Friday, October 27, 2017

Section 44 Strikes, But The Government Hasn't Lost Its Majority Yet

Many news sites have now claimed that, in light of today's dramatic Section 44 disqualification of Barnaby Joyce from Parliament by the High Court, the beleagured Turnbull government has now lost its majority.

This is an exciting claim, but it isn't actually correct.

Pending the holding of a by-election for the seat of New England, the government will, when the House of Representatives next sits, hold 75/149 seats, with one vacant.  74 seats will be held by other MPs.  75 is larger than 74.  75 is larger than half of 149.  75 divided by 149 is 0.5033557... .  It is more than 0.500000.

The government's new and very temporary position is no different mathematically to that of the Cook Liberal government in 1913, which won 38/75 seats.  The Cook government is widely referred to as having had a one-seat majority.

Its previous position (76/150) is no different to that of the Menzies government in 1961, which held 61/120 seats with voting rights.  The Menzies government is widely referred to as having had a two-seat majority.

Certain Australian state governments have held one-seat majorities in parliaments with odd numbers of members.  In my own state, an example is the Nielsen/Lowe government from 1976-1979, which held 18 seats out of 35.  Such governments are invariably considered to have been majority governments.  The Goss government in Queensland lost a majority of one when one of its members was disqualified, and failed to regain it (and as a result lost office) at the subsequent by-election. The  Beattie government in Queensland and current Weatherill government in South Australia both gained a majority of one at by-elections.

Should New England be lost at the by-election, the government will hold 75/150 seats, which is exactly half the parliament, and is not a majority.  At that point the government will have lost its majority.

Various conventions are used for calculating the majority.  One, which I think is the better one, calculates it as the number of government MPs minus the number of other MPs.  On this convention, the Turnbull government has had a two-seat majority until now.  The Abbott government had a 30-seat majority.

The other, which seems to have taken over in Australia since the last election, calculates it as the number of government MPs minus half the parliament.

75/149 is a majority whichever way it is sliced.  On the latter reading, it is a half-seat majority, which is one of the reasons why the latter reading is a silly.

What the vacating of New England does is takes away the government's "floor majority", on the assumption that the Speaker will vote to maintain the status quo.  However, it is only a convention that the Speaker votes that way, and one-seat majorities are a case in which that convention is often discarded.  (It is also a convention which should not exist in parliaments, in my view, but I digress.)  Moreover, the question of who has a majority relates to the number of seats a party can hold, and not whether it can govern effectively.

The latter question may not be massively relevant with only two sitting weeks left this year, and with impedements (such as selection committees and inability to suspend standing orders) on Labor's ability to introduce legislation. But if Smith sticks to the Speakership convention in this context, the Government could at least have difficulty in passing gag motions during debate.

Regarding the consequences of today's four other ineligibility decisions (Ludlam, Waters, Nash and Roberts) I addressed Ludlam and Waters here and Nash and Roberts here.  The main development since is that bankruptcy proceedings against Fraser Anning have been withdrawn leaving him free to take Roberts' seat should he so desire.  Also, Andrew Bartlett's eligibility to replace Waters may be tested given questions about whether his university employment was an office of profit under the Crown, and Hollie Hughes may at least have to throw in a current position if she wants to be a Senator.  (Even this, on some views, may not be enough, opening the door to Abbott-backer Jim Molan.) Senator Canavan was ruled eligible because it was not clear after everything that he actually was ever an Italian citizen after all, while Senator Xenophon's limited form of dual citizenship was ruled not to create an allegiance.

Well done to voters on the sidebar Not-A-Poll who on average correctly picked six of the seven results (missing only Canavan).  321 voters said Roberts was gone, 303 Ludlam, 258 Joyce, 255 Canavan, 251 Waters, 197 Nash, 117 Gillespie (still to be heard), 108 Xenophon and 14 said none.  A snap Twitter poll I conducted of (mostly) my followers there in the hours leading up to the decision had the same result with similar relative percentages (I'm assuming almost everyone in the sidebar who didn't vote for "None of these" voted for both Roberts and Ludlam).


