Category: Politics

Important: the opinion Duncan Kerr wrote on dual citizenship in 1989 is reprinted here without alteration.

Duncan Kerr was the member for Denison in the House of Reps. from 1987 to 2010. In January 1989 he wrote a legal opinion for his Parliamentary colleagues about Section 44(i) of the Constitution, in which – inter alia – he discussed joint Australian-British citizenship and the fact that people may be citizens of other countries without their knowledge. Given the current situation affecting a number of Australian Parliamentarians, his discussion makes fascinating reading and, due no doubt to his target audience at the time, it is relatively accessible to those not expert in legal matters.

Duncan Kerr was Minister for Justice between 1993 and 1996 and for a period in 1993 was also Attorney-General. He is now a Judge of the Federal Court of Australia and recently completed a five-year term as President of the Administrative Appeals Tribunal.

photo credit: James Alcock

To help those of us who are not trained in the law to understand the current situation, the opinion Kerr wrote on dual citizenship in 1989 is reprinted here without alteration.

26 November 1992

Duncan Kerr MHR

Federal Member for Denison

Memorandum to ALP Members and Senators

Dual citizenship

In early 1989, at the request of several colleagues, I circulated a legal opinion to all ALP members and senators advising as to the interpretation of section 44 (i) of the Australian Constitution and associated issues.

The recent decision in Phil Cleary’s case has clarified a number of these issues but has left others unanswered – in particular whether the United Kingdom is now to be regarded as a ‘foreign power’.

This question is important because a number of members of the Australian Parliament still retain British citizenship in addition to their Australian citizenship. I also draw attention to the fact that people may even be citizens of other countries without their knowledge.

Because of the currency of these issues I am taking the liberty of recirculating my earlier opinion. The opinion is entirely consistent with the majority judgments in the Cleary case and requires no modification.

I would be happy to discuss the implications of the Cleary Decision with any colleague.

Duncan Kerr MHR

Federal member for Denison

photo credit: Dean Sewell

Opinion (January 1989)

I have been asked to advise as to the proper construction of section 44(i) of the Australian Constitution in the light of recent correspondence sent to a large number of members of the Parliament raising the issues of the eligibility to sit as a member of either the House of Representatives or the Senate.

Section 44(i) provides –

"Any person who -

(i) is under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of the subject or a citizen of a foreign power:

shall be incapable of being chosen or sitting as a Senator or a member of the House of Representatives."

Section 44(i) can conveniently be broken into two constituent elements; the first applying to a person “who is under any acknowledgement of allegiance, obedience, or adherence to a foreign power”; the second to a person “who is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power”.

Common to each element, is some relationship with a ‘foreign power’ and before commencing any further analysis it is worth first settling what constitutes a ‘foreign power’.

Foreign power

The term ‘foreign power’, meaning in this context a country not one’s own, is generally non-problematic. The one contentious question is whether the United Kingdom is now to be regarded as a ‘foreign power’.

This question is important because a number of members of the Australian Parliament retain British citizenship in addition to their Australian citizenship.

Before the adoption of the Constitution the Australian colonies, later the states, were not independent nations. Nor did federation affect this position. The British Empire continued to consist of one sovereign State and its colonies and dependencies. In 1901 Australia was still perceived as a British colony.

Indeed the Constitution uses language in section 34(ii) which shows that the framers could not have regarded the United Kingdom as being a ‘foreign power’ within the meaning of Section 44(i). That Section adopted as an interim qualification (until the Parliament otherwise provided) for eligibility to become a member of the House of Representatives and the Senate, inter-alia, citizenship of the United Kingdom.

However, Australia has now emerged as an independent nation with its own distinctive citizenship. Recognising this, recent changes to the Commonwealth Electoral Act (adopted following the recommendations of the 1981 Report by the Senate Standing Committee on Constitutional and Legal Affairs (The Constitutional Qualifications of Members of Parliament) have substituted Australian citizenship for previous qualifications which had until then permitted a non Australian ‘British subject’ to stand for election to the House of Representatives (now see Commonwealth Electoral Act Section 163(i)(b)).

The question therefore to be resolved is whether the sum of these changes are such as to now compel the term ‘foreign power’ in section 44(i) to be read as including the United Kingdom. Whilst not decisive of the issue the recent High Court decision Nolan v Minister for Immigration 80 ALR 561 suggests that the High Court is unlikely to favour an interpretation of the word ‘foreign’ that does not fully reflect the altered relationship between Australia and the United Kingdom.

Conceding that good arguments can be made to the contrary, my opinion is that the High Court would now regard the United Kingdom as a foreign power within the meaning of section 44(i) of the constitution. Paraphrasing the joint judgement of the High Court in Nolan: “It is not that the meaning of the word [foreign] had altered. That word is and always has been appropriate to describe the status, vis a vis a former colony which has emerged as an independent nation [and the former imperial nation]”.

Acts of allegiance

The first limb of section 44(i) applies to a person who is under any acknowledgement of allegiance, obedience or adherence to a foreign power. What disqualifies is the positive act of acknowledgement of a foreign loyalty whether or not it affects [sic] a change in the person’s status, citizenship or employment. Often however, such acknowledgement of allegiance would be implied by some change in status – for example, serving in the armed forces or public service of a foreign power.

Citizenship or rights of citizenship

The second limb of section 44(i) applies to any person who is “a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power”.

Many Australian citizens hold dual nationality. Some do so knowingly and voluntarily, some knowingly but involuntarily, others unknowingly and involuntarily. The position is complex because there is [sic] no uniform international guidelines for citizenship.

Every sovereign nation claims the right to determine for itself who it will regard as its nationals. Such decisions may be made capriciously. For example some foreign nations do not permit renunciation of their citizenship even if the person seeking to renounce that citizenship has taken other citizenship.

