About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.

Lost the party leadership? Consider yourself lucky …

Amidst all the depressing events of last week’s failed leadership coup in the Northern Territory, there was at least one redeeming feature, at least for constitutional lawyers. Adam Giles’ refusal to resign as Chief Minister, despite losing the confidence of the majority of his party room (albeit in a dodgy unofficial meeting), gave rise momentarily to an occasion for exercise of the Administrator’s reserve powers.

Chief Minister “elect” Willem Westra van Holthe asserted to the assembled media at Government House that Giles’ refusal to sign a resignation letter was just a momentary glitch in his plans to be sworn in as the new Chief Minister by Administrator John Hardie.  They would simply need to prepare an “instrument of termination” for the Administrator to sign.

Unfortunately for van Holthe and his majority coup plotters, the Administrator didn’t agree. He indicated (no doubt after consulting the Solicitor-General) that it was a matter for the Legislative Assembly. In the circumstances that existed last week, that was clearly the case. The conventions of responsible government indicate that an Administrator/Governor should only exercise his reserve powers by dismissing a Chief Minister/Premier/Prime Minister contrary to the incumbent’s advice and appointing a successor in his or her place if it is completely clear that the incumbent has lost the confidence of Parliament and that the claimed successor now enjoys that confidence. Usually that will require the contenders’ numbers to be tested on the floor of Parliament. However, what happens if the claimed successor is able to produce clear written evidence that he/she now enjoys the support of a majority of members of Parliament? Wouldn’t that be sufficient justification for exercise of the reserve powers?

Of course that wasn’t the situation in the Northern Territory last week. Van Holthe had the support of only nine out of the 25 members of the Legislative Assembly i.e. a clear majority of the governing party but not of the Parliament itself. Accordingly, there is no doubt that the Administrator was correct in his interpretation of reserve powers. The only way to resolve the situation was for the contenders to test their support on the floor of the Assembly.  The Administrator no doubt would have exercised his reserve power to recall the Legislative Assembly urgently had the CLP Parliamentary Wing not resolved its leadership dispute (in however bizarre manner) a few hours later.

But what if the situation had been that Giles was refusing to resign but it was clear that the other 13 government MLAs supported the claimed successor van Holthe?  Could the Administrator properly have terminated Giles’ commission and appointed van Holthe without a Parliamentary motion of no confidence? It appears that the question has arisen in several Commonwealth nations with a Westminster system, including Malaysia, India and Fiji. However, the most entertaining example of such a situation is one that occurred in Nigeria. It suggests that the Queen and her advisers do not necessarily regard a no-confidence motion as being an essential requirement for dismissal. The story is recounted by prominent constitutional law academic Anne Twomey:

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Suspend NT self-government!*

*First published as “Abolish NT self-government”.  Last section now significantly rewritten.

Political chaos continues in the Northern Territory in the wake of last Monday’s failed leadership coup against incumbent Chief Minister Adam Giles. Today’s Northern Territory News reports that Giles, who earlier in the week demoted the plotters’ number cruncher, Health Minister Robyn Lambley, to the backbench in an early act of vengeance, is now about to do likewise to Alice Springs MLA Matt Conlan.

Giles is also reported to be about to remove former CLP Chief Ministers Terry Mills and Denis Burke from lucrative government sinecures, apparently as punishment for suspected sympathy for the plotters or perhaps just suspected lack of sympathy for Giles. Controversial CLP fundraiser Graeme Lewis is also rumoured to be about to be sacked from government positions including chairman of the Darwin Waterfront Corporation. I can’t help thinking that the latter looks like a courageous decision in a Sir Humphrey Appleby sense. As long-time chairperson of the CLP slush fund Foundation 51 (currently under investigation by the Electoral Commissioner), Lewis undoubtedly knows where a lot of bodies are buried, in fact he probably buried a lot of them himself. He certainly didn’t look even slightly worried as I had coffee at the table next to him in the Fannie Bay Cool Spot this morning.

This morning’s NT News story also neatly summarises the essence of the appalling conduct by Giles and his supporters which has led us to the current situation of grossly dysfunctional governance, in which the Chief Minister is gleefully wreaking vengeance on a significant number of his party colleagues because they dared to support the majority of government MLAs who have completely lost confidence in Giles’ leadership ability:

Giles retained his leadership despite not holding a vote of the caucus. It was a matter of holding on at all costs, rather than reaching a party room consensus.

Giles ultimately called the plotters’ bluff by threatening to burn the house down.

Westra van Holthe was not able to gain the 13 votes needed to demonstrate the confidence of the Parliament. And if the party didn’t return to Giles, he’d have no choice but to force the rabble to the slaughterhouse of an early election.

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Opposition to Government Strategy 101 (OGS101)

NB This post makes extensive use of the footnote plugin.  The footnote numbers are very small, but they are hyperlinks so you can jump to them by clicking.

