Senate Terms: Human Headline Constitutionally Skewered

BY allocating six-year terms to the first Senators elected in each state, the new Senate will replicate the act of all others convened after a double dissolution since Federation; Derryn Hinch, aggrieved by a three-year term but worthier of six than most, offered a surprisingly undemocratic alternative his colleagues and precedent will sink. A touted lawsuit is constitutionally doomed. He should eschew pointless brawls in favour of more salient issues.

Short of criticising Malcolm Turnbull and the tentative early missteps of his re-elected government — over Kevin Rudd, the Don Dale fiasco, the continued triumphalism of moderate factional hacks in the Liberal Party in rubbing the majority conservatives’ noses in the dirt, or over his diminished authority and continued exhibition of poor or non-existent political judgement — there has been little to discuss over the past week, and as I am waiting to see how Turnbull fares when Parliament reconvenes in ten days’ time, I am reluctant to tear into his government. For now.

After the appalling election campaign and the events that led to it, readers can be well assured that whilst this column’s guns have not fired at the Prime Minister in recent weeks, they are trained in that direction and will do precisely that if my view is that Turnbull and his smug moderate cohorts are pushing the Coalition nearer to the electoral abyss: not that there’s very far to push these days, given the government was re-elected with the barest possible majority in the lower house and a diabolical position in the Senate.

But the news this week that the Coalition and Labor have “done a deal” to put a majority of the Senate crossbench on three-year terms is unexceptional, albeit one of the first items of real business for the new Senate to resolve, and even in the current era of rank negativity, pointless populism and incendiary tactics to achieve outcomes counter to the national interest but conducive to one political agenda or another, it is hard to have any sympathy for any of the Senators who have got it into their heads that they should have been installed for six years if they ended up being relegated to three.

Readers can access coverage of this issue, depending on preference, by the Fairfax and Murdoch stables; the allocation of six-year terms to 16 of 30 Coalition Senators and 13 of 26 from Labor is hardly excessive, and I would make the point that if this were indeed a conspiratorial stitch-up claimed by the likes of idiotic Communist Greens leader Richard Di Natale, then most or all of the seven of the 18 crossbench or Greens Senators in line for six-year terms would be contemplating just three years in the red chamber this weekend.

So let’s dispense with the bullshit: there hasn’t been a hatchet job done on the crossbenchers, even if obsessive self-interest has deluded some of them that there has.

The “order of election” method for allocating six-year and three-year terms to Senators after a double dissolution is the exact method used after double dissolutions in 1914, 1951, 1974, 1975, 1983 and 1987; it is impossible to argue that the utilisation of this method now is inconsistent with historical practice.

As part of its 1984 electoral reforms — which, at root, are responsible for the mess the Senate has descended into over the past ten years — the ALP enshrined in the Electoral Act a “countback method” (the so-called Section 282 recount) as an alternative mechanism for allocating terms based on the votes obtained by the 12 winning candidates in each state to the exclusion of preferences obtained from eliminated candidates; significantly, the Hawke government did not use this mechanism after the 1987 election, and as the article I’ve linked from The Age notes, the electoral commissioner advised the Clerk of the Parliament after the election that the Senate was in no way obliged to use Section 282 of the Electoral Act in determining the tenure of Senators.

And the reason is brutally simple, and brutal in its finality: the Constitution.

I have provided links to the Constitution in the past, and do so again today here; in the context of how three-year and six-year terms are carved up, the matter is entirely dealt with by S13, and that section itself makes no prescription whatsoever for the method to be used, merely noting that the Senate itself is responsible for dividing Senators into short-term and long-term Senators following a double dissolution.

As there is no recourse where the Constitution is concerned — clearly, any finding by a Court against the provisions of the Constitution would, by its nature, be unlawful — it is safe to assert that the method for this practice is as the sole discretion of the Senate; the fact the same method used on six previous occasions is again being used now merely adds the strengthening hand of precedent to the allocations announced yesterday, and it would be a foolish and wantonly expensive misadventure indeed for any aggrieved party to run off to the High Court seeking an intervention against the Constitution in their favour. It isn’t going to happen.