In fact, people will often be citizens of other nations without their knowledge. The complexity is well illustrated by the report of the Joint Committee on Foreign Affairs and Defence (1976) Dual Nationality at p. 2.

"Rules governing nationality generally range from the automatic loss of a former nationality on acquisition of another, to making it impossible to surrender a former nationality. Some countries confer their citizenship on successive generations regardless of the country of birth. A consequence of this latter situation is that many Australians are unknowingly dual nationals and there is no way of determining with certainty who or how many are in this category."

Given the obvious potential for injustice were all Australians who either unknowingly or involuntarily possess dual citizenship to be incapable of serving in the Australian Parliament, such a construction would, doubtless, be avoided by the High Court unless that construction was compelling. In my opinion it is not.

The better view is, it is submitted, that the question of whether a person is a subject or citizen or entitled to the rights or privileges of a subject or citizen of a foreign power is one of fact to be ascertained by asking the question, does the person in question possess in fact any of the attributes which connote entitlement to foreign citizenship or the rights of such. This is a practical question, not one of foreign law to be ascertained by applying citizenship rules of one or another foreign nation to that person’s status.

An illustration of the application of this test can be given by the case of a person who unknowingly possesses dual citizenship. As an unknowing possessor, such a person would have no practical links with another nation and no question of loyalty to, or citizenship of, a ‘foreign power’ could arise. However such a person would come within section 44(i) if upon becoming aware of such a previously unknown right to citizenship, he or she acknowledges that status or takes advantage of it in any way – for example, travelling on that country’s passport.

A second illustration is that the proposed test would permit informal renunciation of unsought dual citizenship where formal legal renunciation is not possible.

This approach has the merit of providing a constitutionally autochthonous test and avoiding the absurd logic that would allow, for example, a decision of a mischievous foreign nation to wreck the functioning of the Parliament by extending that nation’s unsought and unrenounceable citizenship to all members of the Australian Senate and House of Representatives.

Whilst my view conflicts with the opinion of the 1981 Report of the Senate Standing Committee on Constitutional and Legal Affairs The Constitutional Qualifications of a Member of Parliament, it is broadly consistent with the conclusions expressed by Lumb and Ryan The Constitution of the Commonwealth Australia (3rd ed.) (at para. 167) who give as an example of the application of the second limb of Section 44(i), the case “where an Australian naturalized citizen voluntarily retains the privileges or rights attaching to his former citizenship”. [emphasis mine]

It is also is in conformity with the obiter remarks of the High Court (sitting as the Court of Disputed Returns) in Nile v Wood (1988) 76 ALR 91 at p. 96

"it would seem that section 44(i) relates only to a person who has formally or informally acknowledged allegiance, obedience or adherence to a foreign power and who has not withdrawn or revoked that acknowledgement".

Challenges to a member’s capacity to hold office

There are two methods an individual can use to challenge a member’s entitlement to hold office, either pursuant to the Commonwealth Electoral Act or pursuant to the Common Informers (Parliamentary Disqualifications) Act. In addition either house itself may exercise its inherent powers to decide any question as to its own membership Bradlaugh v Gossett (1884) 12 QBD 271. Given the background to this opinion I will confine my comments to those circumstances in which a concerned individual can challenge a member’s entitlement to sit.

The right of an individual to challenge under the Commonwealth Electoral Act is strictly limited: see sections 355, 356 and 358. For the purpose of this advice, the most relevant limitations are (1) that a petition challenging an election can only be initiated by another candidate or an elector qualified to vote in the election to be challenged and (2) that such a petition must be filed within 40 days of the return of the writ for the election. Because the 40 days referred to has now expired the provisions of this Act can no longer be availed of during the life of the present Parliament.

I turn now to the provisions of the Common Informers (Parliamentary Disqualifications) Act. Surprisingly, given the obvious intention to dispose promptly of potential challenges evidenced by the Commonwealth Electoral Act, there is no time limit prescribed for the bringing of a challenge under the Common Informers (Parliamentary Disqualifications) Act. That Act permits any person to sue (for monetary damages) any person who sits in either house “while he was a person declared by the Constitution to be incapable of so sitting”. Implicit in this jurisdiction must be the right of the High Court to determine questions of eligibility under, inter-alia, section 44(i). As a result is possible that an intermeddler can, at any time, commence proceedings in the High Court challenging the capacity of a member to sit. Given the sound policy reasons which apply to restrict the period for challenges to elections generally, it might be thought appropriate to amend the Act to also provide some appropriate limitation periods for actions under the Common Informers (Parliamentary Disqualifications) Act.

Renunciation of foreign citizenship

Assuming that some members may be at least arguably in jeopardy because of Section 44(i), those that are would be well advised, as a matter of caution, to take steps to renounce any foreign citizenship which they may have previously acknowledged before contesting any further election.

Whilst that will not remove the threat of an action being brought under the Common Informers provisions (discussed above) during the life of the present Parliament, it will remove the possibility of any subsequent challenge should the member concerned be later re-elected.

Most, but not all, nations permit renunciation. [See for example Section 19 of the British Nationality Act and Part III and Schedule 5 of the British Nationality (General) Regulations No. 86 of 1982 which permit a citizen of the United Kingdom to make a declaration renouncing that citizenship. A copy of the relevant provisions is annexed.]

One practical consideration however needs to be mentioned. There has been at least one recent incident of a breach of confidence by an embassy in similar circumstances. Given that the act of a member in renouncing a foreign citizenship, were it to become public knowledge, may itself trigger a suit under the common informers procedure, common sense would suggest leaving the matter of renunciation until some time closer to the end of the term of the present Parliament so as to minimise the likelihood of such litigation.

Finally, I should indicate my view that if a foreign nation does not permit renunciation of its citizenship, all that is required of a Member is that he or she clearly and unambiguously revoke any acknowledgement of that other citizenship and take care thereafter never to do anything that could be construed as acknowledging or taking advantage of that other citizenship.

