>With this phalanx of people from the social conservative and populist right arranged against it, the Coalition’s only alternative is to deal with the left – either Labor or the Greens. </p>
<p>Cynics might suggest this is an outcome that Turnbull might be comfortable with personally, but it is a fair bet the rest of the Coalition would not be so happy to deal with ideological enemies – especially on matters like climate change and same-sex marriage.</p>
<h2>How will the government deal with it?</h2>
<p>To conclude on the basis of this that the government might struggle to get its agenda through the Senate would be the political understatement of the year. </p>
<p>One way around the potential for the Senate to frustrate the government would be to try to minimise the amount of legislation going before it. It is unlikely this would appeal to Turnbull. </p>
<p>The alternatives to legislative minimalism are either seeking to make policy by trying to negotiate with all the different players in the upper house (and wearing the consequential compromises), or taking the Whitlamesque approach of being constantly defeated in the Senate and seeking to campaign against upper house obstructionism in the court of public opinion. </p>
<p>We will get an early insight into the government’s likely approach. The Constitution <a href="https://theconversation.com/explainer-what-happens-now-to-the-bills-that-triggered-the-double-dissolution-election-62345">gives Turnbull the option</a> of bringing the <a href="https://theconversation.com/explainer-what-are-the-abcc-and-registered-organisations-bills-56676">Australian Building and Construction Commission (ABCC) bills</a> that triggered the double dissolution to a joint sitting of the parliament, if the Senate again rejects them. </p>
<p>What Turnbull does here will probably set the tone for the next three years. There are reports the government has been in dialogue already with the crossbench over the legislation – the subtext being that the ABCC bills might pass with substantial modifications to appease the concerns of the Xenophon bloc in particular. </p>
<p>This sort of bargaining would have to extend to all the other right-wing populists and social conservatives as well, given Labor and the Greens will surely not support these bills.</p>
<p>There is enormous scope for the government’s efforts to come to nothing and for the bills to be defeated at a joint sitting. This would be a very humiliating start to the new government cycle.</p>
<p>Each defeat in the upper house at the hands of the right-of-centre minor parties will be a humiliation of Turnbull and will undermine the impression he is trying to give that he is leading a moderate and mildly progressive government that can get things done. </p>
<p>Turnbull’s only recourse might be to ring up his recently acquired political ally, Greens leader Richard Di Natale, to see if his nine-person bloc might come to his aid. </p>
<p>This approach would incense the very large block of conservatives within the Coalition who are already angry with Turnbull for his abysmal election performance. This is the real danger for Turnbull. Senate defeats can be withstood, but humiliation at the hands of the joint partyroom could be fatal to his leadership.</p><img src="https://counter.theconversation.com/content/61019/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nick Economou does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The returned Turnbull government can now add arguably one of the most diverse and potentially volatile senates ever to be elected in Australia to its list of political problems.Nick Economou, Senior Lecturer, School of Political and Social Inquiry, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/591702016-05-13T03:39:50Z2016-05-13T03:39:50ZHigh Court unanimously rejects challenge to Senate voting reform<figure><img src="https://images.theconversation.com/files/122405/original/image-20160513-16422-1yq20dv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family First senator Bob Day unsuccessfully challenged the government's changes to the way senators are elected.</span> <span class="attribution"><span class="source">AAP/Sam Mooy</span></span></figcaption></figure><p>In a <a href="http://www.austlii.edu.au/au/cases/cth/HCA/2016/20.html">unanimous judgment</a>, the High Court on Friday crushed Family First senator Bob Day’s High Court challenge to the recent Senate voting reforms. </p>
<p>The court regarded none of Day’s arguments as having any merit. It dismissed them as “untenable” or failing at their very threshold.</p>
<h2>Remind me again, what are the changes?</h2>
<p>The <a href="https://theconversation.com/senate-voting-changes-pass-so-how-do-we-elect-the-upper-house-now-55641">voting changes</a> to which Day objected provide for optional preferential voting both above the line and below the line in Senate elections. </p>