Family First Senator Bob Day found this out the hard way earlier this year, when he launched a ridiculous High Court challenge to changes to the way the Senate is elected, believing his interests and those of minor parties generally were disadvantaged; whether they were or not is irrelevant (and with a record 20 Senators set to take their places on the crossbench on 23 August, it’s problematic to argue the point), for S9 is unequivocal that the Commonwealth Parliament may prescribe the method of electing Senators provided such a method is uniform for all of the states: which, earlier this year, it did.

Assessed against the backdrop of constitutional provisions that confer unequivocal authority on Parliament to determine these matters at its absolute discretion, the actions of Victorian Senator Derryn Hinch are curious, to say the least.

Surprisingly, for a decent man ferociously (and rightly) obsessed with standards in public life, Hinch’s proposed alternative — that all represented parties be allocated at least one six-year Senator — not only flies in the face of both constitutional provision and parliamentary precedent, but also exudes a distinctly anti-democratic odour.

Taken to its logical conclusion, the Hinch proposal would have seen the Australian Motorist Enthusiasts Party Senator Ricky Muir, with his 0.5% of the primary vote, given six years in the Senate had that result and outcome been replicated last month; the Hinch proposal gives every appearance of being an unashamed attempted sop to minor parties at the expense of the traditional major parties, and those who rail against the major parties too often conveniently lose sight of the fact that they generally do win an awful lot more votes than their tiny counterparts.

Long-term readers know I have a lot of time for Hinch — and have had for decades — and I welcome his presence in the Senate; some of his positions (such as his support for gay marriage) I do not support, but others (such as disclosure and tougher sentencing for sex offenders) I wholeheartedly endorse. I am not having a go at Derryn today. But it does seem that in trying to push a proposal that would in fact benefit him, he has highlighted problems not just with Senate elections more broadly, but with the conflict that erupts at the intersection of standard parliamentary practice and the “modern” political practice of doing business with a sledgehammer and voluble amounts of intimidatory hot air designed to force opposition into submission.

But as I said earlier in today’s piece, were this simply a stitch-up, there would be worse things to bleat about than Derryn only being given a three-year term.

The good news is that odious actual Communist and national disgrace Lee Rhiannon has been added to the list of those who must face election before June 2019: an opportunity to get rid of an appalling blight on the national polity once and for all. Diversity be damned; this is someone whose past activities verge on treason, and who should be permanently disqualified from holding elective office in this country altogether.

Also to be welcomed is the fact Rhiannon’s rival as the Greens’ most contemptible parliamentarian — the obsequious Sarah Hanson-Young — will also be forced to provide voters with a further opportunity to get rid of her the next time a federal election is held.

And all three of Pauline Hanson’s One Nation buddies will be forced back to the polls at the same time; the prospect of any or all returning to Canberra after the next election must be regarded as low given the almost doubled quotas they will require in order to do so.

The bad news is that good people — like Hinch, Day, and Liberal Democrat David Leyonhjelm — will likewise be marched off to the polls again; this is not the result of any personal targeting but the even application of a system that has been used repeatedly at double dissolutions. In this case, it has produced outcomes that are not desirable.

Similarly, the news that Pauline Hanson and Jacqui Lambie will spend six-year terms in the Senate is a cause for rue; Hanson, by virtue of the vote recorded in Queensland, is entitled to such a term whether you like it or not, but Lambie — in my view the stupidest person ever elected to an Australian Parliament, and much, much worse than Hanson in any case — is a presence whose voice adds precisely nothing of value to the national debate in any way, shape, or form.

But “the system” is just that — the system which, by consent under law, we agree to abide by — and too often in recent years, the refusal of some (mostly, but not exclusively, on the Left) to accept the outcomes it delivers is a disturbing symptom of anti-democratic momentum that runs counter to the national interest, and it is for this reason I was dismayed by Hinch’s “give all parties six years” approach when such a position lacks merit, credibility, and legal integrity.

My criticism of Hinch starts and ends there, but my ongoing critique of others in Canberra — whom we have repeatedly discussed this year in their attempts to subvert process in one way or another — does not.

If I was honest, I would have to say I’m just about fed up with the Senate: the niceties of allocating three and six-year terms aside, it’s not democratic, it’s not representative, and it most certainly isn’t functional in the sense a reasonable person would understand the term to imply — just like proportionally elected Parliaments in Europe, which are usually gridlocked and are a direct cause of the economic and social malaise that now afflicts the EU and its neighbours on the continent.

