Saturday, May 25, 2013

Brenton Best Crosses the Floor!

I was going to write a pretty standard number-crunchy thing about prospects for the Tasmanian Senate, given that the Greens have just polled below a Senate quota in state-level polling on the EMRS headline rate for the first time in a very long time.  (In short, this is some cause for concern, but probably not a major one at present).
However that can wait a bit because on Thursday we saw something very unusual in Tasmanian politics, when Labor backbench lifer Brenton Best crossed the floor to vote with a Liberal motion of no-confidence in Corrections Minister (and Greens Leader) Nick McKim.  It was not just a once-off, with an unrepentant Best on Friday repeating his critique of Nick McKim and extending it to the whole Labor-Green coalition. 

While I wasn't watching live at the time, it's quite clear from the footage and also even from the bare bones Votes and Proceedings that there was a party keen for Mr Best to have his say, and it wasn't his own:



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 7              POINT OF ORDER RAISED. – The Honourable Member for Lyons Mr Hidding raised a Point of Order claiming that he had sought to give the remaining speaking time of Ms Archer to Mr Best

8              MR SPEAKER RULES. – The Speaker ruled that he was going to give the call to the Attorney-General and that it is the prerogative of the Chair to allocate the call.

9              DISSENT FROM RULING. – And the Honourable Member for Lyons, Mr Hidding, rising in his place took objection from the ruling and moved to dissent therefrom.

A debate arose thereupon.

10           SUSPENSION OF SITTING. - At Forty-six minutes past Twelve o'clock, the Speaker announced that he would resume the Chair at the ringing of the Division Bells.

At Fifty-two minutes past Twelve o'clock the Speaker resumed the Chair.

11           DISSENT FROM RULING. –And the Question being put;

It passed in the Negative.


12           WANT OF CONFIDENCE IN MINISTER FOR CORRECTIONS. – And the Question being again proposed;

The House resumed the debate. 

13           MEMBER NOW HEARD. - Ordered, That pursuant to Standing Order 156, the Honourable Member for Braddon, Mr Best, be now heard. (The Minister for Health)

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It's also notable that large chunks of Mr Best's speech are not even relevant to the matter over which the motion of no-confidence was moved, the departure of former Prison Director Barry Greenberry. 

Interpretations have run the gamut from:

(i) that this is an astute move by Brenton Best who realises the government is very much on the nose in his electorate, and probably thinks his chances of survival are highest if he is either kicked out and forced to run as an indie, or else at least engages in some really serious product differentiation.

to:

(ii) that Best is a career backbencher for some very good reasons, not capable of that sort of level of strategic nous, and that what we see here is his personal resentment about the inclusion of Greens in cabinet keeping him in his lowly place.

Whatever, this is a very strange thing to happen, given that no-confidence motions moved by Oppositions are nearly always a pretext for grandstanding parliamentary theatre that wastes time and gets voted down along party lines.  It is especially strange because the party discipline of the ALP is stronger than that of the other parties in the parliament.  

The Greens do not have any firm requirement that elected party members follow the line on anything.  This was recently seen with Kim Booth voting against his colleagues over the forestry "peace deal", but it is not the first time he has done such a thing.  In the proto-Green days of the "Green Independents" there was no party discipline (eg Gerry Bates voted against his colleagues on petrol rostering) and on the floor of the Hobart City Council the three elected Greens vote with each other less predictably than some members of the opposing cluster of "independents".  

The Liberal Party also allows a degree of freedom federally, but this has become reduced in recent decades (through firm discouragement rather than an explicit policy of throwing offenders out of the party. In the recent same-sex marriage debate, it appeared that any minister crossing the floor on the issue would be sent to the backbench.)  State examples of Liberals crossing the floor include Peter Gutwein on a child abuse enquiry proposal in 2003, and Bob Cheek in 1998 on the size of parliament. (Cheek may have been disciplined, but he wasn't kicked out of the party.)

The ALP is different because its members agree to vote in accord with party and Caucus policy except where determined otherwise.  Crossing the floor on a matter that is Caucus policy typically leads to expulsion from the Parliamentary Labor Party, as happened when Terry Martin crossed the floor in the Legislative Council to vote against the Pulp Mill Assessment Bill in 2007.  Martin was explicitly warned by then Premier Paul Lennon that he was going to be booted.

Expulsions from the PLP and indeed the ALP were once fairly common events, in the days of the Lang Labor, the DLP splits and conscription.  There were even amusing cases in which rival sectors of the party "expelled" each other.  These days they are rare, and when Terry Cameron and Trevor Crothers crossed the floor to vote for electricity privatisation in the South Australian Legislative Council in the late 1990s, both spoiled the fun by resigning from the party before they could be (and were about to be) expelled.  