<p>Under the previous voting system, if an elector marked “1” above the line for a party, the party then determined how the vote was distributed to all the candidates on the ballot paper. If electors voted below the line, they had to number sequentially every candidate according to their preferences. This could amount to more than 100 candidates. </p>
<p>The consequence was that about <a href="http://blogs.abc.net.au/antonygreen/2014/04/below-the-line-preference-flows-at-the-2013-wa-senate-election.html">95% of people</a> voted above the line. This allowed parties to determine the flow of their preferences.</p>
<p>First in New South Wales and then federally, people began to <a href="http://www.abc.net.au/news/2013-09-11/green-hand-the-power-of-preferences-back-to-the-people/4951020">manipulate this voting system</a>. They created microparties with catchy names to harvest votes, and did deals with other parties regarding preferences, so that they could be elected even though they had a very small proportion of the primary vote.</p>
<p>The consequence was that people with <a href="http://blogs.abc.net.au/antonygreen/2013/09/the-preference-deals-behind-the-strange-election-of-ricky-muir-and-wayne-dropulich-.html">negligible public support</a> were being elected on the preferences of voters who often had polar-opposite political views to the candidate their vote had actually caused to be elected.</p>
<p>In NSW, after the infamous 1999 “tablecloth” ballot paper, the Labor government changed the voting system for the Legislative Council to allow optional preferential above-the-line voting. In 2016, it was a Coalition government at the Commonwealth level that adopted the same approach. </p>
<p>Now, when an elector marks “1” above the line for a party, the elector’s preferences go to the candidates for that party in the order they are listed below the line. They then flow to the candidates of the party marked “2” above the line, and so on. </p>
<p>Voters thus regain control over their preferences. They can see on the face of the ballot to whom the preferences go and decide how far those preferences should go.</p>
<p>Voters are instructed to vote for at least six parties or groups above the line, or at least 12 candidates below the line. This is intended to reduce the risk of too many votes becoming “exhausted” by not having enough preferences for the vote to end up electing a candidate.</p>
<h2>How the case was argued and decided</h2>
<p>Day had <a href="http://www.senatorbobday.com.au/media-release-constitutional-risk-on-voting-devils-deal-25-over-3-million-voters-disenfranchised/">argued</a> the government’s changes would leave those voters who wish to vote for minor parties “disenfranchised” because their vote, if their preferences exhaust, will not go on to elect any candidate. His arguments before the High Court, however, were more <a href="http://sydney.edu.au/law/slr/slr_38/slr38_2/SLRv38n2TwomeyBTHC.pdf">technical in nature</a>. </p>
<p>First, Day argued that because the ballot offers electors the option to vote above the line and below the line, this is two separate methods of voting – breaching the requirement in <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/xx9.html">Section 9</a> of the Constitution that there be a single method of choosing senators. </p>
<p>The High Court dismissed this argument. It said “method” should be construed broadly to permit more than one way of indicating a choice within a single uniform system. It said Day was arguing for a:</p>
<blockquote>
<p>… pointlessly formal constraint on parliamentary power to legislate with respect to Senate elections.</p>
</blockquote>
<p>Day’s second argument was that when voting above the line, people were really voting for parties – not candidates. Therefore, the Senate was not “directly chosen by the people” as required by the Constitution. </p>
<p>The court described this argument as “untenable”. It noted that, under the new system, a vote above the line is a vote directly for the candidates of that party listed below the line. The court politely refrained from pointing out that the validity of Day’s election would be threatened by his own arguments on this point.</p>
<p>Day’s third argument concerned the problem with the exhaustion of votes and the fact that the votes of some electors may not end up electing candidates. He attempted to derive a principle of “direct proportionality” from the Constitution, which required that all electors have their votes reflected in the election of candidates. </p>
<p>The court was again very dismissive of this argument. It said:</p>
<blockquote>
<p>There is no principle of “direct proportionality” to be infringed. There is no disenfranchisement in the legal effect of the voting process. The plaintiffs’ argument, based upon effects adverse to the interests of so-called “minor parties”, was in truth an argument about the consequences of elector choices between above the line and below the line voting and in the number of squares to be marked. It should be rejected.</p>
</blockquote>
