Shaw puts Victoria on edge of early election

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Less than six months from the next scheduled Victorian state election, the Victorian coalition government is gripped by political instability after ex-Liberal independent Geoff Shaw declared that he will vote for a no-confidence motion in the Napthine Liberal-National government.

Geoff Shaw is facing a vote in the Parliament to charge him with contempt of Parliament over misuse of taxpayer entitlements, which could see him possibly suspended or expelled from the Parliament. The Labor opposition has been planning to bring the vote, and has won the vote of former Speaker Ken Smith, who was forced to resign due to undermining by Shaw.

Leader of the opposition Daniel Andrews tonight referred to the issue as a ‘constitutional crisis’, and refused to say whether they would still move a no-confidence motion in the knowledge that Geoff Shaw may vote with them. He even suggested that the Premier and himself both visit the Governor to ask for advice.

This isn’t a constitutional crisis, but it’s a political crisis created by a situation where an MP holds the balance of power while being rejected by both sides of politics.

Under the Victorian constitution, parliamentary terms are fixed at four years, with one exception to allow for situations exactly like this one, where a government loses support of a majority in the Legislative Assembly.

If the Assembly passes a motion of no confidence (after giving notice for three parliamentary sitting days), then there is an eight-day ‘cooling-off’ period, during which the Parliament has the option of voting confidence in a new government (or possibly the existing government), at which point the Governor would swear in that new government. This could allow for the government to elect a new leader with support of the Assembly, or for the opposition to form a government.

If no motion of confidence can be passed within eight days, the Governor may then issue writs to call an early election. These rules are called the ‘baton-change’ rules, as they set out a clear process to resolve a government losing its majority either through a new government being formed or an election being called, while not allowing a Premier to call an election at a whim.

Andrews referred to the situation as ‘unprecedented’ and ‘unique’. While it is technically unprecedented under Victoria’s ‘baton-change’ rules, a government losing a majority is not at all unprecedented, and it is not uncommon that this situation is resolved by the calling of an election, either by the choice of the government or after being forced to do so by a vote in the Parliament.

No confidence motions are, and have always been, a mechanism to test if a government has a majority in the House. If no government has a majority in the House, then the only way to resolve that situation is an election. If Geoff Shaw is to be believed, then Napthine does not have support of the Parliament, and a no confidence motion would be an appropriate way to begin the process of determining if any other leader can command a majority in the House.

So rather than this situation being a constitutional crisis, it is a normal (if uncommon) part of our Westminster system, which expects governments to maintain majority support in the lower house of the Parliament.

The situation is only a crisis because of the status of Geoff Shaw, as an MP who the opposition is attempting to convict of contempt, and may well be threatened with expulsion from the Parliament.

While Labor may prefer to simply be rid of Geoff Shaw, voting to expel him from the Parliament will only delay the inevitable. Voters in Frankston would be required to go to the polls only months out from the election. Such a by-election would be conducted on the old boundaries, despite the Victorian Electoral Commission preparing for an election on new boundaries.

If Labor won such a by-election (which would be the most likely outcome), then the Assembly would be deadlocked at 44-44 and at that point there would be no option but to go to an election, after wasting time with an unnecessary by-election.

It would be much cleaner to go straight to an election now. An election will be held in less than six months, so voters aren’t being dragged to the polls that early, and it would likely produce a decisive election result, and see the end of Geoff Shaw’s political career.

However, neither side wishes to follow that path – Napthine has no interest in going to an early election, and Andrews wishes to avoid being seen as benefiting from Geoff Shaw’s vote. None of these political concerns make this a ‘constitutional crisis’.

If a no-confidence motion was tabled, it would require notice of three Parliamentary sitting days before it could be moved. According to the current calendar, which schedules three days of Parliament next week, and then another three days a fortnight later, such a motion couldn’t be voted on until June 24. However, it is possible that another day of Parliament could be scheduled next week, and the vote held by the end of the week (June 12).

An eight-day cooling-off period would then follow, until June 20 at the earliest. At that point, the Governor could issue the writs for an election. Such an election would be held 25-58 days after the close of nominations, which would make July 19 the earliest possible date for an election.

One other thing, both Dennis Napthine and numerous media commentators referred to Victoria’s fixed election laws as possibly being responsible for the current situation. That couldn’t be further from the truth. A similar issue was raised in New South Wales prior to the 2011 state election, when many wished that the election was brought forward.

Under the previous system of flexible terms, there was nothing to force a Premier to call an election when they didn’t want to, such as when they were likely to lose. Fixed terms only stop a Premier from calling an election at a time that is likely to benefit their government.

It is quite clear that Dennis Napthine, despite his troubles, has no interest in having an early election. Why would that change if he had the power to call one?