Duncan Kerr

Chambers

January 23, 1989

Background: On Wednesday 19 September 2007 I addressed the dinner of the Council of Ambulance Authorities (CAA) conference in Townsville. Much of the content of the address still seems relevant ten years on.

 I love a sunburnt country, 
 A land of sweeping plains, 
 Of ragged mountain ranges, 
 Of droughts and flooding rains. 
 I love her far horizons, 
 I love her jewel-sea, 
 Her beauty and her terror 
 The wide brown land for me!

(second stanza of My Country by Dorothea Mackellar (1885–1968)

It’s not even My Country so I have a nerve to stand here and talk about the importance of rural and remote Australia.

It is therefore particularly appropriate that I begin this address by acknowledging the owners of the country on which we stand.

After 60,000 years of the most ancient continuous civilisation in the world, white man arrived.

For him, the Australian outback was a new frontier.

The pattern of white settlement was determined by the distance a Cobb and Co coach could travel in daylight hours.  Staging posts with pubs, stables and residences sprang up every 30 miles or so.

The historian Russell Ward believed that the notion of ‘mateship’ was born among country men and women struggling on this new frontier in the 1880s and 90s.  Others have asserted that this new white Australian idealism was merely a projection onto the Bush of values admired by urban intellectuals.

The Pioneer, Frederick McCubbin, 1904; in the National Gallery of Victoria

Whatever the truth about its provenance, the notion of mateship is still associated with the essence of being Australian.  Young Australian mates, often with their horses, went off to Palestine and Gallipoli, casting Australian national independence in the furnace of overseas war.

And Australia’s sense of community – its pride in ‘the fair go’ – owes much to the real experience and the perceived value of the egalitarianism, the togetherness and the willingness to share risk that are the hallmarks of this mateship.

Rural and remote parts of the country were the setting for many of the experiences and narratives that set the pattern.

And those same rural and remote areas are now those in which the loss of ‘mateship’ is having its most devastating effects.

As a nation we appear to have lost the conviction that the best way forward is for everyone to look after everyone else.  Australia has become more an economy, less a community.  Its people are more and more driven by individual aspirations and greed.  Some of these elements are in danger of corrupting our universal health system.  There is a fear that Medicare will be a safety net for those who cannot afford to buy their own health services.

But back to the chronology of white rural Australia.

In our lifetime there has been a gradual withdrawal of governments from determining the pattern of settlement, and a gradual empowerment of the market.

In the early 1970s Australia had a burst of explicit regional development.  Bathurst/Orange and Albury/Wodonga were designated as formal growth centres.  There was decentralisation of government offices, some of which still survive today, with the New South Wales Department of Agriculture still headquartered in Orange.

But that miniature dash of government intervention was the exception to prove the rule.  There has been sporadic but continuous support for agriculture and agriculturalists — but little or nothing for other aspects of rural and remote settlement.

 The market rules – okay’.

For some time after the second war the Government maintained a strong interest in rural areas for political reasons.  There was a fear of Communist takeover of Australia.  Reds were under the bed.  If we didn’t settle inland Australia, Indonesia would.

More recently the fate of regions has been determined by industry and the investment decisions of individuals in Japan, and now India and China. Our resource-rich regions are booming and making Australia an even more affluent nation.  But it is impossible to find a house in Tom Price.  Health services cannot be sustained in such places because of the difficulty of finding accommodation for health professionals.

80% of the Australian population lives within 30 miles of the sea.  Real estate prices have been high and increasing in Sydney for 30 years.  People half our age have become real estate millionaires.  More recently, the same has happened in Brisbane and Perth.

A small number of regional centres have grown and have bled the surrounding smaller towns.  Toowoomba is a town of 100,000 people.  There are 57,000 in Wagga Wagga.

Large numbers of smaller towns have continued to shrink.  Services have been lost.  Pubs have closed – with the pokey licences, as we now understand it, sold to populous areas of the cities.

The Monaro

This is all part of the reality in Australia today: the rich are getting richer and the poor more numerous.  The poor in Australia are not getting poorer in absolute terms but the number is increasing and the gap between them and the rich is increasing.

The rate of bulk billing in a country town may not matter to you and me.  But for some people the presence or absence of a bulk billing doctor is a difference between the ability to see a doctor and not.

I fear a sunburnt country
With governments laissez faire
When the market shares the wealth around
And citizens don’t care.
Every man’s an island
Compassion’s killed by greed
When economy rules everywhere
It's community we need.

The Productivity Commission has suggested a range of substantial changes to the health workforce[1].  Some of them have been the reality – on trial, as it were – in rural and remote areas for years.

In response to the Productivity Commission Report on Health Workforce, governments agreed (through the Council of Australian Governments):

• “to increase governments’ collaborative effort regarding retention of health staff;
• to endorse the National Health Workforce Strategic Framework with a biennial review and report to COAG on progress with implementation of the Framework;
• that all broad institutional Health Workforce Frameworks should make explicit provision to consider the particular workforce requirements of rural and remote areas, and the particular workforce requirements of groups with special needs including Indigenous Australians, people with mental illness, people with disabilities and those requiring aged care; and
• that Senior Officials will undertake further work in relation to the remaining key recommendations of the Productivity Commission and report to COAG in mid-2006 on further action that governments could take in regard to health workforce, having consulted with key stakeholders.”

Only one of these has become a COAG project: the potential national accreditation of health professionals.  It is touch and go as to whether changes on this front will be able to be signed off before the election is called.[2]

What has all this to do with rural and remote areas?

The current system is not working.  There will never be enough doctors, nurses or allied health professionals, given the exponential increase in demand for their services and the volume and location of international supply.  If we think things are difficult now, it is going to get much much worse.

