The system of governance in the Act continues to evolve. It would be silly to expect the dogma of the Westminster system to apply unamended to a hybrid constitutional set-up like ours.
Opposition Leader Jon Stanhope has called on Chief Minister Kate Carnell to resign following the defeat of her Budget in the Assembly early yesterday morning. The usual Westminster convention is that if the Budget is defeated on the floor of Parliament (the Lower House in bicameral systems) the Government should go. That would hold in Britain, Canada, New Zealand and most Australian states. The ACT is different. It has, in effect, a detailed written constitution, in the form of the Self-Government Act, an Act of the Federal Parliament. It lays out the rules on the making or breaking of government.
The single most important difference between the ACT and other Westminster systems is that we do not have a figurehead – a Governor, Governor-General, monarch or ceremonial president. In other Westminster systems the figurehead has evolved from the ancient principle of the divine right of kings. The king claims divine right to rule through the hereditary system and allows an elected Parliament to make law. Notionally the Prime (or Chief) Minister needs formal permission of the figurehead to dissolve Parliament and hold election or to call Parliament into session. The figurehead appoints and dismisses the Prime (Chief) Minister and signs passed Bills into law.
The figurehead follows conventions about only selecting a person with a majority as Prime (Chief) Minister and only dismissing her or him upon a majority vote on the floor. That is fine if events follow usual patterns. But it is the unusual events (like those of yesterday) which define the system.
In the ACT, with no figurehead, things have to be self-executing (because there is no figurehead to be the executive to execute them). The Self-Government Act – unlike the Westminster system based on the divine right of kings – works from the people up, not God and the king down. It says the people vote on the third Saturday of October (or before recent amendments, February) every three years for 17 representative members of the Legislative Assembly. Those 17 in turn vote for a Chief Minister and the Chief Minister appoints Ministers. The Chief Minister signs Bills into law, even those she might disagree with. In short, the members of the assembly have to vote on the issue of chief ministership before a chief minister comes or goes. And those members are elected on a set date not a date recommended by the Prime (Chief) Minister to the figurehead.
Carnell is entitled to bat on as Chief Minister with her ministers until a majority of the Assembly votes her (as distinct from her Budget) down. That can happen for many reasons: they don’t like her any more, she has spent money without Budgetary approval or whatever.
Yesterday’s events will affirm the principle in the ACT that only a formal vote of self-confidence in a Chief Minister can result in the removal of a Chief Minister. Votes on the Budget can only be indicative of that, but do not of themselves constitute a vote of no confidence.
The fundamental tension yesterday was that one majority or nine (6 Labor, 1 Green and 2 Liberal) supported a safe heroin injecting room, yet another majority (6 Labor, 1 Green and 2 independents) rejected the Government’s Budget as a whole. The two independents of that majority rejected the Budget because it contained funding for the injecting room. The other seven rejected the Budget because they reject virtually everything the Government puts up just for the sake of it.
Labor has made a rod for its own back now. If it gets government after the next election, it will most likely be a minority government. In future, the Liberals will vote against Labor Budgets as a matter of course as pay back. It will always allow independents to use the threat of rejecting the Budget as a means of getting their way on their pet project of the day.
So yesterday’s events will probably cause a change in the way governments go about things to avoid that prospect. It may be the procedure will change whenever some morally or emotionally charged issue gets voted into law – abortion, heroin trials, compulsory sterilisation of cats, surrogacy or whatever. In future the law might carry an automatic three-year appropriation of money to put it into effect. This would mean the Government’s headline Budget would not need to carry funding for emotionally charged issues. Or it might mean that future Governments will always split Budgets into core non-contentious appropriations and appropriations for matters that might excite the attention of narrowly focused independents.
That way a government can pick up differently composed majorities to get different parts of its Budget through. Bear in mind that every line item of this Budget was passed in the Assembly’s equivalent of committee stage but the Budget as a whole still went down.
But votes on no-confidence motions are not votes of confidence in the Chief Minister. A motion could go before the Assembly tomorrow on no-confidence in Kate Carnell as Chief Minister. It might well fail. Dave Rugendyke, for example, might find the prospect of Jon Stanhope as Chief Minister leading a team of six injecting-room-approving Labor MLAs in Government more daunting than a Carnell-led Government.
So we would still have a rejected Budget and the same Chief Minister. An impasse.
The Government might now divide its budget with the injecting room appropriation separate so Rugendyke can vote for the bulk of the Budget with a clear conscience and Green MLA Kerrie Tucker can provide the critical number to get the injecting room up. Though the whole exercise might have so infuriated Osborne and Rugendyke that it is too late for compromise. If so we might get an impasse – a constantly rejected Budget and a constantly re-elected Carnell on the floor of the Assembly because Rugendyke could not face the prospect of a Labor Government.
If that happened the Federal Minister for Territories could advise the Governor-General to declare the Assembly “”incapable” and order an early election. Carnell might prefer the electorate to the Assembly at this stage. If there were an early election, the new Assembly would only service out the remaining 15 months of this term.