Napthine suggested he may have called an election six months ago if he had the power, but that seems unlikely. The ALP has led in every state poll since August 2013 – was Napthine planning to call an election he was likely to lose, or did he instead expect to overcome the polls? If that’s the case, it would have been a classic case of a Premier using favourable timing to produce a favourable result – exactly the kind of thing fixed-terms are designed to stop.

 

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9 COMMENTS

  1. The citizens of Frankston District voted for Shaw and they should be stuck with him until the General Election in November 2014. A by-election is only possible in mid Jul14 at the earliest but must be held in 90 days if Shaw is expelled from Parliament. Most of the posturing in Parliament by the two major party leaders is political rather than the desire to see justice done too. Perhaps Frankston voters would think more clearly before electioning an anti abortion fundamentalist bible basher like Shaw in future.

  2. Nice analysis Ben. If a motion of no confidence was passed and a new election called, that would presumably be in place of the November election, not as well as?

    One reason that the ALP would like an election sooner rather than later is that they don’t want the contracts signed for the East-West link, which the Libs are hoping to do just weeks before November 29.

  3. Look as of the Victorian election has effectively started.

    Typically posturing like this develops it’s own momentum and this looks like it will accelerate into becoming a consitutional crisis fairly quickly.

    Given the Liberals have decided to stare down Geoff Shaw, I suspect they decided to “bring it on”.

  4. Yes, it would be instead of a November election.

    If Labor chooses to expel Shaw rather than vote no confidence, that will result in a by-election, probably in July.

    If Labor wins, then the Parliament is tied and will definitely need to go to an immediate election, probably in late September.

  5. The more I think about it the more I think we will have any early election. It’s hard to see it playing out any other way.

    It’s clear the next step is to will be to force Geoff Shaw to account. I suspect the Liberals will support this only because the alternatives are even worse now they are less than six months from the poll. We are now in prelection mode and it’s now every party for themselves and really Geoff Shaw is no longer of any strategic or tactical benefit to the Liberals.

    The ALP is predictable as its aim will be to force a by-election in Frankston, win it and then install Andrews as premier and then go to the polls in November offering stable government. So with the Liberals holding the speakers chair and aware of this outcome, I don’t see a by-election for Frankston.

    It’s what the Libs do when Shaw is expelled that will determine the timing of the election, as they know that by rolling over the by-election to the state election won’t work for them as the ALP could still win a no confidence vote on the floor of parliment and then be installed as premier, but then they have a problem installing a speaker so as you pointered out there would a quick state election thereafter. Their only logical option is to stare down Shaw and the ALP, trigger an early election as the incumbant seeking a mandate to impliment the budget and to sign the East West link and offering a stable government.

    So it’s clear the real fireworks won’t start until Shaw is expelled. Maybe the Libs will simply suspend parliament until November. But there will be a tipping point where this goes from a political to a constituional crisis, we’re just not there yet. But I suspect the poll will be between July and early October.

  6. Sorry Sandbelter, I think you’ve got a few things wrong.

    If Labor wins in Frankston, they won’t have the numbers to install Andrews as Premier. It’s far more likely this would result in an immediate election with Napthine still as Premier.

    To install Andrews, you would need a vote of no confidence in the existing government, and then within eight days a vote of confidence in a new government.

    Napthine can prevent either of these things happening by having his Speaker resign, and then you would be stuck unable to do anything until there is a Speaker. However, the only way to resolve this situation is an election, so Napthine would eventually have to let a vote of no confidence go through.

    If the Libs prevent a by-election from being held, then the vote will be 43-43 plus a Liberal speaker. That’s enough for the Libs to continue until November. No way could Andrews be installed in that situation.

  7. Even if Shaw is forced out, would there have to be a by-election in Frankston?

    Isn’t there precedent for by-elections being deferred if it’s only a few months until the general election? I remember a Labor MP resigned in 2010 and the Speaker chose not to bother with a by-election….plus I think several NSW seats (including Orkopolous??) were left vacant for 5-6 months because a general election was due.

  8. One bit that I’m not sure about is that if the Assembly passes a no-confidence motion in Napthine would the convention not be that Napthine is obliged to tender his resignation to the Governor and advise the Governor to comission Andrews to attempt to form a government. Andrews can’t meet the Assembly and ask for a vote of confidence unless he’s firstly been comissioned by the Governor to do that, so I would think there’s a scenario there where Andrews would effectively be caretaker Premier going into an election. I don’t think that would happen though, in one way or another both Napthine and Andrews would somehow advise the Governor that neither could gain the confidence of the Assembly, nothing would happen in the 8 day period, and Napthine would carry on in a caretaker role until an early election.

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