The fall-out from last week’s decision by the Court of Disputed Returns in Queensland to order a by-election in the seat of Mundingburra illustrates that the Executive has too much power over the electoral process.
The court declared invalid the 16-vote win by Labor Ken Davies at the general election earlier in the year, but it had no power to set the date for the by-election. That power is in the hands of Queensland Premier Wayne Goss, and he is expected to exercise it today.
In theory, he will select a date purely on the basis of convenience for the people of the electorate and to give fairness all round. But there was nothing to stop him letting the looming federal election influence his decision. Nor was there anything to stop him telling the Labor candidate of the date in advance of the public announcement, thereby giving him an advantage.
The by-election is critical because if the Coalition wins it would have the same number of seats as Labor with one independent, so government could change hands.
I say “”could” deliberately. It is possible that Goss could advise the Governor to call a general election, and the Governor could accept that advice and there would be nothing the other side could do about it. The courts could not intervene.
It is a weakness of all the state, territory and the federal Constitutions (with the exception of the ACT) that there are no clear rules about the calling of an election and who should head government after it or after a vote of no-confidence. In many cases ill-defined powers lie in the hands of Governors, Governors-General and the head of government.
Some states have fixed the term, with varying degrees of certainty: NSW, Tasmania and Victoria, but by and large far too much discretion and concomitant political advantage or potential for abuse lies in the hands of the head of government.
In the Queensland situation it would be preferable if the Court of Disputed Returns could set the by-election date. It would be preferable if the term of Parliament were set, so that the next election date would be known, just as we know the next ACT election will be held on the third Saturday in February, 1998.
Goss should not be able to call an early election. Further, the state and federal Constitutions should require that any motion of no-confidence in a Government mid-term should name the new Premier or Prime Minister. Thus, if the coalition wins the Mundingburra by-election it could seek a vote of no-confidence in the Goss Government but it would have to name the new Premier, presumably Rob Borbidge. That way the independent could not cause instability by voting against the existing government without creating its replacement.
Goss keeps pushing the stability line. But instability comes when the Premier has too much discretion and power over election process, instead of having a set of formal rules which can be adjudicated upon, if necessary, by the courts. And one the lessons of the Mundingburra case is that courts are capable of enforcing electoral fairness if the rules are in place.
Similarly in the federally sphere. Why should Paul Keating or any other Prime Minister get the power and unjustified advantage of setting the election date? The term should be fixed, with the election, say, the first Saturday in December every three years. The present phoney election campaign shows that the unfixed term is just as capable of delivering long election campaigns as the fixed term.
A fixed term could solve the Senate-supply issue, too. As the Clerk of the Senate, Harry Evans, has pointed out, Labor’s Gareth Evans proposed an excellent solution in 1982. He proposed that the House of Representatives term be fixed. The Senate would still be able to block supply, but if it did an election would be called and the new Parliament would only last for the balance of the fixed term. The incentive for forcing an election, as Malcolm Fraser did, would be reduced. Fraser would have got on 18 months of government out of his 1975 coup.
Alas, when Labor came to power, it dropped the plan because Bob Hawke could not bear to lose his power to name the election date. There is some poetic justice in that. With a fixed term Hawke’s four election victories would have yielded him 12 years of government, not the nine he in fact had.