I WOULD like to draw to Senator Nick Xenophon’s attention to the 1892 English Court of Appeal case Carlill v Carbolic Smoke Ball Company. The company had advertised a 100 pound reward for anyone who took its carbolic smoke ball as instructed and subsequently contracted the flu.
Mrs Carlill took the smoke ball and got the flu. She demanded the 100 pounds – a substantial sum in those days. The court held that Mrs Carlill had an enforceable contract and awarded her the 100 pounds.
Xenophon said before the election that he would give a bottle of Grange to any journalist who correctly predicted a hung Parliament. Readers of this column may recall that last Saturday morning I gave eight reasons why there would be a hung Parliament and why it would be a good thing. The column ran as usual in The Canberra Times, and the opinion editors of The Age and The Sydney Morning Herald also had the good sense to give it a run, too.
Further, the previous Monday on Port Douglas Radio, where I have a weekly gig with former US State Department official and station owner Michael Gabor, I said, “Predicting elections is a bit of a mug’s game, but I am predicting a hung Parliament.” I cited the closeness of the polls and the disaffection with major parties throughout the democratic world.
My point is not to claim the Grange (presuming the Coalition does not scrape the 76 seats). For heavens sake, Nick, do not send it to The Canberra Times – knowing journos it will vanish like a snowball in the Gobi desert.
Nor is my point to deliver a lesson in elementary contract law. But rather to draw a few lessons and ask where to from here.
The election made clear that voters hold health and education dear and will not tolerate their under-funding. Nor will they buy trickle-down tax cuts for the rich.
But we are going to have to live within our means or end up paying large interest bills instead of having money for health an education. It is fine to borrow for productive infrastructure which will pay for itself over time, but it is madness to keep borrowing for ordinary recurrent spending.
In short we have both a revenue and a spending problem. The election tells us people will accept fair revenue measures. Labor was not punished for tightening negative gearing and capital gain tax. The Coalition was punished, but not for tightening superannuation perks, rather for cutting corporate tax.
So the place is not ungovernable if you listen to what the voters are saying. Some higher taxes at the higher end to pay for education and health, especially public education and public health, will be accepted.
Also, major parties are seen as serving those who pay them – big business and unions.
The rise of One Nation should tell us that we need a mature debate about population policy and the results of excessive population growth (infrastructure stress, congestion, environmental degradation etc).
Rather than hitting on the trickle of refugees, we should recognise that the seeming addiction of the major parties to high immigration is the real sign that we have lost control of our borders. And it is causing disaffection.
Perhaps the biggest lesson of all from the election is the importance of education and equality of opportunity in education. Without it ignorant, xenophobic candidates will get elected by ignorant, xenophobic voters. Without it, voters will continue to be duped by the Murdoch press into voting against their best interests.
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THE ill-thought-out Section 13 of the Constitution will almost certainly cause further political grief on two counts.
The section provides that after a double dissolution, “The Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service.”
If it liked, the Senate (that is, a majority of senators) could draw lots; choose in alphabetical order; choose according to first-preference votes; choose according to order of election; or even choose according to political party. The Labor Party and Coalition could gang up and grant the long-term positions to themselves.
Any attempt to legislate to bind the Senate to choose in a fair and reasonable way would be unconstitutional as beyond the power of the Parliament (that is, both Houses). It is for the Senate alone to do the choosing.
As it happens, there is a very fair and reasonable way to decide who gets the long terms.
That method is to do a recount of the vote pretending that it is for six senators in each state, not 12. The six “elected” in the pretend recount would get the six-year terms.
Indeed, there is a provision in the Commonwealth Electoral Act requiring the Australian Electoral Commission to do precisely this.
But the provision does not state that by law these senators will in fact get the long terms. This is because such a provision would be unconstitutional. The commission just counts and hopes the senators will adopt.
Well, at the last double dissolution in 1987 they (the majority Labor and Democrats) ignored the commission and chose the long-term senators according to the order of election because it gave them more long-term senators. The two methods can produce very different results.
My guess is that every senator will work out which method suits them best and vote accordingly – throwing fairness and principle to the wind and causing some strange bedfellows.
The second cause for political grief caused by Section 13 is the timing of the next election.
It provides that the senators elected on 2 July are deemed to have taken their seats on 1 July 2016, even if they are not actually sworn in until Parliament next meets, presumably in August. Further, it provides that senators must be elected within a year of their term expiring – that is a year before 30 June 2019.
Meanwhile, the next House of Representatives election can be as late as three years and two months from the first sitting of the new Parliament – in this instance October 2019.
No sensible government would have a separate half-Senate election before 30 June 2019 followed by a House of Representatives election later in the year.
It means the next full election will be before 30 June 2019. And given that governments do poorly in winter elections, it is likely to be at least a couple of months before that – say March or April 2019. Another early election.
How much more sensible it would be to have fixed terms for both houses with elections in November so any new government would get the summer to settle in.
CRISPIN HULL
This article first appeared in The Canberra Times and other Fairfax Media on 9 July 2016.