When Is A Free Vote Not A Conscience Vote?

Brenton Best's behaviour immediately raised the question of whether he would be expelled from the PLP.  Of course, had it been a "conscience vote" on a so-called moral issue, there would have been no problem, but it was clearly not a vote designated in advance as a conscience vote.  However, nor was it a vote that had been the subject of a binding caucus resolution. So there is an available concept of a technically "free vote" that is not a designated "conscience vote".

The claim (so far) is that that's the end of the story: he has broken no rules, so no action.  Premier Giddings was quoted as saying:

"He has exercised his right on the floor of the House to vote in the way his conscience has led him to to vote [..]"

Try imagining how that one would go down federally, with the current very delicate balance of numbers there, if a Labor MHR in Federal Parliament voted for one of Tony Abbott's no-confidence motions in, say, Wayne Swan.  It is hard to see that it would be treated smoothlyAt the very least, the dissenter would be quietly disendorsed sometime close enough to the election to prevent them bringing down the government in retaliation(If only it was that easy in this case, but a disendorsed Brenton Best would be a much greater nuisance in Hare-Clark.)

The broke-no-rules defence is a bush this site's been round before with another errant (now ex-) Labor figure.  Brenton Best broke no formal party rules in crossing the floor to vote against his coalition colleague because no rule against doing so had been made for him to break.  The Premier is publicly refashioning this as a virtue and normal practice and "not done anything wrong" post hoc, but it's not (and I suspect that behind closed doors the story is very different).  The reason no rule exists is not that it is a natural and laudable state of affairs for backbenchers to act this way.  Rather, it's exactly the reverse - that it is so obvious that government backbenchers should not act in this way, that the party has never bothered to codify a rule against it.  

(That's not to say Best needs to be muzzled from speaking out.  But merely speaking out and actually voting for a motion of no confidence in one's own government's minister are two very different things.) 

Indeed, party rules are frequently shaped by things that have actually happened, and looking for state and federal examples that serve as precedents for this situation, I've been struggling to find any!  Even in the classic cases where Labor splinter groups brought down Labor governments, they had generally left the party before doing so.

I have found one modern precedent for a state/territory Labor party splitting on a vote of no-confidence thus far, but it's not a very applicable one.  In 1990 in the ACT, Abolish Self Government MLA Dennis Stevenson moved thus: "That this Assembly has no confidence in the [Liberal] Chief Minister of the ACT in view of his lack of integrity, lack of credibility and extreme hypocrisy as demonstrated by his intention to have the Alliance 'Government' introduce a bill to tax X-rated videos, in absolute contradiction of his statements in the House on 21 November 1989, in total condemnation of such a tax.''

Four of the five ACT Labor members of the time supported this no-confidence motion against the Kaine government, which was defeated 11-5.  But one, Ellnor Grassby, refused to support it, stating that she had no confidence in the government but would support nothing moved by Mr Stevenson because she considered him to be linked to the League of Rights.  Mrs Grassby was retained as a Labor member and re-elected at the next election.  The case is very different from the Best example because the split was over whether to support a motion of no-confidence while in opposition (as distinct from one relating to one's own government's Minister) and because it was a motion that came from a third party and had strings attached in terms of reasoning cited for the motion.  (Also Labor had had its own failed no confidence motion against the same government not long before.)

I've also been able to find one example of Labor members crossing the floor without being kicked out of the parliamentary party.  In 2007 three Indigenous Northern Territory Labor MLAs crossed the floor over mining legislation in emotionally loaded circumstances.  Expelling them all from the PLP would almost certainly have caused the government to collapse immediately, and perhaps the legislation successfully passing with Country Liberal support (17-5) made it all seem not worth the fuss.

Novel situations make for novel scenarios, and the Labor Party being in Cabinet coalition with another party is certainly something unusual.  But I can't find another remotely recent case of a government backbencher supporting a no-confidence motion in a government minister moved by an opposition.  (Peter Patmore was effectively sacked by the Green Independents and Liberals as Education Minister in 1991 but the Greens were formally just crossbenchers by that time).

If you're aware of anything remotely similar to this that has happened before in any Australian state or territory, or federally, please let me know.

McKim's Free Pass?

