Image for NATION: Whatever The High Court decides, Turnbull lost the nation

*Pic: Flickr, Donkey Hotey

“If you look at the examples across Europe, socialism is a recipe for failure, is a recipe for mediocrity and for inferior outcomes. There is no doubt Bill Shorten has taken the Labor Party down the path of a socialist agenda,” Senator Matthias Cormann.

First published August 28

Undermined by a dual-citizenship debacle that threatens its legitimacy and which could well drag on until Christmas, besieged by a marriage equality survey that is at best postponing of a reckoning with popular opinion - and at worst an abdication of leadership, the Turnbull government is paralysed by indecision and ineptitude.  Almost.

Luckily, it has hidden reserves. Wannon MP, plucky Dan Tehan, is on hand to deplore the “defacing of public statues” and two councils’ decision to change the date of Australia Day. It’s his way of advancing public debate.

“The behaviour of these councils is appalling”, he says, showing all the open-minded empathy a Liberal MP can muster.

Darebin Council, in Melbourne’s north, says it decided to replace citizenship ceremonies on January 26 with “more culturally appropriate” activities out of “compassion and empathy to the Aboriginal and Torres Strait Islander people”.

Accordingly, the Federal Government has, fairly and reasonably, removed Melbourne’s City of Yarra and Darebin councils right to host citizenship ceremonies, ever, after the local governments voted not to hold them on January 26.

The bizarrely high-handed, over-reaction to what is a local issue reveals a government losing its sense of perspective long with its legitimacy and its authority. Worse.  In the hothouse anti-terror climate of official Aussie values, hypervigilant citizenship and constant, state-sponsored paranoia, a type of madness thrives.

... increasingly, alarmingly intolerant of dissent

The Turnbull government is increasingly, alarmingly intolerant of dissent. In its recent Australia Day actions it seems unduly, unreasonably, threatened by local independence which includes a healthy disrespect for authority and state control - surely the very lifeblood of the Aussie values or the peoples -  it professes to respect.

Professor Roberta Ryan, Director the The Institute for Public Policy and Governance at Sydney’s University of Technology, cuts to the chase.

“I really do think the outrage is about people not liking what councils are saying ... and what these councils are saying is ‘Australia Day is ‘Invasion Day’ for Aboriginal people and we don’t want to be a part of it’.”

“It’s ironic that the PM has said changing the date is a national debate we need to have, yet his government appears to be working to silence it by punishing councils for taking a stand in support of their Indigenous communities,” says Darebin’s mayor, Kim le Cerf, exposing a favourite Turnbull buzz-phrase - on a par with “national conversation” .

Dan hasn’t got the memo about debate or dissent. Someone has written “change the date” and “no pride in genocide” on a statues, including one of James Cook in central Sydney. Dan hopes they are arrested. You can’t change history. You can look at the facts at the time and you can say this is what we know now. “But you can’t deface statues.”

Australia Day’s date and the statues are huge in the news. The PM is quick to condemn the “cowardly criminal attack” on the defenceless statues.  He sees it as nothing less than “a Stalinist attempt to rewrite history”, which fits his government’s attack on socialist Bill Shorten this week.  You can tell he’s always up for measured, respectful debate.

Dan’s can-do attitude and his nose for true Aussie values illustrate the resilience and agility of a Turnbull team with its backs to the wall. The statues help remind us how we are up with latest overseas trends in statuary conservation.

... beautiful statues of confederate generals and slave owners

Donald Trump, for example, has recently deplored the toppling of beautiful statues of confederate generals and slave owners. He tweets that he is “sad to see the history and culture of our great country being ripped apart”. No danger that the Donald will acknowledge his own part in that ripping apart. Our self-righteous rulers share the same blind spot.

Minister for Defence personnel and for assisting the PM on cybersecurity, when he’s not deploring local vandalism, Dan is also helping his government devise laws to make telecommunications providers take responsibility for what he describe as “scrubbing the Web of viruses and malware”. With those aims he easily wins Sisyphean hero of the week.

