The Constitution: It is broke; let’s fix it

by Crispin Hull on July 28, 2017

THE idea of four-year fixed terms has been around a fair while, and is not especially Bill Shorten’s. That is perhaps why Prime Minister Malcolm Turnbull agreed to discuss it. More importantly, the fact the two leaders are talking about constitutional change is a response to growing disquiet that the system is not working as well as it should and a growing yearning for a bit more cooperation in politics. But the fixed four-year term is a bit like a loose thread on a machine-sewn garment: if you give it a tug a whole lot more thread comes away.

If the four-year term is fixed, should all senators have one fixed four-year term or should the Senate continue to rotate with half the Senate elected every House of Representatives, in effect giving them eight-year terms?

Both have problems. The public is so sick of the self-serving political gravy train that eight-year senate terms would not be not a goer.

And the major parties (who in effect determine which questions go to a referendum) are unlikely to accept all 12 senators in a state getting a four-year term because it would mean a candidate would need a quota of just 7.7 per cent to get elected. This happened at the 2016 double dissolution and resulted in a large number of minor-party senators.

Unless something is done to remove the Senate stranglehold that an Opposition and cross-bench have over the Government, the major parties will not wear it.

It would be self-defeating to attempt to increase stability and longer-term thinking with fixed four-year terms if you lower the Senate quota and create a permanent extremely powerful anti-government Senate blocking the very fruits of that stability and long-term thinking.

So you would need an easier mechanism than a double dissolution to resolve differences between the parties. This is the loose-thread problem.

Further, if you have fixed terms, do you remove the Prime Minister’s power to call early elections, including double dissolutions? What if there is a hung Parliament? What if Parliament becomes unworkable? What if the Senate blocks the Supply Bills, starving the Government of money?

At present, Senate terms begin on 1 July and end on 30 June. A better time for simultaneous elections for both Houses would be late November. That would give any new government time over the slower summer time to settle in.

In any event, it is a bit arrogant to assert that it is only these frequent pesky elections that prevent politicians from engaging in long-term policy considerations.

Indeed, it seems that it is only during election campaigns that politicians put forward major policy statements. The rest of the time is spent making cheap points at each other and obstructing everything. It is certainly not what the public might do at an election which is preventing action on marriage equality, climate change and tax reform, for example.

No, the real merit in in Shorten’s proposal is not lengthening the term to four years but in fixing the term.

The unfixed term gives the Prime Minister a lot of power to game the system. If the term is fixed, business, the bureaucracy and parliamentarians and their staff know exactly where they are and can plan accordingly.

However, the idea has to be more than a thought bubble or a good idea at the time. The other bits have to be dealt with, too.

Many argue that referendums rarely pass in Australia so why bother. Rejections include an unfixed four-year term; breaking the nexus that insists the Senate is half the size of the House; and simultaneous election so the Senate term is two House terms, not a fixed six years.

However, in the past a powerful No argument has been: If it ain’t broke don’t fix it. That argument clearly no longer holds.

Several developments have strained the constitutional architecture. A recent one has been the seemingly permanent erosion of major-party support, giving minor parties between a quarter and a third of the vote. The other has been the growing complexity of society and the need for frequent legislative responses. When this is combined with growing partisanship and refusal to compromise, the 1901 constitutional provision to resolve conflicts between the Houses has failed. The double dissolution sledge-hammer to crack a small walnut over, say, some minor superannuation legislation results in either nothing getting done or total political disruption.

Further evidence of constitutional inability to keep up with the times has been the disqualification of MPs with dual citizenship and MPs with have pecuniary relations with government, however minor.

So, here are some suggestions:

It might be better to easier to argue for a fixed three-year term (which would increase the average time between elections by about six months) because a four-year term poses almost insuperable Senate problems.

Get rid of double dissolutions. If legislation is blocked twice in the Senate it should be able to be passed by the House of Representatives on its own after the subsequent election.

Remove the Senate’s power to deny Supply. If the Senate blocks an annual appropriation Bill, the previous year’s Bill would roll over with an adjustment for inflation.

The great power of the Senate seems to encourage recalcitrance, stubbornness and refusal to compromise.

We should also remove the possibility of early elections and unworkable Parliaments by taking away the Governor-General’s power to dismiss a government or call an early election on the Prime Minister’s advice. This would be replaced by the Parliament, after an election, being presided over by the Chief Justice until it elects and Speaker and then elects the Prime Minister before any other business. This happens in the ACT and works well.

Further, to increase stability, any no-confidence motion in the Prime Minister and Government must name the new Prime Minister, so there is no power vacuum.

We should break the nexus, so that the Senate does not have to be half the size of the House. We need a bigger House to improve representation, but not a bigger Senate.

No doubt there are better suggestions around. The important thing is to acknowledge that the system is defective and that it can be improved. It will take a fair bit of debate and education, but other countries have made significant constitutional and electoral changes for the better, particularly New Zealand.

And what about Indigenous recognition and the republic? Well, we should separate the mechanical from the symbolic. With the mechanics changed in a way that can improve political culture it may well be that the public appetite for symbolic change would increase.
CRISPIN HULL
This article first appeared in The Canberra Times and Fairfax Media on 29 July 2017.

{ 1 comment… read it below or add one }

David Moore 07.29.17 at 4:49 pm

The constitution is broken. But the method of fixing it is also broken, ie by referendum. While 2 parties garner most of the vote, the possibility of any change is remote. Bipartenship is a rarer commodity since Abbott perfected the art of negative policy and fear mungering about great big taxes, even if designed to benefit the voter . I like the idea of having citizen assembly’s to solve problem which I have seen advocated on Q&A recently. The model the indigenous community is using to make a suggestion for change to the constitution is a good one even if they thought a treaty a better idea. So could an exert assembly of people be formed to rewrite the constitution and come up with a simple referendum to put it into effect?

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