Wednesday, July 3, 2024

The Payman Suspension

Party-hopping is becoming a pretty common occurrence in Australian federal politics.  The last time the Reps managed to complete a term without anyone quitting or being kicked out of their party in either house was way back in 1983-4, and that was a term with more than a year lopped off it by an early election.  Since then there's been an average of three defections/expulsions per term, with the last four terms scoring four, eight, four and so far five, and the five seems about to be six.

Genuinely interesting policy defections aren't abundant among the 42 I found in the last 40 years.  This roughly annual event seems to most often happen as a result of internal tensions, especially in minor parties.  Deselection and/or misbehaviour are also common triggers.  There was a Voice policy dimension to the recent departures of Andrew Gee from the Nationals and Lidia Thorpe from the Greens, but both were isolated cases that did not turn into broader breakaway movements from the party.  We now have at least the prospect (it could well happen tomorrow) that WA Senator Fatima Payman will leave the ALP, which will be a first case for the Australian federal party of an issue that has plagued its UK counterpart for years - losing or deciding to lose MPs for their positions re the Middle East.

If Payman leaves the party this will be the first defection from the Government in this term.  For comparison the Hawke/Keating government lost by my count just two MPs in 13 years, the first of them coming after ten years being Keith Wright who was kicked out after recontesting as an independent after being disendorsed.  The Howard government had three defections even not counting Pauline Hanson in its first term, another in its third and an internal party-switch in its fourth.  The Rudd/Gillard government's only casualty was Craig Thomson, while the Abbott/Turnbull/Morrison government had six in nine years (Jensen, Bernardi, Banks, Kelly, McMahon and tokenly Christensen).  

There are quite a number of points that I think are worth commenting on here and I thought I'd assemble them all in one place:

The trigger motion

Payman ultimately crossed the floor to vote with the Greens, Thorpe and David Pocock on the following motion moved by the Greens' Nick McKim: 

"Urgency motion—That, in the opinion of the Senate, the following is a matter of urgency:

The need for the Senate to recognise the State of Palestine"

This is not a motion for the Senate to actually recognise the State of Palestine as such, it's a symbolic motion to declare a matter urgent.  Typically, formal diplomatic recognition is a matter for the executive and not the parliament.  

Labor first passed a procedural motion to allow amendments to be moved to the Greens' motion, this procedural motion passing 39-11 with the major parties, Babet (UAP), Lambie, D Pocock and Roberts (ON) in favour and the Greens and Thorpe against.

Labor moved an amendment to "At the end of the motion, add “as a part of a peace process in support of a two-state solution and a just and enduring peace”."

The Coalition moved an amendment to Labor's amendment to add five other conditions.  The Coalition's attempt to amend Labor's amendment failed 28-34 with Babet, Lambie and Roberts in favour and Labor, the Greens, Thorpe and D Pocock against.

Labor's amendment was now put but only they and D Pocock supported it, and it lost 23-40 with the Coalition, the Greens, Babet, Lambie and Roberts against.  As a result, the original motion was now put, and at this point Payman who had abstained on all the previous votes on the motion appeared on the floor and voted in favour.  (Lambie and Roberts voted with the major parties against and Babet either abstained or was too busy watching Trump's latest bath gurgles to pay attention).  The urgency motion failed 13-52.

Labor's failed amendment has been the subject of disinformation:

The above image (minus the word "MISLEADING" which I've added) has been spreading on social media, including from at least one Labor MP account.  But it was not a motion; it was a proposed amendment to a Greens motion, an amendment that wasn't adopted.  The Greens believed the amendment would weaken the motion (but also doubtless wanted to keep the motion as it was to wedge Labor and try to peel off Payman); the Coalition might have believed it would be an improvement but nonetheless tactically chose not to help Labor add it.  Labor could have put this motion on the notice paper as an urgency motion themselves, but didn't do it.  They still can do so any time they choose. 

[Edit: in fact they eventually did, today in the Reps passing "That this House endorses the Government’s position to support the recognition of the State of Palestine as part of a peace process in support of a two-state solution and a just and enduring peace."  This passed 81-55 with Le, Haines and all teals except Spender in favour alongside Labor, and the Coalition, Greens, Spender and Katter against.]

Based on the numbers present and voting, Labor could have caused the Greens' version to pass if they wanted to, but they didn't.  The Greens with Thorpe could possibly have caused Labor's version to pass but that did not happen either.  

