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Monthly Archives: May 2011

John A MacDonald was the Premier of Canada West from 1856 – 1858 and also (1858-1862). Immediately after John A MacDonald, John S MacDonald (1862-1864) became Premier immediately followed by John A MacDonald (1864 – 1867) whereupon the Province of Canada ceased to exist, foreclosing the possibility that any more John MacDonalds would ever become Premier of Canada West.

Oh well.


Many years ago, I was fortunate enough to have eaten afternoon tea at Al Muntaha, the restaurant at the top of the Burj al’Arab, the infamous seven star hotel in Dubai. The details of what transpired there is, perhaps, a story for another day. I think it will suffice to say that I had afternoon tea there because a proper meal would have been well beyond my budget.

The meal was scrumptious and matched only by the panoramic view with sand and sea stretching as far as the eye could see. It was so satisfying to have sat amongst the heavens, to have rested there for a while. And yet, what stands out in my memory was the music. Perhaps my memory, amplified by the ambiance of that place and my fondness for it, has been exaggerated beyond all reasonableness. Perhaps. I searched for that music for quite some time after, but was unable to discover what it was. All I knew was that it was a cover album of various Guns N’ Roses songs. No doubt that search only placed that music upon a higher pedestal in my mind.

But last Friday, I managed to discover the name of that album. Bossa N’ Roses, an electro-bossa remix of the best Guns N’ Roses songs. It perfectly captures the peace and relaxation of that nirvana in my memory. Exquisite.

Obtain it by whatever means you see fit. Highly recommended.

PS: If you haven’t voted in the poll in last week’s post, please do.

Logic dictates that no one ever reads this blog. I never publicise it (except occasionally on Facebook), its filled with dull arcana that is of very limited interest, its badly written and was erratically updated for large portions of its life.

Evidence, however, suggests otherwise. And since this blog is ostensibly dedicated to logic and evidence, I must reassess my belief that this blog is never ever read.

Occasionally, friends will ask me about my blog or comment to me about posts. My site statistics suggest that a reasonably large number of people regularly visit this site but the numbers don’t make sense.

Somehow, the number of people who have read individual posts don’t match the numbers who have visited the blog on a particular date.

Do these statistics include people who read my blog by RSS feed?

The numbers of visitors increase when I post an article regardless of whether I publicise it on Facebook – how do you know when I publish articles?

If you could fill out this poll, that would greatly assist my understanding of how my own blog works. Like most males, I never read the manual and I have no intention of ever doing so.

If your method of accessing this blog isn’t on the blog, or is more nuanced, please tell me how in the comments.

The great thing about studying the monarchy is that you get these brilliant and pithy inbred sentences:

By 1840, Queen Victoria had married her cousin, HSH Prince Albert of Saxe-Coburg-Gotha and soon gave birth to The Princess Victoria

So, having married her cousin, she therefore gave birth to herself (or at least her own namesake).

It’s not often (read: never) that this blog is able to comment on breaking news before the giant media conglomerates that span the globe through a network of reporters and news sharing arrangements. But yesterday, a rather important thing happened which the newspapers and TV news gave very little space to.

Last year, Julia Gillard set up a panel to consider whether Australia should recognise Indigenous people in the Australian Constitution and how they should do so. It was announced with great fanfare and disappeared off the face of the Earth. I had simply assumed it had been quietly dumped, like most of the other Gillard Government initiatives. Nope; it turns out the panel has been travelling the country discussing views on the issue. Yesterday, it released its discussion paper on the issue.

There’s rather scant coverage on the issue:

The SMH has one article, which didn’t appear on their main page

The Australian has two articles, one and two, though neither appeared on their front page yesterday. To their credit, the Australian has far superior coverage on indigenous issues, here and reported on the Panel beginning its Australia-wide tour here (per the Adelaide Advertiser).

However, none of the papers commented on the fact that Shadow Attorney-General spoke against the Discussion Paper. It is an important foreshadowing of the Abbott Opposition’s likely response once the Final Report is released. This is despite the Australian reporting on the same event at which Senator Brandis spoke.

