Thursday, June 27, 2019

Today by Paddy Manning

Turnbull’s last stand
The Liberals took Australia right to the edge of a constitutional crisis

Peter Dutton and Malcolm Turnbull in 2018. AAP Image/Ellen Smith

How convenient for the Liberal Party that we are only now hearing from key players about the gory details of the toppling of Malcolm Turnbull. These include today’s startling revelations of a confrontation between the beleaguered former prime minister and his attorney-general, Christian Porter, which nearly provoked the worst constitutional crisis in this country since 1975. The Liberals managed to keep a lid on their internal divisions just long enough to convince the Australian people that they are able to govern. Now, the wounds of August have been ripped back open, and there will be more to come as a series of books reach publication – intended perhaps to be post-mortems, but now repurposed for their insights into the continuing Morrison government – culminating in Turnbull’s own memoir.

But Prime Minister Scott Morrison will be safe, courtesy of the party’s new prohibition on mid-term leadership challenges, and by 2022 none of it will matter very much. Did the media press pause on stories about the Liberals’ internal woes in the lead-up to the May election campaign? Did they accept, temporarily, that the leadership coup was behind the party? If so, the media has been played.

The Sydney Morning Herald and The Age’s David Crowe and The Australian’s Paul Kelly [$] this morning reported that on the second-last day of his prime ministership, Malcolm Turnbull told Attorney-General Christian Porter that he planned to call on Governor-General Peter Cosgrove to refrain from appointing Peter Dutton as prime minister, should Dutton have been be voted leader of the Liberal Party. Turnbull is reported to have argued that this was due to the uncertainty surrounding Dutton’s eligibility to sit in parliament under section 44 of the Constitution.

Porter – a Dutton supporter – told Turnbull that he was “wrong at law”, and that the only issue the governor-general could consider was whether Dutton had the confidence of the House of Representatives. Porter told Turnbull that “if you go out and say that publicly, then I will feel obliged to reject that position at law”, and followed up with a threat to go to the governor-general himself. “You do not have any role advising the governor-general,” Turnbull is reported to have shot back. In The Australian’s story [$] today, it was left unclear whether Turnbull had actually spoken to Cosgrove already about it – when confronted by Porter, Turnbull avoided any direct answer. “I know the Governor-General and I know this would be his position,” he is reported to have said.

Who was right? So much about the role of the governor-general – whose reserve powers are uncodified and who is in some ways a constitutional shock-absorber – lies in a grey area. Constitutional law expert Professor Anne Twomey, who wrote the book on the subject (which was circulated at the height of the crisis), hedged her bets on RN Breakfast this morning. Twomey said that if she had been governor-general, she would have appointed Dutton on two conditions: “The first is you have to agree in advance that you will face parliament to see whether you have the confidence of the House. And secondly, given that there’s a cloud remaining over your eligibility, that you then get the House to refer the matter to the High Court to resolve one way or another.” 

It is pure Turnbull to play fast and loose with constitutional niceties, but it should also be acknowledged that this is one of his genuine areas of expertise, having spent years arguing about the role of the governor-general and the reserve powers during the republic debate in the ’90s. Turnbull issued a thread of tweets defending his position this afternoon: 

The discretion to swear in a person as PM is vested in the Governor General. The proposition advanced by Mr Porter that it is none of the GG’s business whether the would-be PM is constitutionally eligible is nonsense. The GG is not a constitutional cypher. During the week of 24 August 2018 there was advice from leading constitutional lawyers Bret Walker that Dutton was ineligible to sit in the Parliament and thus ineligible to be a Minister, let alone Prime Minister. I ensured we sought the advice of the Solicitor General. The SG’s advice was delivered on the morning of Friday 24th and duly published. His advice was that ‘the better view’ was that Dutton was eligible but it was ‘impossible to state that position with certainty’ and there was ‘some risk’ the High Court would rule he was ineligible. I took the responsible course of action, obtained the necessary advice, published it and the Party Room was informed when it made its decision to elect Mr Morrison, rather than Mr Dutton, as leader.