Whereas three years ago 170,000 new workers entered Australia’s workforce in a year, in the whole of the decade 2020 to 2030 it will be 125,000.  That represents a change from 170,000 new entrants a year into Australia’s workforce, down to 12,500 a year beginning in 2020.

We therefore must do two things.  We must suppress the demand for the services of health professionals.  And we must change the way in which supply is provided.  For example we must reduce the demand for doctoring and increase the supply of doctoring- type services.

This is what the Productivity Commission and others mean by health workforce redesign.  Opponents of such redesign tend to be marshalled by the professional colleges, not just medical colleges but also by others.  Nursing organisations do not support greater use of or a broader scope of practice for care assistants.  Physiotherapists do not support physiotherapy assistants.  Doctors’ organisations do not support physicians’ assistants. And so it goes

The work being done in the paramedic and ambulance officer sector to broaden scope of practice is critical.  You can lead the way in workforce redesign and prove that it does work, is popular with patients, and does not threaten other professions.

And rural and remote areas can lead the way in this.

For too long, the politics and policies of rural Australia have been dominated by agriculture.  One of the results is that the word ‘rural’ is still co-opted by agriculturalists and their supporters.  The political parties speak of rural policy when they mean agricultural policy.  The Rural Industries Research and Development Corporation works with the smaller agricultural industries.  The Rural Adjustment Scheme deals with support for farmers.

The National Rural Health Alliance has emerged as the most inclusive and comprehensive voice for the non-agricultural aspects of rural affairs in Australia.

The NRHA can speak up for the interests of rural people who are not farmers. It can represent the interests of the significant minority who do not have good access to telecommunications.

And it is an important time for making such representation.   A range of key policy issues are going to change the way we do business and experience lifestyles in the next few years.

There is a continued search for new energy sources that will reduce reliance on carbon fuels.  Industries based on renewable energies will by definition be predominantly in rural and remote areas.  The new sources of energy will be the sun, the sea, biomass, hydrogen, the wind – all of which are found in abundance in rural areas and all of which can be processed or captured more easily in rural areas than in the cities.

There will be major shifts in relative prices, so that energy technologies which are currently not economic or sustainable will become so.  This will be much to the benefit of country areas.

However there are some ongoing resource issues that will bear down differentially on rural industries and communities.  Australia has a national water crisis.  Desalination plants may be located in the cities but the most important water storages and catchment areas will be in country areas.  The impact of salinity and reduced water flows is felt in rural areas.  In country areas whole towns can be without water supplies.  The impact on crops and incomes is easy to understand.

There needs to be an ongoing debate about access to and use of information technology.  The communication challenges of very remote areas can be overcome to some extent by high technology, such as satellites.  The people who are missing out tend to be those who are not isolated enough to have public support for the establishment of satellite connections, but who do not have access to copper wire.  The termination of the CDMA system is concerning some people because the new-generation of telecommunications does not work in some more rural areas.

The results of debate about nuclear fuel will also have a significant impact on rural areas.  Uranium is found in rural areas and the debates about the storage of waste will always be focused on non-metropolitan areas.

Loss of species is predominantly a rural issue.  National parks.  Coalmining.  Climate change will result in more adverse events, with the geographical scope of natural disasters increasing with rurality.

We need government leadership on these issues: leadership that is not afraid to use ‘the big levers’ – the tax system, regional development policy, public-private partnerships, transport, education, housing, infrastructure – as well as health services.

It’s going to be a good time for paramedics and ambulance officers, and your organisations, to lead on workforce redesign, to show what can be achieved despite the tyrannies of distance and markets.

I seek a sunburnt country
Where all can have a share
When each of us will cross the street
To someone needing care.
Life chance and opportunity
For each and every Man
And if governments are bold enough
‘Tis certain that we can.

As publicans and posties
We seek your strong support
To reach our side and intervene
When in extremis caught.
Our farmers and our schoolies
Their gratitude won’t hide
If you can bring your broadened skills
Full swiftly to our side.

[1] www.pc.gov.au/inquiries/completed/health-workforce  The research report was released on 19 January 2006.

[2] Prime Minister Howard called the Election on 14 October 2007 and the Federal election for the 42nd Parliament of Australia was held on Saturday 24 November 2007.

This piece was originally published in Croakey on 30 May 2017. It was edited for Croakey by Melissa Sweet.

This piece was initially published in Croakey on 10 April 2017 under the title: 'It’s time the truth was told – Gordon Gregory on lies, politics and missed opportunities'.

My thanks to Croakey and Melissa Sweet, who wrote the following introduction for the Croakey piece.

“Peak bodies have many advantages – they help to unite the diversity of competing interests in the health sector, and thus can be helpful in providing consensus advice and policies to inform decision-making.

———————————————————

 

1. The scene at Government House is described in the article that appeared next day in the Sun Herald, written by Dan Harrison and Steve Lillebuen: http://bit.ly/2orFawZ

This piece was published in Croakey on 6 March 2017. My thanks to Marie McInerney.

On Friday, 3 March, the Australian Labor Party held a National Health Policy Summit in Canberra. Thanks to the endeavours of Croakey, and in particular to Marie McInerney, we were able to hear the views of some of the 150 experts there through Twitter, Periscope and Marie’s videoed online interviews.

This is not a piece about the relative value or effectiveness of the health policies of Government and Opposition. It concerns the difficulty health advocates seem continually to have in framing and agreeing proposals of the sort which might be adopted by the Government of the day or included by the Opposition of the day in its health policy platform for a coming election.

Everyone knows that advocacy should focus on answers, not problems. For the most part, politicians do not need to be reminded of what the issues are. But certain types of ‘answer’ are much more likely than others to be practicable and to improve health outcomes in the short term.