George Brandis and Bob Carr

The launch of the Discussion Paper co-incided with the launch of the Constitutional Reform Unit at the University of Sydney, attended by Bob Carr and the current Shadow Commonwealth Attorney-General, George Brandis of the Liberal Party.

Brandis spoke eloquently, with great intellectual rigour for a sitting politician. It probably helped that there were no cameras in the room. He spoke about generally about constitutional reform, and about the common intellectual fallacy that reform is always good. He said that any constitutional reform must have both legal rigour and political support.

With reference to the recognition of Aboriginal Australians, he said that he and the Liberal Party supported constitutional recognition in the preamble without granting substantive rights. It was one of the 6 issues that he would have focussed upon if he were heading the Reform Unit.

He spoke vigorously against the Discussion Paper, quoting one line on page 6:

. Many
Australians feel the need to address the gaps
in our Constitution, to bring it up to date to
reflect the reality of Australia in the 21st
century and to create a shared vision of the
kind of nation we aspire to become.
He said that this statement is bland political jargon that has no place in a serious Government report (and I agree). It assumes that people 'feel' that there are gaps in the Constitution, when many do not 'feel' that way and most Australians don't care. It assumes there are 'gaps' - he and I both strongly disagree that there are such gaps.
Most importantly, it assumes there is a 'shared vision' of all Australians. Clearly, no such shared vision exists. He made the very important point that in a pluralistic society, we should not be aiming for a 'shared vision' but for a multiplicity of perspectives informed by our different backgrounds and histories. Why should we privilege one 'vision' above all others? Good point.
In that vein, I shall dissect the Discussion Paper. I find the document disappointing because it puts forward views without justifying them, nor canvassing the pros/cons of different options. It doesn't explain the legal complexities behind these important and weighty issues.
The Discussion Paper
The Discussion Paper focusses mainly on Aboriginal recognition in the Constitution, but raises several other issues. The Australian focusses on the real substantive change, which is abolition of the race power.

Constitutional Recognition of Indigenous People

The Panel debates between a Statement of Recognition or a combined Statement of Recognition and Values in either the Preamble or the Constitution itself.

A Statement of Recognition would:

recognises Aboriginal and Torres Strait Islander peoples’ distinct cultural
identities, prior ownership and custodianship of their lands and waters

On the other hand, the Statement of Values would touch on issues wholly unrelated to Indigenous issues. It includes recognition of Indigenous people and:

a description of the Australian people’s fundamental values, such as a commitment
to democratic beliefs, the rule of law, gender equality, and acknowledgement of freedoms,
rights and responsibilities.

Politically speaking, the Statement of Values is presumably designed to offset the predictable counter-argument against Indigenous recognition which is “why should we grant equality to Aboriginals but not everyone else?”

Constitutionally speaking, it is terribly dangerous to place a short list of ‘values’ whilst excluding other values.

Firstly, the Panel is attempting to make this a list of values, not a list of constitutional rights. But if you read the list, these are ‘values’ which look suspiciously like those rights which are constitutionally protected everywhere else. If you want to entrench a Bill of Rights, sure let’s do it and discuss it properly. But to accidentally entrench a Bill of Rights would mean we wouldn’t give sufficient thought to which rights should be included and excluded; how these rights should be balanced; how these rights fit into our existing constitutional structures and institutions; how these rights should be worded. America and Canada each have their own rights to freedom of speech. America’s is one as wide as possible, protecting corporate speech from campaign finance laws and stopping laws that might possibly have a ‘chilling effect’ on speech. Canada’s freedom of speech is trampled all over by its other rights, particularly anti-discrimination. In fact, Canada probably has less free speech than Australia.

What’s more, these ‘values’ look suspiciously like the rights that are already protected by the Constitution. The ‘commitment to democratic beliefs’ looks suspiciously like the representative and responsible government which is set up by and protected by the Constitution. The rule of law looks suspiciously similar to separation of powers and various rights like those in R v Dietrich. Whilst preambles don’t create protected ‘rights’ like a Bill of Rights, they do act as interpretive guides. If we list these rights, we could potentially expand the existing Constitutional rights. The power to expand and define these new rights is not in the hands of the People, not their representatives in Parliament. It is vested wholly in judges and in obscure linguistic justifications rather than a serious weighing up of democratic interests.

