So the Constitution is broke and it needs fixing. Prime Minister John Howard has changed his tune since the republic referendum in 1999. The difference is about prime ministerial power.
In 1999, the republic proposal would have taken away the Prime Minister’s unfettered power to appoint the Governor-General – so let’s leave the unbroken Constitution alone, Howard argued.
In 2003, though, he now argues that the Constitution is broken because it gives too much power to the Senate – so let’s fix the broken Constitution so the Prime Minister can more easily get his way and get his laws through the Parliament.
That said, Howard has a point about the Senate. His Government has been elected and twice re-elected yet it cannot get through what it sees as important legislation. The system could be improved.
The constitutional provisions on the Senate were not well thought-out at the time of the 1890s constitutional conventions. The Senate was created as a sop to the smaller colonies to get them to join the federation. There are several major flaws with the constitutional provisions on Senate – senators’ terms, the nexus and the Senate’s power to block money bills.
There have been attempts to deal with the flaws.
Senators have a fixed six-year term beginning on the July 1 immediately after their election, except when they are elected at a double dissolution when the term is back-dated to previous July 1. Senators must be elected in the 12 months before their term starts, unless it is a double dissolution.
Combined these provisions have an inconvenient effect. After a double dissolution, the subsequent House of Representatives term must be truncated by up to a year to allow the next half-Senate election to be on time. For example, if the double dissolution is in May 2004, the new senators’ terms are deemed to have begun on July 1, 2003. Half of them get a three-year term and must stand for election before July 2006 – just two years and two months after the previous election. So you must have the House election then. The alternative is to have the half-Senate election separately and a House election 10 months later – which would generate a voter backlash..
Further, the Constitution prohibits a double dissolution election in the last six months of the term. In short, a double dissolution costs a Government up to 18 months of government.
In 1907 a successful referendum (the first) changed the starting date from January to July, but did not address the fundamental problem.
There have been four unsuccessful referendums (1974, 1977, 1984 and 1988) to change Senators terms to two terms of the House or Representatives to fix the problem. In 1984 it got a majority of voters, but not a majority of states.
The main reason for the four failures was that people saw it as an attempt by the Prime Minister to control the Senate. This overrode the obvious convenience of the solution. However, if, instead, the referendums had been to fix the term of the House of Representatives rather than float the term of the Senate, they might have been successful.
Lesson: referendums to increase the power of the Prime Minister generally fail.
The nexus got us into all this strife in the first place. The Constitution requires that the Senate be approximately half the size of the House.
It meant that when the House was increased to meet population and representational requirements, the Senate had to be increased, too – from 10 senators per state to 12. Each half-Senate election, therefore, was for six senators, not five. To get a majority you need to get four out of six in at least one state and three in all the others. In practical terms that is 50 per cent of primary vote. So for the past 20 years, no government has managed to get a Senate majority.
Further, the larger Senate means that at double dissolutions the quota is just 7.7 per cent of the primary vote (less with preferences). It means a lot of minor-party and independent candidates get up – another disincentive to break a deadlock with a double dissolution.
A referendum to break the nexus in 1967 (concurrently with the Aboriginal one) failed.
A referendum in 1977 to fix the procedure for replacing senators passed.
So the record on Senate referendums is two out of six and one of those was of no moment.
The Senate power to block money bills and starve a government out has not been addressed. But it is of less moment these days because just as a government cannot get a majority in the Senate, neither can the Opposition — and minor parties will generally allow the Government money supply.
So we have a Senate that is too powerful because it can block major legislation. The only way out of the deadlock – the double dissolution – is often too costly and difficult.
Howard has put up two suggestions. One is for a joint sitting of the Senate and the House of Representatives without a prior election if the Senate twice or thrice blocks government legislation. It is a non-starter because most realise that the governing party would be able to ram through the Parliament whatever it wanted because the Government’s extra numbers in the House would nearly always make up for the small deficit it has in the Senate.
The second proposal is more reasonable. If the Government’s legislation is blocked it should be able to put it to a joint sitting immediately after an ordinary House and half Senate election.
But even this suffers from the flaws of the earlier failed referendums: it bends the Senate to the will of the Prime Minister and the House of Representatives, instead of the other way around.
It would be easy for a Prime Minister to put up a lot of legislation early its first term and call a snap early election. There would be no incentive for compromise. The Senate’s review function would be weakened.
For such a plan to get up you would need to fix the term of the House of Representatives to prevent early elections. It would have to be three years because four years would result in eight-year terms for senators which is too long. With a fixed term there would be an incentive for the Government to compromise to gets its Bills through early. If you fix the term, you have to get rid of the Senate’s power over supply because you could not force an early election in a fixed-term environment.
The plan could be made even more palatable by abandoning joint sittings altogether and let the people decide the fate of the blocked legislation at the time of the subsequent election. It would not cost much at an election to add a Yes-No question for each piece of rejected legislation.
Howard says he has a mandate for his rejected legislation, just as Gough Whitlam said he had in 1974. Well, it would be simple enough to test.
But that would further erode the power of the Prime Minister. And this is all about power. The Constitution is all about the distribution of power. Therein lies the ultimate constitutional conundrum. The Clerk of Senate, Harry Evans, said the Prime Minister has power over the House, the power to choose the Governor-General and power to choose members of the High Court. The Senate was the only place he did not have power. Evans could have mentioned an even more important power of the Prime Minister – the power over referendum proposals. Only when the Prime Minister agrees does a proposal go forward.
So there is fat chance of any sensible compromise proposal going forward in the interests of more workable government if that would reduce the power of the Prime Minister.
It will be one of Howard’s ways or no way.