Is there another way for ALP on refugees? There’s an easy answer to this question. Yes, there is another way. But it requires political courage, something which sadly seems to be lacking in the current federal government. And it requires an understanding of the ALP’s National Policy and Platform. And for those in factions who voted for party policy at the last National Conference to argue for that policy in Caucus, and to vote for that policy on the floor of the House.
Does all this in turn require Labor politicians to cross the floor? If they do, and the Coalition refuses to support Gillard’s Malaysia Solution Mark 2 legislation, the amendments are dead in the water. Gillard and her Cabinet will have egg all over their faces, but no refugees will be damaged further by being sent to Malaysia.
Any Labor politician considering crossing the floor of the House has to take many factors into account, including whether their action is against the decision of Caucus. To cross the floor in those circumstances is an expellable offence.
In a research note issued by the Parliamentary Library, ‘Crossing the Floor in Federal Parliament 1950 to 2004’, the researchers noted that crossing the floor is a gesture unique to Westminster style parliaments. It involves a member of parliament refusing to vote with their own party in a particular division and crossing the floor of the parliamentary chamber.
In the period that these researchers studied, 1950 to 2004, there were 14,243 divisions in Australia’s federal parliament. Of these 439 (3 per cent) were identified as divisions in which members of parliament (MPs) crossed the floor. The floor crossing divisions in each chamber were:
• Senate: 297 (67.7 per cent)
• House of Representatives: 141 (32.1 per cent)
• Joint Sitting: 1 (0.2 per cent)
The MPs crossed the floor over a range of subjects. Taxation was the major issue being the subject of 43 floor crossing divisions. This was followed by legislation on referendums (26), the environment (23), issues relating to the parliament (21), parliamentary entitlements (21), primary industry (19), committee establishment and referral (17), civil aviation (14), electoral law (13) and human rights (12).
The act of crossing the floor does not appear to have adversely affected all floor crossers’ careers. The number of floor crossers who went on to become ministers, parliamentary secretaries or presiding officers is substantial (43 per cent) and compares favourably to the number of all MPs who attained such office (30 per cent). The study also notes, "The last two Labor MPs to cross the floor — Senator George Georges in 1986 and Graeme Campbell MP in 1988 — were both suspended from the party for their actions".
Doug Cameron, representing the Parliamentary Left Convenors, has so far said that he will vote against the proposed amendments to legitimise the Malaysia Solution in Caucus, but will be bound once Caucus has made a decision.
However there is a complication here. Where Caucus has made a decision that is contrary to National Conference Policy and Platform, Caucus members are not bound by that decision. Following this logic, Caucus has no authority to make the decision to endorse the Malaysia Solution Mark 2 because to adopt a position that directly conflicts with the party’s platform is in violation of Paragraph 5 (d) (ii) of Part B (Rules) of the ALP’s constitution which reads:
"The Federal Parliamentary Labor Party shall have authority in properly constituted Caucus meetings to make decisions directed towards establishing the collective attitude of the Parliamentary Party to any question or matter in the Federal Parliament, subject to:
"(iii) no attitude being expressed which is contrary to the provisions of the Party Platform or any other decision of National Conference or National Executive."
Paragraph 5 (b) of Part B (Rules) of the Constitution of the Australian Labor Party reads:
"(b) The National Conference shall be the supreme governing authority of the Party and its decisions shall be binding upon every member and every section of the Party."
Several Labor politicians have publicly expressed their disquiet with the government’s direction over asylum seekers — such as Melissa Parke, Anna Burke, Janelle Saffin and John Faulkner — but whether they are prepared to cross the floor to vote against the Gillard/Bowen legislation is yet to be seen. Certainly there are plenty of party members urging Labor politicians to do all they can to stop the government going ahead with the Malaysia Solution Mark 2. The Refugee Action Coalition is actively debating, lobbying and rallying to all they can to stop Malaysia Mark 2 — including encouraging Labor politicians to cross the floor if that is what is necessary.
But apart from the rules and legal issues, the moral question here is this: if a politician crosses the floor to defend party policy and platform, are they justified? And should not party members actively defend any politician who takes a principled stance in support of party policy and platform?
It is becoming very clear that the Gillard Government, desperate to pacify voters in marginal seats and focus group members, has boxed itself in to a corner on refugee policy. As Gillard and her ministers abandon this country’s commitment to the Refugee Convention, Doc Evatt, who worked so hard to help establish the United Nations, and to write the Refugee Convention, must be rolling in his grave!
It is still not too late for the Gillard Government to turn back to Labor Party Policy and Platform. The Prime Minister, the Minister for Immigration and all Labor MPs have signed a pledge as parliamentary candidates: "To do my utmost to carry out the principles embodied in the platform".
The ALP National Platform states, Chapter 7, Paragraph 157: "Protection claims made in Australia will be assessed by Australians on Australian territory", which is a clear endorsement of onshore processing.
Julia Gillard, there is a way out of the box!
Go back to the party policy and platform. Abandon the proposed legislation, re-read the High Court Decision, listen to your Party, and process refugees fairly onshore giving effect to Australia’s human rights obligations.
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