<p>Ultimately, it is up to voters to decide whether they want to give full preferences or whether they want their vote to exhaust rather than elect someone they oppose. This is not disenfranchisement – it is democratic choice.</p>
<p>Day also argued the ballot paper was misleading, as it does not include in the instructions all the additional vote-saving provisions. The court concluded the ballot paper was not misleading. The paper’s instructions accurately reflected the law and there was no need to include all the savings provisions.</p>
<p>Overall, the High Court was dismissive of the arguments made, not even attempting to develop them in a way that could give them substance and merit. Being a unanimous judgment, it is plainly clear that the new Senate voting system and the use of above-the-line and below-the-line voting are constitutionally valid. </p>
<p>It is now up to voters to exercise their greater freedom in granting their preferences to ensure the Senate truly represents their voting wishes.</p><img src="https://counter.theconversation.com/content/59170/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Anne Twomey has received funding from the Australian Research Council and occasionally does consultancy work for governments and inter-governmental bodies.</span></em></p>The High Court regarded none of Bob Day’s arguments in his challenge to Senate voting reforms as having any merit.Anne Twomey, Professor of Constitutional Law, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/553842016-03-10T03:07:24Z2016-03-10T03:07:24ZHousing policy is captive to property politics, so don’t expect politicians to tackle affordability<p>Prime Minister Malcolm Turnbull’s <a href="http://www.smh.com.au/federal-politics/political-news/turnbull-warns-property-prices-will-fall-under-labor-negative-gearing-policy-20160219-gmyq2k.html">recent warnings</a> that house prices would fall steeply under a Labor government confirm the underlying politics of housing policy in Australia. The default position for politicians is to sound concerned about housing affordability, but do nothing.</p>
<p>In a <a href="http://www.tandfonline.com/doi/abs/10.1080/02673037.2015.1044948">recent paper</a>, we draw on the notion of “policy capture” to understand why politicians and governments appear determined to avoid seemingly obvious solutions to housing problems.</p>
<p>Policy capture theories explain how special interests can have a disproportionate influence on public policy. Their techniques include the construction and provision of information (or “evidence”), problem forming and framing, lobbying, financial donations and direct political action. The vectors of influence include think-tanks, professional lobbyists, “spin doctors” and peak interest groups.</p>
<p>Our analysis applies the lens of policy capture to understand the sorry history of Australian housing policy over the past two decades.</p>
<h2>All talk, little action</h2>
<p>Numerous national and state policy processes have pointed out the need for more affordable housing in Australia since the Productivity Commission <a href="http://www.pc.gov.au/inquiries/completed/first-home-ownership">reported on home ownership costs</a> in 2003-04. </p>
<p>The <a href="http://www.treasury.gov.au/Policy-Topics/PeopleAndSociety/completed-programs-initiatives/NHSC">National Housing Supply Council</a> (axed in 2013) estimated that Australia needed around 500,000 <a href="http://nahc.org.au/documents/NHSC-State-of-Supply-Report-Consolidated.pdf">more affordable homes</a>. But very few government initiatives have directly supported affordable housing supply.</p>
<p>Rather, the response has been to hold inquiries, form taskforces and blame another level of government. State and local planning systems take most of the flak. The withdrawal of Commonwealth funding <a href="http://www.sbenrc.com.au/wp-content/uploads/2014/09/1.31-Phase-1-Analysis-FINAL-REPORT-020315.pdf">for social housing</a> – accounting for around 12% of new dwellings in the mid-1980s but only around 2% today – hardly rates a mention.</p>
<h2>A narrative of ‘artificial barriers’ and planning constraint</h2>
<p>Conservative think-tanks have played a key role in framing a policy narrative that presents planning system barriers as the housing problem. And regulatory reform is presented as the solution. </p>
<p>The Institute of Public Affairs’ (IPA) long-running <a href="https://www.ipa.org.au/sectors/housing-the-great-australian-dream-project">Great Australian Dream Project</a> was launched under the leadership of <a href="http://www.bobday.com.au/index.htm">Bob Day</a>, former head of the <a href="https://hia.com.au/en/about.aspx">Housing Industry Australia</a> and now Family First senator. The IPA campaign focuses squarely on the impact of “regulatory policy” and “artificial” land-supply constraints.</p>
<p>For “evidence”, the IPA cites the work of private consultancy firm Demographia. Its <a href="http://www.demographia.com/dhi.pdf">annual housing affordability surveys</a> purport to prove links between planning and high house prices, despite being <a href="http://www.planetizen.com/node/73400/more-critique-demographias-international-housing-affordability-survey">widely debunked</a>.</p>
