Politics

To Prorogue or Not to Prorogue-that is the question…… 

Senator Cory Bernardi ( Australian Conservatives SA) has been arguing since mid August that the unravelling of the Federal Parliament, due to dual citizenship woes of increasing numbers of members and senators, requires the parliament to be prorogued.

The High Court, using a literal interpretation of Section 44 of the Constitution effectively ended the careers of five (of seven) parliamentarians because they had dual citizenship rights and thus were ineligible.

That decision has led to further resignations and contentious cases, indeed claiming the scalp of the Senate president, Stephen Parry (Liberal, Tasmania) who resigned after the ruling on the ‘famous five’ …. apologies to Enid Blyton.

Such a ruling does not affect state politicians in Australia’s federal system because state constitutions do not preclude dual citizens from sitting in Australian parliaments.

The Turnbull Coalition government will probably welcome back the deputy prime minister Barnaby Joyce, who is at short odds to be returned in New England (NSW), after being forced to a by election because of the High Court decision.

Joyce, now, is no longer a dual NZ citizen.

Turnbull’s ineptness continues. He confidently asserted that the High Court  would “so hold” Joyce’s eligibility to continue but instead they voted 7-0 against him.

On this crisis, Murdoch law professor, Augusto Zimmermann, says that it would be highly unlikely the Governor General would move in any direction.

“This is not such a crisis to lead a GG to such a bold manouevre at to dismiss his first minister and as for proroguing the parliament, unilaterally, that too is unlikely. Turnbull will have to initiate action for such a decision to be made.”

Political writer-lawyer, Hal Colebatch, although not calling for Head Of State intervention, said he would support action taken by the GG but also thought that Section 44 needed changing.

But Turnbull is increasingly the Mr Dithers of Australian politics, to use Chic Young’s cartoon character in the famous “Dagwood’ comic strip.

Proroguing a parliament, even on the advice of a PM or Premier, can still be risky for GG or state Governor, and to act without consultation, as Kerr did in 1975 a recipe for uproar and division.

Western Australia political history is instructive.In October , the eight month old Labor Government with a Legislative Assembly majority of one, lost the Speaker, Merv Toms, through death, which left the government exposed to defeat, on the floor of the House, after providing a new Speaker.

Premier John Tonkin thus sought a prorogation from the State Governor, Sir Douglas Kendrew, for the Ascot by election, to avoid such a situation and was duly granted his request. At the ensuing by-election the ALP retained the seat and continued in office.

It was not automatic. Kendrew consulted the Chief Justice, a former Chief Justice and later advice from the Foreign and Commonwealth Office as to whether he had been correct. This caused some consternation in the FCO as to whether the WA Governor should have asked such a question. In the end they replied he had acted within his powers but not whether it was an appropriate use of his powers.

A final reply to the Governor came from Secretary of State, Sir Alec Douglas-Home ( a former British PM), which read: With regard to your invitation to me to comment on the use of Section 3 of the Constitution to resolve the deadlock which resulted from the death of the Speaker, I can only say, for your Excellency’s private information, that while the decision to prorogue Parliament was a matter within your personal discretion, it appears to have been intra vires the power of Section 3 of the Constitution of Western Australia.

In other words a request by the Premier was not necessarily binding on the Governor.

That guarded response was probably because Opposition leader Sir David Brand, (the former Premier), argued that “the royal prerogative is too important and too valuable to be used to turn Parliament off and on so that the Government can restore its numbers.”

The West Australian chimed in, in support of the LCP Opposition, saying it was “a chilling thought that the executive should be able to bend the constitutional rules for party advantage.’’

Given the volatility in the current Australian electorate it is doubtful that Turnbull will be asking Sir Peter Cosgrove for a prorogation and less likely the latter will act on Senator Bernardi’s entreaties.

Accordingly, Australia may well face  ‘death by a thousand cuts,’ with by-elections dominating the New Year, and the likely event of an early general election if the government loses its narrow hold on the House of Representatives as a result of such forced ballots.