Sinking further with every poll, racked by internal division, a rapidly disintegrating Coalition desperately tries to rally; forge some superficial unity or purpose by picking on others. A week of absurdly overblown posturing is on show in all arenas - in the theatre of its war on terror, refugees, the poor or Bill Shorten, led by the PM’s bullying of the High Court.

Barnaby Joyce is “qualified to sit in the house and the High Court will so hold,” Turnbull trumpets. He goes way too far, even given his gift for hyperbole. Better to have stood his Kiwi ring-in aside. Called a bye-election. Bluster won’t cut it.

In three months, tops, Aussie Barnaby, would canter back in - well in time for office Christmas drinks and parties.

The PM’s dud call upsets backers. Shocks their Murray-Darling cotton socks off. Even Barry O’Sullivan goes quiet.

Bazza reckons BJ’s a rock star. A real celebrity. Books him to campaign in the QLD state election in October or next March. Across the Tasman, Joyce’s just as big. He’s running second in nominations for 2018 New Zealander of the Year.

Huge as Barney is, nevertheless, Turnbull is out of order. Did the former savvy, Spy-Catcher barrister really try to sway the High Court? Abuse parliamentary privilege to get an expeditious hearing or a favourable outcome? Surely not.

“very clear advice” from the Solicitor-General ...”

Turnbull says he has “very clear advice” from the Solicitor-General that Joyce need not stand down; that his future’s safe. But does he? Could it simply be its George Brandis-friendly S-G 2.0, Dr Stephen Donoghue QC, our second most powerful law officer, telling it what it wants to hear? Could getting rid of Gleeson have backfired so quickly?

Other constitutional legal experts are much less upbeat. Spencer Zifcak, Professor of Law at the Australian Catholic University says the PM has badly miscalculated:

He should have known better than to preempt the court’s decision. The judges will not be impressed. And anyway, in this instance, he’s likely to be wrong. In constitutional matters, unambiguous words usually win out. 

Notorious for its secrecy, the Coalition will not release its advice, yet the public has a right to know. AG Brandis, maintains that publishing advice could scare off the silks; jeopardise the Coalition’s future access to legal opinion.

Yet “... why should the nation trust the government on the basis of legal argument it has not seen?”, asks UNSW’s Gabrielle Appleby.

Government should release its case out of respect for the upcoming High Court hearing, for the right of the Parliament and public to know the full detail of advice that we are being assured we can rely upon. Secrecy, she concludes, risks further undermining the reputation of the office of the Solicitor-General, tarnished by Gleeson’s treatment.

Help is on its way. Nuanced News Corp hacks invade the field; stiff-arm tackle a rogue constitution for tripping up the lazy or unwary. Laurie Oakes calls section 44 “a silly tangle” and calls for change in the next election “if we value parliament.” Law’s an ass. A referendum will fix it. Let’s do away with anything that gets in government’s way.

... she is reluctant to allow proceedings to be hurried ...

Whatever Turnbull’s tactic, his rush to prejudgement backfires, Thursday. Chief Justice Susan Kiefel sets a hearing for October 10, 11 and 12, a month later than Attorney-General George “bring-it-on” Brandis bargains on.  Everything about the Chief Justice’s demeanour suggests that she is reluctant to allow proceedings to be hurried along by anyone.

Justice Kiefel asks the Solicitor-General Dr Stephen Donaghue QC, who represents Brandis, if there is any “practical difficulty” or “issue of governance” if the court hears the matter in October.  No. There is not, young Donaghue meekly replies. The real possibility that the government could lose its majority over Barnaby is not something to bring up here.

It’s a stiff rebuke from the chief beak; yet another miscalculation by a government with a genius for self-sabotage.

In a further blow, the court grants Tony Windsor permission to appear “as a contradictor” because he polled second in New England in 2016. Windsor may challenge the government’s arguments and put forward contrary views.

