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.”
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.