Flawed system prevents the state election - 9th June 2014

Flawed system prevents the state election we need

THEO THEOPHANOUS HERALD SUN JUNE 09, 2014

·       IF NORMAL DEMOCRATIC PROCESSES WERE FOLLOWED, VICTORIA WOULD NOW BE PREPARING FOR AN ELECTION.

That is because if you count the vote of the member for Frankston, Geoff Shaw, and take him at his word, the Napthine Government does not have the confidence of a majority of the Lower House of Parliament.

That should lead to an election. But under Victoria’s constitution, Premier Denis Napthine cannot call an election — even if he wanted to.

That is a fundamental weakness in the constitution which was introduced by the Bracks Labor government — a government of which I was a part.

When the constitution was changed, no one foresaw a circumstance such as the one now facing Victoria.

As a result of this flaw, we are in the bizarre situation where the only way the Premier can call an early election is to accede to — or even engineer — a vote of no confidence in his government and then lose that vote.

The Premier cannot simply go to Governor Alex Chernov and inform him that he no longer controls a majority in the Lower House, where the government is formed, and ask him to issue writs for an early election.

Even if the Governor is convinced the Premier no longer has the confidence of the Lower House, he cannot agree to an early election unless that is actually tested in the Parliament.

And even if the Premier and the Opposition Leader, Daniel Andrews, approached the Governor together, as proposed by Labor, it is doubtful the Governor can grant an election without Parliament expressing no confidence in the Premier.

That is wrong. There should be a provision in the constitution to allow the Governor to grant an early election if he is satisfied, after perhaps making his own inquiries, that the Government really does not control the Parliament.

The Premier has, instead, sought to put the ball into the Opposition’s court by urging it to reject the vote of Geoff Shaw and, thereby, allow the Coalition to continue to govern.

But since when was it the job of the Opposition to keep the Government in power?

The truth is that Mr Shaw, who controls the balance of power, cannot be relied upon by either side of politics in the event of them trying to form a government.

Surely, in such circumstances, the Premier should have the right to approach the Governor and ask him to call an early election.

And he should have this right without going through the humiliation of acceding to a vote of no confidence that he would have to lose to get what he wants.

So we now have a deadlock of a different kind. The Opposition wants to expel Mr Shaw and have a by-election. The Government wants to merely suspend him and keep governing with the casting vote of the Speaker.

The Opposition will emphasise the rights of the people of Frankston to be represented and the Government will talk about avoiding a possible legal challenge and the costs of a by-election.

Both leaders are in unchartered waters and the drama will play out when Parliament sits, with strategists from both sides feverishly looking at all the possibilities that the standing orders will allow.

Whatever happens, I think the expulsion of Mr Shaw would establish a dangerous precedent. It is not just a matter of whether the expulsion would stand up to legal challenge. In fact, it is even more frightening if it did stand up.

That’s because any future government which controlled a simple majority of the numbers in the Parliament would be able to expel a member who was a political irritant on the flimsiest of excuses.

As someone who has been in Parliament and has been the subject of attacks and threats over the years, I would find it disconcerting to know I could be expelled even if I had no criminal conviction and my expulsion was not even recommended by a Parliamentary Committee.

THE Premier will undoubtedly seek to fine and suspend Mr Shaw and to continue to govern until the election in November. Ken Smith, the former Speaker, will also undoubtedly support such a suspension motion rather than an expulsion.

Confronted with the inevitability of a suspension motion, Mr Andrews will have no other card to play except perhaps to threaten to move a motion of no confidence in the Government if his expulsion motion is not agreed to.

But Mr Andrews has already ruled out accepting the vote of the member for Frankston. In any case, it is by no means certain that Mr Shaw would vote with an Opposition that wants to expel him rather than a government that wants only to suspend him.

In such circumstances, it is highly unlikely Mr Andrews will move a motion of no confidence. So there is no constitutional crisis.

Whatever happens, both parties should agree to change the constitution so that this instability and uncertainty in the governance of Victoria does not happen again.

Theo Theophanous is a former Labor minister