The debate between inserting these clauses into the preamble, rather than the Constitution itself is more complex than it first appears. Our Constitution, as most intelligent Australians know, originated as a British law. What you might not know is that it originated as the Schedule to the Constitution of Australia Act. So when we “amend” the Constitution through the referendum procedure in s 128 of the Constitution, we only amend the Constitution and not the Constitution Act. There is no preamble to the Constitution, but there is a preamble to the Constitution Act.

If we want to use a referendum to add a Statement of Recognition or Values, then we can certainly add a new preamble to the Constitution. ie we will have two preambles (and that looks a tad silly).

It is possible to amend the original preamble. There are two methods to amend the Constitution based upon the Australia Acts. The Commonwealth argues that s 15(3) Australia Act alters the referendum power in s 128 to amend the Statute of Westminster (which preserves the Constitution Act) and therefore amend the Constitution Act. This seems a rather dubious argument, based upon the wording of the Australia Acts and its drafting history. Anne Twomey (who worked for the States, and tends to support them) believes it is not a valid argument.

The alternative is the clearly established power in s 15(1), where the Commonwealth Parliament may legislate “at the request or with the concurrence of the Parliaments of all the States” to amend the Australia Acts or the Statute of Westminster (and thus the Constitution Act). But it requires the States to agree.

The upshot is, that we can have a fake referendum (a plebiscite) on indigenous recognition, ask the States to ‘request and concur’ in the relevant legislation and have the Commonwealth Parliament amend the preamble accordingly. Another thing I would point out is that no referendum is required at all, though it would be quite improper to make such a significant change to the Constitution without a referendum.

That, I think, is why the Discussion Paper is keen to argue that it doesn’t matter whether you place the Statement of Recognition/Values in the preamble or the Constitution itself so long as it is properly worded. I disagree; preambles are almost always devoid of substantive effect. To amend the Constitution itself, inserting a clause with ‘values’ that look like substantive rights is a much bigger change. Unless you have an express clause saying “These are our values, but please please please don’t ever make them Constitutional Rights”, there is a danger we would accidentally create such rights. Any such referendum would fail.

Imagine this, you are a voter who is asked to vote for a constitutional amendment that says “we believe these things, but this amendment shall have no effect whatsoever”. Would you vote for a provision that has no effect? Why even bother adding it to the Constitution? Why say that we believe these things, but lack the courage of conviction to actually enforce them?

Amending the Race Power

The options are to:

  • Repeal the race power
  • Amend the race power so it can only be used for the ‘benefit’ of Aboriginal peoples
  • Insert a right of racial equality for all Australians
  • Create a new head of power for laws “with respect to the culture, historical disadvantage and unique place of” indigenous persons
I don’t see any problem with repealing the race power. All it does it remove the power from the Commonwealth, whilst allowing the States to retain powers to make laws related to race.
But I strongly disagree that the race power is fundamentally discriminatory. It merely permits laws to be made which turn on someone’s racial identity. Is a toilet discriminatory simply because it turns on gender? Is a gay adoption law discriminatory if it confers some special advantages on gay people as well as some extra procedural hurdles? Clearly some laws which turn on racial identity are necessary and may even be wholly unrelated to racial discrimination.
The stupidity of the ‘discrimination argument’ becomes most apparent when you look at the suggestion that the race power can only be used for the ‘benefit’ of Aboriginals. If I pass a law conferring money on Aboriginals, can I later repeal that law? The answer is no, because the later law confers no ‘benefit’ on them. Can I pass a law that gives welfare benefits to Aboriginal persons (e.g. in section 1 of the proposed law) that come with very strict conditions (contained in section 2)? Section 1 is valid, section 2 is invalid. So section 2 might be severed from the Act. Oops, we just conferred a benefit and we cannot ever repeal.
Also, what is a ‘benefit’? Are we asking courts to actually see if a law ‘benefits’ Aboriginal persons? That would involve courts making political decisions, like whether the Northern Territory Intervention is a “good” idea. Is it? John Howard thinks so, but Kevin Rudd doesn’t. It is for the ‘benefit’ of Aboriginals in the sense that it is intended to solve their alcohol abuse problems. It is not for the ‘benefit’ in the sense that you’re depriving them of self-government. Is it sufficient that there is any ‘benefit’ (even if there are huge anti-benefits) to a Act?
If we take a minimalist approach (what Americans call a ‘rational connection test’), then if the Government can show any evidence that a law will confer a ‘benefit’ to Aboriginals that a rational person might consider a benefit, we could see quite discriminatory Acts passed. The Stolen Generations Bill arguably confers a benefit, in the sense that children were being malnourished and needed to be taken into child protection.
If we entrench a right of equality without entrenching other rights that could cause all sorts of problems. There is no guarantee of free speech in the Constitution, so if we privilege equality rights above free speech rights then Anti-Discrimination laws might be unable to properly protect free speech rights. I haven’t studied the US or Canadian case law so I can’t give firm examples, but you can see the intuition behind the problems this could cause.
The last power is to create a new head of power for laws “with respect to the culture, historical disadvantage and unique place of” indigenous persons. I have no strong objections to this proposal, although I would prefer to leave these issues to the States and Territories. As a general rule, I would prefer to take powers away from the Commonwealth because the Commonwealth can pass a law covering the field and wiping out many worthwhile State laws. Let’s say a left-wing Labor State Government passes some native title Bill to which the Abbott Government objects. The Commonwealth can overrule it by a law “with respect to the unique position” of the Aboriginal people. Of course, if a Liberal State Government passed a law throwing all Aboriginal drunks into jail, then equally a Labor Government might overturn it. But that places more faith in the Labor Party than I actually have in them.
Constitutionally-protected Treaties with Indigenous Nations
The wording of my title (Aboriginal Treaties) might be controversial, because it evokes the ‘treaties’ that the US made with its native Indians. Those did not work out well for the Native Americans. But it did work out well for the Maoris, so who knows. I certainly don’t.
Indigenous Affairs is not a strong point of mine; in fact, I doubt many learned Australians are well acquainted with the nuances of Indigenous policy beyond the banner-waving tendencies of the far left. If Australia truly cares about equality of all peoples, it must address the vast disparity between Australians and Aboriginal Australians.
My limited understanding of the issues are that Aboriginal people have been deprived of their confidence by successive government policies. Perhaps giving them self-government may return that confidence to them. Many (conservative) commentators suggest that self-government in the Territory has utterly failed and made matters worse.
This will not be solved by sloganeering about giving self-government to all Aboriginal communities. Some Aboriginal communities might benefit from the boost in self-esteem. Some Aboriginal communities are so dysfunctional that it would be entirely inappropriate. This is not because of inherent intelligence differences between Indigenous and non-Indigenous persons; in the 1980s the great direct democracy experiment gave ordinary Californians self-government of a sort. In 1980, their State education system was the pride of the world; now it ranks 3rd last of all US States. Their Budget is a mess. Their Constitution actually limits the rights of minorities.
Perhaps, giving a kind-hearted Aboriginal affairs Minister might be able to make strong use of this power to encourage Aboriginal communities to be one of those communities worthy of having a Treaty with. Or, perhaps, they might use that constitutionally-protected treaty to enforce barbaric practices like eye-for-an-eye punishment (as recently occurred in South Australia) where a family feud surrounding a murder caused an exodus of half a town to Adelaide. Or, perhaps they might use the power to stop something like the Queensland Wild Rivers legislation which protects vital mangroves and river ecosystems from development. Those aboriginals want to develop their land and profit from it (as they should). But they should not be allowed to be sheltered from State laws, such as environmental laws, State taxes, State criminal codes etc whilst they do so.
And that is what I would emphasise about this power. The Commonwealth’s law officers will not always be aware of State issues in negotiating these treaties. If they are constitutionally-protected, such Treaties could give immunity from very important State laws.
In summary, I strongly object to any Statement of Values. I believe that a limited Statement of Recognition is appropriate, so long as it is placed in the preamble by the request and concurrence of the State Parliaments and the consent of the people through a plebiscite.
I support either maintaining the race power as is; or repealing it.
I am cautiously optimistic about the Aboriginal agreements power, but would caution that it must be carefully drafted. In particular, I think the States must have some say in those negotiations.