Perhaps all of this lends weight to the possibility of constitutional change to overhaul Parliament itself, along the lines we have discussed in this column across the journey: breaking the nexus between the Houses that dictate their relative size, along with a recasting of the Senate into upper house districts that return a single member at a half-Senate election and two members at a double dissolution.

But any such change would require the courage and perspicacity of MPs and their organisational structures to formulate arguments for such change, and the skill to sell those arguments and carry public opinion: attributes I don’t think anyone believes exist right now, to any great degree, among the group currently charged with governance in Canberra.

To be clear, the changes made to Senate election procedures earlier this year were entirely within the Parliament’s jurisdiction to make, but were in fact little more than a Band-Aid on a suppurating sore: they were no more “real reform” than the idea a superannuation tax rise and a business tax cut was a “clear economic program.”

In this context, whatever merit or otherwise might rest in Hinch’s musings on the carve-up of terms for Senators, the point is moot: and even if his concept were valid (and I don’t believe it is), such a change would be just as much a rearrangement rather than an overhaul as those electoral reforms are already proving.

Hinch was elected on credible (and in some cases, urgently indicated) policies: he should shun the allure of picking a pointless legal fight guaranteed to end badly, and focus instead on those policies. The Constitution has him snookered. The High Court would simply pot the black on him. It would be a silly waste of time, money, and public goodwill.

But this wouldn’t stop him attempting to explore, as a Senator, substantial ideas for genuine reform of the Senate, although the record level of self-interest and obsession with keeping their snouts in the trough means that whatever else is said of Australia’s MPs, the interest factor will be virtually zero.

Best to get on with the job at hand. Most of the people in Canberra, despite their protestations to the contrary, are really only concerned with staying there. If Hinch is to be different, there’s a big opportunity to prove it by standing out from the pack.

The clock is ticking.


Moronic: Throwing Beer Cans At Asylum Seekers No Laughing Matter

MOST AUSTRALIANS will not have heard of Katie Hopkins and for this they can be well pleased, for the inveterate British commentator has overstepped the mark with a frenzied, cruel and dishonest portrayal of our country and the policies of the Abbott government. People may or may not agree with policy around the treatment of asylum seekers, but it is not funny, constructive or incisive to foment violence and victimisation against the helpless.

Apologies to readers for my silence these past few days; as I might have mentioned, I had a rather large job to get out of the way and — to be frank — by the time it was done, I was exhausted: and so the absence of articles this week reflects both a complete lack of time to write them as well as the inevitable “crash” once a complicated and significant project was complete.

If I have time (and if there is nothing better to talk about) I may make some mention of Monday’s episode of the ABC’s #QandA programme, which was held at the Melbourne Recital Centre and which I attended; despite a panel that at first glance suggested decent consideration of mainstream issues that actually matter — with veteran broadcaster Derryn Hinch and standout Abbott government minister Andrew Robb in the mix — the programme descended, as usual, into a gabfest mostly centred on pet subjects of the Left, complete with an attempt by some on the panel to paint Robb as thoroughly heartless and prevent him from confirming he’d used official discretion as a minister to allow some children to remain in Australia and overturn deportation orders made in lower (and apolitical) jurisdictions. Best to keep the blowtorch on those Libs; best to ensure everyone knows they’re just a bunch of cruel misery merchants with hearts of stone.

To his credit, Robb was able to get his position — and the truth — on record with to #QandA audience, despite the obfuscation; the fact remains, however, that the only useful purpose this programme serves is to keep an eye on Australia’s Left, what it is saying, about whom it is said, and what its stacked panels attempt to pin on decent individuals whose only “crime” is to represent the mainstream Right.

Even so, the ills of #QandA pale in comparison to idiotic British commentator Katie Hopkins, who has roared onto the radar this week with a thoroughly uninformed and bigoted rant against African asylum seekers in Europe, and admiring depictions of a regime of treatment doled out to asylum seekers by Australia that simply does not exist. (A second article on the subject — also from the Fairfax press — can be accessed here).

It disturbs me that Fairfax, with its deeply ingrained loathing of anything to the right of socialism, has chosen to characterise Hopkins as “conservative” when in truth, she is just an imbecile: until yesterday the thing I best remember her for is a silly diatribe against parents who call their kids things like “Chardonnay,” and the declaration she would never allow her own children to play with such odious specimens from low-grade bogan stock.

