Howard’s Constitutional Humbug

“Fresh” from an exhilarating weekend of high pressure renovation, I see John Howard has been floating a trial balloon for constitutional “reform” of the Senate to allow governments to to put twice-rejected Bills before a joint sitting of Parliament without the inconvenience (not to mention political risk) of a double dissolution election.

The history of constitutional referenda in Australia suggests this proposal has Buckley’s chance of getting up, so I suspect it’s all just part of Howard’s creating a political picture of an obstructionist Senate in order to lend a semblance of verisimilitude to the double dissolution election he’s clearly already decided to manufacture.

Nevertheless, I suppose it’s worth rehearsing some of the arguments against Howard’s proposal. Fortunately, I don’t have to do so in detail, because Tim Dunlop has already done it for me. I agree with pretty much everything Tim says, so I’ll simply content myelf with responding to some of the counter-arguments put by assorted commenters on Tim’s blog (many of whom are frequenters of Troppo Armadillo as well).

First, for anyone not very familiar with Australia’s Senate and its voting system, here’s a useful summary from the Australian Parliament website.

Norman Hanscombe suggested on Tim’s blog that the current Senate system results in over-representation of minor parties. That’s true to a limited extent. For instance, in 1996 the Australian Democrats received 10.8% of the vote and secured 12.5% (or 5 ) of the 40 available seats in the Senate. At present, the Dems are certainly over-represented given the collapse of their vote since the beginning of the Stott-Despoja fiasco, while the Greens are under-represented. That situation will no doubt correct itself at the forthcoming election whenever held.

However, it seems just a tad peculiar to be worried about such slight over-representation in the Senate, when the House of Representatives voting system results in minor parties being hardly represented at all. Senators are “unrepresentative swill” only if you regard the two major parties as the only legitimate political organisations fit to have a voice in national politics. My own view, for what it’s worth, is rather more pluralistic. I regard the Senate, along with the High Court, as the two principal features of Australia’s governmental structure preventing us from degenerating into an elective dictatorship.

Tim Dymond argued that he didn’t “see it [Howard’s proposal] as apocalyptic for the Senate as a house of review. A joint sitting doesn’t guarantee legislation will be passed.” That conveniently ignores the reality that had Howard’s proposal been in place, the Coalition would have been able to enact whatever legislation it liked, without amendment, at any time since it came to power in 1996. The Senate would in practice be reduced to a legislative speed bump. I find that a frightening prospect (and would find it equally frightening if Labor was in power).

Geoff Honnor argued that the Senate was being “obstructionist” rather than acting as a genuine house of review. Well, I suppose that depends on your perspective. It’s undeniably true that the Australian Democrats have moved to the left and become less willing to negotiate legislative compromise since Sott-Despoja rolled Meg Lees as leader. Under Andrew Bartlett, they continue to hew the Stott-Despoja road of competing with the Greens for the purist mung bean “Don’t Mine Gay Black Whales” vote.

In that sense the Senate is currently somewhat more obstructive than we’ve been used to over the last decade (although not as obstructive as the Coalition/DLP cabal that dominated the Senate during the Whitlam years) . However, I suspect it’s a transitory phenomenon, which has been caused by the Dems’ lurch to the left and will be resolved by their imminent obliteration. There remains a need for a non union-dominated party of the centre, given the Libs’ decisive shift to the right under Howard. There is a substantial constituency (well, yours truly anyway) for a party of the moderate centre. I had hoped that Meg Lees might succeed in forging such a grouping, but at the moment she hasn’t even been able to attract Andrew Murray. If Lees doesn’t succeed, there will probably be more centrist Independent Senators elected next time, especially if it’s a double dissolution.

We should also keep in mind that a substantial part of the reason for the escalating number of double dissolution trigger bills has nothing to do with Senate “obstructionism”. The Coalition has embarked on a calculated strategy of piling up dissolution triggers in anticipation of a DD election and joint sitting, introducing Bills so extreme that they would never have been passed by any Senate of the last 30 years. This strategy was flagged as long ago as last November, when an article in the Australian noted:

The real choice for the Government as the parliament approaches its full term in 2004 is whether to convert the normal election into a double-dissolution election. The chances of this happening will intensify with every bill that is added to the double-dissolution list.

The more recalcitrant the Senate becomes, the more incentive the Government has to make the 2004 poll a double dissolution. And once the Government thinks a double dissolution is probably inevitable (some ministers say this privately), the more incentive the cabinet has to put forward more reforms in the hope the Coalition might have a post-election joint sitting majority to pass the lot.