Assuming some of the key interviews for the forthcoming books by Crowe (Venom: Vendettas, betrayals and the price of power)  and Niki Savva (Plots and Prayers: Malcolm Turnbull’s demise and Scott Morrison’s ascension) were conducted before election, it’s reasonable to wonder whether the emergence of such juicy details before polling day would have made any difference to the outcome. Arguably, voters were already over the whole thing. But the media is not – intriguing questions remain unanswered – and these are not merely questions of historical interest. Peter Dutton’s eligibility to sit in parliament, for example, has still not been referred to the High Court, even though we know from bitter experience that only the court can decide. Dutton himself is still trying to put the whole thing behind him, telling David Speers in last night’s episode of Bad Blood/New Blood, that he no longer had leadership ambitions: “For me, it’s very clear, and I hope this is the case that there is now a long period of government under Scott Morrison.”

One thing is sure: there are more revelations to come, and it would be naive to believe the bad blood of 10 months ago – circulating for years – has all been let out.

“I think what he’s done does breach the code and I think this becomes a test for the Prime Minister. It becomes a test for his conviction towards his own statement of ministerial standards. It’s inappropriate and it doesn’t pass the pub test.”

Centre Alliance senator Rex Patrick slams the appointment of former defence minister Christopher Pyne as a defence industry adviser to accounting firm Ernst & Young.

“The purpose of the meeting was to outline the technical aspects of the grasslands listing, which had been raised as the No 1 issue of concern to farmers in the Monaro region. Department officials were aware of the compliance matter and did not discuss the matter with Minister Taylor.”

An environment department spokesperson tells Guardian Australia that a compliance officer investigating alleged land clearing by Jam Land, a company part-owned by then cities minister Angus Taylor, attended a 2017 meeting with Taylor but did not discuss the investigation, which is still ongoing.

Israel Folau’s cycle of sin
Following the sacking of Israel Folau by Rugby Australia, a fissure has opened up in the debate over equality and freedoms.

The pay rise that Prime Minister Scott Morrison will receive on July 1, the same day that 700,000 workers will lose penalty rates worth up to $2000 a year, according to hospitality workers union United Voice.

“All 10 ASEAN member states and their partners; China, Japan, South Korea, Australia, New Zealand and India, will be locked in negotiations in Melbourne from Friday over an EU-style trade deal known as the pan-Asian Regional Comprehensive Economic Partnership … [which] would encompass 30 per cent of global gross domestic product, 3.5 billion people and eclipse the TPP-11.”

In The Sydney Morning Herald and The Age, Eryk Bagshaw reveals secret negotiations, facilitated by Trade Minister Simon Birmingham, on a pan-Asian trade deal that would sideline the US.

The list

“When Duchamp turned a urinal on its side, then signed and exhibited it, the art world exploded. He made a series of readymades and remade many for convenience: originality and authorship were clearly not an issue. Even now, pondering Fountain and Bottle Rack and Bicycle Wheel in Sydney forces one to consider questions about the nature and purpose of art that we’re still answering. What does make a physical object art?”

“There are no published statistics for how often police randomly stop and search cars driven by Aboriginal people in the Territory. But it’s not uncommon for lawyers to meet Aboriginal defendants in court charged with anything from a cracked tail-light to the possession of alcohol, and for defendants to instruct this was the fifth, sixth or seventh time police had searched their car this year, or this month.”

“[Phurpa’s] leader, Alexey Tegin, might describe them as performers of mantras inspired by the ancient pre-Buddhist Tibetan Bön tradition, but this would only approximate an experience that gives the impression that whatever it is they are doing on stage might actually open a portal to the underworld before its conclusion.”

Paddy Manning

Paddy Manning is contributing editor (politics) at The Monthly and has worked for the ABC, Fairfax, Crikey and The Australian. He is the author of Inside the Greens and the unauthorised biography of Malcolm Turnbull, Born To Rule?


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