One of the glaring deficiencies in the Australian adaptation of the Westminster system of government, at both the federal and state levels, has to do with casual vacancies in the Upper House – the Senate in the former, and the Legislative Council in the latter (in all cases except Queensland, which abolished its Upper House in 1921).
In the case of the Lower House, a casual vacancy created by the death or resignation of an MP results in a by-election, in which the people decide directly who should act as their replacement representative in parliament for the remainder of its term. This is as it should be.
However, in the case of a casual vacancy in the Federal Senate, Parliament is expected to accept the recommendation of the Premier of that state, even if the state government is of a different political stripe from the government in Canberra. Long tradition dictates that the Premier, in such a case, will accept the name put forward by the state president of the former Senator’s own political party; this candidate would then be formally proposed by that state’s parliament. This tradition has been generally respected by both sides of politics; the most famous breach occurred in 1975, when the ALP controlled the Federal Senate by a single vote. Upon the death of ALP senator Bertie Millner in June that year, Queensland National Party Premier Joh Bjelke-Petersen refused to accept the name put forward by the Queensland state branch of the ALP, and instead plucked from obscurity one Albert Patrick Field, a french polisher of no distinction who, though he had been a member of the ALP for over 30 years, was deeply conservative and as openly critical of the Whitlam Labor government as he was full of praise for Bjelke-Petersen. Field was immediately expelled from the ALP for accepting the appointment. The tipping of the balance of power led to the 1975 constitutional crisis and the downfall of the Whitlam government in November of that year. In 1977 the Fraser coalition government, possibly burning its bridges behind it, used a constitutional referendum to formalize the convention into law.
While the law regarding casual Senate vacancies was intended to cover senators dying, falling ill or undergoing serious personal or family crises, of late it appears to have been seized upon by political parties as a loophole for shoe-horning their own favourite sons into the parliament without the bother of having to go to the people. It is remarkable how often these unelected members are instantly gifted with high parliamentary or ministerial office. Such was the case with Bob Carr, former Premier of New South Wales who, in March this year, had room made for him by the sudden and very dubious resignation of NSW Labor senator and apparatchik Mark Arbib. Carr was sworn in both as a Senator and the Federal Foreign Minister on the same day and, as I write this, is in New York with Julia Gillard, lobbying the United Nations for Australia to be appointed a seat on the Security Council.
Actually, whatever his faults, Carr’s strengths overshadow the weakness of the system which permitted his ascension to the Senate and Cabinet without needing a single Australian citizen to vote for him. A former career journalist and bibliophile, the supremely erudite Carr is also an Amerophile, sits on the Board of Directors of the United States Study Centre at Sydney University, and is a walking encyclopædia of United States history and literature in particular, having often in his days as Premier amazed American political and academic audiences with the breadth and depth of his knowledge of their country. Carr has consistently stated openly over the years that the post of Foreign Minister was the one he has always aspired to, and indeed some even among his political opponents concede that he could almost have been born for the rôle. In fact, the contrast between Carr and Gillard when they are placed together like this is so embarrasingly obvious that Gillard’s speechwriters have been forced to come up with revamped screeds, containing so many big words that our Dear Leader sometimes has difficulty in getting them out.
But I’m not here today to talk about Carr. In most state parliaments, casual vacancies in the Upper House are appointed by a joint sitting of both Houses. While this is, on the face of it, marginally fairer than the situation federally—at least the appointments were made by people we voted for directly—in practice it means that whichever party has the numbers in the State house can nominate parliamentarians in their own smoky back rooms.
Such was the case with the man whose picture appears at the top of this page: a certain Bernard Vincent Finnigan, a man whose name I could not even mention to you until twenty-four hours ago, due to a court suppression order. This young man, one of twelve children from a deeply religious rural family, graduated from the University of South Australia in 1993 with a Bachelor of Arts and immediately joined the Australian Labor Party, becoming entrenched in factional politics as part of the right-wing Labor Unity faction. A union official and political intriguer for the next ten years, in 2006 Finnigan, at the age of just thirty-four, and having never held down a real job in his life, was appointed by the South Australian parliament as a Member of the Legislative Council, following the death of Labor MLC Terry Roberts. In his maiden speech, Finnigan chose to highlight the Catholic religious doctrine which he claimed to guide his actions:
I would like to acknowledge that, despite my stumbles along the way and however imperfect my efforts, I am a servant of Christ and subject of His reign in history.
