Prime Minister John Howard has proposed that the legislation for the sale of the remaining two-thirds of Telstra have an operation date after the next election. He argues, quite reasonably, that the people will get a chance to judge the legislation and if his government is returned he will have a clear mandate for it. He could quite reasonably argue this, irrespective of whether the Senate passes the legislation now or rejects it.
If the legislation is on the table, it is hard for anyone to argue that an in-coming government has no mandate. It must, even in John Howard’s vocabulary, amount to a core promise.
This is all very well in practice, but in theory it runs in to a snag.
What if Howard wins the election and, as is very likely, does not get a majority in the Senate and the Senate continues to block the Bill? It would mean that despite the people’s imprimatur on the legislation (by re-electing the Government with that legislation in detail as a core promise), the legislation does not get enacted. It is a major flaw in our democracy.
It was suffered by Labor in the early 1970s and was the root cause of the 1975 supply crisis.
Howard’s Telstra tactic is politically sound. Indeed, he should apply it to tax reform (as suggested in this paper several weeks ago). But still it could be blocked by a recalcitrant Senate and the only way out of the deadlock that our Constitution provides is a double dissolution.
There is a problem with that. The Constitution says you cannot have a double dissolution in the last six months of the term.
More technically, it says a double dissolution “”shall not take place within six months before the date of expiry of the House of Representatives by effluxion of time”. That occurs three years from the first meeting of the House after the previous election, which was April 30, 1996. So we count back our six months from April 30, 1999, which is October 30 this year.
Then you have to satisfy the conditions of getting a Bill rejected twice by the Senate with a three-month interval between the two times the House has to pass the Bill. That takes a minimum of four (realistically, five) months, given parliamentary sitting times, Senate and House procedures for considering Bills and a time lapse of some reasonable period for a Senate a delay or non-vote on the Bill to be legally considered as “”fails to pass”, to use the words of the Constitution. And you have to add a month for drafting.
It means Howard has to act right now if he wants his Telstra Bill to satisfy the requirements of the Constitution for a double dissolution.
The other trouble with the double dissolution is that it rearranges the starting date of the terms of senators. Usually they start from the July 1 AFTER the election. In a double dissolution they are deemed to start from the July 1 BEFORE the election and the term of half of the senators must expire exactly three years after that with a requirement for their election in the preceding 12 months. This means that if the House is to have a reasonably full three-year term and its election is to be simultaneous with the next half-Senate election, a double dissolution must be held as quickly after July 1 as possible.
This locks Howard in. If he really wants his Telstra sale and Wik legislation through, the Constitution and political reality virtually demands that he have a double dissolution sometime between September 19 and October 24. (Electoral law says elections have to be on a Saturday.)
I think this constitutionally imposed timetable is quite unfair, undemocratic and disruptive.
Why shouldn’t the Government be able to put its laws on the table, run its full term of three years as it was elected to do, and then take its proposed laws to an election and have them passed in that form if the Government is returned.
At present, the Constitution prohibits that. If the Government wants to run its full term it runs the risk of its Bills being knocked back again in the Senate immediately after the election, even though the people would have implicitly approved them.
Personally, I think the Wik Bill sucks and I suspect that Telstra will be flogged off far too cheaply. But that is beside the point. If the material is put to the people and they re-elect the Government it should go in to law. Governments should be encouraged to put their proposals in legislative detail before the people and they should be encouraged to run their full term.
The problem is that the Constitution gives the Senate too much power and it gives the Prime Minister too much power.
At present the Prime Minister can choose the election date (including the date for a double dissolution if the requirements are satisfied). It would be better to have a fixed term to reduce the Prime Minister’s power. In return the Senate should yield its power over Supply, and its power over legislation should be restricted to review, amend if the House agrees or block only until the next ordinary election, after which a returned Government should be able to pass it without Senate approval. At present it can block until there is a double dissolution, which after October 30 means through TWO elections.
The Senate was too powerful in the days of the Whitlam Government and it is too powerful in the days of the Howard Government. The present Telstra proposal highlights the point admirably.