The New York Times yesterday reported that Conde Nast would be the anchor for 1 World Trade Centre, the first and largest of the four office blocks destined to replace the Twin Towers destroyed on 9/11 in 2001. Conde Nast, by the way, publishes some of the most well-respected magazines in America including The New Yorker, Vanity Fair, Vogue, Bon Appétit and Architectural Digest

Apparently, there had been some speculation as to whether the NY Port Authority (which owns the WTC site) could attract major corporate tenants for the WTC. Personally, I can’t see how there could ever have been any doubt in this regard. Whilst Australians don’t treat their historic office buildings with much respect, Americans (or at least New Yorkers) always have.

Australian commercial firms tend to love the biggest and most modern skyscrapers. That’s why Chifley Square, the tallest office tower in Sydney, holds many prestigious firms including UBS, and why newer towers like Governor Macquarie Building hold many of the others. By contrast, the MLC Centre which was designed by the famous Australian architect, Harry Seidler, was just as prestigious in its day and stands upon Martin Place has important firms but, perhaps, with slightly less prestige overall. Whilst I am describing this in quite broad, subjective terms, this is reflected in the rental yields for office blocks. Australians don’t care about the historical nature of their great buildings.

In sharp contradistinction, Americans love their old, historic buildings. Americans know their architectural history (obviously, not all Americans, I mean elite Americans who care what building a firm has its offices in). They know about the Gridiron Building. To look at it, the Gridiron Building is rather ordinary. It’s short by modern standards, its incredibly cramped; wedged between two roads at the intersection of several roads.

The Grid Iron Building

But the Gridiron Building was the world’s first skyscraper. The architect, confined by the narrow strip of land he had to work with, decided to maximise that land by building upwards. To date, high buildings were built with thick walls which could withstand the stress of the building’s weight. Instead, the Gridiron Building was built, literally with an iron grid; a lattice of steel girders which would bear the weight of the building. That lattice formation sits at the heart of every modern skyscraper. The Empire State Building is another classic building, the tallest building of its time; built during the Great Depression, it gave work to the tens of thousands of poor working class people in the New York of the 1930s. Rockefeller Centre, named after the oil magnate John Rockefeller, is another great symbolic building. So much so that they named a TV show, 30 Rock, after it.

The general point remains; older, historic buildings actually demand a rent premium because of their historic nature. Not every building can command such a rent, but in Australia not any building commands it.

Which is why I find it confusing to hear arguments that the WTC would be filled only with government offices. Why wouldn’t you want an office in the most historic buildings in the modern USA? How many companies could leverage off the fact that they are the anchor tenants to the most patriotic towers in the nation?

That’s why its pleasing Conde Nast is moving into the World Trade Centre. Whilst the American economy (particularly cities like NYC dependent upon the finance sector) is flagging and demand for office space is down, it would be shocking indeed if the NY Port Authority could find no tenants for the World Trade Centre.

Edit: I should also add that the Rockefeller Centre is itself a very beautiful building, with a history of its own. It’s a delightful example of Art Deco architecture. Equally, the Empire State Building is quite a stately building. You can’t really tell just by seeing it in photographs, but its quite beautiful up close.

Apparently I once knew what codex meant.

Yes, that’s right. It’s just a fancy way of saying ‘book’.

