There Aint No Stability Clause

This article is part of my 2024 Tasmanian state election coverage; main page includes a link to effective voting guide and candidate guides and other articles.

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I feel somehow responsible, but it is probably coincidence. A few days ago I decided to put a bit of low-level Hung Parliament Club propaganda back in its box by explaining why I do not support four year fixed terms for Tasmania.  Among other things they infringe undesirably on the Premier's ability to seek a fresh mandate when the Parliament goes pearshaped.  I explained at the bottom why I do not consider New Zealand style party hopping laws to be an alternative solution.  Days later, along comes the government with a policy for ... New Zealand style party hopping laws.  What hell is this?  

For those who came in late, we are here in part because the former Gutwein Liberal Government preselected one Lara Alexander to run as a candidate for Bass in 2021.  She wasn't seen in the campaign except for her campaign manager complaining that she was being muzzled.  She got next to no votes but was later elected on a recount.  It has subsequently transpired that Alexander is a very odd politician - in particular her talent for inscrutable and apparently self-contradictory comments about confidence in government.  Had the Liberals allowed her to speak for herself before nominations closed this would probably have been obvious within minutes and they could have disendorsed her and picked somebody else.  But they didn't.  We are also here because - for some reason that has never been explained though I've wondered if it was anything to do with this - the Government later decided to make a former TV presenter Primary Industries minister instead of a career farmer, and the latter started or continued accumulating grudges.  

This is not the first time the Liberals have had unity problems - in the previous term Sue Hickey nabbed the Speakership against her party's nominee Rene Hidding and then voted against party policy on gender birth certificate reforms and mandatory sentencing.  However Hickey remained a Liberal until she was disendorsed, precipitating the 2021 election.

Another party-hopping incident involved Madeleine Ogilvie, who lost her seat as a Labor MP in 2018, was later elected on a Labor recount, but chose to sit as an independent.  (She later joined the Liberals and won the crucial final seat for them in the 2021 election.)  So Tasmania has had four party-hops in the last two parliaments, five if you count David O'Byrne who left the parliamentary Labor Party ahead of a likely expulsion from the PLP on grounds unrelated to voting behaviour.  

One might think from this that party-hopping was a common problem in Tasmania.  But it's not.  Ogilvie declining to sit as a Labor MP was the first lower house case of it since a short-lived and inconsequential defection by Geoff Davis in 1987, and before that the more significant Lowe/Willey defections in 1981.  Also in that time while there were sporadic cases of MPs voting against their party on the floor on particular issues, there was no MP I recall doing it with any regularity until Hickey came along.  

The Proposal

The Liberals' proposal includes the following detail.  They have attempted to avoid the problems I outlined in my fixed-terms article (that such laws are either toothless or give too much power to parties to expel their own MPs from the parliament) but my view is that this is impossible to define:

“Our proposed amendment will mean that if a person is elected as a member of one party, and then chooses to become an independent, or join another political party during the term of the Parliament, they will be required to forfeit their seat.

“We will consult closely with legal, Parliamentary and constitutional experts to ensure that this new Stability Clause, which may also require enabling amendments to other legislation including the Electoral Act, is drafted and implemented in a way which is practical, workable, and consistent with the principles of representative democracy.

“This includes giving consideration to removing from the Parliament MPs who may seek to “game” the Stability Clause by refusing to quit their party despite acting consistently contrary to that Party’s position; as well as providing safeguards to ensure that MPs are not ejected from their Party, and therefore the Parliament, without just cause. This could, for example, include the provision of a 75 per cent “super majority”."

The supermajority rule (similar to NZ where there is a two-thirds rule) would mean that only parties with party status (four MPs or more) would have access to the rule.  

There is a saying that hard cases make bad law.  While this proposal might seem like a sensible response to the defections of Tucker and Alexander, for which said MPs had absolutely no voter mandate, it creates bad outcomes when applied to past defections that were justified.

In 1979 Labor Premier Doug Lowe was elected with among the greatest personal mandates in Tasmanian electoral history.  His government won 54.3% of the vote and 20 of the 35 seats, though one was lost in a subsequent by-election caused by spending cap infringements.  Lowe himself recorded the highest percentage vote in Tasmanian history, albeit assisted by drawing on top of the ALP column in the pre-rotation days.  Clearly Tasmanians voted for a Labor government with Lowe at its helm.

During the subsequent term Lowe lost the confidence of his party over his handling of the Franklin Dam dispute, with one flashpoint being Lowe's desire to include a formal "No Dams" option on a "referendum" (Tasmanian for plebiscite) called on the issue.  Labor MPs insisted that this not be allowed thereby disenfranchising Tasmanians who were opposed to dams in the south-west.   Soon after Lowe was removed as leader and replaced with Harry Holgate.

