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The Tale of Thomson and the Two Questions

The allegations surrounding Craig Thomson have never been far from the headlines. In fact the Thomson saga has been one of the most constant topics raised during the 43rd parliament. Today, the long-running investigation took a dramatic turn, as we all know, with the Member for Dobell arrested by New South Wales police on 149 charges of alleged fraud. The former Labor MP  was arrested at the request of Victorian police and was today bailed before being required to appear next week in the Melbourne Magistrates Court.

Of course today’s events triggered a flurry of discussion about just what the arrest and charges will mean, not just for Craig Thomson himself, but for the Labor Party, the parliament and the election. Much of this debate has played out in the past, particularly after the Fair Work Australia report was released and when the police investigations commenced. But it does seem that some of us have forgotten the state of play.

First and foremost it is extremely important to reiterate that today the NSW MP was charged, and, like every Australian, is entitled to be subject to due process. That means that the Member for Dobell is innocent until proven guilty, regardless of what our personal opinions and political predilections are.

There were two common questions being asked today as the debate ensued after Thomson’s arrest. The first was: ‘what will this mean for Labor now and in terms of the election?’ The second questions was ‘hmm, is it just a coincidence that Julia Gillard called an election yesterday and now, today Craig Thomson is facing criminal charges?’.

The answer to the first question remains exactly the same as it was when it was first raised as the investigations into the matter began. The Australian Constitution has this to say in s44 (ii):

“Any person who –

(ii.) Is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer…

shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.”

So that makes things pretty clear for those who have missed the point again today. A conviction needs to be recorded against Craig Thomson first before his parliamentary future is affected in any way. Further, the offence has to be punishable by imprisonment for one year or more. Well, there is no problem with the latter if the MP is convicted.

In terms of the election, Craig Thomson’s arrest is likely to mean absolutely nothing except, as you would imagine, certain electoral defeat. It is extremely unlikely that any trial involving the now Independent MP will be concluded before the 2013 election which we now know will take place on September 14th. The only way it would be possible for action to be required under the provisions of s44 is if Mr Thomson were to plead guilty and he has already indicated that will not happen.

In terms of the election and Labor’s prospects, even the charges alone will surely prove to be yet another nail in the electoral coffin for Labor. They will add to the narrative, already well constructed, of distrust.

Above all, Labor will survive until the election.

The second question is an interesting one. It posits that the Prime Minister knew of the impending arrest of Craig Thomson and therefore decided it would be best to call an election.

It is entirely possible that the Prime Minister knew that Craig Thomson was going to be arrested. The media were indeed tipped off so it is understandable to question whether or not the PM was aware of the imminent charges against Craig Thomson. Julia Gillard denies that she was made aware of the arrest before it happened.

Even if Prime Minister Gillard was aware that charges were about to be laid against Mr Thomson, and then decided to call an election as the conspiracy theory posits, one simple fact remains – there is absolutely no benefit, political or otherwise, to be gained from the PM calling an election early because of the Craig Thomson matter.

The charges are a sensational development, but frankly, almost nothing changes.

Who Does Law and Order?

Tonight I sat and watched, as I always do, the nightly edition of The Drum. The topic turned to gun violence in our own backyard, with the Gillard Government foreshadowing plans to tackle the recent spate of highly publicised gun-related crime, mostly gang related, across Sydney’s west. It was an interesting discussion, coming so soon after the Newtown massacre in the United States of America and in the same week as a report which found that the level of gun ownership in Australia has returned to pre-buyback levels.

Ostensibly, what was actually announced by the Prime Minister today was an examination of what could possibly be achieved by the government under the present legal arrangements. Prime Minister Gillard has given Home Affairs Minister Jason Clare that task and has asked him to bring a list of options to the cabinet table.

Crime is an emotive issue. Talk about cracking down on crime and criminals plays to something deep in our psychological make-up. We as humans love to feel safe. We love to feel as if we are being protected not just by ourselves, but by others, by a sizable and powerful police force there to watch over us.