<p>Writing the foreword to Demographia’s latest report, Day argues that barriers to home ownership are “the product of restrictions imposed through planning regulation and zoning”. Planning rules have also dragged young women out of the home, he laments:</p>
<blockquote>
<p>We cannot deny the rising generation a home of their own merely to satisfy the ideological fantasies of urban planners … We cannot deny ourselves the joys of grandchildren because young women have to work to pay mortgages instead of raising a family.</p>
</blockquote>
<p>Providing adequate and well-located land is an important measure of planning systems. Barriers to diverse or affordable housing development must also be dismantled where these are shown to exist.</p>
<p>But the politics of property and planning seems perversely to encourage speculative land development (buying rural, industrial or low-density residential land and agitating for a valuable rezoning), while enabling nervous residents to block proposals for affordable and social housing development.</p>
<p>The <a href="http://www.propertycouncil.com.au/">Property Council of Australia</a>, along with other development industry “peak groups”, has been vocal in blaming the planning system for affordability pressures. It has staunchly opposed the inclusionary housing measures that predominate in the global cities of the US and Europe but remain nascent in Australia.</p>
<p>Inclusionary planning approaches preserve affordable housing opportunities when land is rezoned or following major public infrastructure investment. These approaches do have many limitations and usually depend on other sources of finance to deliver homes for very low-income groups. </p>
<p>But their strength lies in ensuring that the benefits of public infrastructure investment and urban development are not solely capitalised in house and land values. These gains benefit existing owners at the expense of those trying to find a decent place to live.</p>
<p>In another example of the “revolving doors” phenomenon whereby politicians and senior bureaucrats slide between industry, advocacy and officialdom, <a href="http://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=E3L">Treasurer Scott Morrison’s CV</a> includes six years as the Property Council’s national manager, policy and research. The Property Council is leading the charge against <a href="http://dontplaywithproperty.org.au/">“seismic” changes to negative gearing</a>.</p>
<h2>More houses, but young people still can’t buy a home</h2>
<p>The housing supply crisis, which has been debated for much of the past ten years, appears to have temporarily resolved. New housing starts are at their highest in a decade. But despite the narrative of housing shortage as the reason for high prices, new supply hasn’t made houses more affordable for aspiring first home buyers.</p>
<p>That’s because we’re trapped in a housing system that seems dependent on rising prices (driven by market demand) to stimulate increased supply. It’s a catch 22. When house prices slow, so does housing construction, anticipating a drop-off in demand.</p>
<p>That’s why the scare campaign about <a href="https://theconversation.com/sacred-cow-no-more-what-proposed-changes-to-negative-gearing-really-mean-54737">negative gearing</a> is so effective. That most economists think Labor’s proposed changes <a href="http://www.smh.com.au/business/the-economy/house-prices-wont-fall-if-negative-gearing-restricted-economists-20160302-gn95q3.html">would be benign</a> has been lost in the <a href="https://theconversation.com/three-myths-on-negative-gearing-the-housing-industry-wants-you-to-believe-54732">emotions and fear surrounding this debate</a>. </p>
<p>According to the Property Council, the nation’s economy and our own personal wealth is a fragile “<a href="http://dontplaywithproperty.org.au/%5D(http://dontplaywithproperty.org.au/">house of cards</a>”, vulnerable to collapse with any shift in the status quo.</p>
<h2>Can we create affordable supply without reducing prices?</h2>
<p>The debates do reflect two enduring policy problems:</p>
<ul>
<li><p>how to keep housing construction running when price growth slows or reverses; and</p></li>
<li><p>how to create affordable housing without lowering prices across the market.</p></li>
</ul>
<p>Luckily, there’s a proven way for governments to stabilise housing production, despite market fluctuations and without bringing down existing home prices. That’s to expand, radically, the size of the non-profit/affordable housing sector. </p>
<p>Governments can do so by driving investment towards affordable rental housing and by enabling new housing products. These range from low-cost home ownership schemes to community land trusts and shared equity programs.</p>