In meetings of health advocates, too much time is often spent on matters that are related to organisational principles, strategy, governance and (frankly) motherhood.

With the best will in the world, a Health Minister and their Department cannot operationalise generic principles. Nor are they what will really matter in an Opposition’s policy platform.

We can do much better.

Where the National Health Policy Summit was concerned, I read in Croakey that “there were benefits in having a big crowd of people committed to improving health in the same room, sharing an agenda with people outside their own ‘silos’ and reiterating key issues and messages with politicians and advisors that they often don’t get to reach”.

But how much more useful might it have been if there had been more focus on new policy proposals for this year’s and next year’s budget, and less on principles and strategic approaches!

This (untested!) observation led me to speculate about the type of initiatives on which health advocates currently spend their time, and what a more desirable mix would be.

Best use of an hour with the Health Minister

It is my belief that there are four classes of issue on which health advocates can work. They can be described as:

• grand principles;
• new national plans;
• redistribution of existing program expenditures; and
• evidence-based new policy proposals.

Such a classification could be applied to policies and programs which affect health but which are not within the health sector itself. That, then, would see it applied to the social determinants of health, including not just health risk factors but also, for example, proposals about taxation. However, for the purposes of this piece, I have restricted the analysis to matters that lie wholly or largely within the health sector and thus within the purview of Health Ministers and their Departments.

Table: Best use of an advocate’s one hour with the Minister of the day

Class of proposal or issue		Proportion of time/effort (%):			Best: mins/hr. w. Health Minister of the day
		Currently	Desirably
1	‘Grand principles’	55		10		6
2	New national plans	30		25		15
3	Re-jig existing program expenditure	10		40		24
4	New Policy Proposals	5		25		15

‘Grand principles’

In the first class are what might be called strategic or organisational approaches to health. including such things as:

• the aspirational importance of universal and equal access to health care;
• the benefits of a primary health care approach to health and wellbeing – which includes many things outside the health sector itself;
• the desirability of (but major challenge posed by) a whole-of-government or Health in All Policies (HiAP) approach;
• the value of a strong primary care service;
• the importance of continuity of care for individual patients of the system (through better integration of services);
• the desirability of spending a significant proportion of the health budget on illness prevention and health promotion;
• “regarding expenditure on health promotion as an investment not a cost” (rhetoric; motherhood);
• “focussing on workforce retention as well as recruitment” (ditto);
• “supporting Primary Health Networks to make a real impact on rural and remote health outcomes” (ditto); and
• the desirability of consumer/patient involvement in the planning, management and evaluation of health services.

When lobbying politicians or engaging with the media, health advocates should, for two reasons, allocate very little time to such matters. For one thing, there is precious little disagreement, in Australia or anywhere else, about their importance. For another, such matters can and do inform ongoing political decisions but are not the stuff of short-term change or new policy proposals.

New national plans

The second class of issue consists of strategies or plans (probably national) which are not currently in place but which, if adopted by government, would be the frame within which specific programs would operate and on which new health budget allocations would be made.

Different advocates will have different views on such potential new plans or program frameworks; some will argue that a particular plan should not be introduced.

This class includes such things as:

• a proposal to provide new money to fund actions under the National Aboriginal and Torres Strait Islander Health Plan (at the moment all actions in the Implementation Plan are to be funded from existing program allocations);
• the introduction of specific tax regimes for sugary drinks or alcohol which would be premised on their impact on population health through influencing levels of consumption;
• the regulation of the marketing of certain foods, especially to children;
• a Senate Inquiry into food security;
• an integrated strategy to Closing the Gap for Vision, which would include a subsidised spectacle scheme for rural and remote areas and Aboriginal and Torres Strait Islander communities; and/or
• development and funding of a National Child Health Action Plan (NCHAP).

Proposals for the redistribution of existing program expenditures

The third class comprises proposals relating to existing policies or programs, suggesting ways in which the effectiveness of expenditures already on budget could be improved. This would include, for example, suggestions about how existing mental health programs should be altered, extended or terminated; or revised regulations to be applied to incentives for general practitioners who work in rural and remote areas.

Such proposals would legitimise the redirection of funding or even the termination of particular health expenditures. Such changes are of great interest to governments, particularly in fiscally-challenging times when any new program expenditures must be offset by savings from within the portfolio.

This class would include things such as:

• proposals to take a particular medicine off the Pharmaceutical Benefits Scheme or to add a new one;
• a proposal to take a particular procedure off the Medicare Benefits Scheme or to change the schedule fee for it;
• a proposal to switch some investment from, say, headspace to Mental Health Services in Rural and Remote Areas (MHSRRA);
• a proposal to increase the difference in rates of payment to general practitioners who work in the major cities and rural/remote areas;
• a proposal to switch health scholarship expenditure from, say, medicine to, say, allied health; and/or
• a proposal to change the allocation of funds within the Tackling Indigenous Smoking program.

Evidence-based new policy proposals

These are potential new programs which are justified on the basis of evidence about particular aspects of health service need, and about the efficacy of particular approaches to its management and/or treatment.

Such programs are in effect ‘shovel-ready’, with the evidence collected and the case made – in all probability by one or more advocacy body with a vested interest in the plan (not necessarily to support it). With the evidence in, there will in effect be a contest of ideas between them all, with the question of which are adopted by government answered through normal political processes.

In this class might be:

• a program to fund clinical pharmacy positions in Aboriginal Community Controlled Health Organisations to oversee the delivery of the S100 Remote Area Aboriginal Health Service Program;
• a program to fund a specialist Parkinson’s nurse (or Neurological Nurse Educator) in the 40 electorates with the highest proportion of people with the condition;
• work on a national, longitudinal health workforce data set that can inform workforce planning and incentive programs;
• a program to expand access to Nurse Practitioner and allied health services under the MBS in rural and remote settings where there are demonstrated workforce shortages;
• a program to grow and support local activity related to social approaches to end of life by a Compassionate Communities Network in Australia; and
• a program for recruiting more allied health professionals to care of the elderly and , under the NDIS, to people with a disability.