Labor’s approach is to resist measures on the basis of unfairness and unpopularity. The Howard-Costello counter is apparent that Labor is compromising economic policy and fiscal control.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Scott Wickstein
2022 years ago

I think that the PM would rather not go down the DD road unless he has to and I’m inclined to the view that this is merely a pressure tactic to break down the resistance of the Senate.

If so, it’s a pretty stupid one as the minor-party Senators have been enraged and are likely to be less co-operative, not more so. And, also, they know this monstrosity of a proposal has no chance of getting up. Even I will campaign against it, being quite the Constitutional conservative myself.

mark
2022 years ago

I’ve never voted in an election before; the upcoming 2004 one will be my first. So I could be wrong, but bear with me (this is what I get from the Constitution, and your & Tim’s posts). Basically, when the Senate rejects a proposed bill three times, a joint sitting of both houses of parliament will take place, where the Government may force through legislation based on sheer weight of numbers in both houses combined (thus, “there’s more of us than all of you, it’s the people’s will”). However, before the joint sitting (after the second blockage?), the G-G can declare a double dissolution election where all seats in both houses (even those in the Senate only served for a half-term) are up for grabs, just to make sure that whatever the joint sitting decides really *is* what the people want. Without the election, then: what happens if a party was popular enough 2 1/2 years ago to get a majority in the LH (duh), and also get enough people in the UH that LH + UH numbers combined get them a majority of all seats in both houses? Now, what happens if that government becomes pretty damn unpopular, attempting to pass all sorts of crazy laws, but being blocked by the Senate? What if that government doesn’t *dare* go to a double-dissolution election because they know a) they’ll get booted out and b) their legislation will never get passed?

That’s the only scenario I can think of where Howard’s proposal will truly benefit the people in power (perhaps that’s not what’ll be running through their heads, but, y’know). And it’s definitely not a scenario in which I’m at all comfortable with letting a government (of either party) get their way.

Of course, if I’m wrong, please clarify. I’m not trying to convince anyone — just sort out my own opinions and check that they make sense. Anyone?

mark
2022 years ago

Forgot to add: seems to me any time a person’s preferred political party is in government, the Senate is “obstructionist”. Any time a person’s preferred political party is in Opposition, the Senate is “a valuable house of review”.

Is it so hard for those currently labelling the Senate as “obstructionist” to imagine the shoes reversed, with the ALP trying to get unpopular legislation through and failing miserably? Would they still be wishing the Senate would just lie down and let the poor guys through?

Scott Wickstein
2022 years ago

I’ll leave the technicalities to Ken but on your last point, no it’s not at all hard to imagine, Mark, which is why I’ll be opposing it if it ever comes to a vote.

Michael Jennings
2022 years ago

Bringing this up seems to me to be an utterly stupid move on Howard’s part. If it went to referendum, it would be (accurately) seen as a blatantly self-serving move on the part of the government to increase its own powers and reduce its level of accountability. Everyone knows this. The voters would know this. If it goes to a referendum, the voters will vote it down by a massive majority, and at the same time for bringing it up Howard will lose votes at the election (either DD or HR and half senate) that would presumably take place at the same time.

The present double dissolution and joint sitting provision is good, because it allows an obstructionist senate to be overruled in exceptional circumstances with explicit approval of the voters. It is hard to pull off, and that is the point.

I cannot see why Howard would bring such a thing up. Perhaps he is losing touch with reality.

Ken Parish
Ken Parish
2022 years ago

Michael,

I agree 110%.

Mark, a law only has to be rejected twice (not three times) to become a double dissolution trigger (although there are other timing requirements – see section 57). Your suggestion that Howard’s proposal would only be useful for a government which has the numbers but is likely to be kicked out if it went to an election is clearly wrong. As my main post pointed out, if Howard’s proposal had been law since his government was elected, he would have been able to pass any laws he liked at any time since 1996, merely by putting them up twice and then holding a joint sitting. Any government would be able to do this, irrespective of its popularity or unpopoularity. The Senate would become effectively almost irrelevant, and an elected government could do whatever it liked. Given that we don’t have a separation between legislature and executive or a bill of rights, such a system would mean that Australia would have few checks and balances against excessive government power. My opposition to any proposal of this sort is anything but partisan. Any “small l” liberal should be equally concerned. Elective dictatorship is in no-one’s interest.

