Opinion

Paul Bongiorno
Backpackers, ABCC and parliamentary chaos

The parliamentary year ended this week with the Turnbull government celebrating as its two major pieces of union-busting legislation finally got through parliament. At first blush, as the Americans are fond of saying, it ends the year with a significant victory. To those eyes, it demonstrates Malcolm Turnbull can govern and implement the agenda he took to the July election. A closer look reveals another reality.

These bills were both heavily amended. They are not the triggers that caused the double-dissolution election. That election saw the Turnbull government returned considerably weakened, with a single-seat majority in the house of representatives and an expanded crossbench in the senate. It is now clear the crossbench in both houses would not have voted for the Australian Building and Construction Commission or the Registered Organisation bills without significant amendment. And the numbers were simply not there for a joint sitting to pass them.

But as Treasurer Scott Morrison said last Monday, after his spectacular backdown on the backpackers’ tax: “Eighty per cent of something is better than 100 per cent of nothing.” Indeed if Turnbull – and Tony Abbott before him – had been as prepared to horse trade and compromise on the construction industry watchdog as we saw this week, the bills would have passed a couple of years ago. Labor’s Brendan O’Connor says the upshot of all the sound and fury is to substantially retain the Fair Work building and construction regulator arrangements put in place under Labor. Only it has now been given the Howard government badging.

The construction union was always unhappy Labor had not gone further in dismantling Howard’s ABCC. And the CFMEU’s national construction secretary, Dave Noonan, says the new ABCC bill and the building code attached to it is “a return to WorkChoices”. Noonan spent days in Canberra trying to persuade the crossbench senators to go further in their demands that some of the more draconian aspects of the bill be further amended or rejected.

The best he got from Senator Derryn Hinch was a two-year delay on the implementation of the code, so that workplace agreements entered into since 2014 would not be retrospectively discriminated against. The government has drawn up a list of forbidden labour conditions and will punish construction companies that give any of them to unions. The companies stand to lose multimillion-dollar contracts. So much for believing in market forces.

Ironically, Labor is relieved this seemingly interminable period of union bashing has reached its conclusion. Bill Shorten was telling people at his drinks for the press gallery earlier in the week his preference was for the vote to be held quickly “so we can all move on”. Labor believes these “wins” for Turnbull mean almost nothing to most voters and their families. Given the result of the election, it is pretty clear that the demonising of unions and the linking of Shorten with the worst excesses of the bad to appalling behaviour of some in the union movement is not the vote winner rusted-on conservatives like to think it is.

This realisation explains why the Liberal campaign didn’t spend as much time on it as some of the hardheads would have liked. Labor’s focus on health and the “threat to Medicare” was much more potent. And Turnbull hasn’t forgiven or forgotten. In parliament he was almost manic in his attacks on Shorten. He was not alone, either: a procession of ministers all week damned the opposition leader as a “post-truth politician” and claimed he didn’t have the “temperament” to ever be prime minister. It worked like a treat for Hillary Clinton against Donald Trump, didn’t it? The fact of the matter is, for all the Liberals’ efforts to pin the title of union thug, doublecrosser and workers’ sellout on Shorten, his approval rating rose during the eight-week campaign.

Clouding Turnbull’s glorious final week was a last-minute ambush of the government in the senate over the backpacker tax. Finance Minister Mathias Cormann was dumbstruck when four on the crossbench, including One Nation’s Rod Culleton, voted down Pauline Hanson’s 15 per cent compromise. Turnbull put a brave face on it, telling a courtyard news conference called to herald his industrial law victories, “I didn’t say the senate would agree with everything”.

It certainly didn’t agree that the attorney-general, George Brandis, had sufficiently explained his role in what Labor is calling the “WA kickback scandal”. They’re using “kickback” in the sense that it looked and smelt like the Abbott–Hockey government had done a deal to run dead in the High Court so its West Australian state Liberal allies could get their hands on $300 million of Commonwealth tax revenue from the collapsed Bell Group.