There is a place for general principles and approaches in what might be regarded as the Foreword to a set of programs for improving health outcomes on the ground. But for the most part there is only furious agreement about these principles, and what really matters are specific new policy proposals.

We have to get over the situation in which, in a room of 150 health experts, each one feels a sense of duty towards their own job or profession – as if they are in attendance with a representational duty.

What this means is that it will be easy for them to agree with others about the importance of, for example, continuity of care, but much harder to agree that scarce health dollars should be spent on anything but their own interest. When advocates for each special interest area bring their Number 1 proposal to the table, a contest of specific ideas can take place. Evidence will be scrutinised, assumptions challenged.

And at the end of the day there will hopefully be sufficient collegiality in the sector as a whole for the most effective proposals to be unanimously supported.

 

In Marriage equality and greyhounds (10 August) I explain why, in my view, there need not be a plebiscite on marriage equality. And in the piece entitled Of mandates and furphies (12 July) I try to explain my irritation at the way our Parliamentary leaders talk about their “mandate” as if those who voted for them explicitly agree with every element of the package their Party took to the election.

My view is that, having won an election, the victor only has one mandate and that is to form government. It still needs to explain, justify and promote specific proposals for change to everyone, rather than taking those things as read and taking the people for granted.

If there is a plebiscite, it is to be hoped – most earnestly – that the process in which we engage is characterised by respect, generosity of spirit and good will, so that Australia’s social cohesion is further enhanced.

One of the issues that will arise is how individual Members and Senators should act once the people of their electorates and State/Territory have had their say. Should they be bound by the majority view of their electorate, in the case of members of the House of Representatives, or by the majority view of their jurisdiction in the case of Senators? Should they be bound by the majority national view? Or should they only be bound by their own individual opinion even if it is contrary to that of the majority of their electors?

Those parliamentarians who choose the last of these three courses might be thought of as using ‘the Bristol defence’, created by Edmund Burke (1729-1797), the man who brought us the T-shirt we have all seen on the streets:

            “The only thing necessary for the triumph of evil is for good men to do nothing.”

This and several other of the recorded quotations from the speeches and writings of Edmund Burke (1729-1797) are so familiar as to seem more like aphorisms than quotations from actual statements made by a real person. Added together, they read today like a Manual for Effective Advocacy on Good Causes.

Nobody made a greater mistake than he who did nothing because he could do only a little.

Those who don’t know history are destined to repeat it.

When bad men combine, the good must associate; else they will fall one by one, an unpitied sacrifice in a contemptible struggle.

Our patience will achieve more than our force.

We must all obey the great law of change. It is the most powerful law of nature.

The arrogance of age must submit to be taught by youth.

Frugality is founded on the principal that all riches have limits.

It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.

There is but one law for all, namely that law which governs all law, the law of our Creator, the law of humanity, justice, equity – the law of nature and of nations.

It is interesting to speculate about how a man capable of such generous and humane statements would view the issues involved in the debate about marriage equality. I would like to think that he would be driven to support marriage equality by one of the three reasons normally given to explain his scepticism about democracy. This can be seen in the context of another of his quotable quotes:

In a democracy, the majority of the citizens is capable of exercising the most cruel oppressions upon the minority.

Specifically he feared that democracy would create a tyranny over unpopular minorities, who would therefore need the protection of the upper classes. It might be said that this has been the position faced by those with a personal stake in seeking marriage equality in Australia.

For the sake of completeness, let us record the other two reasons behind Burke’s lack of trust in democracy. The first was his belief that good government requires a degree of intelligence and breadth of knowledge of the sort that occurred rarely among the common people. (Our current-day leaders frequently remind us about how smart we are as the mugs who elect them.) The second was his fear that “the passions of the common people could be aroused by demagogues, leading to the potential loss of cherished traditions and established religion, and to violence and the confiscation of property”.

It is not surprising that after more than two centuries these reservations seem very dated. However it is worth reminding ourselves that Edmund Burke had a clear understanding of what, these days, would be called the national interest and in this regard was well ahead of his time

Because of its relevance, let’s consider more of the Bristol story and, to enjoy the beauty of the language, let much of it be done in Edmund Burke’s original words.

In 1774, Edmund Burke was elected the Member of Parliament for Bristol, at the time England’s second city – a seat for which there was a real electoral contest.

In May 1778,  his constituents – citizens of a great trading city – urged Burke to oppose free trade with Ireland. He resisted, saying:

“If, from this conduct, I shall forfeit their suffrages at an ensuing election, it will stand on record an example to future representatives of the Commons of England, that one man at least had dared to resist the desires of his constituents when his judgment assured him they were wrong”.

This shouldn’t have come as a surprise to the Electors of Bristol. Burke’s thoughts on the matter had been spelled out in his speech to them on 3 November 1774,  just after they had elected him!

“Certainly, Gentlemen, it ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinions high respect; their business unremitted attention. It is his duty to sacrifice his repose, his pleasure, his satisfactions, to theirs, – and above all, ever, and in all cases, to prefer their interest to his own.

But his unbiased opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure, – no, nor from the law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.”

“Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a member of parliament.”

His support for this and other causes that were not popular with the gentlemen of Bristol led to Burke losing his seat in 1780. For the rest of his parliamentary career he represented Malton, a pocket borough under the patronage of the Marquess of Rockingham, leader of the Whig faction.

Current Australian parliamentarians wishing to adopt ‘the Bristol position’ should consider what has changed since 1778 in the relationship between parliamentarians and the people.

And they might also want to consider just one more of the T-shirts designed by Edmund Burke:

            “Nothing turns out to be so oppressive as feeble government.”