Geoff Honnor
Geoff Honnor
2022 years ago

In my view Michael, Howard’s raised it for two reasons:

To put pressure on – and transparency round – the current logjam;

To put quite specific pressure on the ALP which is, of course, the initial fount of “Howard’s Plan”

I think the Plan has nil chance of getting up. I’m assuming – on the facts available – that Howard would have to conclude similarly, so I’m discounting that as Howard’s rationale for floating it.

Having said that and acccepting that “obstructionism” is ultimately – as Ken observes – viewed through a politically partisan lens, the notion of “negotiation” in the check and balance sense is currently a void space. On the day the government introduced it’s Medicare and Higher Education Bills to the lower house, the opposition parties in the Senate announced their “review” process as follows: ‘we’ll block it.’ The legislation wasn’t even before them for consideration.

Ken mounts a sterling defence for in-theory, constitutional propriety. But the theory is light years away from the practice; that’s the area where I have a problem.

Ron Mead
Ron Mead
2022 years ago

Ken, On reading Meikas’s comment closely (a very difficult task) I think he’s referring to Howard’s proposal when he mentions the three rejections rather than the present DD arrangement which he refers to separately further on in the same para. His reference to “what I get from the Constitution, and your & Tim’s posts” works against that interpretation, I know. I haven’t read the fine print of Howard’s proposal yet (if there is any fine print yet!).

Once again, Geoff is the only commenter above who’s making any sense. Of course it’s being brought up as a political strategy to put pressure on the ALP at a time when it’s most vulnerable. “Wedge” politics at its best and why not? These squeals from the left any time Howard pressures the ratbags are pathetic.

Ken Parish
Ken Parish
2022 years ago

Ron (and Geoff),

I disagree. Howard’s tactic isn’t going to successfully pressure the Dems or Greens. They’re off with the fairies. It certainly places Labor in a bind in one way, in that they’ve historically favoured disempowering the Senate. But there’s certainly no way they’re going to buckle and pass most of the DD trigger bills, either under Crean or Beazley, and Howard knows it. Pressuring the Senate just isn’t the explanation. As I suggested, I think it’s just part of painting a cumulative scenario of Senate obstructionism so it doesn’t look so dodgy when Howard pulls on a double dissolution.

Homer Paxton
Homer Paxton
2022 years ago

It is ironic that the people who always put up radical proposals to change the constitution are the ‘conservatives’.Greg Craven has commented that this is far more radical than the attempted ‘republican’ change.

It is a de facto destruction of the Senate. I didn’t trust Keating much less Howard. I certainly wouldn’t trust let us say Iron Mark ( Ken’s favourite ALP leadership contender) in the future.

slatts
slatts
2022 years ago

All very interesting, Ken, but dare I say it, Howard has been dispensing chook food to the weekend blats. Australians giving politicians that much extra power!!!!! Er, if my auntie had balls….

David J
David J
2022 years ago

Howard’s not stupid enough to believe this has any chance of success. Ken I agree with you – he’s just trying to paint the coalition as the only side pushing forward policies, being blocked by unrepresentative swill, and giving himself the option of a DD election if he feels it will benefit him.

Ron I note that you didn’t read “Meika’s comment” all that closely or you’d have noticed it was written by Mark. I agree with you that it’s wedge politics. It’s unhelpful to voters but Howard thinks it’ll help him, which is more important.

Tysen
Tysen
2022 years ago

What’s an “elective dictatorship”? You know that there’s no such thing! It’s just as sensible to talk of our current system empowering citizens of smaller states to appoint unbiased, apolitical guardians to protect the stupid majority (NSW and Victoria) from turning into Nazi’s. Neither description does the issue any justice.

There is only one justification for the Senate that I can think of that is consistent with democratic principles and that is as a States house (a narrow exception to the one-person, one-vote rule). Given the Senate is occupied by self-interested politicians who possess the same reasoning skills (and biases) and qualifications as those in the lower house, I cannot think of any argument that demonstrates they are somehow better than the Government at protecting our rights. The voting system is no justification. A proportional voting system can be implemented within a more representative framework.

Our system is almost completely dependant upon governments being regulated by the political consequences of their actions. A joint sitting will always require a level of justification above and beyond that required for less controversial legislation. And most importantly, the adverse consequences of any legislation passed in a joint sitting will be entirely the governments responsibility – which I suspect would lead to infrequent use of the provision.

mark
2022 years ago

But surely, Ken, a popular government would have nothing to fear from a DD election?

As for 2 vs 3 attempts at passing: two attempts get you the DD election, and three gets you the joint sitting (so we have two failed attempts, an election, then another attempt, then the joint sitting). At least, that’s AIUI. No?