The pragmatist will oft say to the philosopher, “I do not begrudge you your fancies, so long as they do not interfere with mine”. And this clash of views is so often played out in constitutional law. Should the High Court interpret the constitutional powers of the Commonwealth in a ‘practical’ manner, to expand the corporations, interstate trade and banking powers so that one Government controls all the economic regulations in our single national economy? Should it interpret the Commonwealth tax power narrowly, thus by implication vesting a wider tax power in the States so they can raise enough revenue to pay for the services they offer? (At present, vertical fiscal imbalance means the Commonwealth, having previous few services to deliver, gets most of the revenues whilst the States serve us and starve).

These are worthy complaints. I think that many would consider me a pragmatist, but I am afraid I must disagree because I see a greater pragmatism in ensuring the coherence of the system as a whole. But I wonder, to what extent do these constitutional limitations actually get in the way of proper government?

The lawyers reading this blog will have heard the arguments before – if there are limits on the Commonwealth, the same results can be obtained through co-operative federalism. The classic example is the Corporations Act. Because the corporations power was too narrow, the Commonwealth’s Corporations Act was insufficiently wide; they tried having mirror legislation (the States each passed identical Corporations Acts) but the States kept fiddling with their Acts and the power to cross-vesting of jurisdiction over those State Acts in the Federal Court was declare unconstitutional. Eventually, the Commonwealth and the States got fed up; the States simply referred their relevant powers to the Commonwealth so they could pass a single Corporations Act for Australia. To ensure the States didn’t get a raw deal, that referral has to be renewed every ten years so if the Commonwealth does anything naughty, the States can refuse to renew it. [The main limitation on the corporations power is that it only confers the power to regulate corporations, but the Commonwealth cannot regulate the incorporation of corporations themselves].

But is the corporations power too narrow? Let’s look at another significant nationwide piece of economic regulation. The Trade Practices Act (now called the Competition and Consumer Act) is a Commonwealth Act that has been continually plagued by problems with federalism. What does it look like now?

There is the Commonwealth Trade Practices Act, which prohibits corporations from engaging in anti-competitive behaviour. Then, the States have each passed identical State Competition Codes which is literally the same Act with the word ‘corporation’ replaced with the word ‘natural person’. So, if we want to see how inadequate the corporations, banking, interstate trade, external affairs and insurance powers are for the Commonwealth to make economic regulations, we can just compare the number of prosecutions under the Federal Act compared to the State Acts.

And that’s the stunning thing. The ACCC has never prosecuted anyone under the State Codes; it always relies upon the Federal Act. (There are, btw, good reasons for this – it wants to maintain consistency in interpretation and the State Supreme Courts are not bound by decisions of the Federal Court). But if there was a genuinely large hole in the Commonwealth’s power to regulate the economy, here is the first place it would show up.

As it is, the only way that the Trade Practices Act (Cth) would not apply is if a natural person (or a corporation which is not a ‘foreign, trading or financial corporation) engaged in intrastate trade without substantially affecting an interstate market. As a practical matter, it’s incredibly difficult to see how you could lower the consumer welfare without incorporating a business; and any effect on consumer welfare would be minimal if it can’t cross State borders (or affect interstate markets).

I don’t doubt that there are other reasons our constitution is too restrictive; but arguments about an inability to pass economic regulation is not one of them. If anything, the corporations power is now too wide. Just look at how wide the Workchoices laws are. As a firm believer in federalism, I think judges should be eager to find more reasonable limitations upon federal power. Removing the power of incorporation from the corporations power is not one of them.

PS: I think its awesome that there’s a shadow TPA lurking in the lower levels of our federation; seldom seen and never discussed.

I don’t have time to do any in-depth analysis on the Budget as of now, but I will make a few brief comments doing my best to separate the economic, political and constitutional questions that may arise. Too many people merge discussion of all three so that it is difficult to tell what is good for the country and what is good for the Labor Party.

Constitutional aspects:

If you are uninterested in the fine-points of Constitutional law, here’s a one paragraph summary: If even a minor part of the Budget is rejected by the lower House, the Gillard Government may fall. If the Budget is reduced by a single dollar, the Government may fall. Therefore, the lower House independents and Green MP will be incredibly reluctant to vote down the Budget in the lower House, since they have a vested interest in continuing in minority Government.

