John Howard made a few accurate and pertinent statements about the Senate at the weekend conference of the Liberal Party.
His points were:
The Senate has too much power.
It is no longer a states house.
It is no longer a house of review but house of obstruction.
Neither major party, for practical purposes, can get a majority in their own right in Senate.
It would be unfair and undemocratic for the Coalition to do a deal with the Labor Party to alter the Senate voting system to make it harder for minor parties to win seats.
The present constitutional provision of a double dissolution to resolve deadlocks between the Houses is relatively unworkable and rarely used.
Double dissolutions usually result in a worse result for the Government because they result in more minor-party senators in the Senate because the quota is lower when 12 rather than six senators are elected from each state.
That the non-government majority in the Senate has a permanent veto on the aspirations mandated at earlier elections of the serving government.
Referendums to change the Constitution are notoriously difficult but we need a “moderate and non-threatening” change to resolve the deadlocks, so you do not have to have a premature and expensive double dissolution to get important Bills through.
From this point Howard went awry.
His suggested solution went from one extreme to the other. He thought that the Constitution should be changed so that whenever legislation is rejected twice by the Senate, a Government could go straight to a joint sitting to get it passed, without first having dissolution of both Houses and an election.
He cited a 1959 report of a joint parliamentary committee on constitutional reform to support this idea. And said, “Now let me repeat this is not a radical proposal. It is a moderate, practical, sensible, long-ago-thought-of idea to resolve what in some circumstances is a legislative nut without the necessity of the constitutional hammer of an expensive and of course inappropriate double disillusion.”
Well, a certain amount of constitutional water has gone under the bridge since 1959, even if Howard thinks the 1950s has a lot to offer contemporary Australia. In today’s context the proposal is not moderate. It is extremely radical. It would result in any Government (unless it majority was tiny) being able to force through whatever legislation it liked, subject only to the delay of it being put before the Senate and rejected twice – about six months. The legislation could be drafted after an election on a subject not even mentioned at election time. It would make it too easy for the tyranny of the majority. It would see a huge transfer of power to the Executive Government.
If Howard put that proposition to the electorate in a referendum it would face great difficulty. As a general proposition, referendum proposals that increase the power of the Prime Minister go down in a screaming heap.
But Howard is right on the question of Senate power and the cumbersome nature of the double dissolution. He is right to object to the fact that key parts of his Government’s legislative agenda have been blocked in the Senate – unfair dismissal, industrial relations reforms, privatisation of Telstra and so on – despite his three election wins.
But herein lies the difference between Howard’s complaint and his solution to it. The Coalition had legislation fully drafted and knocked back by the Senate when it went into the last election. Every voter could see in precise detail what the Government was proposing. This was not some woolly mandate which could be later widened or changed when put into legislation. So after winning an election with the rejected legislation on the table, the Coalition should have the right to get that legislation through.
That is a very different proposition from Howard’s suggested solution. Under his solution, the Government could dream up whatever legislation it liked and bang it through a joint sitting without the electorate getting a judgment.
Howard should modify his proposal. Sure, abolish double dissolutions as the resolution mechanism. But have the joint sitting only after an ordinary election (of the House of Representatives and half the Senate) has been held with the rejected legislation before the electorate. If that genuinely moderate, practical and sensible suggestion had pertained since 1996, the Coalition would have had its key legislation through by now. And it would have been done with a genuine mandate for that legislation.
Such a reform might have to be coupled with other changes to prevent a Prime Minister pushing legislation through quickly. A fixed term of Parliament would help.
Under Howard’s method, there would be no incentive to compromise with the Senate. At a push a new Government could come in and push through radical changes in six or seven months – changes not even known at election time.
If the joint sitting were delayed until after an ordinary election, there would be an incentive for a Government to compromise – to get at least some of its agenda through quickly. The remaining blocked legislation would have to wait to get the stamp of approval that comes with a Government’s re-election – the woolly general mandate that comes with election, but a precise mandate because voters would know that if they re-elect the Government the legislation (published in precise detail) would go through.
Referendums fail so often in Australia because Governments seek to get their own way and seek to increase their own power – and only Federal Governments can propose changes to the Constitution. It is rare for sensible, moderate proposals to go forward.
Referendums do not fail because people believe the Constitution is perfect. They fail because the Government’s proposed solutions to constitutional defects are almost always defective.
That said, it is good to see, at least, that Howard recognises that some elements of our Constitution are broken and need fixing. But let’s not fix them in a way that delivers almost unfettered power into the hands of the Government.
Howard seems fixated on getting his agenda up (Telstra, industrial relations, a greater private role in education and health) rather than looking at what is a better constitutional arrangement whichever party is in power.
Howard’s own Coalition supporters will surely realise that putting the power he is proposing in the hands of a Labor Government would be a fearful thing. That’s why Howard’s proposal is so unlikely to succeed in its present form.