Windsor will argue that Joyce, a dual citizen of New Zealand, has breached the constitution by standing as a senator. His lawyers have also argued for the right to cross-examine Joyce, if needed, for their case.

Even more damaging to the government’s cause, Signor Canavani, our Italian Senator, changes his story. No longer does he blame his mother, Maria, for his Italian citizenship. Instead, it’s his mother country. Italy changed its law in 1983 conferring citizenship by descent upon him when he was but two years old. He knew nothing. Besides the law is an ass.

“Assolutamente ridicolo” Matteo’s lawyer, Barrister David Bennett QC, contends that to apply section 44 (1) to citizenship by descent is ridiculous. He’ll use ABS statistics to show that citizenship by descent could apply to half the parliament.

... not the responsibility of the candidate to check ...

Absolutely. The Law’s at fault; not the responsibility of the candidate to check he makes a true and accurate declaration.  And follows procedure. A novel twist is introduced by one (former) dual citizen amongst the magnificent seven now awaiting clarification. Malcolm Roberts says he emailed The British Home Office to renounce his citizenship.

Roberts did not hear back and emailed his renunciation again. His lawyer, Robert Newlinds, SC says the Senator was sent a form by the Home Office after the election, and sometime later, the British authorities accepted his renunciation.

Mr Newlinds said it remains unclear whether the Home Office “were accepting the renunciation by the form, or the earlier email”. To the non-legal observer it would seem, by his own admission, nevertheless, that Roberts was still a dual citizen at the time of his election and that the supply of a form indicates that there was a process yet to complete.

The political stage is set for a bean-feast of casuistry, pettifogging and bush-laywering.  Until Roberts’ case is thrown out.

The notion that the Leader of the Opposition must disprove his dual citizenship is irresistible to a government desperate to distract. The week begins with a series of government MPs demanding Bill Shorten produce documentation showing he’s renounced the British citizenship he inherited from his Tyneside father William. It’s a game anyone can play.

Coalition climate change guru Craig Kelly calls for an audit of all MPs’ eligibility to sit in parliament. He believes all MPs “should be forced to prove” they are not dual citizens of another country, thereby reversing the onus of proof in an imitation of the American birther movement. Others chime in, assisted by the ABC’s Tony Jones on Monday’s Q&A.

Liberal Fran Kelly pesters guests on her RN breakfast show over several days as to why Bill Shorten won’t provide proof he’s renounced British citizenship. Bugger justice. Sabra Lane also badgers Labor MPs who appear on ABC AM.

... the golden thread of English criminal law ...

The onus or burden of proof is borne by the prosecution in a legal tradition which is hailed as the golden thread of English criminal law and is fundamental to the presumption of innocence. As the High Court put it three years ago:

” ... [o]ur system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person.”

Shorten’s in trouble - as we all know - just for being Bill Shorten, a predicament created by Tony Abbott whose sole political legacy is his capacity to see clear past policy to focus solely on persecuting his opponents by any means possible. It hurt Rudd and worked a treat with Gillard, thanks in no small part to the support of the Murdoch press.

After Abbott wasted $50 million on the witch hunt that was the Heydon Royal Commission into Trade Union Governance and Corruption - a circus which failed to find Shorten or Julia Gillard guilty of a single criminal offence - in desperation the Coalition allows its ferocious Belgian Schutzhund, Finance Minister Mathias Cormann off his leash.

Cormann takes the lead in demonising Shorten in a speech at Gerard and Anne Henderson’s tax-deductible, home, also grandly titled The Sydney Institute. Not only is he a socialist, the Labor leader is taking his party back to its failed socialist roots, barks Matthias. No-one is rude enough to point out that Shorten is a member of the Victorian right. Nor dare anyone suggest that Coalition proposals to build state coal mines or Adani a railway are very much socialist ideas.

