New concerns surround the government’s increased use of legislative powers to bypass the parliament and create laws that cannot be amended or overturned. The federal government has embedded special powers in new Covid-19 laws to make unilateral changes to non-pandemic-related legislation, using what are known as ‘Henry VIII clauses’ – named for the unchecked power they involve.
Turnbull’s cunning double dissolution election ploy
The high risk of Malcolm Turnbull’s cunning re-election plan took scarcely 11 hours to manifest. On the night of the “shock”, “surprise”, “brilliant” and “decisive” announcement, a dumped prime minister made a spectacular appearance. There, live on Sky News, beamed in from London, was Tony Abbott. And he is only one of the potentially lethal factors with which the prime minister has to deal. The others are the length of the campaign and emboldened opponents proving adept at setting the agenda.
Political pundits were breathless in their praise of the sheer boldness of Turnbull utilising section 5 of the constitution to have the governor-general recall parliament and so neuter the hostile senate’s unwillingness to accommodate his timetable for a double-dissolution election. The elegant ambush will see the Queen’s representative open the new session on April 18 – three weeks earlier than scheduled. In Turnbull’s scheme, the budget would be brought down on May 3. The next day he would introduce the appropriation bills, then the senate would have three weeks to pass supply and deal with the contentious industrial relations bills that could presage a July 2 election.
Sir Peter Cosgrove will no doubt tell all assembled that his government intends to restore law and order to the “vital” construction sector of the economy by restoring the Howard government’s Australian Building and Construction Commission (ABCC). An agency with draconian powers denying the right to silence or a lawyer of choice to anyone it deems worthy of investigation, it in fact has no powers of criminal investigation and acts in the civil jurisdiction but with the ability to impose massive fines for behaviour it deems unacceptable. Never mind that there is already a watchdog doing the job without denying legal rights we are supposed to value as a free country.
Greens leader Richard Di Natale points out the GG can recall the parliament but he cannot dictate what the senate will debate or for how long it will sit. The Turnbull plan is to have union thuggery and lawlessness front and centre every sitting day for three weeks. Labor concurs with Di Natale, and is consulting the clerk of the senate on the various devices a senate majority may be able to apply to thwart this aspect of the crafty plan.
You can count on the crossbench, or most of them, joining the plays. Turnbull needs six of the eight to buckle to his will and pass both the ABCC bills and the recycled Registered Organisations bill unamended. Even if they fail to get around to a vote, the theory is their unwillingness to do so after three weeks would still technically constitute a “failure to pass”. This would provide the trigger for a double-dissolution election, which is what Turnbull wants. Still, the High Court may yet be asked to have a view on that down the track.
Labor’s senate strategists are scathing of Turnbull’s use of the constitutional ploy. Senator Stephen Conroy sees it as an abuse of power and a stretch. Others believe the governor-general should not have accepted Attorney-General George Brandis’s advice at face value. There are many precedents for governors- general querying advice or pointing out technical flaws in it. Just how far the opposition is willing to drag “the Crown” into the political fray remains to be seen. But with the exception of the very conservative Family First senator Bob Day, the rest of the non-government senators see the whole kerfuffle over the ABCC as nothing more than ideological grandstanding and a convenient excuse for an earlier election.
Four of the crossbench want amendments to establish a federal independent commission against corruption that extends beyond unions to politicians, public servants, banks and business. There’s plenty of evidence such a commission would have a lot of work to do. But the government has no appetite for that and Labor isn’t supporting the idea either.
Turnbull’s ultimatum to pass the bills or face a double-dissolution election on July 2 is likely to deliver the latter, his preferred option. It gives him a chance to clean out the current senate and see who his new voting reforms throw up at the poll. There will certainly be another crossbench: his hope is it may be less obstructive.
So far the indications are the current crossbench will accommodate the prime minister by not waving the bills through. Even though, for all of them except Senator John Madigan, whose term is up, buckling to Turnbull’s challenge to pass the bills would see them continue in their $200,000-a-year jobs for another four years. Self-interest may win out in the end. If it does, Turnbull says the most likely election date will be in September.
The immediate benefit for Turnbull in appearing to make industrial relations his priority is that it has united the fractious Liberal party behind him. Even the sacked and resentful former workplace relations minister, Eric Abetz, was full of praise and support. And from London, Tony Abbott claimed it as his own. “It was something that I fought very hard for prior to the 2013 election.”
