Australia's favourite political test depends on who is at the pub

One of the complex and unique delights of Australian democracy is our three-tiered justice system.

The first tier consists of the laws that are debated and passed by our parliaments. Then we have the common law, which is made by judges interpreting those laws.

These two are fairly orthodox. But in this country, we've added a third layer, called the "pub test". A much, much more nebulous affair, largely administered by journalists asking ourselves: "Yeah, but what would a totally imaginary group of very pissed people think of this?"

Not knocking it, by the way. A nation whose most celebrated legal principle — drawn from The Castle — is "it's the vibe, your Honour" is most certainly a nation able to listen to its own rhythms, and the Australian people are usually pretty great at getting these instinctive judgements right.

A jury of their beers

"The pub test" tends to be applied when we've run out of avenues to pursue a public figure, but are still super annoyed.

Cabinet minister Anika Wells, for example, has incurred, declared and disclosed a series of work travel expenses entirely in accordance with the ministerial travel rules.

Former deputy prime minister Barnaby Joyce — who just months ago campaigned as a Nationals candidate for the seat of New England — is absolutely entitled to do what he did yesterday, ie: announce that he is executing a major handbrake turn and will henceforth be trading under the One Nation banner.

Neither has committed an offence under any formally codified law.

But a jury of their beers may think otherwise, and the beauty of the "pub test" is that once it's kicked off, the court is pretty much perpetually in session.

To Wells first, who faces front-bar prosecution over the nearly $100,000 it cost to fly her and two advisers to the New York hard launch of Australia's crazy-brave social media ban at the United Nations General Assembly.

She was originally supposed to fly with the prime minister on his jet but ended up flying commercial last-minute because a major telecommunications company had just low-key messed up Triple Zero (000) services, contributing to actual civilian deaths, and made the mesmerising decision to announce all this belatedly in a press conference before informing the government.

A hundred grand on flights to New York absolutely fails the pub test. No doubt about it. Not because it's the most egregious air-miles expenditure of all time; I mean, we don't know how much it cost to send the entire Australian contingent to UN Week but it'll certainly be many times that. Joyce spent double that amount on private flights pottering back and forth from Tamworth when he was deputy PM. Wells's own flights to New York — coming in at around $30,000 — are one hundredth of the $3m that the current deputy PM, Wells's factional colleague Richard Marles, spent on RAAF flights in just over a year. We spent about the same amount flying Wells back and forth to New York as we spent flying Peter Dutton and Mathias Cormann to Canberra just to be re-sworn as ministers after they whacked Malcolm Turnbull.

But there's something about New York itself that spells trouble for passing the pub test. And the interesting thing about the pub test is that once invoked and failed, it opens the field for almost limitless prosecution.

A list of pub crimes

For the last week, Wells's press clippings look like someone's typed "Show me anything Anika Wells has done in the last three years that looks like it might have been fun" into ChatGPT.

She ate expensive food in Paris, where food is expensive. She went to sporting events.

One newspaper reports, with neutral menace, that "Ms Wells has been to every AFL grand final since she became sports minister in the wake of Labor's return to power in 2022".

Extraordinary.

In recent days, Wells's pub crimes have broadened from "going to sporting events" to "bringing her family to sporting events".

For instance, she is reported to have claimed nearly $3,000 in "family reunion" travel expenses to have her husband and toddler sons join her at Thredbo, the NSW ski resort at which she was headlining a Paralympic event.

One wonders how many of the thundering personages calling for ANSWERS over the Wells Ski Weekend have actually taken twin toddlers to the snow as part of a work trip.

Depends on who is at the pub

This is the other thing about the pub test. It kind of depends who's at the pub.

A pub full of AFL fans who didn't personally get free tickets to the GF might return a swift conviction of Wells. A pub full of working parents who have actually personally attempted the "works on paper" idea of incorporating toddlers into your work weekend in a desperate attempt to feel like you're not failing at everything might have a more nuanced view.

Wells is — as a 40-year-old mother of three young children who also has a big cabinet job — a life form who 20 years ago pretty much would not have existed.

Honestly, the world is full of conspicuous consumption and Insta-fabulous luxury, but where does "work weekend in a sub-zero location in which one is managing two determined small people whose sodding mittens keep falling off in a hazard-strewn environment while people publicly assess both one's parenting and one's ministering" appear on the list?

It is (as every minister now recites) a question for others.

Part of the problem is that being minister for sport just sounds like so much fun. Doesn't it? I mean, are disclosures for the veterans affairs minister or the special minister of state anywhere near as interesting?

A historic point: Over the past decade, we've had five sports ministers. Apart from Wells, working backward, they are Richard Colbeck, Bridget McKenzie, Sussan Ley and Peter Dutton. All of these have copped headlines about travel entitlements. Of the five, two — Sussan Ley and Bridget McKenzie — have tendered their resignations in the past. Ley for what amounted — in the end — to using a Comcar to visit an apartment she'd bought in the Gold Coast. McKenzie carried the can for the "sports rorts" controversy afflicting the Morrison government; she technically resigned because she'd been given a free membership to a gun club that received funding through her portfolio. Several of her male colleagues could be seen participating in far more egregious pork-barrelling. She was the only one to resign.

The One Nation defection

To Barnaby Joyce now, prime ballerina in the longest Dance Of The Seven Veils in Australian political history. The "pub test" of his defection to One Nation, long-trailed, is yesterday years old.

Joyce says he's been thinking about it for a long time. How long? Before-the-election long?

There is, as already stated, no legal requirement for him to, having been elected as a National Party MP, remain one for his full term.

And the House of Representatives crossbench is historically replete with men who were once National Party MPs but then got cross. Bob Katter, Tony Windsor, Rob Oakeshott … there are loads of them, they have been significant, and it's close to certain that the Joyce decision on Monday will also be significant.

It's not about One Nation. The voters of New England already had the chance in May to elect a One Nation MP.

Broadcaster and musician Brent Larkham, known as the "singing candidate" for his campaign tactic of travelling around New England singing the national anthem, ran as a One Nation candidate for New England at this year's election and garnered a respectable but electorally insignificant 10 per cent of the vote.

With respect, this is not about One Nation or Larkham, who broadly sounds fun.

This is, mainly, about Barnaby Joyce. And the pub test — whose number one attribute is wild, endless subjectivity — is different for him. Of course it is.

Can you imagine a female politician surviving a story arc in which she commences a relationship with a staff member and leaves her husband who has raised their kids and fibs about it to colleagues and then blows up her government with her resignation and then later passes out in the street, which is captured on video, and now quits the party that's sponsored her into parliament?

None of this is to suggest that Anika Wells should survive and Barnaby Joyce shouldn't.

That — as it should be in any democracy — is a matter for the people. Of course it is. But when employing the pub test, avoid the beer goggles.