Most people have a vague understanding that rejecting ‘supply’ (ie the Budget Bills) might topple a Government after the Whitlam Dismissal in 1975, but because it is only a vague understanding they do not wholly grasp the implications of it.

When might a Governor-General dismiss a Prime Minister? The answer is when s/he loses the confidence of the lower House [and also for illegality, and a few other potential reasons]. Law students, having studied constitutional law, usually assume that this means the House passes a ‘motion of no confidence’, a non-binding motion passed by the lower House saying “We no longer have confidence in Julia Gillard as Prime Minister”. That is incorrect.

In practice, Prime Ministers will resign before that stage is ever reached because the House refuses to pass a crucial Government Bill, or even very minor procedural motions. I’m not sure (and I don’t know if anyone is sure) whether these motions are themselves motions of no confidence, or whether the Government resigned before a proper motion of no confidence was passed. So there is uncertainty over the result; if Gillard refuses to resign, can the Governor-General dismiss her without a well-spelt out no confidence motion?

The Gillard minority Government has lost votes on various procedural motions and even on substantive Bills (I think?) already, without losing confidence of the House. That is because of the unique coalition agreement with the independents that allows them to vote on every measure like a conscience vote. But crucial Government Bills (like the NBN Bills) have always passed. The most crucial Bill of all will be the supply Bill. One Federal Government was toppled by having supply cut by a single dollar. So, if any Bill is tantamount to a confidence motion, then the Budget will be it.

This segues nicely into my political discussion:

Political issue #1: The independents

I have said before, the rural independents (and to some extent, the Greens) have a strong vested interest in keeping this minority Government going so they will maintain their balance of power.

You can bet that the Government will have people (and lawyers) waving pieces of paper in the independents’ faces telling them of all the horrible constitutional problems if they vote against any little part of the Bill. I don’t know if they are right; it may be that the Governor-General will wait until a full motion of no confidence before she dismisses Gillard. But I doubt the independents would take that risk.

The Greens have said that they would not block supply, but that they might amend the Budget. If their lower House MP is the one who successfully passes an amendment to the Budget, that could trigger a dismissal. It will have to be their Senators who pass this amendment. But, remember the Greens do not have the balance of power yet. That is currently held by Steve Fielding, Nick Xenophon and the Greens combined.

I think that if the independents and Greens wish to make any changes, they should start lobbying the Government now so that whatever Bill is put before Parliament does not have to be amended on the floor of the House. I believe that if the government votes for certain amendments (rather than voting against them and losing) then that will not be a vote of no confidence.

Political Issue 2: Cost of Living

Reading through the Budget, one thing leaped out at me. The single biggest issue in the electorate right now is cost of living. Any sensible economic analysis will tell you that cost of living has actually gone downwards in the past decade, that there are no cost of living pressures etc. But the fact remains that every MP, when they return to their electorates is inundated with complaints about cost of living concerns – my mortgage payments are too high; food is too expensive etc etc.

I would never advocate for Governments to making sweeping policy reforms based upon ill-educated voter sentiment, but to sweep the issue under the carpet is bad politics (though good policy). I predicted on Budget night that this would be the greatest weakness in the Government’s Budget. To some extent, Tony Abbott proved me right. Instead of hammering the fact that this was not a “tough Budget”, he (sort of) suggested it was too tough. He complained that the Government was withdrawing money from poor working families (the Forgotten families, he called them). In fact, the whole thrust of his arguments, the theme linking all his arguments was essentially based on cost of living concerns.

Putting aside the fact that Abbott had been yelling for harsher cuts two days earlier, and the fact that he didn’t oppose a single measure in the Budget (nor propose alternatives), I think he’s onto a winning line.

The problem I see with Abbott’s strategy is that he doesn’t provide any positive alternative beyond constant criticism of the Government. Let’s assume he forces the Government to declare an election tomorrow, he has no base upon which to stand. He provides no reason to vote for him; only to vote against Gillard.