<p>These models are well established overseas. Numerous studies have demonstrated their <a href="https://www.ahuri.edu.au/__data/assets/pdf_file/0007/2005/AHURI_Final_Report_No202_Financing-rental-housing-through-institutional-investment-Volume-1-outcomes-from-an-Investigative-Panel.pdf">potential significance and viability</a> for Australia. Even the Property Council <a href="https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwicx7mwlLDLAhWDo5QKHW-fBqYQFggbMAA&url=https%3A%2F%2Fwww.propertycouncil.com.au%2FAsiCommon%2FControls%2FBSA%2FDownloader.aspx%3FiDocumentStorageKey%3D617808fc-c5f4-4767-8ee2-5d8d50f2a564%26iFileTypeCode%3DPDF%26iFileName%3DInquiry%2520into%2520housing%2520affordability&usg=AFQjCNEdFhKBldU8W2LMmfSgDCUNK-FN7w&bvm=bv.116274245,d.dGo">supports incentives</a> for affordable housing development.</p>
<p>As yet another working party <a href="http://www.treasury.gov.au/%7E/media/Treasury/Consultations%20and%20Reviews/Consultations/2016/CFFR%20Affordable%20Housing%20Working%20Group/Key%20Documents/PDF/Issues_Paper.ashx">considers the problem of affordable housing</a>, let’s hope its members are listening to the wide range of voices who have long called for real “financing and structural reform”.</p>
<p>Low-income tenants and aspiring homeowners haven’t had much traction in this arena. They have been locked out by the latent political power of the property-owning electorate and the pervasive campaigns run by the development industry.</p>
<p>Despite the tenor of the current debate, real change is on the table. The question is whether those who are the main beneficiaries will continue to enable the charade or whether the politics of housing policy can finally turn.</p><img src="https://counter.theconversation.com/content/55384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nicole Gurran receives funding from the Australian Housing and Urban Research Institute (AHURI). </span></em></p><p class="fine-print"><em><span>Peter Phibbs receives funding from the Australian Housing and Urban Research Institute</span></em></p>The default position for politicians is to sound concerned about housing affordability, but do nothing. This can be explained by the idea of ‘policy capture’, in this case by industry interests.Nicole Gurran, Professor - Urban and Regional Planning , University of SydneyPeter Phibbs, Chair of Urban Planning and Policy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/362482015-01-15T19:31:26Z2015-01-15T19:31:26ZCharlie Hebdo attacks provide a false pretext for 18C debate<figure><img src="https://images.theconversation.com/files/68932/original/image-20150114-28431-1xrvjlp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Family First senator Bob Day's proposed changes to Section 18C have been given fresh prominence since the Charlie Hebdo attacks.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Early in 2014, federal Attorney-General George Brandis released a proposal to <a href="https://theconversation.com/race-act-changes-are-what-you-get-when-you-champion-bigotry-24782">significantly amend</a> our law against racial vilification, Sections <a href="http://www.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18c.html">18C</a> and <a href="http://www5.austlii.edu.au/au/legis/cth/consol_act/rda1975202/s18d.html">18D</a> of the Racial Discrimination Act, on the strength, it seems, of a <a href="http://www.smh.com.au/federal-politics/political-news/we-are-not-like-the-gillard-government-tony-abbott-defends-backdown-on-racehate-laws-20140805-3d74s.html">promise to Andrew Bolt</a>. After widespread condemnation the proposal <a href="http://www.abc.net.au/news/2014-08-05/government-backtracks-on-racial-discrimination-act-changes/5650030">was abandoned</a>. No bill was ever tabled in parliament.</p>
<p>The proposal was a radical watering down of the protection against racial vilification. It would have shifted the “free speech” balance so far that almost anything could be said with impunity.</p>
<p>There is now a second proposal to amend Section 18C, although both Prime Minister <a href="http://www.smh.com.au/federal-politics/political-news/tony-abbott-open-to-revisiting-bolt-laws-but-rejects-immediate-changes-in-light-of-charlie-hebdo-20150114-12o079.html">Tony Abbott</a> and Nationals leader <a href="http://www.sbs.com.au/news/article/2015/01/12/racial-laws-dont-need-change-people-speak-their-minds-truss">Warren Truss</a> have said it will not have the government’s support.</p>
<p>In September 2014, Family First senator Bob Day <a href="http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fs978_first-senate%2F0000%22;rec=0">tabled a bill</a> in parliament on behalf of himself, Liberal Democrat senator David Leyonhjelm and Liberal senators Cory Bernardi and Dean Smith. The bill, as media columnist Jonathan Holmes <a href="http://www.theage.com.au/comment/were-all-supporters-of-free-speech--when-it-suits-us-20150113-12myyx.html">has said</a>, is much simpler than Brandis’ proposals. It makes a small but important change to the current law.</p>