What we do know is the West Australian treasurer, Mike Nahan, believed there was a deal in place. In May he told his parliament, “We had a deal with the Commonwealth that it would not oppose the Bell act.” His legislation was designed to put the WA government at the head of the creditors’ queue instead of the Australian Tax Office. He said, “Despite the deal we thought we had, the Australian Taxation Office thought it had to have its say in the High Court.” He also said WA would not have proceeded with its legislation without that deal. The West Australian newspaper had reported that a senior federal source told it that Brandis verbally instructed then solicitor-general Justin Gleeson not to run a particular argument in the High Court.

Gleeson did and according to the newspaper the West Australians felt doublecrossed. Their attorney-general, Michael Mischin, had a blazing row with Brandis a week later in Perth. The essence of the Brandis defence was that he was not involved and knew nothing until late in the piece. He pointed the finger at then treasurer Joe Hockey, but thoughtfully added there was no written evidence of such a deal.

Labor, the Greens and six of the crossbench supported a motion for the opposition-dominated legal and constitutional affairs legislative and references committees to fill in the blanks left by Brandis. That inquiry will run during the next two months. It will call Brandis and Cormann. It can invite ministers from the house of representatives to attend or make submissions. Then assistant treasurer Kelly O’Dwyer and Social Services Minister Christian Porter are on the list. Porter is a West Australian and former state treasurer. He and O’Dwyer appear to have had knowledge of the WA government legislation as it was being prepared.

But the star witness could be Australia’s ambassador to the United States, Joe Hockey. Opposition senate leader Penny Wong believes Hockey would want to give his side of the saga given Brandis “threw him under a bus”. Committee members believe they have the authority to compel his attendance. That is by no means certain.

What is also by no means certain is whether Brandis will still be in the ministry, or even in the parliament, when the inquiry reports in February. Shorten homed in on this when he reminded Turnbull that this time last year he expressed full confidence in ministers Jamie Briggs, Mal Brough and Stuart Robert. All lost their jobs on the frontbench. Two are no longer in the parliament. “Will the prime minister express the same full confidence in the attorney-general?” Shorten asked. “Of course I do,” was Turnbull’s curt answer.

A Shorten attempt to have Turnbull rule out appointing Brandis to a judicial or diplomatic posting was dismissed, but Turnbull would not be drawn on either option, just as at a news conference he kept open the prospect of an imminent ministerial reshuffle.

Any vacancy in the cabinet will definitely not be filled by the dumped prime minister Tony Abbott. Turnbull has made it crystal clear in a face-to-face meeting with his felled predecessor that while he is PM, Abbott will never be appointed to the top table. That hasn’t dissuaded Abbott from a thinly veiled threat on Sky News last weekend: he will make full use of his freedom on the backbench to speak out on a broad range of issues. It’s a freedom, he concedes, he would not have should he be recalled to cabinet.

Abbott’s hour-long interview on Sunday Agenda was in itself as strong a signal as you can get that he harbours an ambition to become more than a mere minister again. The online news site Crikey has drawn up a list of 14 high-profile interventions by Abbott since his toppling in September last year. Unlike Kevin Rudd’s undermining of Julia Gillard, Abbott is up front about it. He probably sees his championing of hardline conservative policies and his welcoming of Turnbull to the role of a true centre-right prime minister as helpful. His promise of “no sniping, no undermining” is definitely in the eye of the beholder.

An unprecedented demonstration over the treatment of refugees by about 50 chanting protesters shut down question time for half-an-hour midweek. The chaos was a neat metaphor for what is not far beneath the surface of Australian politics.

This article was first published in the print edition of The Saturday Paper on Dec 3, 2016 as "Compromising situations". Subscribe here.

Paul Bongiorno
is a columnist for The Saturday Paper and a regular commentator on ABC Radio National Breakfast.