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Power To The People: The (in)Constitution

18/09/2010

My my! The Australian is at it again!

‘Pairing’ Speaker a recipe for chaos, legal experts warn

Reads the headline of its latest so-called piece of news.

The article writers apparently talked to a gaggle of constitutional lawyers or which they quote two who both believe the reforms signed last week are invalid. Surprisingly, well not really, they do not bother to talk to anyone with a different point of view to all this.

The main man they go to in this article is not professor Geoffrey Lindell, although the article invokes his name to somehow give the article some form of credibility. Instead it appears to be spruiking the opinion of  Greg Craven, vice-chancellor of the Australian Catholic University. Or does it?

So I got onto the google wagon and did some searching. The first thing I found is there have been no, none, nada, articles out there that mention or talk to Geoffrey Lindell other than in the article published today in the past 24 hours. Odd considering the freshness of the topic. I then searched for the past week. Still nothing; a second search discovered a hit on the name Geoffrey. I then did a months worth of searches and found 8 hits but only 5 relate to the professor, and 2 of those 5, including the above, are published by  The Australian. Further that article does not quote or even interview the professor at all. It is an interesting piece by Peter Gerangelos about what may have happened if the election had remained hung. (Article link below)

I then did a search of Greg Craven too. I found an exciting article from August the 23rd that talks about the prospect of a hung parliament actually written by Greg Craven! There is nothing in it on the reforms of course. The other links relate to the ACUs international aid. (Article link below)

I also found a mention of Greg Craven on the AM program on the 4th of September 2010. This was prior to the signing of the reforms on the table, but after the details of the reforms were made known. In other words, he is well aware of the then option of the pairing of the speaker. He does not mention it as a problem in any way or form. In fact, his main concern is why they major parties were balking away from signing it.

From that radio piece (full link below)

MICHAEL EDWARDS: But political and constitutional experts say the drawback is that minority governments are inherently unstable.

Greg Craven is the vice-chancellor of Australian Catholic University.

GREG CRAVEN: We’ve been used to them for a long time in the sense that historically this is the way that they always used to be.

But when you end up having a government depending on one or two votes, they’re extraordinarily vulnerable to by-elections, to people dying; perhaps most of all, people changing their minds.

MICHAEL EDWARDS: And Professor Craven says he doubts just how sincere the major parties are about parliamentary reform.

GREG CRAVEN: Well, it’s interesting. I mean, you’ve got two quite contradictory lines running at the moment. On the one hand you’ve got a lot of white knights on the white horses calling for parliamentary reform, but they seem to have an awful lot of pork on the end of their lances.

So it’s getting two different strands running with these things. I suppose one question one has to ask is if the major parties have never wanted to reform parliament before, and they’re prepared to do it for independents, how long will that last once they don’t need independents anymore?

ELIZABETH JACKSON: Professor Greg Craven from Australian Catholic University ending that report from Michael Edwards.

Hmmm Is he for or against reform? What is he actually saying. I can not find nor does The Australian article say it interviews Greg Craven.Mr Craven is quoted as saying in The Australian (I take all sections that quote Mr Craven here):

“What the agreement does is allow the Speaker almost to vote negatively by taking one vote off one side of parliament,” Professor Craven said. “It gives the Speaker a negative vote.” This meant the “parliamentary reform” agreement was “pushing against the intention of the Constitution”.

Professor Lindell said the pairing proposal “breaches the spirit” of section 40 of the Constitution by giving the Speaker the right to have an MP with an opposing view abstain from parliamentary votes. Section 40 says the Speaker “shall not vote unless the numbers are equal, and then he shall have a casting vote”.

Professor Lindell said it would be going too far to describe the pairing proposal as a direct breach of section 40 of the Constitution but he believed it was inappropriate for a potential Speaker to be trying to benefit from a mechanism that breaches the spirit of the Constitution. “We do need to remember we have a written constitution and this is a key thing – it is like the quorum provisions – you just cannot ignore something staring you in the face,” he said.

He warned that in the past the High Court had examined the question of whether laws had been validly enacted by a joint sitting of parliament. “By parity of argument, if there was a legal problem here this could get into the courts,” Professor Lindell said. “That is very much against the tradition of Westminster parliaments, but because we have a written constitution I think you are heading toward a possibility of catching (the High Court’s) attention.”

