Opposition Leader Kevin Rudd’s proposal for four-year fixed terms is like deciding to buy a new stove for the kitchen. Like a stove, elections are the working part of Australian constitutional democracy, but not its totality.
As you look at removing the old stove you realise it is attached to cupboards, so you will probably need new cupboards – not just either side of the stove but matching ones for the whole kitchen. That would then mean a new sink, dishwasher and splashbacks. So you may as well re-tile the floor and repaint. The power points, light switches and light fittings would complete the job.
Rudd thinks that Prime Minister John Howard has been playing games with the timing of this election. He argues that the uncertainty of the date has been highly inconvenient – for politicians and their staff who have spent the past couple of weeks thinking they might have to return to Canberra for a parliamentary sitting. He is right. Business and the public service would also like more certainty with election dates.
The timing of elections is a flaw in our “Washminster” system of government. We have a mixture between the US system and the British Westminster system.
As in the US, our senators have fixed six-year terms — usually with half of them facing election every three years. The House of Representatives has a maximum three year term, but the Prime Minister has the power to shorten it and set the election date, as in Britain.
Removing the power of the Prime Minister to fix the election date would be fairer because the incumbent can spring a surprise or go early to take advantage of some transient popularity. Having four-year terms might enable a government to make tough decisions without fear of a looming election.
But these measures would require changes to other parts of the Constitution.
A four-year term would require either a change to senators’ terms or separate House and Senate elections for much of the time. The latter cannot happen, so would you have eight-year terms for senators? Many might think that eight-year terms would put senators out of democratic touch for too long. So, would you elect the whole of the Senate for four-year terms? If you did that you would remove the brake and the check and balance that the rotation system provides.
These two problems would muddy the waters too much in any referendum to change the Constitution. It makes a four-year terms very difficult. The extension to four years is a fly in the ointment of a fixed term. It makes me wonder whether Rudd really wants a fixed term. My guess is that, if elected, the moment he becomes Prime Minister he will be like every other Prime Minister and jealously guard the advantageous power to determine the election date.
A fixed three-year term would be an easier proposition. Indeed, if Rudd is serious about removing the uncertainty and unfairness of the present unfixed term he could deal with it without resort to constitutional change. Upon election he could just announce that the next election will be held on, say, the first Saturday in December, 2010, and that if re-elected then the following election would be on the first Saturday in December, 2013.
That would set in train a convention that would require a great deal of justification to change.
Putting even a fixed three-year term in the Constitution has difficulty. This is because the Constitution states the Governor-General the power to dissolve Parliament and call and election. It does not mention the Prime Minister. That the Governor-General acts only as the Prime Minister tells him is the practice, but not the theory. He can and has acted alone – in 1975.
You would have to remove these reserve powers if you wanted fixed terms in cement in the Constitution. And you would have to remove the Senate’s power over the Government’s supply of money which might precipitate a Governor-General to sack a Government and all an early election. You would also have to deal with the constitutional provisions that allow for an early election in the form of a double dissolution when the Senate blocks legislation passed by the House of Representatives.
Again, it is a pandora’s box hardly worth opening just to attain fixed terms. Why replace the stove when the whole kitchen needs a makeover — when you might go for a republican Constitution in which there is no role for the representative of the monarch – a foreigner whose discriminatory position is attained by birth and subject to a bar on being a Catholic and a preference for later born males over earlier born females and in which the House that represents the people always forms government?
But a wholesale makeover via referendum would frighten many Australians. How much better to do it by announcement and legislation and only when bedded down and working would you formally change the words of the Constitution.
It was good to see retired public servant Paul Pollard join the fray in these pages earlier this week in broad agreement with something I have been pushing for some years: a republic by legislation – a simple Act of Parliament which says the Prime Minister cannot put a name to the Queen for the Governor-Generalship without approval by a special majority of Parliament (two-thirds or three-quarters) and formally remove the Queen after the system has been working for a while.
You could also change the practice of the Governor-General calling on someone to form a Government by having the Parliament elect the Prime Minister after an election (as in the ACT).
Let’s look at the whole constitutional kitchen – including the sink – not just the electoral stove. And let’s not stymie that main prize with a failed referendum on four-year terms.