Lowe responded by quitting the party and moving to the crossbench with another Labor MP, Mary Willey, depriving the government of a majority.  After a lengthy and widely detested prorogation that saw Holgate record approval ratings as low as 6%, the doomed government called an election.  The people had their say and had an opportunity to return Labor sans Lowe if they wanted to.  Instead, Robin Gray's Liberals were elected.

Under the current Liberals' proposal, Doug Lowe would not have been able to resign from his party without his seat becoming vacant.  Tasmania could have been stuck with the Holgate Government for 18 months!

Can they do this?

A widespread response to the proposal has been "that's unconstitutional".  But in Tasmania the Constitution is the Constution Act - it is what legislation passed by both Houses of Parliament makes it.  Except where those powers are removed, Australian Parliaments have expulsion powers that are drawn from common law, but it is very doubtful whether the common law power would include expulsion for bucking party policy.  There would have to be an amendment to the Constitution Act specifically (and any serious amendment to the Tasmanian Constitution is a potential can of worms).  Whether there would be any way to invalidate such an amendment based on the federal constitution is outside my experience, and I will note any useful comments.  It might depend on what exactly the amendment said; Prof Gabrielle Appeleby describes the matter as untested.

My main concern here is whether the expulsion provision would be automatic based on a 75% majority of party MPs (which is way too much power for parties to exercise over minor internal dissents, effectively negating the voters' ability to shape their own parties) or whether there would be an additional test.  If the latter, what on earth does "acting consistently contrary to that party’s position" mean?  Would Sue Hickey prior to her quitting the party qualify?  On the surface no, she only intermittently did so, albeit to a more significant degree than other occasional floor-crossers.  In the current New Zealand legislation the party must say that the expelled member is distorting and is likely to continue to distort proportionality, but there is no explicit test for whether that statement is true.  (This also raises the prospect of a party that wanted to get rid of an MP elected with them trying to bait that MP with insulting motions so the party could honestly claim the MP was distorting proportionality.)

Because of the vagueness in the government's proposal, in my view voters are entitled to assume the worst.  They are entitled to assume, until it is specifically ruled out by commitment to a specific provision, that the government could legislate to allow a party to define "acting consistently contrary" for themselves and to expel a member who was actually voting loyally but who the party for whatever reason did not like.  

However if the legislation did provide an additional trigger then that opens up other problems - because either the trigger must be defined in terms of behaviour like voting on the floor (which will always be gameable by finding other ways to disrupt) or the trigger will be defined in terms that are justiciable.  And we cannot have a court deciding whether an MP's rebellion is sufficiently severe for them to be booted, since that gives courts subjective power over political careers and is a breach of separation of powers.

The Government would need the consent of the Legislative Council to pass such laws.  At present it and Labor have a combined majority, so in theory Labor might be wedged into going along, but this seems unlikely.  It is also not clear if the majors will have a combined majority after May's elections.

What About David O'Byrne?

The O'Byrne situation is an important test case for two reasons.  Firstly O'Byrne quit the Parliamentary Labor Party, before he could be pushed, but did not quit the broader Labor Party.  Secondly there was no problem with his voting behaviour; rather, revelations of an incident from before his parliamentary career had made him unpalatable to the majority of the PLP. (Or perhaps been used as a pretext to declare him so).

Assuming the legislation was defined in terms of parliamentary parties and a 75% rule with no extra triggers, this would mean the Labor Party could simply have expelled O'Byrne from parliament without any obligation to provide him with natural justice concerning just how bad his pre-political conduct had been and whether it was seat-forfeit material.  O'Byrne in this case admitted his behaviour "did not meet the standards I would expect of myself" but in theory expulsion could be weaponised against a candidate who had admitted nothing.  Do we want the courts wading into internal party affairs, investigations and private lives to decide whether or not somebody can be expelled from parliament?

How to reduce party hopping

Given that party-hopping has been a non-thing for so long before the recent spate of it, here are some ways parties can reduce the risks instead of resorting to such desperate fixes:

1. Vet candidates properly 

2. Don't preselect candidates who are flight risks (religious extremism, grudges, weird Shoppie tendencies or membership of the Sky News ecosphere are all warning signs here)

3. Don't muzzle candidates before nominations close.  Give them some time to speak on the campaign trail so that unsuitables you might have missed will give themselves away in time to replace them

4. Listen to all your MPs and the voters and consider their skills.  The Liberals brought the Hickey situation on themselves by assuming a recent Lord Mayor with strong business experience would love to just be a backbencher, even though the same party in the past had put male outside talents straight into the ministry.