Hopkins isn’t a conservative, she’s just a moron: and if she chooses to identify as “a conservative” then in my view she is an embarrassment.

Now it seems she has discovered, in some alternative universe, an “Australia” where state-sanctioned, bigoted violence is not just rampant, but a cause for great adulation; a country whose inhabitants possess “balls of steel, can-do brains, tiny hearts and whacking great gunships” that are utilised to threaten asylum seekers “with violence until they bugger off.”

Referring to African asylum seekers as “cockroaches” (with the unspoken inference that they should be squashed), Hopkins advocates an Australian-style system of turning back asylum seeker boats lest Britain’s towns and cities become “festering sores, plagued by swarms of migrants and asylum seekers, shelling out benefits like Monopoly money.”

And returning to her theme that asylum seekers are like cockroaches, and “built to survive a nuclear bomb,” Hopkins cheerily asserts that Australia’s border control regime features military personnel “throwing cans of Castlemaine” (sic) at asylum seekers in “an Aussie version of Sharia stoning.”

It might be a tiny detail, but so ill-informed is Hopkins that she is unaware that “Castlemaine” isn’t even a commodity anyone would recognise; and whilst XXXX is a variety of beer that is justifiably likened to the bodily movements of cats, it’s a typical marker of a brainless dolt like Hopkins that she can’t even get the minutiae of her venomous attacks right.

Where all of this becomes particularly unhelpful is that in Europe — just like the situation in Australia prior to 2014 — asylum seekers, trafficked by people smugglers and trying to reach the EU, are dying; and as the Fairfax reports correctly note, 1,300 asylum seekers perished at sea in the past fortnight alone in waters off the Italian coast in a ghastly reflection of the countless hundreds who died en route to Australia under failed Gillard-Greens policies: a travesty dismissed by Communist Greens Senator Sarah Hanson-Young as “an accident.”

The fact is that on a fraught issue characterised by competing and unpalatable options, no single measure is going to be ideal; and short of unquestioningly releasing asylum seekers into the Australian community — a negligent and dangerous prospect for a whole different set of reasons — the suite of policies that affect their arrival and eventual passage into Australia constitute the best course currently available among a raft of measures that all come with drawbacks.

I don’t propose to get into a wholesale analysis and defence of the Abbott government this morning over its policies on asylum seekers, but I will make the point that for all the blather from the Left about the number of children held in detention under the Abbott government, fully 90% of the kids held when the government took office have been released, with the backlog expected to be cleared later this year; and despite the riots and hunger strikes and other forms of blackmail deployed by some asylum seekers to try to force the government to speed their release into the community, most asylum seekers realise their ambition of residency in Australia as soon as their bona fides can be established.

Australians generally (and the Abbott government in particular) certainly do not subscribe to the racist, flat-earthed view articulated by Hopkins, and any thinking conservative will be insulted and affronted to be lumped in with Hopkins and smeared by the association with such ignorant and uninformed opinions.

Certainly, I’ve never heard this kind of sentiment advocated behind closed doors inside the Liberal Party, and not even (as some on the Left would believe) to the Right of the party, where I nominally sit.

I make three points: one, Hopkins is entitled to her view, but it is an offensive and noxious view at best, and not one that can be attributed to conservative notions of governance with any fairness or accuracy.

Two, some on the Left might snigger and welcome the opportunity to use her words as fodder against the Liberal Party; they would be irresponsible to do so and should be crucified by media outlets like Fairfax if they do, for this kind of drivel has no place in mainstream political discourse in Australia.

And three, if any good can come from Hopkins’ intemperate outbursts at all, it should be to serve potent notice to the likes of the cabal that holds court every week on #QandA — posing misguidedly and with pomposity as it does as the arbiter and protector of moral right in Australia — that words can be deadly, and as a reminder that its vitriol against the Right (for no better reason than a disagreement of views) fade into insignificance against elements that truly do advocate the manner of ills they irresponsibly and erroneously accuse Abbott and his government of in the interests of cheap, petty political expediency.



Royal Commission: Child Abuse Inquiry A Blast Of Good Sense

The announcement today by Prime Minister Julia Gillard of a Royal Commission into child sex abuse is a long-overdue blast of good common sense; The Red And The Blue wholeheartedly endorses its establishment, and trusts no stone will be left unturned by its eventual Commissioner.