<p>The bill would not change the way that the protection in Section 18C operates, nor would it change the “free speech” exceptions in Section 18D. What it would do is raise the bar as to what constitutes unlawful vilification.</p>
<p>Subject to the “free speech” exceptions, it is currently unlawful to do something that is reasonably likely to “offend, insult, humiliate or intimidate” a person if the conduct is done because of a person’s race, colour or national or ethnic origin. Day’s bill would drop the words “offend” and “insult”.</p>
<p>This wouldn’t have made a difference to the <a href="http://www.theaustralian.com.au/media/andrew-bolt-x-racial-vilification-court-case/story-e6frg996-1226148919092">case of Bolt</a>, a News Corp columnist. The Federal Court <a href="http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html">found</a> that his conduct caused Aboriginal people to feel humiliated, and in one case intimidated, as well as offended and insulted.</p>
<p>But it would make a difference to people who, every day, must grin and bear it when they are subjected to the casual racism in Australia that Race Discrimination Commissioner Tim Soutphommasane <a href="https://www.humanrights.gov.au/news/stories/what-casual-racism">has identified</a>.</p>
<p>Law has symbolic power. It sends a message to the public, from elected leaders, about what is acceptable conduct in society. The clear effect of Day’s bill would be to signal that it is permissible to engage in race-based conduct that causes offence and insult. Such a change is proposed in the name of “free speech”. However, nothing about Australia’s current laws and the way they operate warrants such a change.</p>
<p>Truss is correct to say that race-hate laws don’t need to be changed for people to speak their minds about issues they feel are important. Abbott is correct to say that that we do have very robust free speech in this country. The limits that Sections 18C and 18D impose on vilifying conduct are modest and – but for Bolt’s transgression – unremarkable.</p>
<h2>The Charlie Hebdo context</h2>
<p>Day’s bill has been public, with little comment, since September last year, and now seems unlikely to progress in light of Abbott and Truss’ comments. But it is in the headlines because of a spurious connection with the <a href="https://theconversation.com/au/topics/charlie-hebdo-attack">Charlie Hebdo attack</a> in France.</p>
<p>The connection is spurious because, as Truss said, what happened in Paris had nothing to do with race issues. Murderous conduct is no measure of how far a society ought to go in allowing or limiting the expression of views on race.</p>
<p>Much of the commentary on free speech that was promoted by the Charlie Hebdo killings is quite simply wrong, and confuses any debate about racial vilification in Australia.</p>
<p>Human Rights Commissioner Tim Wilson <a href="http://www.news.com.au/national/charlie-hebdo-would-be-censored-in-australia-freedom-commissioner-tim-wilson/story-fncynjr2-1227183150030">has said</a> that:</p>
<blockquote>
<p>There is no ambiguity that Charlie Hebdo would be censored in Australia. </p>
</blockquote>
<p>I am not sure what this means, but an implication that the Charlie Hebdo cartoons would be caught by the Racial Discrimination Act is misleading.</p>
<p>Consider a <a href="http://www.foxnews.com/world/slideshow/2015/01/07/controversial-cartoons-published-by-charlie-hebdo/#/slide/controversial-cartoons-1">cartoon about Islam</a>. A complaint of religious vilification could not be made, because there is no federal law against it. No racial discrimination complaint could be made, because the law in Australia is that Islam does not equate with race. That’s it: free speech, unambiguously unconstrained by the Racial Discrimination Act.</p>
<p>Charlie Hebdo does do cartoons about race, and so do Australian publications. A racial vilification complaint could be made, but cartoonists enjoy the “free speech” exception in Section 18D that allows conduct done reasonably and in good faith in an artistic work, or in the course of public interest debate. In the case of <a href="https://www.humanrights.gov.au/human-rights-law-bulletin-volume-8#bropho">Bropho</a>, for example, <a href="http://en.wikipedia.org/wiki/Alas_Poor_Yagan">cartoons</a> that were undoubtedly offensive to Aboriginal people were protected by the “free speech” exception in Section 18D.</p>
