NSW Nats break with Liberals (to a degree)

Interesting comment to a thread on AV from Tom Round, and which I wanted to “promote” to where it would be seen from the front gate of the virtual orchard:

The NSW Nationals have just announced that they are moving to the crossbenches, ie breaking their coalition with the Liberals in our oldest State Parliament, over a ban on shooting koalas.

However, it’s still a good deal tighter than a supply-and-confidence non-aggression pact because the Nats have not yet handed in their Ministerial portfolios.

(Tom also included what he called a “NSFW” addendum, but I will let you go to the original comment for that.)

34 thoughts on “NSW Nats break with Liberals (to a degree)

  1. Didn’t the Libs respond with: ‘Ministers or cross-bench – choose one!’?
    I’ve been at a speech by the NZ First Minister of Defence in the Labour/NZF/Greens Government. He was very clear that he was representing the Government at the event, but the comments after a certain point were NZF rather than Government policy.

  2. Gladys Berejiklian, the Liberal premier, quite rightly stated that ministers cannot sit on the crossbench. She was supported by a number of constitutional scholars including Anne Twomey. The premier gave the Nationals a deadline to return to the government bench by Friday morning or be dismissed. They folded.

  3. Rather remarkably, after such a stunt, apparently his party leadership remains safe.

    But all I really want to know is why can’t American journalists come up with phrases as nice as “koala stoush”?

  4. “quite rightly stated that ministers cannot sit on the crossbench. She was supported by a number of constitutional scholars including Anne Twomey. ”
    Except when they can…https://en.wikipedia.org/wiki/Michael_Moore_(Australian_politician)
    To be fair, “not that” Michael Moore’s resting-place was centrifugal rather than centripetal, ie he achieved his halfway house open marriage with the ACT Liberals after being elected as an independent rather than breaking away from a long-standing coalition.
    Separate residences is no doubt less fraught when it’s ‘we’re dating but haven’t moved in together yet” (Moore) as opposed to “Right, I’m moving out but I still want to do my laundry here” (Barilaro).

      • Aha, I see. So the ACT can do things that would cause Zeus to hurl bolts of lightning from Olympus at a Westminster system that tried to do those things?
        “Elective upper house with power to block the budget? Whatevs. Fixed terms? We’re cool. But allowing crossbench Ministers when those Ministers (like the first minister) are formally appointed by a Governor – instead of having Ministers appointed by the first minister, who is elected by the assembly? What, that is literally inconceivable!”

      • The issue is not whether there can be crossbench ministers. The issue is whether there can be crossbench ministers without the consent of the first minister. Twomey, as quoted in the Sydney Morning Herald

        <

        blockquote>Professor Twomey said responsible government “includes the principle of collective ministerial responsibility, which has been recognised by the courts”.

        “One key aspect of collective ministerial responsibility is that ministers publicly support all cabinet decisions. If a minister cannot support a cabinet decision, such as a decision to introduce legislation on a topic, then the minister must resign,” Professor Twomey said.

        “While in the past there have occasionally been circumstances where a coalition of parties have had a formal ‘agreement to disagree’ on particular matters, permitting an exception to the doctrine of collective ministerial responsibility, that could not possibly extend to permit a resolution ‘to abstain from voting on government bills’ until the government agrees to change the law.”</block quote>

      • well, yes, but the same in the ACT even though it has no viceroy and the first minister is hired and fired directly by the assembly. (Something, by the way, that Sir Harry Gibbs and others used to assure us was also inconceivable, despite it being the rule in Ireland, PNG, various German and Austrian Laender, and the British subnational dominions of Wales and Scotland). Kate Carnell accepted Michael Moore as a crossbench Minister. Gladys Berejiklian did not accept Barilaro and merrie men as crossbench Ministers. Same formal rule of recognition, different results is from feeding different political preferences through it.
        I don’t think the ACT executive functions substantially differently from a normal Westminster Cabinet. South Australian Labor made very Moore-like arrangements with Karlene Maywald (National) and Martin Hamilton-Smith (Independent – and a former Liberal Opposition leader, no less!). As for collective Ministerial responsibility, the courts recognise that for certain administrative-law purposes – did parliament by vesting a power in “the Minister for X” impliedly forbid it from being delegated to “the Minister for Y”? If the Minister tells talkback radio “I think Z is a bad idea”, but then Cabinet votes for Z and that Minister subsequently toes the line, can you challenge her decision on the ground that she is acting under dictation? – but again, if the first minister and Cabinet agree to suspend collective responsibility (as Harold Wilson and John Howard did for the 1975 Common Market and 1999 Republic referenda, so colleagues can campaign on opposing sides), the courts will not force them to observe it against their will.

