Abolish double dissolutions and have fixed terms

FORMER prime minister Tony Abbott’s call for a referendum to change the constitution to reduce the power of the Senate is, at last, an admission from the conservative side that the Constitution is “broke”. Hitherto, conservatives have mouthed the platitude, “If it ain’t broke, don’t fix it.”

Abbott says Australia “increasingly resembles Italy”, facing chronic changes of prime minister and an inability to get things done.

“Over time the Senate has ceased being a house of review and become a house of rejection,” Abbott told the Young Liberals Federal Convention in Adelaide this week. “The result is gridlock, not government, and it has to change. In the end, the government of the day has to be allowed to govern — and not with one hand tied behind its back because its legislation can’t pass.”

He wants a referendum to enable a joint sitting of both houses to pass deadlocked bills without the need for a double-dissolution election.

Abbott’s point is a good one. Remember this cuts both ways. The Coalition blocked more than 20 major pieces of Labor legislation in 1973, including Australia’s first universal health-care system, Medibank.

It led to the only joint sitting to pass blocked legislation in Australia’s history.

But the double dissolution is a heavy and clumsy weapon to deal with blocked legislation. In 1901 when legislation was leaner and each bit more significant, it was a different matter. But these days with so much legislation and with a Senate that seems permanently without a majority it makes government very difficult.

Obviously, the Senate should remain a house of review, but it should not be a huge disruptor. It is easy for minor parties to reject every “nasty” and applaud every “goodie”, but a government has to do both if it is to be fiscally and socially responsible.

Politics has changed so much that the double-dissolution election is far too cumbersome as a means of resolving deadlocks.

I agree with Abbott that we should remove double dissolutions from the Constitution. But his proposal that rejected legislation could go straight to a joint sitting would emasculate the Senate. You may as well not have it.

Abbott obliquely referred to his own fate and said that a Prime Minister who could not get the Government’s program through would not survive.

Under his plan, his 2014 Budget full of nasty surprises would have gone straight to a joint sitting and been passed.

In effect, Abbott is saying that, once the people have voted for a Government with a majority bigger than the Senate cross bench, that Government should get all its legislation through, even if it included stuff not mentioned at election time, such as GP co-payments, reductions in the dole etc etc.

A better more accountable method would be as follows. If the Senate twice rejects legislation passed by the House and at the next ordinary election the Government is returned, the legislation should not have to return to the Senate, but be passed by the House alone.

In effect, the people’s vote would cancel the Senate’s earlier rejection of the legislation. This is perfectly democratic. After all, the actual legislation would have gone before the people. It would not be some vague promise or vague mandate to do something like “Budget repair”. It would guard against undemocratic surprises, such as the 2014 Budget, being foisted on voters.

But it would allow a Government to eventually get its way without disruptive double dissolutions.

If, however, the Senate retained the power to reject legislation at least until after a supervening election won by the Government, it would remain an effective house of review. The Government would get the choice of accepting Senate amendments or having to delay the legislation until it was put to an electoral test.

It is dangerous for governments to always get their own way immediately and to have no checks or balances. But it is equally dangerous for governments not to be able to enact their legislative program.

There are other advantages to removing double dissolutions. Without them, it would be easier to have fixed terms with, say, elections on the last Saturday in November every three years. (If you went for four-year terms, Senators’ terms would be an overly long eight years.)

Fixed terms would be better for business and everyone involved in politics and administration. People could plan better.

Double dissolutions are bad because they disrupt the election cycle. This is because senators take their seats immediately and their terms are back-dated to the previous 1 July. For practical purposes the House election has to be held at the same time as the next half-Senate election, so its term gets shortened by however long the back dating is.

At the 2 July 2016 double dissolution election, it meant a back-dating of only one day, but if a double dissolution election was held in, say, March, it would mean the next House of Representative’s term would be cut by nine months.

As it is, Governments do not like winter elections so the present Parliament is likely to be cut by two or three months with a March or April 2019 election.

Abbott said the paralysis in Parliament had a direct effect on the prime minister. He said a prime minister who could not get the Government’s agenda through could not expect to survive.

But Abbott’s solution goes to far because under his proposal a Government could get a hidden agenda through after an election.

Indeed, Abbott seems to have misunderstood what happened. He did not survive, not because he could not get his hidden agenda through, but precisely because he revealed the hidden agenda after the election.

A woolly mandate such as “Budget repair” should not empower a Government to get whatever it wants. But if a Government takes the detailed rejected legislation to the people, then it should go through without Senate obstruction.

In a way, Paul Keating got the point at the 1993 election. He told the people that, if they elected John Hewson and the detailed Fightback! program, he would allow it through and the people should not to expect Labor in the Senate to save them. It worked.
CRISPIN HULL
This article first appeared in The Canberra Times and other Fairfax Media on 4 February 2017.