<p>Sections 18C and 18D describe a very generous limit on free racist speech. The defeat of Brandis’ proposals demonstrated that Australia has no appetite for encouraging racist speech beyond that limit. Revisiting the issue because of the attack on Charlie Hebdo is nothing but sheer opportunism.</p><img src="https://counter.theconversation.com/content/36248/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Simon Rice is the independent legal adviser to the Parliamentary Joint Committee on Human Rights, chaired by Senator Dean Smith. He chairs the ACT Law Reform Advisory Council, which is currently reviewing the ACT Discrimination Act.</span></em></p>Early in 2014, federal Attorney-General George Brandis released a proposal to significantly amend our law against racial vilification, Sections 18C and 18D of the Racial Discrimination Act, on the strength…Simon Rice, Professor of Law; Director of Law Reform and Social Justice, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/307582014-09-02T19:55:45Z2014-09-02T19:55:45ZChanging the soul: are conservatives the new radicals?<figure><img src="https://images.theconversation.com/files/57254/original/vxfdywh7-1408945622.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">With his strong views on industrial relations, Family First senator Bob Day is what we might call a 'conservative libertarian'.</span> <span class="attribution"><span class="source">AAP/Lukas Coch</span></span></figcaption></figure><p>Few members of the 20th-century political right were more important than <a href="http://www.econlib.org/library/Enc/bios/Friedman.html">Milton Friedman</a>. As an academic, author, television presenter and adviser to Ronald Reagan – who once described his show Free to Choose as a “survival kit” for the Cold War – Friedman helped initiate the free-market revolution that swept the world in the 1980s. </p>
<p>For all that, there was one title Friedman would never accept: “conservative”. In his book <a href="http://en.wikipedia.org/wiki/Capitalism_and_Freedom">Capitalism and Freedom</a>, he made the observation that economic liberals weren’t there to preserve the status quo, nor maintain the “state interventions that interfere so greatly with our freedom”. </p>
<p>A better term, Friedman thought, was “radical”. After all, economic liberals favoured “major changes to social legislation”. Friedman even believed that, if they could practically administer them, private corporations would ideally run community parks, charging users for entry and upkeep.</p>
<p>Bob Day, the new Family First senator for South Australia – whose vote the Abbott government will need to pass much of its legislative agenda – is a great <a href="http://indaily.com.au/news/2013/09/04/inside-adelaides-conservative-hq/">admirer of Friedman</a>. Day is what we might call a “conservative libertarian”. Like Friedman, he advocates extensive economic deregulation, while at the same time supporting the preservation of families with a “natural mother, natural father”. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=749&fit=crop&dpr=1 600w, https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=749&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=749&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=941&fit=crop&dpr=1 754w, https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=941&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/57332/original/4tc7p22y-1409017248.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=941&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">American economist Milton Friedman always rejected the tag of ‘conservative’.</span>
<span class="attribution"><span class="source">Friedman Foundation</span></span>
</figcaption>
</figure>
<p>Before he entered parliament, Day’s economic advocacy tended to ring loudest. As Housing Industry Association president and <a href="http://hrnicholls.com.au/">HR Nicholls Society</a> secretary, he conducted a one-man crusade against state intervention. Day once <a href="https://www.ipa.org.au/library/review51-1%20Slave%20Labour.pdf">compared</a> the fight against the minimum wage to the fight against slavery, likening himself to a 19th-century abolitionist. In 2005, he <a href="http://www.smh.com.au/news/opinion/family-with-the-odd-black-sheep/2008/08/14/1218307111871.html?page=fullpage">criticised</a> WorkChoices for not going far enough. </p>
<p>Since being elected to the Senate, Day’s campaign has gained speed. In August, he made his clearest move yet, offering treasurer Joe Hockey <a href="http://www.smh.com.au/federal-politics/political-news/young-people-should-be-able-to-negotiate-own-pay-and-conditions-says-senator-bob-day-20140813-3dlvz.html">a deal</a>. If Hockey followed his advice on industrial relations, he would help the government pass parts of its budget. </p>
<p>Day argued that young people should be allowed to opt out of the Fair Work Australia system, letting them bargain away their minimum wage and benefits in exchange for a job. While it would represent a profound change to Australian industrial law, Day considered it a “silver bullet” for dealing with youth unemployment.</p>
<p>Even the Council of Small Business of Australia considered Day’s proposal extreme. Director Peter Strong argued:</p>
<blockquote>
<p>We should have a system where you can’t accidentally take advantage of desperation.</p>
</blockquote>
<p>While Day’s plan might eventually go nowhere, or be implemented only in parts, it reflects an important trend in contemporary Australian politics: the conservatives are now radicals. </p>
