Illustration: John Spooner.
The Victorian Coalition’s failure to implement its promised rigorous anti-corruption measures has come back to bite it. Denis Napthine’s government crisis has escalated to become Victoria’s constitutional crisis.
Had a Victorian Independent Commission Against Corruption been created with the strong powers of the NSW ICAC – the coalition’s election policy – Frankston MP Geoff Shaw’s conduct and penalty would now be ancient history. Likewise, had the Privileges Committee united in the interests of the Parliament, a unanimous finding would have made the way ahead much clearer.
Instead, Victoria faces uncertainty and instability that could drag on until the election – as late as November. Napthine may be unable to pass any legislation opposed by Labor. Opposition Leader Daniel Andrews has guaranteed only the budget.
Napthine’s chances of re-election as Premier are falling further each day.
Underlying this crisis is an absence of respect for the very purpose of responsible, democratic government. Frankston MP Geoff Shaw and every other member of parliament, including the Premier and ministers, are public officers elected to act in the best interests of Victorians and required to put the state’s interests ahead of their personal interests – whether that be Shaw’s hardware store or the Premier’s hold on office.
They have a fiduciary duty to members of the community and a responsibility to exercise a public trust, that is, to act to protect the assets and interests of the state.
Instead, we have seen a promised ICAC created as a tiger so toothless that its own commissioner told Parliament he does not have the powers he needs. The Coalition knew that was what it was doing, in direct contradiction to its responsibilities, but brazenly persisted.
Having left Victoria without the capacity to effectively investigate the allegations against Mr Shaw, the Coalition and the community are now reaping the whirlwind as it sweeps back to engulf the state’s government.
What are the options now? The complexity both limits and opens up a wide range of possibilities.
First, Shaw’s future: The Privileges Committee report is now before the Parliament; it is so important that it should be the first item debated and decided when the Parliament re-assembles next Tuesday.
The Coalition is unlikely to want that knowing that the Opposition could have a majority to expel Shaw and force a by-election. Shaw would also oppose a motion that could see him lose his seat. His expulsion would be immediate and the law requires the Speaker to issue a writ within 30 days for an election, which could be as late as September. It is not clear that the Speaker could use common law to cancel a by-election two to three months before the general election. Either way the Coalition would be paralysed in Parliament.
Expect Napthine to do everything he can to avoid that debate including, no doubt, accepting Shaw’s vote despite claiming it to be “tainted”. However, former Speaker Ken Smith clearly believes action must be taken, leaving the result uncertain.
If the Privileges Committee report is debated, almost any penalty can be imposed on Shaw. Expulsion is simply the most extreme and it can be argued that it is justified to make it clear that the Parliament has zero tolerance of his behaviour. Expulsion has been used elsewhere, but other cases have included suspending the MP’s salary or calling the offending member before the House and issuing a humiliating reprimand.
Second, four-year fixed terms: The change to fixed terms removed the power of the governor to call an election when requested by the premier. Now, the Governor cannot dissolve the assembly for an election except under very special circumstances. The Government would have to lose a vote of confidence and then no new premier win a vote of confidence within eight days; that is, it would have to be clear that no one had sufficient support to form a government.
Whether or not Shaw is expelled, it will remain open to the Opposition to move a vote of no confidence. If moved, and Shaw has not been expelled, it is likely to be carried. However, before initiating such a motion, the Opposition will carefully weigh up what might follow. I have no information on its thinking on that.
If a no-confidence motion is carried, convention dictates that Napthine will have to offer his resignation to the Governor. The Governor would then consult and invite another member of the Legislative Assembly to form a government, probably the Leader of the Opposition but not necessarily; he or she would be the member believed most likely to be able to attract majority support in the house and to survive a confidence vote. If within eight days no member had been able to win a confidence vote, then a fresh general election would follow within a few weeks.
The Coalition could be about to face judgment on its failure to give Victoria the ICAC that could have ''saved its bacon''!
Ken Coghill is an associate professor at Monash University. He is the acting chairman of the Accountability Round Table and a former Labor Speaker of the Parliament of Victoria.