 

 

Of mandates and furphies

mandate, noun: 2: the authority to carry out a policy, regarded as given by the electorate to a party or candidate that wins an election.

With the election over, we now move to consideration of the often tetchy issue of who has a mandate to do what, with what and to whom.

The mandate theory of democratic governance has it that a government has both the right and the responsibility to enact the proposals to which it committed in the preceding election campaign. And presumably it’s a winner-takes-all situation in which the margin of an electoral victory has no implication for the mandate supposedly earned.

There are a number of issues with this and a number of ways in which talk of ‘a mandate’ can overreach.

First, it might be interpreted in such a way as to discourage or preclude a new government from changing its mind on something promised during the campaign. The belief that politicians and, in particular, Prime Ministers should never ever change their mind is one of the silliest and most damaging characteristics of government in Australia.

We are familiar with the situation in which, when there is change in the Party occupying the Treasury benches, the new government argues that because it was not in possession of the full details of the financial situation inherited it is unable to meet all the commitments it made. This is an entirely reasonable position to take, with the only possible criticism being that, in the national interest, there ought to be more transparency about the nation’s true financial situation at any given time.

For instance, right here and now, if the Coalition is guided by the apparent widespread opposition to the freezing of Medicare rebates and decides to end the freeze earlier than 1 July 2018, will it be accused of reneging on its mandate? Can it use the mandate argument as a reason for not unfreezing it early?

A reasonable interpretation of the mandate theory is that the Party or Parties that won the election have a general mandate to govern. It is annoying and illogical for a new government to claim a mandate for a swag of specific issues as if, when people cast their vote, they were aware of and supported every single commitment in a particular Party’s platform.

In Government that Party should still engage with the public in explaining and justifying the need for and the fairness of particular new policy proposals, whose existence and details may have remained completely unknown to individuals when they cast their vote.

A third issue relating to a mandate is the relationship between the House of Representatives and the Senate. The Government can claim a mandate on the basis of winning the majority of seats in the Lower House. But the Senate and its individual members can claim a mandate to review – particularly on behalf of the less populous jurisdictions – given the voters’ decision not to give the Government control of the Senate.

This situation is tailor-made for fractiousness and opposition – two features of our system of government we are currently being asked to forego in order to ensure no further deterioration in the nation’s economic future.
And have a care for the position of the Leader of an Opposition after an election. He or she has no mandate from the public but it would be passing strange for someone in their position to provide nothing but support for the Government until the time when the next election is called. The Westminster system relies on there being an Opposition at all times, not just for the duration of an election campaign. Its duty is to provide alternative ways and means of doing government business.

Reference to a global mandate cannot reasonably be used as the rationale for limiting debate and criticism of specific proposals.

Finally, political parties and those who comment on them cannot have it all ways where electoral success or failure is concerned. Either seats are won and lost on the basis of local issues and the qualities of local candidates; or people vote on the basis of the full set of national policies enunciated in a particular Party’s electoral platform; or people are swayed by perceptions of the individuals who lead the major parties.

Of course the reality is that it’s a mix of all three of these things.

This mix and the complexity involved in individuals’ voting decisions should be considered by people using ‘the mandate argument’ as justification for particular policy proposals.
gg
12 July 2016

In the House of Commons on 11 November 1947 Winston Churchill famously used the words of an unknown predecessor when he said:
“Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except for all those other forms that have been tried from time to time.…”

Churchill perhaps had in mind the original notion of ‘direct democracy’ – a system in which public policy issues, including proposed legislation, are determined by the entire body of the citizens voting on such issues; in effect, government by referendums.

In 1947 one of the arguments against ‘direct democracy’ would no doubt have been its logistical difficulty, sluggishness and cost – some of which would now be reduced by technological developments such as the internet, smart phones and social media.

Government by referendums is at one end of a spectrum of democratic possibilities, at the other end of which would be a system in which voters elect and entrust one person with the task of making decisions for them. (One is reminded of the Whitlam-Barnard Ministry of 1972.)

Towards the elect-and-entrust end of this spectrum is ‘representative democracy’, in which those entitled to vote elect a number of people to positions within an agreed institutional framework. In Australia the centrepiece of that framework is a Westminster system of government.

This framework is fixed and agreed in a Constitution. Such is the fundamental importance of the rules under which representative democracy is played out, that a referendum of those same entitled people is the only way in which the rules can be changed.

To alter those rules and institutions in Australia, a referendum on constitutional change must win the majority of votes nationally and also win in a majority of the states (a ‘double majority’). This is to safeguard the interests of the jurisdictions within the Federation, in particular to safeguard the interests of the States and Territories with smaller populations.

Since Federation there have been 44 proposals for constitutional change put to Australian electors at referendums. Eight have been approved.

These arrangements help explain the difference (in Australian terms) between a referendum and a plebiscite. The latter is a vote by eligible citizens on a matter of national significance that does not affect the Constitution. To pass, plebiscites only require a simple majority of electors’ votes. But whereas the outcome of a referendum is binding on the Government, a plebiscite is not.

What, then, are the sorts of issues on which the Government seeks the people’s advice through a plebiscite, rather than through the normal processes of representative government?

Why is the issue of marriage equality subject to a plebiscite but not the future of the NSW greyhound industry?

The Prime Minister’s rationale for the plebiscite seems to be in two parts. First, because his predecessor said there would be one. Second because marriage equality is an issue “based in faith or conscience”.

The first of these reasons is evidence of what we fear about Malcolm Turnbull: that he is not in command of his own Coalition; that he is willing to place political pragmatism above principle; and that he has lost some of his will to lead.

And what about the second reason: that it is an issue based in faith or conscience?