Crossing the floor in the ALP

There has been a lot of nonsense said about the consequences of floor-crossing in the ALP.  The best summary I can give is that while there is a requirement that members maintain caucus solidarity and avoid crossing the floor against the decisions of caucus, there is not a specified penalty.  Members including Payman understand that they could be expelled for doing so, but consequences in actual cases at federal, state and territory levels have ranged from nothing to suspension to immediate expulsion.  There are also cases where members get away with crossing the floor because a matter is deemed not to have been caucused - the most ridiculous being the Tasmanian Labor MP who got away with supporting a no confidence motion in a Greens minister in his own government, and was even later re-endorsed (but defeated)! In one case three Indigenous Labor MPs in the NT crossed the floor over a mining approval - no action was taken and one of them is now a Senator.  

As best I can determine the last case of physical floor crossing in the ALP federally was by Graeme Campbell in 1988; Campbell was suspended from caucus but went on to be re-endorsed for two elections before finally being kicked out of the party for bagging out Labor's immigration policy at an anti-immigration event in 1995.  Harry Quick non-physically dissented on a motion in 2005; no action seems to have been taken though other tensions followed and he was kicked out later the same term, nominally for not paying his subs.  The APH article appears to imply there was a floor-crossing during Kim Beazley's first run as Opposition Leader (1996-2001).  I have scoured both Hansard and Newsbank and this incident appears not to exist, although I found a couple of media claims by Liberals that Shayne Murphy had crossed the floor in May 1999.  (The term is sometimes used loosely simply for cases where the major parties agree with each other.)

In this case the initial responses suggested that little would be done about Payman's crossing the floor with ministers invoking "social cohesion" as a reason for a soft approach; it eventually transpired that Payman had been suspended from caucus for the rest of the sitting (which was basically a single meeting).  However after Payman gave an Insiders interview in which she stated that she would cross the floor again if the same issue arose again, she was suspended indefinitely, a decision reportedly made by Albanese, Wong, Richard Marles and Don Farrell and later ratified unanimously by Caucus.  A major factor here seems to be the timing of that interview at a time when a new financial year was starting and the government wanted to talk about tax cuts.  

It's beyond disingenuous for Coalition MPs to tell Labor how hard or soft they should have been in enforcing their rules against Payman when had she been a Coalition backbencher there would have been nothing to enforce.  If Labor had a mandatory expulsion rule and weren't enforcing it that would be one thing but they don't.  

The caucus and the platform

There have been many comments to the effect that it is actually Payman, alone, who is following Labor's national platform as ratified by National Conference.  The party platform has since 2023 contained the following: 

1. The National Conference:

 a. Supports the recognition and right of Israel and Palestine to exist as two states within secure and recognised borders; 

b. Calls on the Australian Government to recognise Palestine as a state; and 

c. Expects that this issue will be an important priority for the Australian Government. 

Substantively identical wording goes back to 2018 but in the 2018 and 2021 editions it said "the next Labor Government".   The parliamentary party is expected to follow this platform and has been since Labor came to government in 2022 but the resolution is short on specifics.  It says the issue should be an "important priority" but doesn't commit the party to recognising Palestine within any specific timeframe or following a specified process.  At present, this makes it easy for the caucus to drag its heels and find wriggle room especially in unanticipated circumstances.  (The last version of the platform was adopted in August 2023 prior to the October 7 massacre and subsequent invasion of Gaza).  The wording also leaves the door ajar to an interpretation that treats a) and b) as a package deal, which was basically the way that Labor voted on the floor. In the meantime, decisions of the caucus remain binding on MPs, except when they don't, concerning which ...

Labor's "conscience vote" asymmetry

I think there was a case for at least some Labor MPs to be granted at least a tacit conscience vote on motions like this urgency vote.  The past ten months have seen events of unimaginable horror in both Israel and Gaza even by the recent standards of longrunning Israel/Palestine conflicts.  This and the surrounding social tension in Australia is placing MPs with an identity link to the conflict - especially Jewish and Muslim MPs - under great personal pressure and perhaps some way should have been found to cut them some slack.  However what I find when I look at the recent history of the "conscience vote" in federal Labor is that it seems to be used for one purpose and one purpose only, that being to permit some MPs to vote with the religious right.  I'd never actually checked this perception against the data but when I did was surprised how strongly it was borne out.  All 13 votes since 1996 fall in this category: euthanasia, embryos, RU486, same-sex marriage, abortion, mitochondrial donation.  Why does the ALP left never get a conscience vote on things it might have just an equally heavy conscience on?  Is it because they are too weak to force it by threatening to resign if they don't get it?

This asymmetry is especially obvious with same-sex marriage, with Penny Wong saying she had to vote against same-sex marriage while it was party policy to do so.  Why was it ever party policy to have a mandated vote against same-sex marriage, especially when by 2007 polling was already consistently showing more voters supported than opposed it?  Even when it became party policy adopted by the National Conference to support same-sex marriage there was suddenly a conscience vote allowed against it; in this way Labor wasted six years in government on the issue without getting close to passing it.  By the time Labor finally did put a 2019 sunset clause on conscience-voting against basic equality it was much too late; the Coalition had taken government and Malcolm Turnbull and, surely worse, Peter Dutton, got the thing passed and got the credit.  