At the time of writing, the exact specifics of the pending Royal Commission remain uncertain; as is so often the case in politics — or in issues and/or events connected to it — the situation seems very fluid and developing.

Nonetheless, this column is happy to throw the weight of its support behind the initiative — which is essentially bipartisan, as Tony Abbott has committed the Coalition to support it without qualification — as Australia makes one seriously big attempt to deal with an issue that is a social and moral pox upon the national house.

Indeed, that pox — and the culture of silence it festers and fosters — is a disgrace, and today’s announcement is a triumph and just reward for childhood advocates such as veteran Melbourne broadcaster Derryn Hinch, and Bravehearts founder Hetty Johnston.

It pleases me greatly that the terms of reference for the inquiry appear to be very broad: focusing not just on the Catholic Church (although God knows that house is far from clean) but on a wide range of organisations and sectors, from “state services” to the Scouts to school sporting groups and so forth.

I hope it includes past and present parliamentarians; the judiciary; and also that it takes seriously the issue of child abuse in the home, whether by a parent, sibling, family member or friend.

In other words, absolutely no holds barred.

And it is also highly satisfactory that those who have covered up instances of child abuse or otherwise obscured the rendering of justice upon the perpetrators of sick crimes against kids will also be hauled before the Commission.

The Commission will integrate and align with various state-based inquiries, and will not impede police investigations or compensation claims. It is to be hoped, also, that a Special Prosecutor (or similar) is assigned to the Commission, giving it the power to prosecute individuals or groups found to have cases to answer arising from its business.

The only real qualifications I have on my support are that a) it isn’t simply a merry free-for-all witch hunt, in which people are baselessly accused out of malice; and that b) in cases where ambit and baseless accusations are made, Commonwealth support is available to wrongly accused persons to pay the costs associated with defamation actions against their accusers.

I think these are two eminently sensible considerations, and hardly those of a naysayer.

Ominously, though, the first words of dissent have come from surprising — and unsurprising — quarters.

Former Prime Minister Kevin Rudd was quoted from a statement to Fairfax Media as saying that there would be a case for a Royal Commission if present inquiries found ”institutional resistance” by the Catholic Church or if more resources were needed to deal with these matters.

Sorry Kevin — “institutional resistance” is the game the church has been playing on this issue for decades. Simply stated, for the Catholic Church, time is up.

The Age also quoted Professor of Law at the Australian Catholic University and prominent Jesuit priest Father Frank Brennan, who cast doubts on the Commission, saying ”It’s so broad that it risks being counterproductive,” and claiming it could take three years for the Commission to report.

I say, as doubtlessly do many, many others, that if it takes three years to do the job properly and thoroughly (and to get it right the first time), then it takes three years.

The Murdoch press in Melbourne featured a survivor of child abuse in a Catholic school, Peter Blenkiron, who hit out at claims by Catholic Cardinal George Pell that victims received justice when the church apologised to them, saying simply that no victim he knew ever felt like they got justice from the Church.

Pell, for his part, has made the welcome declaration that “We shall co-operate fully with the Royal Commission.”

Overwhelmingly, however, the response around the community has been supportive, almost ecstatic — as it rightly should be.

I was never subjected to sexual abuse as a child, although I do know people who were; quite aside from the fact I find the entire concept morally abhorrent (to the point I can almost justify kiddie molesters being subjected to a more informal smack around if the Courts won’t oblige), it is these people, along with the stories one hears of so very many others, that make it just as personal an issue for me as it is for them.

And not least because I’m a dad too — I have one little girl and another child coming soon, and if anyone touched them, it wouldn’t make it as far as Court.

I do not intend to talk through the actual political implications of today’s events, other than to reiterate my support for Gillard’s announcement and to reiterate recognition of Tony Abbott’s immediate and unqualified support for it.

Today’s announcement belongs to the victims — past and present — of the sexual abuse of children, to the families and friends who have supported them, and to the ceaseless fighters like Hinch and Johnston who have fought valiantly and for many years to see precisely this outcome.

But I will say this: to the paedophiles out there — and, unfortunately, there are a few of them around — I hope you’re all absolutely frightened shitless now.

There isn’t anywhere left to run and hide.

And that’s how it should be.