In Australia there is a strong tradition of state neutrality, or equal treatment, in dealing with issues of faith. Unlike the situation in the United States, Australia does not have a legally entrenched principle of the separation of church and state. But the tradition of church-State separation is strong enough and ubiquitous enough to mean that when there is a transgression, it leads to public notice. These issues of note and contention have included church-run employment agencies, the funding of schools, and matters of  sexuality and reproductive science.

For Australia to continue to be seen as a successful multicultural nation, decisions on these matters need to be based on secular ethics and the national interest, not on religious belief.

After faith comes conscience. There is a belief in some quarters that a plebiscite is justified when a decision is one of conscience.

But the idea that there are only very few issues of this kind surely devalues the notion of ‘conscience’. The matter of marriage equality is critical in ensuring that some people in Australia can self-actualise to the greatest extent possible. But would we not say the same for access to meaningful work, home and shelter, and education and health services?

We elect parliamentarians to make decisions on our behalf. The corollary is that we are happy to have laws and policy proposals determined by them through debate and deliberation in the Parliament.

If the system of representative democracy is trusted to determine people’s access to food, education, health and shelter, it is also fit to be trusted on marriage equality.

Or, to use Bill Shorten’s words, we don’t need a non-binding, taxpayer-funded opinion poll on the matter.

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Don’t miss the upcoming Greyhound trilogy at aggravations.org. It’s a series you won’t want to miss, with pieces on greyhounds and marriage equality; greyhounds and leadership; and greyhounds and submarines. Give them a look, doggone it.

This piece was first published at aggravations.org on 6 July 2016

Those of us interested in the differences between ‘city’ and ‘country’ in Australia might like to know how the recent Federal Election turned out in this respect.

The short answer is that there was a gradient from the electorates in metropolitan, to outer metropolitan and then to rural areas. On average, the more rural the electorate, the higher the swing from the Coalition and to the ALP.

It would be nice to know what caused this. Since this gradient accurately reflects so many other social and economic variables, which get worse with greater rurality, perhaps it reflects a general sense of alienation with governments that don’t seem to recognise the particular challenges and opportunities of life in rural and remote Australia.

Conveniently, the Australian Electoral Commission (AEC) has three categories in its classification of electorates. The first is comprised of the city electorates which between them constitute the capital cities. Next are electorates the AEC describes as ‘Capital City Surrounds’. This category only exists for the surrounds of Melbourne, Sydney and Brisbane. In Western Australia and South Australia electorates are defined by the AEC either as being in a capital city or rural.

‘Rural’ is in effect the third AEC category, although it should be noted that the AEC does not use that term for them.

A three-point classification therefore emerges from the AEC’s mapping: what might be called Metropolitan (for all capital cities), what we can call Metropolitan surrounds (for electorates around Sydney, Melbourne and Brisbane; and rural.

The first question to be answered is whether there were different average swings against the Coalition and to the ALP in these three distinct regions.

Analysis reveals that the answer is yes, at least in a political sense. I will leave it to others to determine the extent to which the differences are of statistical significance and, if so, at what level of probability.

A number of electorates were excluded from the analysis. Seven were excluded because, after the distribution of preferences, the result of this year’s election saw the first and second placed candidates being someone from one of the three major parties and a second person being a member of the Greens, the Nick Xenophon Team or an independent. In contrast, the election in 2013 saw head-to-head contests between one of the parties in the Coalition and the ALP.

These changed circumstances led to outlier or ‘rogue’ statistics ranging from a notional swing of 51.5% to the Liberals in Grey, where a candidate from the Nick Xenophon party came second; to a notional swing of 66.07% to the ALP in Grayndler where the runner-up was a member of the Greens.

The other five excluded on these grounds were Mayo (won by the Nick Xenophon Team), Warringah, Higgins, Cowper and Barker.

The other exclusions are those electorates in which a minor party was or had been successful in the 2013 election: Melbourne, Indi, Fairfax, Denison and Kennedy; New England where Tony Windsor, an independent, came second; and Murray, where the first and second where the candidates for the Liberal and National Parties.

For the purposes of the analysis, Solomon (Darwin) and Herbert (Townsville) were both considered to be Metropolitan electorates, in the case of Herbert because of the population size of Townsville.

Setting aside those 14 special cases, the analysis was then performed on 136 electorates: 74 Metropolitan, 31 Metropolitan surrounds, and 31 rural.

The analysis therefore measures the swing from the Coalition to the ALP in seats where the two of them finished first and second after the distribution of preferences in both 2013 and this year.

The average swing to the ALP in these three classes was:
⦁ 2.31 per cent in Metropolitan electorates;
⦁ 3.48 per cent in Metro surrounds; and
⦁ 3.82 per cent in rural electorates.

The analysis undertaken did not account for particular circumstances which resulted in specific swings, such as when a well-known and long-standing member retires.

Table: Average swings in 136 electorates from the Coalition to the ALP between the 2013 and 2016 Federal elections

Jurisdiction       Metro.                 Metro. surrounds         Rural
Av. %                   Av. %                               Av. %

NSW                    3.01                    4.68                                 3.26
Victoria              -0.13                   2.81                                  2.90
Queensland        1.98                    3.13                                  3.24
South Australia  4.14                   –                               Wakefield 7.48
W.A.                    3.94                    –                                       3.17
ACT; Darwin       3.27                    –                                       –
Tasmania             –                         –                                     5.95

Total                   2.31                   3.48                                 3.82

Analysed this way, and given the caveats described, the overall average in the 136 electorates was a swing from the Coalition to the ALP of 2.92 per cent.

As can be seen from the table, the best performer for the Coalition was metropolitan Melbourne where there was actually a very small average swing its way. The best performer for the ALP (discounting single electorates) was Tasmania outside Hobart. In New South Wales the Metropolitan surrounds seats did particularly well for the ALP.

Hopefully this has piqued your interest in what politics might mean for rural people.