How Payman got elected

I wrote about how Payman won in a previous article just to the degree needed to debunk a claim about One Nation being hard done by (they were not).  But there are a few other things to say about that.

Payman was elected because she was in sixth place after the election of two Labor, two Liberal and one Green Senators, and Labor received enough preferences from other parties to stay there.  Labor started the distribution with 0.419 spare quotas to One Nation's 0.244, and while this gap closed on preferences they ended up winning 0.853 to 0.745.  This is how the Senate system created in 2016 works; if you have a large lead on primaries (in this case 2.5%) it's not possible for other parties to gang up on you because when voters make their own choices, preferences will scatter.  

But before 2016 it wasn't like that.  Parties decided where their above the line preferences went and most voters voted above the line.  Networked preference gaming decided who won, and a major party candidate with less than half a quota would be a sitting duck against preference spirals comprised of micro-parties no-one had ever heard of.  Even if parties behaved ideologically instead of preference-gaming, there was over a quota of right-wing party preferences, and if the right-wing parties all put each other ahead of Labor then Labor would not have won.

Labor owes Payman's victory as a Labor candidate to the reforms passed in 2016, but Labor voted against those reforms and has yet to admit this was wrong.  Wong, a major player in the current saga, sullied the Senate's Hansard with some of the most ridiculous arguments ever made by an intelligent person in that place.  So when Labor gets protective about its seat and says that Payman should resign from the Senate and give the seat back (as Prime Minister Albanese has done) my reaction is hang on there, you lot didn't want to have that seat in the first place.  You wanted the Senate to still be full of diverse randoms with no actual democratic mandate, hey here's one now, what are you complaining about?  

It's especially weird that Labor has sought to accuse the Greens of "vote-harvesting" with their motions on Gaza (what a strange world it must be where politicians would seek to get votes) when Labor voted in favour of retaining actual preference harvesting that was electing people with next to no votes.  These people were winning seats at the expense of candidates Labor's own members were working hard to elect, and Labor continues to this day to keep such a system in place in the Victorian upper house.  

(It's disappointing in this light to see some perhaps overpuffed reports of "preference whisperer" Glenn Druery having some kind of voluntary involvement in Payman's strategy discussions, because Druery hasn't whispered a thing in a federal election since we stopped that game in 2016.  I'm sure Druery knows a thing or three about registering new parties but if anyone thinks he holds keys to success in the new Senate system, that's not the case.)

Some opponents of Payman are already pointing to her low personal primary vote, but it is common for major party candidates below 1 to be elected with low below the line primary votes, largely on the basis of above the line votes for their party and preferences.  In fact Payman got more BTLs than Glenn Sterle who was above her on the ticket and had been a Senator for 17 years.  Of the 13 elected mainland state major party Senators who were not top of their party tickets, Payman had the third highest personal vote as a percentage of the state Senate vote, well behind Matt Canavan and Jim Molan but just ahead of, among others, Bridget McKenzie and Farrell!

Payman's Prospects - are/were there any?

A lot of discussion about Payman has concerned what chances she would have for re-election in 2028 (assuming the normal half-Senate cycle continues).  This discussion may well be greatly overrating the extent to which Payman is hoping to be re-elected as opposed to feeling driven to stand for her beliefs, but let's run with it anyway.  

In Victoria, Ralph Babet got elected with a 4% primary vote.  With major party primary vote shares relatively low, this is a scenario that could repeat in other states: neither major party has much over two quotas, the Greens get one and the last seat is then a scramble between a bunch of parties that each have nothing much.  

The difficulty for Payman as an independent or as the founder of a new party centred around her in this scenario is that Perth is hardly Western Sydney and a party like the nascent "Muslim Vote" campaign wouldn't be likely to get much support there.  It's easy for people focused on Canberra politics on Twitter and in the media bubble to imagine that Payman's defection is something ordinary voters would care about, but it's very unlikely that all that many of them do.  Disenchantment with both major parties is an obvious thing in outer suburban Sydney and Melbourne seats with high Muslim populations, but there is also a tendency for non-Muslim observers to homogenise Muslim voters as being likely to vote based on Gaza and not anything else.  

A lot of the discussion about 2028 half-Senate futures seems stuck in replaying the previous election, but if Labor is re-elected federally without a double dissolution there is a high chance the half-Senate election due by 2028 will be an expansion election, which under the minimum likely expansion (to 14 seats per state) would be for eight seats not six.  This has some relevance because there has been some speculation Payman could defect to the Greens, and had the 2022 WA Senate election been a half-Senate contest the Greens would have been close to winning a second seat.  However, that in turn resulted partly from the strength of the Labor vote, which is unlikely to be repeated.

