Prime Minister John Howard wants more workplace relations reform in his third term. He has long wanted to wind back union power. But despite being elected three times he still cannot get his way totally.
Labor has begrudgingly acknowledged that given the three Coalition wins it would be open to compromise on workplace relations, particularly the application of unfair-dismissal laws to small business. But it is unlikely to force secret ballots before strike action can be taken.
The impasse illustrates some of the defects in Australia’s constitutional set-up. On one hand, it seems a bit ridiculous and undemocratic that a Government returned three times cannot get its legislation through. On the other hand, do we want untrammelled power handed to whomever wins government every three years or so.
The essential trouble is that the Senate has too much power. It is more than a house of review, it is also the house of the perpetual block.
All legislation must go through the Senate. The only way around it is the heavy-handed and risky weapon of the double dissolution followed by a joint sitting of both houses.
The Senate had held up or mutilated about a dozen pieces of Government legislation at the time of the election, including changes to immigration legislation. (And usually it is the critical bits that get knocked back, so it is no argument to say that the Senate approved 90 per cent plus of government legislation.) The unpassed legislation will now have to be resubmitted from scratch. The only other way would have been for the Government – before the election – to have forced their rejection twice by the Senate and then have a double dissolution. That carries the dreadful prospect of a Senate quota of only 7.7 per cent. It would have seen several One Nation senators and quite a few extra Greens elected.
A Government should not have to go through all that. A double dissolution is a cumbersome way to deal with an impasse over legislation.
Perhaps it would be better to take the double dissolution out of the Constitution along with the Senate’s power to block supply. In their place, maybe legislation that has been passed by the previous House of Representatives and is on the table in all its detail at election time should not need Senate approval if the Government wins the election. Just House of Representatives approval should be enough.
Under this powerful Senate, the question of whether a Government gets its way on a policy has little to do with the quality or size of its mandate or persuasiveness of its leader. Often it is a question of pot luck as to whether it requires legislation.
Often it does not. Good examples are Gough Whitlam executing his policy of dropping national military service and Jon Stanhope’s policy in the ACT getting rid of the obnoxious “”information” requirements for women having an abortion.
After the 1972 election someone asked Whitlam how he proposed to fulfill his promise of abolishing national service in the face of a hostile Senate that would not repeal the National Service Act.
“”Very simple,” he replied, “”I, as Minister for Labour and National Service, [and Gough was minister for virtually everything in the week after the 1972 election], will not authorise any more ballots to call up 20 year olds.” (Or words to that effect.)
Stanhope simply repealed the regulations that stipulated the details of the “”information”.
You see, lots of legislation says, “”The Minister can make regulations to give effect to this Act.” The Minister can simply not act and the legislation becomes ineffective, unexecuted.
Industrial-relations and immigration legislative regimes, however, are different. They contain lots of legal rights for unions and individuals which can be brought into play by individuals in courts and tribunals irrespective of the wishes of the government.
And this brings us to another defect in our Constitution. If we are to overcome the House-Senate stand-off and deliver more power to the house, we might need a bill of rights to ensure that fundamental rights cannot be over-ridden by an eager government. “”Due process” rights, for example, might require that employees, migrants and others in less powerful positions get a right to be heard before they are sacked, booted out or whatever.
A present we have the conservatives with 55 per cent of the House seats and just 46 per cent of the Senate seats. The left has 51 per cent of the Senate which is a blocking power.
Sure, there is a powerful argument to say that the Senate — elected proportionately – is more democratic that the House. It gives the Democrats 10 per cent of the seats and the Greens three per cent of the seats for getting roughly that percentage of the vote. But on that argument, democracy should be about creating as well as blocking. At present they can only block. If the left originates legislation in the Senate it is doomed in the House.
So if that argument is appealing, we should replace the two houses with one house elected proportionately, as in the ACT.
Usually, the arguments for constitutional reform come from the left, particularly the Democrats, but if the conservatives get their industrial relations legislation knocked back yet again after winning three times, they must start questioning the effectiveness of present constitutional arrangements