In what one of his Liberal colleagues described as “sheer bastardry”, Abbott went on to say: “It’s very easy for me to campaign for the election of the Turnbull government because the Turnbull government is running on the Abbott government’s record.” Notice he doesn’t say “re-election” – he is the democratically elected prime minister; Malcolm Turnbull is the Liberals’ party room choice.
Solid gold for Labor. Bill Shorten didn’t let the opportunity pass. “The Liberal party is at war with itself,” he said. “Less than 24 hours into the 103-day election campaign.” And the withering clincher: “We’ve seen today Mr Tony Abbott say that a lot of what Malcolm Turnbull’s doing is due to all his hard work… The truth is 80 per cent of the laws which Mr Turnbull has in parliament were designed by Mr Abbott, but Mr Turnbull’s trying to rewrite history and say that isn’t the case.”
It left Turnbull little choice but to push back and push back hard. While accepting continuity he insisted on Radio 3AW there was also change. He even denied Abbott his biggest boast about “stopping the boats”. Not an original idea, he said. John Howard did it and in 2009 Turnbull had the same policy as leader.
Neil Mitchell asked him if he thought Abbott was a plus or minus for him. At first, Turnbull said he would leave that to others but immediately realised the time for pussyfooting around was over. “It depends what he says, frankly,” he said of his predecessor. “Whether it is a plus or a minus depends entirely on the nature of his contribution.”
It surely does. Even some of Abbott’s allies in the parliamentary party now wish he would disappear from view. His public appearances are a stark reminder of the Coalition’s failure to deliver “good, adult government” under him and his svengali, Peta Credlin.
The real problem is that Liberal voters want Abbott to stay on in parliament, according to an Essential poll. Channel Nine’s camera caught the mood when Abbott allowed them to shoot a branch event in his electorate. The gathered faithful booed at the mention of Turnbull’s name.
Pity the base is so out of touch with the broader electorate. All the opinion polls show a tightening because the Turnbull who people thought they were getting hasn’t turned up. Labor had begun dubbing him “Mr Disappointment”. For the first time this week, Turnbull’s approval in Newspoll fell behind his disapproval, putting him in negative territory.
An analysis of the published opinion polls of the past two weeks shows Turnbull’s long march to a winter election may end up resembling Napoleon’s retreat from Moscow. Independent analyst Andrew Catsaras has the government and Labor virtually lineball: the LNP 50.3 to ALP 49.7, two-party preferred. The Essential poll, which averages two weeks’ data, had Labor pull ahead 51-49 in the past week. Morgan found the same thing. On these polls, with a uniform swing the Coalition would lose 12 seats for a bare majority of 76 seats. But one veteran Liberal MP is more pessimistic. He believes Tony Windsor will pick up New England and Xenophon candidates will win two Liberal seats in Adelaide.
The prospect of a hung parliament à la 2010 is no longer fantasy land. That’s why Abbott’s sniping and undermining could be so lethal. Unlike Kevin Rudd, he doesn’t do it furtively; he does it using his fireman’s axe to come through the front door.
John Howard used to say you can’t fatten the pig on market day but that’s exactly what Turnbull and Scott Morrison are doing. Nine times in the Mitchell interview the prime minister said the nation would have to wait until the budget to see the government’s tax plans. Labor’s Chris Bowen taunted with the fact that all we’ve seen from Turnbull is an election strategy without enunciating an economic or tax policy.
Worse for the government, it seems Turnbull and his treasurer aren’t on the same page when it comes to devising a plan. In fact, Turnbull seems to treat his treasurer with some contempt. Morrison was left out of the loop on which day he would actually be delivering what is his main event, the budget. In the past, there have been tensions between prime ministers and treasurers – think Howard–Costello or Hawke–Keating. But so little is Turnbull’s faith in the treasurer and his department head that he has taken the tax plan away from them and given it to his own department.
Labor meantime has already released more than 70 policies. And key strategists are taking some heart from Shorten’s performance since Christmas. His greatest ally in foiling Turnbull’s cunning plans, though, is on the Liberal backbench.
This article was first published in the print edition of The Saturday Paper on Mar 26, 2016 as "The constitution of a fox".
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