Had Payman remained a Labor Senator, there appeared little prospect of Labor again winning three seats in Western Australia at a half-Senate election, but again an expansion election would be a different matter.  There is also the possibility she would have been promoted through retirements with Sue Lines to be 74 at the start of the next Senate term and Sterle to be 68.  However all of that would be dependent on factional support for her to be the top Left candidate rather than someone new (Sterle being from the right), and feeding into that would be whether there had been any serious intention that she win when she was selected in the first place.  I suspect that once Payman gave her speech ending with "from the river to the sea, Palestine will be free" - followed by the Senate passing a motion that condemned the slogan while overinterpreting much of its usage in Australia - all that was unlikely.  

If Payman were to at some stage be ruled to have been ineligibly elected by the High Court this would result in a recount which would elect the fourth Labor candidate Vicki Helps (if Helps were also ineligible somehow it would elect One Nation).  If Payman were ruled to have become ineligible at a later stage it would create a casual vacancy which Labor could then fill.  

Section 44

Payman is also of interest because she is a rare case of an MP who was apparently a dual citizen when elected - and presumably still is - but who apparently could not safely renounce her citizenship of Afghanistan following the Taliban takeover in 2021.  There has frequently been low-level social media chatter about her Section 44 status, usually from the types of people who have Australian flags in their username.  I reproduce below Payman's statement from her Section 44 declaration form.  

The High Court found in Sykes v Cleary that there is an unwritten imperative that Australian citizens be not barred from standing for office by the operation of foreign law in cases where there was no practical way to renounce citizenship.  In Re Canavan the court [69] noted that 

"Such a step may be contrasted, for example, with a requirement of foreign law that the citizens of the foreign country may renounce their citizenship only by acts of renunciation carried out in the territory of the foreign power. Such a requirement could be ignored by an Australian citizen if his or her presence within that territory could involve risks to person or property."

It is clear on this basis that if Payman's account above is correct then she was eligibly elected.  As no-one petitioned against her election, her eligibility either to be elected or to continue to serve could only be re-opened by a reference from the Senate, which would be likely to be the subject of detailed consideration if it was ever even attempted.   At the time of writing there are still no diplomatic relations between Australia and the Taliban rulers of Afghanistan and still no safe and practical way that Payman would appear able to renounce.  Perhaps by the end of her term this will change; the matter of the obligations of an MP to renounce later if  it becomes possible to do so has not yet to my knowledge been tested.  

Updates Thursday/Friday

* Payman is now expected (and as of 2:10 has) by ABC to announce this afternoon that she will become an independent.  If she intends to recontest her seat when it is vacant (which will be in late 2027 or early 2028 unless a double dissolution interrupts) she will presumably register a party name or join a party but there is no rush for that right now.  She has not ruled out forming or joining a party later.  

* Labor sources have been backgrounding against Payman with stories about how they provided emotional support while she was plotting to leave.  However this narrative omits the important fact that after Payman employed the "from the river to the sea" slogan on May 15, the Senate the next day passed a motion that condemned the slogan as "very violent" among other claims.  It should come as no surprise if she was seeking to get out from then on.  

* Section 44 based attacks have been attributed to unnamed major sources.  The Australian in particular reports someone seeking to use [45] in Re Gallagher, from a concurring judgement by Gageler J now CJ.  However that passage seen in full (below) concerns cases where someone's renunciation is possible under the law of the foreign country but has not been completed yet, not a case where it is simply impossible or unreasonably unsafe to renounce.  

* Labor sources have backgrounded against Payman for comments supposed to indicate she was relying on some form of divine guidance for her votes (though it is not crystal clear this goes any further than Muslim figures of speech).  Even if this is true, as noted above the party itself routinely provides exemptions to MPs who claim a "consience" that frequently has a religious dimension.  

One Nation False Claims

A release from One Nation has falsely claimed that the Liberals' How To Vote card recommendations caused the election of Payman.  This was already debunked in my previous article, where I noted that the Liberal How To Vote recommendation cost One Nation less than 7000 votes even assuming that voters following the inner city Liberal HTV would have preferenced One Nation (or even voted Liberal at all) if asked to.

The release refers to the 99,327 preferences distributed when the third Liberal was excluded but makes the common rookie error of not realising that slightly more than half of those came from non-Liberal voters who were hardly going to be influenced by the Liberal How to Vote card.  It also does not mention at the top that Liberal preferences were recommended to One Nation in nine seats, although this is mentioned further down.