      • ‘Westminster system’ has to mean something. In particular the conventions of the Westminster system must be identifiable norms. If the plenitude of systems you mention are all Westminster, then all it means is ‘congruent synonym of parliamentary system‘ and the Westminster conventions do not exist.

      • Please explain for the still-novice follower of Australian constitutional matters (i.e., me): How is the ACT not a Westminster system?

        (Maybe Tom’s 2:36 a.m. comment, first sentence, is the answer?)

      • No Governor/ Administrator/ Viceroy to routinely commission and dismiss Ministers or dissolve the Assembly. The Chief Minister is directly elected by and from the Assembly, on the German/ Austrian/ Scottish/ Welsh model, and can be voted out by the Assembly declaring the position vacant – no need for HMS Pinafore-style faffing about with voting to reduce the budget by one dollar. The Chief Minister appoints and dismisses the other Ministers.
        There are reserve powers for the federal Territories Minister to dissolve the Assembly for serious corruption or prolonged deadlock but otherwise it has a fixed term. (So too do most other States – NSW, Victoria, Qld – but these leave some discretion for the Governor).
        This model was adopted for the ACT when it got self-government in 1989. Notably, when the Northern Territory got self-government in 1975, it got a model much more like States at the time – the Administrator (a territory’s equivalent of a Governor) commissions Ministers, no mention of the Chief Minister or votes of no confidence, flexible maximum term, etc.

      • MSS

        The ACT does not have a head of state. There is no governor or administrator. The chief minister is directly appointed and removed by the assembly.

        The only provision for dissolution is if the governor-general is advised that the assembly ‘is incapable of effectively performing its functions; or is conducting its affairs in a grossly improper manner;’ and that is followed by the appointment of a federal commissioner, not a general election. It’s equivalent to president’s rule in India, not a Westminster dissolution and general election.

        A system with no provision for an early election and no head of state cannot be characterised as a Westminster system, any more than Norway or Germany can.

        Australian Capital Territory (Self-Government) Act 1988

      • How much daylight, really, is there between “dissoluble only if the Governor-General considers the Assembly ‘incapable of effectively performing its functions'” (ACT Self-Govt Act 1989 (Cth), s 16(1)(a)) vs “dissoluble only if ‘the Governor considers no government can be formed that will command the confidence of a majority of the Assembly'” (Constitution of Queensland 2001, s19E(1)(a)(ii))? http://www8.austlii.edu.au/cgi-bin/viewdoc/au/legis/qld/consol_act/coq2001288/s19e.html
        If anything, the Qld provision is legally stricter since it requires votes on the floor as a justiciable condition precedent before the Viceroy can act, and is more specific about what makes the Assembly dissoluble for cause.
        Some would have said in the past that even semi-fixed terms in the Australian sense are inconsistent with the idea of a “Westminster system”. Or that having a powerful upper house makes it a “Washminster” mutation, as Rob noted. The whole point of the Westminster model is its flexibility.
        The true ratio decidendi of Berejiklian v Barilaro is not “Ministers cannot be cross-benchers in the same way that they cannot be non-MPs”, but “Ministers cannot be cross-benchers if the premier minister finds that intolerable and is prepared to risk defeat on the floor rather than put up with that situation.”

      • There is a great deal of difference between dissolution in terms of a vote of no confidence and dissolution that requires no such vote.

      • “There is inevitably debate and contestability over what constitutes ‘Westminster’ and whether there exists a core of essential practices.”

        –R.A.W. Rhodes, John Wanna, and Patrick Weller, Comparing Westminster, Oxford University Press, 2009, p. 3 (in a chapter called “Looking for Westminster”)

        For whatever it might be worth the countries covered in the book are Australia, Britain, Canada, New Zealand, and South Africa.