I don’t think Abbott’s strategy is to force an election. His strategy is to keep Gillard’s poll numbers astronomically low and hope the ALP blunders again. He may well be right. The modern ALP is not well-known for courage in the face of abysmal polling.

Economic aspects:

I think I’ll discuss the economic aspects in a later post since they deserve a separate post of their own. I’ll just say that I broadly agree with the Government’s changes.

It’s not a tough Budget. I wish it went further, especially taking savage cuts to middle-class welfare, but that’s politically unrealistic. I wish it took a very large axe to the Immigration Department, because that is a disproportionate part of Government spending considering how few asylum seekers Australia gets. Overall, I think the $22bn in spending cuts were mostly cutting spending to two categories of spending, rather than stopping genuinely wasteful Government spending:

(1) Stupid ideas introduced by the Rudd and Howard Governments

(2) Good, long-standing programs that don’t have any loud political voices to defend them. They cut spending to various museums in Canberra, to this and to that which noone would pay attention to. Like it or not, Government does play a role in supporting the arts, education and a few other areas.

That said, many departments did find genuine waste in their departments (particularly the civilian arm of the Defence Department). Good on them.

I am not a macroeconomist; I don’t know if the Government is withdrawing spending too soon after the GFC or whether its placing upwards pressure on inflation in anticipation of the next boom.

…well, not quite. The Scottish National Party has won a 9 seat majority in the Scottish Parliament in the UK elections today. This gives the SNP a mandate to bring a referendum to the Scottish people on whether they want independence.

My knowledge of Scotland is vanishingly small, but I believe they’re in roughly the same position as the Commonwealth of Australia before the Statute of Westminster and the Australian States before the Australia Acts. They have a devolved Parliament, which means they can pass their own laws but they are always subject to the power of the Parliament at Westminster to overrule those laws. Or, I could be very wrong.

In any case, Scottish independence would be a much larger shift than becoming a Republic in Australia would. Under a minimalist Australian republic, almost nothing would change.

What I find interesting is that “polls showed most voters in Scotland oppose independence” even though it would tangibly increase their own freedom and sovereignty.

I also find it interesting that their constitutional structure appears to require them to have a plebiscite followed by a referendum:

In order for a Scottish referendum to take place, the Scottish parliament would first have to pass a bill setting up a referendum. If that was passed by Scottish voters, the Scottish government would negotiate with the UK government terms of independence including such issues as division of the national debt, North Sea oil, the future of the defence bases on the Clyde, Scotland’s membership of the EU.

Westminster would then have to authorise a second and final referendum, asking the people of Scotland to confirm that they want independence on these terms.

Perhaps I’m just misunderstanding the debate. In the leadup to any referendum, the SNP wants a slow transfer of (presumably legislative) powers:

He will call for specific transfers of power to Scotland in an attempt to assemble slowly a consensus for independence, leading to a referendum at some point after 2013

So perhaps, Scottish legislative independence can be achieved by the same means as the Statute of Westminster and the Australia Acts -> a simple Act of Imperial Parliament.

Edit: Here is a slightly more thorough article

Another point to note is that successive UK Prime Ministers have declared their commitment to self-determination by Scotland. David Cameron made some comments on the issue:

David Cameron, the prime minister, acknowledged that the SNP had won an “emphatic” victory but warned that he would vigorously oppose Salmond’s referendum plans.

After pledging to work constructively with Salmond where possible, he stated: “On the issue of the United Kingdom, if they want to hold a referendum I will campaign to keep our United Kingdom together with every single fibre I have.”

Presumably he means that he will campaign against independence during the referendums, then accede to the request once it is affirmed by the Scottish people.

Of course, that leaves two questions. Cameron campaigned vigorously against AV in their recent UK referendum, despite having promised such a referendum to the Liberal Democrats as part of their coalition agreement. And wow, was that No campaign ridiculously harsh, deceptive and just plain impolite. What will Cameron be like when there are no holds barred?

And what will Cameron be like during the negotiations over the terms of independence? There are real conflicts of interest here, unlike debates over the Statute of Westminster and the Australia Acts. The Queen might be put into a very awkward position.