5. If all else fails, you can call an election.

The Problems Of Waka-Jumping Law

Guy Barnett has cited NZ's proportional representation system as a similar case to ours.  But NZ's system is essentially a party-list system with a local representation component tacked on.  That's because New Zealand tried to answer the question "how do you get proportional representation and local representation together in a single house?" without finding the correct answer, which is "a single house is dangerous and stupid."   An MP's mandate in New Zealand derives from party preselection only; a loyal voter for a specific party has no say in which individual MPs will represent the party in the parliament.  Beyond being also vaguely proportional, New Zealand's electoral system is a hodgepodge of crud compared to ours, and we should not be importing anything from it at all.  (Also, while NZ attempts to secure proportionality nationwide, Tasmania's system is based on proportional representation of each electorate.)

Another notable difference is that some NZ MPs are elected directly to vacancies that are filled by by-elections.  This means they have the opportunity to defend their waka-jumping at a by-election and retain their seat.  Tasmania has no such recourse.

Waka-jumping law in New Zealand - a hobby horse of Winston Peters - started in 2001, expiring in 2005, and was reinstated in 2018.  It has not gone smoothly.  The 2001 version encountered issues when it came to how to deal with party formations changing, but more significantly its sole successful usage that actually got rid of an MP for good took 11 months.  That's more time than the eternity Jeremy Rockliff took to call an election after the defections of Tucker and Alexander! Far from being a recipe for stability that would create an explosive situation: a loose-cannon independent fighting to delay or stave off expulsion, with an incentive to get as much oxygen as possible in the meantime.  

The new waka-jumping law created a farce in 2023 when Meka Whaitiri quit Labour to sit as an independent but provided notice in a form sufficient for the Speaker to treat her as an independent for parliamentary purposes but not sufficient to constitute a resignation for waka-jumping law purposes.

Insert Here Majority Government

A particularly hopeless line was the Premier's claim that “This new Stability Clause makes it certain that if Tasmanians vote for a majority Rockliff Liberal Government this Saturday, they will get a majority Rockliff Liberal Government.”  

Tasmanians voted for a majority Gutwein Liberal Government in 2021.  They got a majority Gutwein Liberal Government too ... for eleven months and seven days!  Then Peter Gutwein resigned.  His own party now dishonours Gutwein's legacy by preselecting at least one candidate who maintains that Tasmania at the time was an autocratic tyranny where the government was not in charge and the people were asleep.  This is no isolated example; seven of the last twelve Tasmanian majority governments have had a mid-term change of Premier.  

If this nonsense is passed, it will be easier not harder for the conservative flank of the party to remove Rockliff and replace him with Michael Ferguson or Eric Abetz.  The reason for this is that there will be no disincentive to doing so no matter how horribly it is done, because Rockliff will not have any recourse.  Lowe's behaviour in defecting to the crossbench fired a warning shot against spilling future Premiers, and no Tasmanian Premier has been openly removed by a party spill or even formally challenged for the leadership since (though some doubtless quit under pressure). But under the proposed Stability Clause if Rockliff was rolled and wanted to sit as an indie, doing so would trigger his expulsion, and his place would be filled by another Liberal on a recount.

This proposal therefore has the potential to greenlight a new phase of coup culture in the Tasmanian Parliament.  It is also a potential gateway drug to fixed terms and the increased power they give to the more demanding crossbenchers in a hung parliament, since passing it would remove what I have advanced as the best argument for not having fixed terms in the first place.   

Stability Clause?  Hardly.  It would make more sense to add Santa Claus to our Constitution Act than this.

Update Monday: O'Byrne Enlisted

In another presser Guy Barnett has sought to enlist David O'Byrne as a supporter of the concept underlying the party hopping ban based on O'Byrne's comments in The Australian.  But all O'Byrne said was that if elected as an independent he would have a contract to vote independently (so presumably wouldn't be rejoining Labor in the parliamentary term).  That didn't entail any support for the Liberals' proposal to enforce a ban on party-hopping, and indeed had the ban existed in the form stated by Barnett today, O'Byrne would have been expelled from Parliament in the aftermath of being kicked out of the PLP in August 2021.  

O'Byrne's responsed to this with "You really are desperate in these last few days aren’t you, stop making stuff up" and after the Liberal social media account said "Direct quote David." he followed up with "You have gone from being desperate to not very clever. You are deliberately confusing two very different principles. Give it a rest".

Also see

My interview with ABC (at 1:04)

Politician Overboard (PDF): 2002-3 APH paper taking a dim view of party-hopping law proposals