  1. If in 1992 Cleary as a Victorian State school teacher on leave without pay fell foul of S44 (and he did), it would seem an ANU lecturer being paid, as nominations closed, is going to have a lot of difficulty nuancing an argument he is clear of S44.

    It may be that there has been legislative change which would ‘save’ the case but I haven’t been aware of such.

    1. State schools are directly operated by the State. Universities are not.

  2. Am I the only person who thinks Justine Keay should have been referred? What little discussion there is of "reasonable steps" in today's judgement reinforces my view that there is a real question there.

    The court seems to like Dawson J's statement from Sykes vs Cleary: "s 44(i) should not be given a construction that would unreasonably result in some Australian citizens being irremediably incapable of being elected". I'm not convinced that requiring someone to get their paperwork in early enough for the other country to complete it's reasonable processes amounts to rendering somebody "irremediably incapable of being elected".

  3. On the information available to me, I think Keay should have been referred, which is not the same thing as saying she would necessarily have been found ineligible. Keay's situation is that she did take all reasonable steps prior to nomination, and her taking of them was successful, but she apparently did not take them in time for the process to complete before she nominated, let alone before she was "chosen". Keay was endorsed well before the election and had plenty of time to ensure she was no longer a dual citizen before the close of nominations. Sykes v Cleary sheds no real light on whether this matters and the new ruling doesn't either, save to say that there are various ways in which it could have loosened the Sykes v Cleary test but didn't.

    I suspect there are others who would be worthy of referral if the full facts of their cases were known.

    1. Looking at [72] in the judgement it reads rather damningly for Keay:

      "A person who, at the time that he or she nominates for election, retains the
      status of subject or citizen of a foreign power will be disqualified by reason of
      s 44(i), except where the operation of the foreign law is contrary to the
      constitutional imperative that an Australian citizen not be irremediably prevented
      by foreign law from participation in representative government. Where it can be
      demonstrated that the person has taken all steps that are reasonably required by
      the foreign law to renounce his or her citizenship and within his or her power, the
      constitutional imperative is engaged."

      Keay still held the status at the time of nomination although she had commenced the process of renouncing it. The question then is whether she could be said to "retain" the status at the time of nomination.

  4. DaveO, a State school teacher works for a department of the State, known in that silly 19th-century language that we still have to use as the Crown. A uni lecturer works for a body that is set up by legislation as an independent body, though various Ministers can make it jump through a hoop or two. The leading case is Townsville Hospitals Board v Townsville Council, at If you wade through that and compare the Hospitals Act discussed in the case with the ANU Act 1991 at I think you'll conclude that the ANU is no more an emanation of the piece of jewelled headgear than the Hospitals of Queensland were. Maybe slightly less so, in fact.

  5. I'm para phrasing from Insiders this morning but the government has 75 votes but only 74 on the floor, whatever that means. I think it boils down to the fact that for Labor to get anything through they would need all cross benchers on side and at least two coalition members to cross the floor to cancel out the speakers casting vote if he decided to use it, which he has said he will only use in procedural matters, at least I think that's what he's said.
    Barry Reynolds

  6. I don't think any Coalition MPs actually will cross the floor in the coming sitting weeks. George Christensen has thus far practiced the time-honoured art of making noises about crossing but only crossing or abstaining when his vote doesn't matter.

    One MP crossing the floor to vote alongside the whole crossbench with Labor would give Labor 75 votes which beats 74 including the Speaker. However they need 76 votes to suspend standing orders without notice and thereby take control of the House.

  7. Thank you Jack and Arky. I'll peruse the Townsville case, it is an interesting nuance that an Australia National University may be sufficiently removed from the Crown, in a way that a State School is not.

    I had thought 1992 Sykes V Cleary had (5/7) clearly established the critical date for renunciation as close of nominations. This latest HCofA judgement is now 7/7 and sets (as I can understand it) the close of nominations as the relevant date.

    There has been some mudding of the waters around 'declaration', and 'first sitting' of the new parliament. Neither judgments utilised those dates as the relevant one.

    For Keay claiming "all steps that are reasonably required" from para 72, it seems like a long bow to expect that the HCofA will encompass starting the process too late for it to be complete, where there was every possibility to start sooner.