This story is a few weeks old now, but it’s too good not to share, and it’s sufficiently obscure that most readers probably won’t have come across it. And the underlying issue is quite significant.
Australia’s Northern Territory, which I’ve previously described as a place where “everything happens in miniature,” held its last election in August 2016. Labor won government in a landslide, winning 18 of the 25 seats in the Legislative Assembly. The incumbent Country Liberal Party was reduced to just two seats, and there were five independents..
Labor will be seeking re-election later this year – the election is scheduled for 22 August, coronavirus permitting. But the story isn’t really about it, but its opponents.
Since the independents greatly outnumbered the CLP, and included a former chief minister, Terry Mills (ex-CLP), among them, there was some talk from the start that they could constitute themselves as the official opposition. But advice from the clerk and the solicitor-general rejected that option, on the basis that the independents were not a party and that a “coalition of independents” was (in the solicitor-general’s words) “something of an oxymoron.”
(Kevin Bonham, whose analysis brought the story to my attention, links to the relevant documents here.)
The independent contingent subsequently grew with the addition of two former Labor MPs who left the party. Last year Mills announced the formation of a new party, the Territory Alliance, and last month two of the other independents joined him in it.
That gave them three seats to the CLP’s two. So if the solicitor-general was right to say, quoting House of Representatives Practice, that “The Opposition is the party or group which has the greatest number of non-government Members,” it would seem that Mills should have been recognised as opposition leader.
Certainly that was his view. He made an announcement to that effect, and appointed a shadow ministry. And eventually, on the last day on which parliament sat, 24 March, he was referred to that way and apparently allocated corresponding offices and seating arrangements.
Meanwhile, in the Johnston by-election held on 29 February, in which Labor held the seat of one of its former MPs, the Territory Alliance had its first electoral test. It did well, too, winning 22.1% on primaries and coming close to beating Labor with 47.4% after preferences. In the process it knocked the CLP into fourth place on 16.3%, behind the Greens.
So as far as one can tell at this point, and as far as anything in the Northern Territory can be called serious, Mills’s party looks like a serious venture, entitled to fight this year’s election as the alternative government.
But the CLP had other ideas, and at the end of that last sitting day, 24 March, its leader, Lia Finocchiaro, moved a motion declaring that because the position was “unclear”, “the office of the Leader of the Opposition is vacant,” and that a secret ballot should be conducted between her and Mills to determine it. (See Hansard here, pages 84-88.)
The government supported the motion, which was carried 17 to three – the three Territory Alliance MPs being the only dissenters. Finocchiaro then beat Mills in the ballot, five to three, with Labor MPs apparently abstaining. If parliament sits again before the election (which is uncertain), the two CLP members will no doubt return to their place as the opposition.
What to make of all this? The idea of “the opposition” is one of the most important contributions that British constitutional practice has given to the world; its origins go back to the 1730s, when a coalition of Tories and dissident Whigs opposed itself to the Whig prime minister, Robert Walpole, offering both scrutiny and criticism of his measures, and the nucleus of an alternative administration that was available to take his place.
In the words of Archibald Foord, whose His Majesty’s Opposition 1714-1830 (1962) remains the classic study of the topic:
the Opposition provides a means for peaceful change of administration, the overthrow of those in power without resort to violence or revolution. In this sense, the institution affords a practical solution to the age-old problem of political stability.
My view is that the original advice given in 2016 was mistaken, and that the independents should at the time have been given more of an opportunity to demonstrate a sufficient degree of coherence to amount to an opposition. I think the solicitor-general was correct to say that “the overarching purpose of [the opposition] is to unmake the Government and take up government in its stead,” but that she was wrong to conclude this could not be the case for independents.
But that’s now water under the bridge. This year, Mills had a party, and it had more seats than its rival. On all the precedents that seems to me to be adequate grounds for the speaker to recognise him as leader of the opposition. And despite her claim that that is not her function, in purely practical terms of presiding over the chamber it is unavoidable.
The clerk had said, rightly, that “The Government, as the Executive, should not choose its Opposition.” But the procedure that the Assembly adopted gives it exactly that power. Although the government’s MPs did the right thing by abstaining in the secret ballot, there was nothing to stop them voting their preference for who should be their opponent – and they voted in the critical division on holding the ballot in the first place.
Of course, whatever happens in the Assembly is ultimately a matter for its members. Even if the speaker had recognised Mills as opposition leader and ruled Finocchiaro’s motion out of order, a sufficiently determined government majority could have moved dissent in that ruling. But it’s by no means clear that it would have, and in any case the fact that conventions cannot restrain a government determined to break them is no argument against having conventions in the first place.
Kevin Bonham is rather less sympathetic to Mills’s case than I am, but he’s absolutely right to say that the main beneficiary is the Territory’s Labor government. In his words:
Not always the most cohesive unit itself, it gets to go to an election at a time of public turmoil of the sort that often favours incumbents anyway and competing (…) against a rabble who leak preferences as they fight each other for what is currently second prize.