      • Indeed, Alan, so inasmuch as (a) Qld makes dissolution legally harder than the ACT does, and (b) fixed terms (Norway, [state-level] Germany) make a system less “Westminster”, does this lead to the conclusion that (c) Qld is therefore “less Westminster” than the ACT?
        MSS; I have shared beers with two of those authors, quite possibly at the same time, so that is a work of very great authority.
        It’s a bit like the term “head of state”. Not legally defined (in international law or national constitutions, as far as I know) so the Australian republic debate is often diverted down the rabbit hole of arguing whether the Governor-General is this country’s “head of state”. Perhaps counter-intuitively, it is the monarchists who argue that the GG is. This might have gotten them decapitated for treason in past centuries, but the political advantage here is to say “Australia doesn’t need to become a republic because, now that we have Australian citizens rather than English dukes residing at Yarralumla (no thanks to the Empire loyalists of Sir Isaac Isaacs’ day, but – Look! Over there! Paul Keating! Remember how voters had him? Ergo, republics are bad), we already have an Australian head of state.”
        (For me, I am happy to use “head of state” as shorthand when describing how the country’s government functions politically, much as I would use “lower house” as shorthand to include the Queensland, ACT and Northern Territory legislative assemblies, but in legal terms I don’t see how an official can be “the head” of anything when they can be dismissed at will by a different official and are explicitly stated to be the representative of that other official and serving at their pleasure. One of the monarchists’ other big arguments is that it’s great that the GG can be sacked by the Queen with one phone call, unlike a president who would require impeachment by parliament, because ERII can be trusted to act immediately and with probity the moment someone representing her is found to be abusing their position, like Prince Andr- Look! Over there! A Third World country where the local dictator uses the title “President”! Ergo, republics are bad!).

      • Incidentally, various politically-engaged Canberran residents I’ve talked to all regarded “incapable of effectively performing its functions” as shorthand for “if the Assembly is irretrievably deadlocked”. I do agree that appointing a federal receiver is less traditionally Westminster than calling a fresh election. So the ACT has much rarer vice-regal intervention in its Assembly than the other parliaments in Australia do; but when vice-regal intervention does occur, it’s brutal.

  5. … Just as one could enjoy a beer while debating whether the Swiss president is a “head of state” (true, s/he does all the ribbon-cutting for a year; but in Swiss theory the entire federal executive council is the collective “head of state”, like in, um, the former Yugoslavia) or whether France has evolved to the point that the President is now not just the “head of state” but also the “head of government”, notwithstanding the presence of an official with the title “prime minister” (as in Egypt, Peru , South Korea and Taiwan).

    • The presence of fixed terms in Queensland cannot make it less Westminster than the ACT because the ACT has absolutely fixed terms and Queensland has fixed terms with certain exceptions. Your argument, then, is apparently that absolutely fixed terms are less fixed than fixed terms that are not absolutely fixed.

      The ACT assembly has never been dissolved. It probably never will be. The interpretive principle of in taberna lex vera does not exist.

      • Okay, we’re talking at different levels. True, the ACT does not have provision for “early elections”. But it also does not have fixed terms. Its Assembly can indeed be… “terminated prematurely” by a vice-regal representative exercising extraordinary reserve powers. No US (federal or State) or Norwegian legislature can be dissolved before its term expires, even for corruption or dysfunctionality. (Insert punchlines here). The Swiss federal parliament can only be dissolved prematurely if the electorate votes for a “total revision of the Constitutions” in which a fresh constituent assembly must be elected to draft same.

      • We are not talking at different levels. You are conflating an exceptional procedure, that has never been invoked, with a regular process that happens in the lifecycle of Westminster parliaments. The assembly would have to engage in conduct that met the test set out in the act for a S16 dissolution..

        By the terms of your own argument, the required conduct is less than a vote of no confidence. It follows, as a necessary consequence of your own argument, that when the assembly votes no confidence in the chief minister it engages in conduct that meets the test of Section 16. It follows that you should be able to document dissolutions in 1989, 1991, and 2000 when votes of no confidence were passed or considered.

        There were no dissolutions. There was no consideration of any dissolutions. Dissolution in terms of Section 16 is an exceptional procedure, not part of the regular machinery of government.

      • Okay, I see what you mean, and I acknowledge that this does indeed take the ACT outside the definition of “Westminster system” in s3(2) of the Extradition Act 1967 (Cth).

  6. I am still not 100% of the causal nexus involved in “Ministers can moonlight as crossbenchers only in an Assembly with a fixed term, but not in one that can be dissolved to face fresh elections” but will write off the Maywald and Hamilton-Smith counter-precedents as a result of South Australian being a former “Province” with a “House of Assembly” rather than a former “Colony” with a “Legislative Assembly” proper.

  7. Pingback: Republic of Barbados? | Fruits and Votes

  8. In 1983 Premier of New South Wales Neville Wran faced credible allegations he had conspired the pervert the course of justice, an fence roughly equivalent to obstruction of justice, although better defined. He stood down for the duration of a royal commission into those allegations and resumed office when he was exonerated. This is almost certainly what Berejiklian will have to do.

    Usually the governor would send for the deputy premier and appoint them acting premier while the investigation proceeded. The deputy premier is one John Barilaro, but he is himself on psychiatric leave so it would probably be the acting deputy premier.

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