Gummo Trotsky
2022 years ago

Tysen,

Do the words “one party state” sound at all familiar?

Tysen
Tysen
2022 years ago

Gummo I understand what a one party state is. But I’m not sure that’s what Ken meant when he said elective dictatorship.

I was just pointing out that it’s not a very rational way of describing the situation. Just because one bunch of politicians convinces another bunch of politicians that it will be in both their interests to vote a certain way doesn’t translate to our rights being protected.

Why does legislation that makes the Democrat and Coalition voters happy suddenly take on a significance that an overwealming majority of the lower house wouldn’t have?

matt
2022 years ago

Tysen:

Currently the only substantive check on executive power is the Senate.

With caucus solidarity rigorously enforced by both parties, the House has no greater role than to provide Question Time footage for the nightly news bulletins. Whatever legislation comes from the executive is passed by the House.

Therefore, the only obstacle in the executive’s way is the Senate. Remove the Senate, and you have an elective dictatorship, bound only by the limited protection of the Constitution (e.g. the odd election or two).

I think “elective dictatorship” is a very good description of what a Parliament with a neutered Senate would look like.

Tysen
Tysen
2022 years ago

Matt I understand how parliament functions. I just don’t agree that the Senate, which is essentially a house of political compromise, is as important as some make it out to be.

Ultimately the minor parties will vote not on the greater good of the community, but on what they believe will keep them in power. They, like members of the HoR, have their behaviour regulated by the political consequences of their actions.

Why is any compromise necessarily a good one? Especially when that compromise is between two self-interested groups who make their decisions using the sole criterion of political gain?

Ken Parish
Ken Parish
2022 years ago

Tysen,

Matt has explained well what I meant by “elective dictatorship”. If our system restricted our participation to voting once every 3 years or so, and the government we elected could do pretty much whatever it wants in between without any substantial checks and balances, that’s an elective dictatorship.

Your mention of “self-interest” brings to mind a further important point. What I am talking about here is the basic philosophy of liberal democratic constitutionalism: democratic checks and balances. If you’re a left or right wing authoritarian who thinks that strong government is far more important than preservation of democratic freedoms, then you won’t be impressed by this analysis. If, however, like me, you think that governments are necessary evils whose powers need to be kept in check to prevent them acting in an oppressive way that removes our rights and freedoms under whatever pretext, then you’ll regard maintenance of constitutional checks and balances as absolutely crucial.

Australia already has a deficiency of liberal democratic checks and balances, because we don’t have a bill of rights or separation of the executive and legislative arms of government. Consequently our system already involves a serious danger of excessively powerful executive government. The Senate has evolved as a very significant check on excessive executive power, partly remedying these initial structural deficiencies.

The genius of liberal democratic constitutionalism, especially as developed by Jefferson, Madison and the other Founders of the American Constitution, is that it doesn’t depend on the political actors behaving in a selfless or wise manner. In fact it assumes that political actors WILL usually act in a self-interested way, and then builds in structural checks and balances to ensure that none of those actors is able to exercise too much power, and that the power of each arm of government is counterbalanced against all the others.

Thus, in the Senate example we’re discussing, liberal democratic philosophy assumes that it’s a good thing for governments to have to negotiate a consensus of disparate (and selfish) interests in order for their legislative program to pass through Parliament. If the government can’t win majority support, it’s better for the law not to be passed at all.

Of course, you also don’t want the elected government to able to be held hostage completely and indefinitely to self-centred minority interests which refuse to acknoweldge that the elected government DOES have some form of mandate to implement a legislative program. Hence the current deadlock provisions in Constitution section 57. As I suggested in this morning’s post, I think George Williams’ reform proposal outlined in this morning’s SMH has considerable merit. It enhances the government’s ability to enact its legislative program despite the obstruction of minority intrests, but without completely destroying the Senate’s role as a democratic check and balance. Constitutional design nvolves a careful balancing of awide range of competing imperatives, of which democratic checks and balances on the one hand, and effective government on the other, are just two.

Ken Parish
Ken Parish
2022 years ago

PS It might be a good idea now to migrate this discussion to the comment box for this morning’s post on the George Williams article. Other readers are more likely to find it then. hence I’ve copied my above comment to the new post as well.

trackback
2022 years ago

John Howard’s dating loophole

Ken Parish fills in some necessary detail on “plans” to reform the Australian Senate and responds to various comments made…

trackback
2022 years ago

Reforming the Senate

I heard Senator Ferris on Radio National this morning over breakfast. She spoke as the Government Whip in the Senate