The Constitution is about the distribution of power. If you change the Constitution you change the distribution of power.
Now in its third term, the Howard Government continues to face a hostile Senate. Despite being elected three times, it still cannot get through the privatisation of the rest of Telstra and its changes to the unfair dismissal laws. And its proposed media-law changes are likely to suffer the same fate. The obstruction led to two suggestions in the past week or so by Liberals as the party held its federal council in Canberra. One was for four-year parliamentary terms. The other was to reduce the Senate’s capacity to frustrate government by allowing legislation rejected three times to be submitted to a joint sitting of Parliament – where presumably it would pass because a Government’s majority in the house of Representatives is almost invariably greater than its lack of numbers in the Senate.
Both proposals would increase in the power of the Prime Minister and the executive government. Voters are usually highly suspicious of proposals that increase the power of the executive or increase the powers of the Commonwealth. So you would expect these proposals to get defeated if put to referendum. Nearly all of the defeated XX referendums (out of 44) fit the category of increasing prime ministerial or Commonwealth power.
Only the Commonwealth Parliament can put referendum questions. Give the self-interestedness and power hunger of politicians, it means that nearly all proposed referendums involve increasing the Commonwealth Government’s powers and virtually none involve reducing the Commonwealth Government’s power. This is why referendums get beaten – not so much that Australians are fearful of change.
The two most recent proposals are classics. The Liberals want more power to overcome the impotence of not getting its pro-business measures through. The constitutional measures proposed as a solution offer only more power for one side of politics to get its way (it was the same with Labor) – they do not attempt to look at the way the Constitution distributes power and to do a trade-off that would make government work better.
The Liberals have a legitimate complaint that Telstra and unfair-dismissal proposals have not become law. They have been re-elected with the detail of the legislation on the table (not some woolly election promise). In a democracy that should be enough.
A democracy does not mean the Government should always get its way, especially for proposals that emerge after an election, but the present system does give the Senate too much power.
The suggestion that Bills rejected thrice go to a joint sitting, however, would make the Senate powerless. The Bills could be just banged through with only a minor delay and inconvenience. It was one that appealed to Communications Minister Senator Richard Alston who has carriage of both the Telstra and media-ownership legislation.
There must be a middle course.
When the Constitution was framed, legislation was a big deal. There was much less of it than in these complicated times of bigger government, more technology and so on. So in 1901 it was thought reasonable to have an election of both houses and if necessary a joint sitting to resolve deadlocks over legislation. That is a sledgehammer to crack a walnut these days.
But the Liberals’ idea of doing away with the double dissolution a going straight to a joint sitting after three rejections goes to the other extreme. It makes it too easy for the executive to gets its way.
A better way might be to do away with the need for the whole Senate to be dissolved and for the joint sitting and to allow the House of Representatives on its own to pass any legislation that was rejected by the Senate before the election. Presumably it would be only if a frustrated government were re-elected with its rejected legislation on the table before the people – as now with Telstra and unfair dismissals.
Those proposals (in legislative detail) were before the people at the last election. It is undemocratic that they do not become law.
The other proposal was four-year terms.
The Liberals identified the problem correctly – the parliamentary term is too short.
But their solution once again hands more power to the Prime Minister by extending the term to a maximum of four years. It is a pure handover of power. Right now the Prime Minister can have a term up to three years, under the new proposal he can have all of that and more – the option to continue in power for a further year.
Once again a better solution would be a trade-off – a fixed term of three years would add six months to the present average term. A fixed term of four years presents the difficulty of either cutting senators’ terms to four years or increasing them to eight.
The proposal put to the Liberals’ federal council was that senators’ terms should not be the present six-year fixed term starting on July 1 after the election, but for a term equal to two terms of the House – which might be significantly less. Even so, it will be a hard one to sell. Could it be traded off with a proposal that the Senate lose its power to block Supply – giving the Government an automatic right to have at least the (indexed) equivalent of the previous year’s spending.
At least some Liberals are acknowledging that the Constitution is broke. Whether the right glue is on offer to fix it is another matter.
If the major parties wanted to reduce Senate power without a referendum, they could chance the system under which it is elected. The Constitution does not mandate the present proportional system with each state as one electorate. The major parties could cut each state into six electorates; thereby wiping out the minor-party senators. It would be a fairly cynical exercise. Besides both major parties know that Opposition would be an extremely frustrating period without at lease the chance of ganging up with the minor parties to inflict some damage in the Senate. And that will mean putting up with some cost in government.
In the meantime good governance suffers. Elections at the whim of a Prime Minister every two and a half years and a Senate with the power to block legislation indefinitely unless there is a double dissolution makes for too much politics and too little government.
A constitutional convention could fix the problems of too-short terms and early elections; Supply and Senate power. But the likelihood is that because ultimately the Prime Minister can determine what questions go to the people in referendums, no proposal however sensible that involves a reduction in prime ministerial will ever be put to the people – thus virtually dooming sensible constitutional reform.