Now, we all know it’s an election year and law and order is often an election issue. The trouble is, that law and order, under the Australian Constitution, is a concern for the states to wrestle with. And state political parties do make battling crime a big focus at election time and throughout the electoral cycle. The commonwealth government does however have the Australian Federal Police and Customs under its purview, so in that sense, it is not strictly true.

There is something that the discussion seemed to forget and that is what John Howard did in the first year of his time as Prime Minister, after the indescribable horror of the Port Arthur massacre which saw 35 people gunned down. He was not a state Premier, but through discussions with his state colleagues, was able to secure a national ban on automatic weapons and a uniform gun buyback scheme.

By virtue of the fact that law and order and policing is largely a state issue, there really is little that can be done by the federal government on its own. The Gillard Government can however try to negotiate a package of measures with the states for them to implement in their own jurisdictions.

There is however one thing that the government can do unilaterally. They’ve cut funding to Customs and they can, since they no longer wish to return the budget to surplus, restore funding to the crucial agency. Alternatively, or at the same time, extra funds could also be directed to the AFP.

The question of what the states and the federal government can do in terms of powers in a more broad sense is interesting. It would appear that traditional state/commonwealth roles are becoming increasingly blurred, with the commonwealth appearing to want more power and resources at the expense of the states.

And that shift clearly extends to law and order issues, with politicians at the federal level wanting to affect change, or at least be seen to be trying to reduce crime.

Law and order will be an issue during this federal election year and beyond. We just have to get used to it.

Half Good High Court Judgement, But Let’s Have Some Common Sense Changes to NSCP

In one of a string of highly anticipated High Court judgements this year the Canberra-based court ruled by a majority of 6-1 that the National School Chaplaincy Program (NSCP) is unconstitutional because it goes beyond the powers of the commonwealth enshrined in the Constitution. The court reached this decision despite the commonwealth arguing that it was able to provide the funding for the policy under s61 of the Constitution which says that executive power “extends to the execution and maintenance” of the foundation document as well as “the laws of the commonwealth”.

There was no legislation governing the agreement.

On the other hand, the court ruled against the plaintiff based on s116 of the Australian Constitution which deals with religious freedom, saying that the program was not an affront to the freedom to practise, or not practise religion.

The court said that while there was a religious test involved in the hiring of school chaplains, a test not required by the commonwealth to hold a government position, the state was not involved in the direct provision of these services and so that section of the Constitution was not breached by the chaplaincy program.

The High Court ruled that the program, delivered in Queensland by the Scripture Union of Queensland did not constitute holding a commonwealth office under s116 as the state was not a party to contractual agreements with the school chaplains employed under the program.

The first major thing to point out is that it is a potentially very positive decision for the devolution of power from the executive branch of government, the ministry, which made the decision on the National School Chaplaincy Program under former Prime Minister John Howard.

The future of the program as a whole is unsure though it would seem quite likely that legislation could be put through which gives either the commonwealth or the states the power and funding to provide for the continuation of the chaplaincy services, though legal experts have said that it is far from clear that accompanying legislation would properly remedy the constitutionality of the NSCP.

But arguments against the pr0gram as it stands also go well beyond the legal and constitutional aspects as judged today by the High Court of Australia and common sense rather than legal argument should  lead to a determination that the idea as it stands does not give students real choice when needing to seek the assistance and counsel of suitably qualified adults.

Changes to alter the NSCP which were put forward by the Labor Government to amend the policy had been inserted to give schools a choice as to whether or not they provided a religious or a non-religious chaplain to offer counselling services to students.

What any good program should do in the counselling area is to provide the parents, not the school with the choice of whether or not their sons or daughters are able to seek the confidence of a chaplain or a counsellor. That is, the programs should give the opportunity to provide both, rather than one or the other at the very least.

An even better option would be to provide students, particularly the older ones with the ability to decide what is best for themselves the opportunity to choose who they seek to get advice from.

The High Court judgement in this way is half good at least as far as power concentration goes but where the court did not judge in favour of choice there should be common sense moves to allow greater choice for the students or their families in all cases with a preference towards offering professional counsel above and beyond that which religion provides.

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