<p>If there’s momentum to upend and replace traditional institutions, it’s now coming from the political right. Universal health care, the welfare state, a regulated higher education system, the ABC and industrial relations: each in its way is part of the foundations of Australia’s social life; each is under attack by self-identifying “conservatives”.</p>
<p>Historian Greg Melleuish confronted this same question when defending John Howard’s conservatism after WorkChoices. He <a href="http://www.cis.org.au/images/stories/policy-magazine/2009-winter/25-2-09-greg-melleuish.pdf">argued</a> that economic institutions aren’t worth preserving because laws, not social conventions, uphold them:</p>
<blockquote>
<p>The principles on which Australian society rest[s] … should be founded on voluntary co-operation and not state coercion.</p>
</blockquote>
<p>But this argument only makes sense if we accept that these laws aren’t themselves the product of society, or the institutional expression of what people actually want. Here, political history disagrees with Melleuish. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=902&fit=crop&dpr=1 600w, https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=902&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=902&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1133&fit=crop&dpr=1 754w, https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1133&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/57330/original/zj83rvx3-1409017000.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1133&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">John Hewson lost public support over proposed changes to Australia’s economic way of life.</span>
<span class="attribution"><span class="source">AAP/Lukas Coch</span></span>
</figcaption>
</figure>
<p>Every time the Liberal Party has recently attempted to revolutionise Australia’s economic life, it has run into the same problem – public opinion. In 1993, then-Liberal leader John Hewson <a href="http://www.theaustralian.com.au/50th-birthday-news/wheres-the-vision-john-hewson-still-fighting-back/story-fnmx97ei-1226960476312">advocated</a> ending the awards system and Medicare bulk-billing. Despite Hewson being in a supposedly “unlosable” position, Labor won a fifth straight election.</p>
<p>In 2007, Howard defended his government’s WorkChoices legislation, then lost both his job and his seat. Hockey’s budget has gone much the same way. An affable treasurer has been <a href="http://www.smh.com.au/comment/joe-hockey-give-the-man-a-cigar-20140815-1046au.html">transformed</a> in the popular imagination into a cigar-chomping fat cat. </p>
<p>Each of the three examples suggests that Melleuish is wrong. Economic institutions like the minimum wage and award system aren’t imposed on an unhappy public. If anything, the opposite is true. A largely content public is reluctantly forced back to the barricades, defending the institutions that shape their economic life.</p>
<p>The political left is waking up to the fact that it might be now on the side of tradition. You can hear it in the language of its leaders. Ged Kearney, head of the Australian Council of Trade Unions, <a href="http://www.actu.org.au/Media/Speechesandopinion/AddressbyACTUPresidentGedKearneytotheACTUIndigenousConferenceTuesday20May2014.aspx">described</a> the budget as:</p>
<blockquote>
<p>… nothing short of a savage assault on the Australian way of life and famous egalitarianism. </p>
</blockquote>
<p>Opposition leader Bill Shorten has variously accused the budget of being <a href="http://www.smh.com.au/federal-politics/political-news/crucial-fortnight-for-coalition-20140825-108aje.html">“unfair”</a> and <a href="http://www.news.com.au/finance/economy/federal-budget-2014-bill-shortens-speech/story-fn84fgcm-1226919328436">“radical”</a>.</p>
<p>It’s hard to reconcile the term “conservative” with these attempts to overturn and remodel traditional institutions. But when it comes to economic policy, preservation has never really been the goal. As Margaret Thatcher <a href="http://www.margaretthatcher.org/document/104475">put it</a> back in 1981:</p>
<blockquote>
<p>Economics are the method: the object is to change the soul. </p>
</blockquote>
<hr>
<p><em>Editor’s note: Shaun will be on hand for an Author Q&A session between 3 and 4pm today (September 3). Post any questions about conservative politics and radicals in Australia in the comments below.</em></p><img src="https://counter.theconversation.com/content/30758/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Shaun Crowe does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Few members of the 20th-century political right were more important than Milton Friedman. As an academic, author, television presenter and adviser to Ronald Reagan – who once described his show Free to…Shaun Crowe, Doctoral Candidate and Research Manager, Centre for the Study of Australian Politics, Australian National UniversityLicensed as Creative Commons – attribution, no derivatives.