Little did his audience at the time comprehend the true nature of these stumbles and imperfections, or appreciate how quickly thereafter they would come to light.
Finnigan has consistently voted conservative on all social issues, opposing state moves to allow voluntary euthanasia and giving same-sex couples access to gestational surrogacy. Being elevated shortly thereafter to the Cabinet under the government of Premier Mike Rann, he was subsequently given an unloseable third placing on Labor’s ticket at the 2010 polls and was duly re-elected. He was subsequently promoted to be Leader of the Government in the Upper House, and was spoken of by many in the ALP as a future Premier.
Which is where it all started to go downhill. On 20th April 2011, Finnigan’s home was raided by police. Computers were seized and Finnigan was arrested and charged with a variety of child-pornography offences, some of which, due to the nature of the images found and apparent age of the children depicted, fell into the “aggravated” category. The following day, Finnigan resigned his Cabinet position and parliamentary offices, and was suspended from the Labor Party until the charges were disposed of.
OK, you might be thinking, no-one else knew about this beforehand, and anyone can inadvertently back a loser. Not to mention that we are all innocent before the law until proven guilty. And you would be right. This, however, is where the gob-smacking bit starts. As the charges against Finnigan are classified under South Australian law as sex crimes, the court automatically granted a suppression order against publication of his name in relation to these charges. Fat chance of keeping that under the mat in the internet age. I’ve been aware of this matter for over a year, but haven’t mentioned it on the blog before today as I wanted to avoid any potential legal hassles. The suppression order lapsed yesterday, when Finnigan was ordered to stand trial on a number of counts of obtaining child pornography, and attempting to do same.
Now it gets even worse. Though Finnigan has pleaded not guilty to all charges, his lawyer, Michael Abbott QC (no relation to Tony Abbott that I’m aware of), is not even trying to pretend that his client did not do what the Crown Prosecutor and the investigating police detectives know damn well that he did. Instead, Abbott is basing his case around the poorly-drafted provisions of the South Australian criminal code, which state that an offence is only committed if the victim (i.e., the child depicted in the image) was under the age of consent at the time the crime was committed—that is, when the images were downloaded or otherwise accessed. Effectively, if upheld as a precedent in this case, this gives paedophiles free reign to obtain and view child pornography providing the images are more than twenty years old! According to this report:
Mr Abbott said it could not be established by the prosecution that there were victims or what their ages were at the time of the alleged offences.
“If you have no victim, you have no aggravated offence. Our argument is as simple as that,” Mr Abbott told the court.
“It’s not enough to say, we’ve got pictures or websites or whatever.”
It gets still worse yet. For the last year, Finnigan, stripped of parliamentary duties, has refused to resign his seat, though the current Premier, Jay Weatherill, has recently written to him asking him to do so. For over a year, he has sat silently on the government benches, doing nothing, treated by his former colleagues and foes alike as if he were carrying a live hand grenade.
He has pocketed over $200,000 of taxpayers’ money in the form of his parliamentary salary, for no observable service.
As an MP, all his legal expenses are likewise being picked up by the taxpayer.
How sickening is all this to the ears of an Australian taxpayer? Very. At a minimum, Finnigan himself should admit what he did and then resign from parliament. Or deny all charges, instead of asking his lawyer to get him off on a technicality.
You can’t even blame the Labor Party for this mess. Both sides of politics have rorted the casual vacancy provisions of the Constitution, and every time it occurs the people’s faith in Australian democracy diminishes.
My own solution is, if we are indeed going to persist in having an Upper House which purports to uphold the interests of the States above all, then instead of the barely-comprehensible proportional representation system which sends twelve senators from each state to parliament, divide each state geographically into twelve regions, each of which sends one member to the Upper House. Casual vacancies to be filled from a by-election, the same as the House of Representatives. The parties would hate it, because they will no longer be able to put up faceless hacks in the Senate. The Greens would fight it to the death, for it would finish them off permanently as a political force. And parliamentarians generally would hate it, because it would immediately expose the undemocratic nature of the Senate: each senator from Tasmania represents about 20,000 electors, while each NSW senator represents ten times as many. Yet their votes have the same value. Former Prime Minister Paul Keating in 1992 memorably referred to the Senate as “unrepresentative swill”. He should have remembered that it applies to his own side as well as the opposition.
Power to the people, I say.