The World is Not Enough 
I disagree. Westminster conventions give too much weight to parties. The Opposition leader ought to be the person who commands majority support among those opposed to the government. The original ruling in favour of the CLP was wrong, but by the same logic, it would have been wrong to hand the position to the new party. A ballot was the right way to go.
LikeLike
Thanks John. I certainly see the point about parties being unduly privileged. But having made that ruling in the past, I think the clerk & the speaker should have stuck to it. More generally, I don’t think “majority support among those opposed to the government” is quite the right test, because an opposition has to be more than just opposed; it has to be able to constitute itself as an alternative government. So while I think the original advice was too quick to dismiss the independents’ ability to do that, it was sort of on the right track. And in neither case does it justify what the Assembly ended up doing, which was holding a ballot in which govt members could have participated (even if in fact they didn’t).
LikeLike
As far as I can tell a formally designated position of ‘Leader of the Opposition’ only exists in systems which derive historically from the UK system: there doesn’t seem to be any such formally designated position in the parliamentary systems of continental Europe, and they seem to manage well enough without it (at least, it’s not obvious that they’re any the worse for the lack).
A while ago I took a look at the constitutions of a couple of small Caribbean countries which do derive directly from the UK system, and I was interested to notice that they had explicit provisions requiring the designation of a Leader of the Opposition and describing in general terms who should hold that position–those provisions unsurprisingly provided for some discretion in the designation, but I imagine they would have some relevance to this discussion. (I can’t remember now exactly what they were, but it would be easy enough to find them again.)
LikeLike
I’m not sure that “organised enough to be an alternative government” would pass the “What damage could Joh Bjelke-Petersen have inflicted on the polity if this rule were in place?” litmus test – ie, is the criteria so loose or, alternatively, so prescriptive that an utterly unscrupulous political actor can use it to their advantage while offering their loyal supporters a figleaf of compliance?” (see: Trump, DJ). You can imagine the trained monkeys chorusing in unison that “The Opposition are two different parties so they don’t qualify for a Leader position!” Or, on the other side, some of the hardest Labor hard men arguing that the federal Liberal/ National/ Joh-for-PM circus in the mid-Eighties meant that Howard and Peacock didn’t deserve the extra staff.
Can we just leave it as, “The Speaker just counts bums on seats, excluding any MPs who are ‘generally committed to supporting the Prime Minister/ Premier” (ie, the rule followed in many newer Commonwealth parliaments, like PNG and the Caribbean)? If two or more blocs equal in seats, then look at popular votes as the tie-breaker.
Alternatively, if the chamber decides by ballot, it should be a standing order or at least a strong convention that Ministers abstain from voting. (Although that wouldn’t help if the Government still had a majority with its backbenchers alone, like Fraser 1975-1980)
LikeLike
‘Can we just leave it as, “The Speaker just counts bums on seats, excluding any MPs who are ‘generally committed to supporting the Prime Minister/ Premier” (ie, the rule followed in many newer Commonwealth parliaments, like PNG and the Caribbean)?’
I mentioned that I read the wording in the constitutions of a couple of Caribbean countries, and I’m confident I’d remember if the text had included any references to ‘bums on seats’, so I’m confident that it doesn’t.
LikeLike
Barwick is dead, J-D. I’m “paraphrasing” (https://www.urbandictionary.com/define.php?term=metaphor).
– Although an Australian Constitution that nearly included the word “mateship” could well make room for “bums on seats” somewhere in its new Section 63D(1)(a)(iv).
LikeLike
‘I’m “paraphrasing” ‘
That’s exactly the problem. If you were paraphrasing, fine, but “paraphrasing” is rubbish.
LikeLike
(JD, FYI, I’m ignoring your replies from here on. Find a different hobby.)
Charles: For comparison, just spotted this at https://www.parliament.uk/about/how/covid-19-hybrid-proceedings-in-the-house-of-commons/legislation/statutory-instruments/:
“Hybrid proceedings: Statutory Instruments…
The Speaker will call on the relevant Minister to open the debate. The Minister will be followed by:
1. the official Opposition spokesperson;
2. a government backbencher;
3. a spokesperson for the Scottish National Party;
4. a series of MPs who have applied to speak.
At the end of the debate, the Speaker will call a Minister to make a concluding speech…”
Interesting that the SNP comes next, in effect, after (a) Govt frontbench (ie, the “executive” wing of the governing party/ coalition), (b) Opposition spokesperson, and (c) Govt backbenchers (ie, the “legislative” wing of the governing party/ coalition). In the Commons, perhaps more so than most Westminster upper houses, government backbenchers are relatively independent from the executive. When the Tories are in power, the 1922 Committee seems to be the closest institution in function to our Senate, at least (say) in the Fraser years when there were notionally Government Senators like Bonner, Chaney, Missen, and Puplick taking a more independent line.
LikeLike