NBB The fact that I argue below that a major reason for the demise of the Newman government was the standard template opposition strategy that I outline/discuss does not mean that I personally approve of LNP policies or performance (or those of Tony Abbott for that matter).  In fact I think the LNP richly deserved to be booted out (anti-bike laws, politicisation of judiciary etc).  However, I don’t think the ALP would have gone within a bull’s roar of winning in the absence of OGS101, nor is it obvious to me that Labor will be a significantly better government.  After all, they’re not even promising to repeal the VLAD (anti-bikie) laws, just to “review” them (in itself a classic example of OGS101 in operation).

Yesterday’s seeming electoral triumph of Annastacia Palaszczuk’s Labor rump in Queensland after a single term of LNP government underlines the extent to which the secrets of successful continuous campaigning for an Opposition party have come to be reduced to an almost foolproof formula that almost guarantees successful undermining of all but the most wily or dead lucky incumbent government, even by a telephone booth-sized Opposition with very little visible talent or experience.

The formula largely accounts for the results of the last 3 federal elections and at least the last 2 Victorian and Queensland state elections. It is found in a political spin doctor’s playbook called Opposition to Government Strategy 101 (OGS101).  The formula is well known to spin doctors on both sides of politics but has been kept secret from the general public until now.  Fortunately I have now obtained a leaked copy and reproduce the Executive Summary over the fold:

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Cut the waste! Stop the boondoggles!

Junction Oval

Junction Oval

Victorian Premier Dennis Napthine announces a “plan” to spend $20 million upgrading Junction Oval at St Kilda to accommodate the AFL team named after the suburb, even though it hasn’t played or trained there for decades. The plan appears not to have been checked with the local council or the AFL, and would apparently need another $37 million in infrastructure funding from the Abbott government.  At first glance it looks to be a complete waste of money with few if any redeeming features.

The Melbourne East West Link tunnel is a vastly more expensive but equally dubious project in cost-benefit terms that Napthine has rammed through despite very widespread opposition, including from the ALP which has said it won’t build it under any circumstances if elected.

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Calmly considering ABC cuts

abcThe announcement by Communications Minister Malcolm Turnbull that the ABC’s budget will be cut by $50 million per year for the next five years has generated predictable kerfuffle in mainstream and social media circles. Whether it will have any real effect on the broader voting public is much more questionable, but it’s still worth talking about in policy terms.

The predictable line by left-leaning commentators is that Tony Abbott has broken a promise, or even “lied” when he said before the election that ABC and SBS funding (along with health, education etc) would not be cut. In a tit-for-tat sense I guess that’s fair enough, because it’s exactly the same accusation that Abbott successfully prosecuted against Julia Gillard in relation to her backflip on carbon pricing.

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The Climate Emperor has no clothes …

CreationofObama

But maybe it doesn’t matter …

Hardly anyone seemed to notice at last weekend’s G20 meeting in Brisbane that the Climate Emperor had no clothes. Nor did I hear anyone remark on the obvious contradiction involved in issuing a communiqué which simultaneously committed participant nations, at least in principle, to taking effective action on climate change while also committing to achieving an additional 2.1% in world economic growth over the next few years. That sort of extra growth would make it more rather than less difficult to achieve any useful global carbon emissions reduction target in the near future.

Some commentators (although not many in the left-leaning sectors of the Australian media) did at least note that Friday’s climate change agreement between the United States and China had some elements of a “smoke and mirrors” or “pea and thimble” trick. China isn’t agreeing to cap its carbon emissions for another 16 years and in that time aims at explosive economic growth which will continue to spew more and more CO2 into the atmosphere, even if they do gradually move from building coal-fired power stations to less polluting energy sources. By that stage there is a high probability that the world will have already passed a tipping point where catastrophic atmospheric temperature increases will be unavoidable.

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Neutralising NIMBYs

St_Kilda_Triangle_SurroundsThe NIMBY Brigade is a blight on urban civil society. These people have never seen a new development that they don’t oppose, unless it’s a community vegetable garden or possibly a Montessori preschool built from mud bricks (although only if they’re very quiet middle class kiddies whose mothers parents drop them off on foot).

Their opposition to any new development is always couched in impressive-sounding terms: residential amenity, excessive noise and traffic density, streetscapes and shadowing. But the real unspoken reason is always that they have an irrational fear that the development will damage their property values.

In fact, most studies of urban consolidation/densification have shown that it’s a positive for property values, as long as the new buildings are not complete slums and attention is paid by planning authorities to transport, social and environmental factors.

I had all this in mind a few days ago when I penned a brief but indignant letter to the local Northern Territory News. It was published today:

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Rough justice for refugees

For some time I have been posting specifically legal articles/posts over at the bloggy part of the Parish McCulloch, Barristers & Solicitors website. I cross-post some of them here at Club Troppo.

I have just posted quite a long article there which discusses yesterday’s High Court decision Minister for Immigration and Border Protection v SZSCA in the context of current moves by the Abbott government to reshape radically the Migration Act provisions concerning asylum seekers and refugees. I don’t think I’ll cross-post it here because it’s fairly technical. Nevertheless some Troppo readers may well find it interesting.