John Howard should beware of magpie clauses.
Magpies, you may recall, awakened one Ewart Smith, former deputy secretary in the Attorney-General’s Department very early one September morn in 1987. In his insomnia he realised a way to defeat the Australia Card.
It was after the double dissolution of that year. The Australia Card Bill had been knocked back by the Senate twice and Bob Hawke had used that as a trigger to call a double dissolution at which the House and all the Senate were sent to election. Hawke won the House but not the Senate. In the ordinary course of events there would have been a joint sitting at which Hawke would have had the numbers to pass the Bill because his excess in the House would have more than compensated for his deficit in the Senate. This is how Gough Whitlam got six Bills through after the 1974 double dissolution after he did not get a Senate majority.
So what, thought Ewart Smith. Even if the Australia Card Bill passed, the Bill required regulations to declare the date of Day One of the card. And those regulations could be disallowed by the Senate. What point was there having an Act for an Australia Card if you could not get a regulation through to kick it off? The Australia Card Bill had a magpie clause … it was there in black and white but it couldn’t win a grand final. There was no joint sitting.
Howard says he is determined to push through industrial relations reform in the first sitting and determined to push through the sale of Telstra.
But Howard does not have a majority in the Senate.
That means ditching the plan; or compromise; or forcing the issue through a double dissolution.
Talk of a double dissolution is not idle: it has happened as often as not after a change of government: Menzies in 1951 after winning in 1949; Whitlam in 1974 after winning in 1972; and Hawke in 1987 after winning in 1983 (though there was a supervening ordinary election). You can see why. The leader thinks a mandate has been denied and that the public will support the mandate against a recalcitrant Senate. Instructively, only Fraser who had a majority in the Senate did not go for the double dissolution so after the change of government in 1975.
Further, a double dissolution is the only way Howard can get a Senate majority and even that is difficulty. The next half Senate cannot be held for three years and even then Howard can at best expect exactly half the seats, as he won at the weekend. At a double dissolution 12 seats are up in each state and it is easier to win seven out of 12 in one or more states to get an overall majority than it is four out of six .
Clearly the Howard plans will not be ditched, and significant compromise would be unpalatable in the face of a mandate for things stated in the policy before the election.
The Coalition has 37 senators. With Brian Harradine, a social conservative, it has a blocking vote which might stop inquiries and other embarrassments. With Harradine and/or two Greens it has a majority … leaving the Democrats powerless. Given the importance of the environment to the Greens, that may be enough to get the Telstra sale through so there is money for the environment.
On industrial relations, however, none of Harradine, the Greens or the Democrats will support all of the policy reform presented by the Coalition at the election. Howard might be tempted to stick with his mandate and call the Senate’s bluff with the threat of a double dissolution, which he would be entitled to under the Constitution if the Senate knocks a law back twice.
This is where the magpie clauses come in.
To avoid a magpie clause, the legislation has to be drafted in one of two ways. Either it has to be drafted in fine detail so it does not require any further parliamentary input, or the legislation itself has to give sweeping regulation-making power to the Minister in a way that does not permit subsequent disallowance by the parliament, in particular the Senate.
Both have difficulties.
In the past decade virtually every piece of legislation implementing a significant policy change has required significant amendment to be effective. No matter how detailed the legislation is, it is unlikely to foresee all events (especially if it is drafted quickly so it goes through the first session). If Howard attempts to craft a detailed Bill and goes through the double dissolution process to get it through, he may end up with an unforeseen magpie clause that makes it unworkable. And he could hardly force another double dissolution to amend it to make it effective.
On the other hand, if he tries a Bill with wide ministerial regulation-making power to overcome future magpie clauses he will be met with inevitable Senate opposition couched in terms of objection to ministerial power rather than rejection of industrial-relations reform. None the less, it would be better to force this sort of Bill through (even carrying the stigma of wide ministerial power) than falling foul of magpie clauses.
The essential difficulty is that society has become so complex that policy changes can rarely be effected (EFFECTED) by one simple law that can be forced through by a double dissolution if necessary.
I suspect that the legal-bureaucratic-political system in Australia is now so complex that the double dissolution mechanism is virtually a dead letter as a means of forcing policy changes through a hostile Senate. The trouble is that policies are not put through parliaments and joint sittings; only laws are. And laws so often have hidden magpie clauses which require later fixing up before the policy can be put into proper effect.
Double dissolutions may now only be for clearing out recalcitrant senates, not for passing laws.
You would think that senators would say Howard has a mandate for his policy and to let the substance of it pass. But we have seen that the reform path is not easy, especially in industrial relations. In the few days since the election we have seen Bill Kelty give notice of war and we have seen some unions put in a 15 per cent pay claim as the first shot in the first battle.
In this environment, Howard needs to think ahead or he may find that magpie clauses and Senate recalcitrance defeat the policy the voters gave him a mandate to put in place.
His dilemma is whether to try reason and compromise to get some of his industrial-relations reform through or to be tough and hit the Senate around the head with the threat of a double dissolution and some brute ministerial power.
The other attraction of an early double dissolution for Howard is that it will get rid of the dross and nuisances in his present excessive majority. A huge majority is a hindrance, not a help, to a leader, because it causes complacency and ill-discipline. Howard would gladly trade 25 members of the reps for just two senators. Watch.