One of the things I have wondered about the situation of having Greens in Cabinet is this.  Suppose a Greens minister is genuinely incompetent and/or misleads the House, but has their own interpretation of events and refuses to resign.  It does not seem that they are in the same situation as those Labor ministers who had to be given their marching orders in the previous majority governments.  The sacking of a Greens minister would have to be so carefully handled in stability terms - even assuming the Greens accepted it at all - that the Premier would probably not want to even think too much about going there if it was avoidable.  It might be manageable (eg via the transfer of that responsibility to the other Green or to another Cabinet minister, or by replacing that Minister in Cabinet with another Green) but it would be more complex than just booting a Labor Minister and pondering the delicate question of who to promote as the replacement.  ("Hmm, I've got three options, so ... Rebecca, Rebecca or Rebecca?")

As to whether Nick McKim is the serial failure that the Liberals and now Brenton Best allege, McKim has seen at least twice his share of ministerial controversy, and has even now and then attracted the dreaded word "embattled".  But this is partly because in Corrections and Education he has managed to get himself saddled with two portfolios that are long-running sores in Tasmanian politics, roles in which any Minister would be likely to encounter some problems.  I do wonder, every time yet another McKim controversy breaks out, whether it is even possible for his performance to be assessed by the same standards as a Labor minister, and whether a Labor minister carrying the same load would have survived so much of it without at least a reshuffle.  When the coalition was originally formed I suspected the Greens were being given some difficult ministries so that they would either succeed and help the Government to thrive or else be seen to fail and thus discredit mainly themselves. 

The Best Doctrine

Brenton Best's defence of his action, beyond typical Braddon-electorate views about the Greens over forestry and mining (see also ABC News), includes:

"I mean let's remember that the Green members of Parliament don't always vote for the government and have crossed the floor on a number of occasions [..] I just believe I'm entitled to exercise my position and I don't have confidence in the Greens Minister Nick McKim."

While cases of the Greens voting with the Liberals when it matters have actually been vanishingly rare in this term (one of them stripping Best of the Deputy Speakership) there is a big difference between not voting with the government and not voting for the government (or its ministers).  And in that sense, despite Kim Booth's sporadic threats, there has been no case in this term in which even one of the Greens has voted for a no confidence motion in the Government or in one of its Ministers.  Indeed, Nick McKim and Cassy O'Connor are obliged by their initial agreement with then-Premier Bartlett to not support any no-confidence motion against the Government or its Ministers, on pain of immediate sacking from Cabinet.

If Best is allowed to get away with this repeatedly, then that means there is a confidence-and-supply agreement between Cabinet Labor and the Cabinet Greens, but that backbenchers are free to cooperate with the Opposition on motions against Ministers as they like. So in theory any three backbenchers drawn from Labor and the Greens, in cooperation with the Liberals, could force the Premier to reshuffle Cabinet however they pleased.  The idea that a government backbencher can freely vote with the Opposition on a confidence vote against the Minister implies that the government delegates the formation of the ministry to the Parliament rather than relying on its own combined numbers to choose its ministry itself.

I think the only reason no-one is thinking through just how radical and unstable such an idea is is that everyone assumes it is only Brenton or maybe Kim Booth who will do it (and not both on the same issue) and therefore nothing but solitary grandstanding will happen.

McKim's response is even more radical still.  I am rather deaf but I do think I heard this correctly:

"Well, the Government is the Cabinet so, no, I don't accept that Brenton is a member of the Government"

Yikes.  Might be about time to change this place's colour scheme, because with stuff like that I can start to see why the Liberals call this regime an "experiment"!

Ancient History

Lastly, it is useful to review some posturings from just after the 2010 election.  At that time Best indicated he didn't support having Green ministers, and Jeremy Rockliff said Best should either resign or cross the floor.

It seems, three years later, that Best has now taken that advice.


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Further Reading: Conscience Votes During the Howard Government 1996 2007 (APH Research Paper by Deirdre McKeown and Rob Lundie)  Includes a rundown of votes on which "conscience votes" have happened at federal level since 1950.  Note that confidence motions are not given as an example of motions on which "conscience votes" occur.  Indeed, the authors argue:

"One deterrent to granting more conscience votes is the Westminster system of government where every vote is seen as a vote of confidence in the government of the day."

A vote on confidence is, of course, especially likely to be seen as a vote on confidence!

1 comment:

  1. Kevin,

    Strictly speaking, McKim is correct when he says Best is not part of the Government (in terms of the Westminster separation of powers). Not that the average Joe would understand this, of course.

    I'm guessing that he's been given tacit approval to "differentiate his product", recognising the likely outcome of the forthcoming election.

    Cheers, J.

    ReplyDelete