Please note. I took the quote as is from The Australian, but I bolded and highlighted actual quotes. It is my opinion the gentleman did not in effect say the above at all, other than the first full line as quoted in what appears to be a full quote. They then apply the art of ‘interpretation’ or even ‘disingenity’ to cut and past very small sections of what the man must have told them to create a completely different spin to his intention. I call it, crappy journalism, or the ‘art of The Australian’. Using this method, you can make it appear that anyone has said anything. I also highlighted a key sentence that seems to be directly indicating the opposite of the articles intent.

Professor Lindell said it would be going too far to describe the pairing proposal as a direct breach of section 40 of the Constitution

What the article glosses over is this important thing in regard to the Constitution.

  • It is a document that is meant to change and provisions have been done to do so.

In fact one momentous change is the change to Section 127

Australian Constitution – Section 127 – This section was repealed by Referendum in 1967

In reckoning the numbers of the people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted.

And so this section should have been repealed! The other Section that has yet to be brought to a Referendum though is this little gem

Australian Constitution – Section 34 – Qualifications of members

Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows:-

(i.) He must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualifies to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he was chosen:

(ii.) He must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

Oh dear! But what about Wyatt Roy you may say?  I believe you will find the answer in the Constitution itself.

Australian Constitution – Chapter 8

Chapter 8 – Alteration

Section 128

Section 128 – Mode of altering the Constitution

This Constitution shall not be altered except in the following manner:-

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives.

But if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendments to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails.

And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent.

No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representative, in increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.

In this section “Territory” means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

And that is how Wyatt Roy is eligible. Not because it was taken to referendum, but because of a successful sitting of both houses of parliament. And that is how these reforms will be passed as well.

[Addendum] In 1916 and again in 1917, two plebiscites took place re conscription. The war was raging and we needed more troops. Both failed. So in 1918, a sitting of both houses changed the age of eligibilty from 21 to 18. It does NOT change the current wording of the Constitution [End Addendum]

Now as for the implications of these changes, well that is yet to be tested. Ironically, the pairing reform will have no effect when the government is in a majority. It is EXACTLY as professor Craven mentioned in the AM interview:

I suppose one question one has to ask is if the major parties have never wanted to reform parliament before, and they’re prepared to do it for independents, how long will that last once they don’t need independents anymore?

The last thing I wanted to mention is this has been one hell of an election! A most historic one. Although I am talking personally here, I am sure the same applies for the majority. Prior to this election we left politics to the experts and to the experts reporting on the experts. If you told me 12 weeks ago I would be wading through the Constitution or be even interested in political journalism, I would have laughed in your face.

This election has made me get interested like I have never been before. It has made me aware of the difference between what I have been told is the truth and what is the truth. And it has made me empowered to challenge it all.

Power to the people.

A. Ghebranious         2010             All Rights Reserved

SOURCES:

The article in The Australian

http://www.theaustralian.com.au/national-affairs/pairing-speaker-a-recipe-for-chaos-legal-experts-warn/story-fn59niix-1225925638642

Geoffrey Lindell searches on google. Past 24hrs, past week, and past month plus the article by Peter Gerangelos.

http://www.google.com.au/#q=geoffrey+lindell&hl=en&cr=countryAU&rlz=1W1PCTA_en&tbs=ctr:countryAU,qdr:d&prmd=o&source=lnt&sa=X&ei=POWTTMzQFYTCvQP99eySBA&ved=0CAsQpwU&fp=54cad4b41378b48f

http://www.google.com.au/#q=geoffrey+lindell&hl=en&cr=countryAU&rlz=1W1PCTA_en&tbs=ctr:countryAU,qdr:w&prmd=o&source=lnt&sa=X&ei=P-WTTNL8I4ucvgOuheiZDQ&ved=0CA0QpwU&fp=54cad4b41378b48f

http://www.google.com.au/#q=geoffrey+lindell&hl=en&cr=countryAU&rlz=1W1PCTA_en&tbs=ctr:countryAU,qdr:m&prmd=o&source=lnt&sa=X&ei=geWTTMecD4e6vQPSw52aDQ&ved=0CA4QpwU&fp=54cad4b41378b48f

http://www.theaustralian.com.au/business/legal-affairs/hung-election-could-have-led-to-high-court-for-judicial-resolution/story-e6frg97x-1225916790723

Greg Craven: Article from the Age

http://www.theage.com.au/opinion/politics/a-hung-parliament-it-might-be-drawn-and-quartered-as-well-20100822-13as2.html

http://www.abc.net.au/am/content/2010/s3002551.htm

The Constitution

http://australianpolitics.com/articles/constitution

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One Comment
  1. senexx permalink

    Just wondering if you have read Club Troppo’s take on the issue?

    Senexx

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