Cormann shows a slide with a link to a quotation from Karl Marx. The clue is in the key word inequality.

“Bill Shorten says he will fight inequality everywhere. Who else used that sort of language?” The Messiah?

... delinquent focus group somewhere ... laughing at its mischief ...

Smart as a whip, Julie Bishop calls Shorten the most left-wing Labor leader than Arthur Calwell, Gough Whitlam’s predecessor, a gibe which is sure to create mass panic amongst the over seventies. Or amuse those who attend Liberal Party meetings. A delinquent focus group somewhere, surely, must be laughing at its mischief.

Cormann’s evidence is equally laughable. Shorten’s keeping the deficit levy which the Coalition itself brought in - at a whopping 49.5%, a whole half a percent higher than under Abbott’s regime. Then there’s his restriction of negative gearing, his limitation of self-managed super funds to borrow from the fund to buy property, itself part of the government’s Murray inquiry into the financial system.

In brief, even after a scare about the tax cuts for business which Labor may even keep for small business, Cormann’s case is light on for detail - and substance. Much like his government’s economic policy. Yet then again, in a post-fact, fake news era, it’s more the vibe of the thing that matters. Bagging Bill does leave less time to spin your own lies.

Of course to hit any political target you need a good aim. So far the war on Shorten has failed to even identify its target, let alone score any hits. A large part of the problem is that the Coalition has two Bill Shortens in its sights. One is a dangerously lunatic leftie who will socialise everything from the local milk-bar to the banking system.

The other is a regular visitor to the Pratt household, a class traitor who hobnobs with millionaires and who does dodgy deals with rich employers to rip off workers for union benefit and to line his own pockets. “Slithering snake.”

This caricature overlaps, it is true, with our PM himself who features this week in the media in ecstatic sycophantic communion with a member of the Pratt family. Demonise Bill all you will - but two demons is one too many.

While the war on Bill Shorten is waged, Bernard Keane suggests, the government wastes time it could put into promoting its success in employment growth. Or could it? 220,000 new full-time jobs since September 2016 sounds impressive, as Alan Austin notes unless you are also told that the adult population increased by 265,300 over that time.

Or might just as well explain its half a trillion debt due entirely to its mismanagement of the economy something which mainstream media ignores scrupulously because - as everyone knows - Coalition governments are so much better at economic management and have been ever since Howard made up the lie.

Kill Bill or the war on Shorten will continue at least for another week because, as Tony Abbott capably demonstrated, it’s so much easier to survive in Coalition politics if you focus solely on attacking your opponents and let the IPA do the policies.  And there’s a most obliging media who are only too happy to publish scare-mongering and slurs.

In a month’s time, however, all the distraction in the world won’t help a government which may not get to keep its deputy PM and which may - for a while at least - have to govern without a majority. Yet even if it retains Barnaby Joyce and no other dual citizen is uncovered on its lower house benches, it will have lost.

Even should it retain government, the mean and tricky Coalition’s citizenship fiasco with its one set of rules for the Greens and another for its deputy PM and Minister for Resources has helped it lose the electorate. You can see by its responses to local councils and its judgemental dismissal of protesters that it is well down that road already.

*David Tyler (AKA Urban Wronski) was born in England, raised in New Zealand and an Australian resident since 1979. Urban Wronski grew up conflicted about his own national identity and continues to be deeply mistrustful of all nationalism, chauvinism, flags, politicians and everything else which divides and obscures our common humanity. He has always been enchanted by nature and by the extraordinary brilliance of ordinary men and women and the genius, the power and the poetry that is their vernacular. Wronski is now a fulltime freelance writer who lives with his partner and editor Shay and their chooks, near the Grampians in rural Victoria and he counts himself the luckiest man alive. A former teacher of all ages and stages, from Tertiary to Primary, for nearly forty years, he enjoyed contesting the corporatisation of schooling to follow his own natural instinct for undifferentiated affection, approval and compassion for the young.

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