Reform the Reps?

Mike Steketee has an article in today’s Australian which carries forward the debate about constitutional reform we’ve been having in the blogosphere since John Howard announced his patently cynical proposal for reforming the Constitution’s deadlock/joint sitting provisions as a result of what he characterises as Senate “obstructionism”.

Steketee points out that the debate we really should be having is about how both major parties have completely corrupted the processes of the House of Representatives, especially by comparison with the Westminister model from which it derived:

THOSE attracted to John Howard’s proposal to nobble the Senate to stop it obstructing his legislation should look first at what he and his predecessors have already done to the House of Representatives.

So thoroughly have they debauched its role that, were it not for the requirements of the Constitution, we could close it down tomorrow and it would make no difference. Party discipline has become so tight that legislation never gets blocked in the house and seldom receives proper scrutiny. The house does not fulfil its role of holding the Government accountable, as is obvious from the farce that passes for question time.

It is worth making the comparison with the British parliament, whose traditions we adopted. When Tony Blair fronted up to the House of Commons last week for Prime Minister’s questions, he received a thorough working over on the issue of the moment Iraq’s elusive weapons of mass destruction.

In a half-hour, Blair fielded 19 questions. The biggest shock to an Australian reading the British Hansard is that Government, as well as Opposition, MPs asked real questions and Blair answered them, mostly point by point and succinctly.

Steketee might also have added that Australia’s political culture of rigid party discipline also compares unfavourably with the US model, from which our Founding Fathers equally drew in constructing our current constitutional model. In the US too, party membership doesn’t necessarily imply that a Senator or Congressman will vote the party line (although party discipline is tighter in the US lower house than in the Senate). American newspapers often publish a Senator or Congressman’s parliamentary voting record prior to general elections, so that voters can assess whether their federal political representatives have faithfully represented the local electorate on issues crucially impacting the local economy or community.

In the Australian context any analysis of that sort would be meaningless: both Government and Opposition MP’s are required to vote in accordance with the mandated party line in Parliament, irrespective of whether it accords with the interests of the local eletorate they were ostensibly elected to serve. An MP who crosses the floor and votes against his or her party’s position is subject to instant expulsion from the Liberal, Labor or National parties. The Democrats and Greens have somewhat less rigid rules, although they may give rise to their own difficulties (as Meg Lees discovered).

Australia’s evolved political system places primary emphasis on discipline, central leadership authority, and governmental effectiveness, at the expense of individual freedom, political accountability to local electorates, and diversity of political representation.

Personally, I would prefer a system that struck a better balance between these somewhat competing imperatives. I doubt that imposition of proportional representation multi-member electorates in the House of Representatives is the answer, however (although I’m open to persuasion). It would certainly be possible, as Dave Ricardo suggested in a comment a couple of days ago, to impose a threshold primary vote requirement to ensure that MPs must have a reasonable level of community support to get elected. However, you’re still inevitably going to end up frequently with relatively unstable governing coalitions, which isn’t desirable in my view. Both Tasmania and the ACT provide examples of the results of such systems, and neither model could reasonably be regarded as a success.

The central deficiency in the evolved Australian political culture flows not from the single member “first past the post” preferential voting system which applies in the House of Reps (and in most State lower houses), but from the excessive rigidity of party discipline. That could be partially remedied by a constitutional amendment making it unlawful for any political party to subject MPs to overt threats, pressures or inducements to cast their parliamentary vote in a particular way.

You would need to exempt Ministers and Parliamentary Secretaries from this rule, otherwise effective government would become impossible. You’d also need to exempt Money Bills and motions of no confidence. A Member who no longer thinks his party is fit to govern should in conscience resign from that party, and the party should be able to expel him if he doesn’t.

However, on all ordinary legislation, Members should be free to vote in accordance with the dictates of their conscience and the local electorate’s wishes and interests. Of course, no such system could entirely remove pressure to vote in accordance with the wishes of a particular party interest group or power elite, nor would that be desirable. Many MPs aspire to be elected to Cabinet, outer Ministry and Parliamentary Secretary positions, and elevation to those executive offices is always going to be determined in part by the extent to which a member has shown loyalty to the party and governing faction.

The inevitability of such pressures is a major reason why the Americans opted for a complete separation of Parliament from the Executive. I certainly don’t advocate that Australia should move to an American-style system. A less radical reform would at least restore some degree of local and individual democratic accountability to the system. Ambitious MPs who aspire to high executive office will continue to adhere to the “party” line of the faction they believe can deliver them power. However, every party has its share of mavericks who either don’t aspire to Cabinet office or know they’re unlikely ever to achieve it. A system which at least attempts to ensure that these members can’t be overtly pressured would go some way towards recreating an ethos more like the Westminster model, where Question Time actually means something, and backbench MPs don’t always vote the party line or else*.

Reforms of the sort I’m canvassing would nevertheless run up against the problem of how to deal with preselections. Would failing to preselect a sitting Member who has consistently failed to vote the party line (or the faction line where a particular faction dominates the local electorate party branches or other body responsible for preselection) be classed as an unlawful threat, pressure or inducement? It’s difficult to see how one could legislate in that way without interfering to an unacceptable extent with core aspects of party-based representative democratic process. Nevertheless, and even without protecting MP preselections, such a reform might serve as a catalyst for recasting Australia’s parliamentary culture in a more open, democratically accountable mould.

* I should note for completeness that the evolved British system does involve a fair degree of party discipline, though less complete and rigid than Australia’s, as this extract from Britannia.com explains:

Inside Parliament, party control is exercised by the Chief Whips and their assistants, who are chosen within the party. Their duties include keeping members informed of forthcoming parliamentary business, maintaining the party’s voting strength by ensuring members attend important debates, and passing on to the party leadership the opinions of the backbench members.

The Whips indicate the importance their party attaches to a vote on a particular issue by underlining items of business once, twice or three times on the notice sent to MPs. In the Commons, failure to comply with a ‘three-line whip’, the most important, is usually seen as a rebellion against the party. Party discipline tends to be less strong in the Lords than in the Commons, since Lords have less hope of high office and no need of party support in elections.

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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cs
cs
2022 years ago

OK, so party discipline has effectively destroyed any division of power between the executive and the legislature. This is a very old problem in Australia (and the UK). Given that it is impossible to stop this extra-constitutional organising (even allowing for Keith’s proposals to give some room for movement), the historic answer has been to place a division between the executive and the administration, with the introduction of a professional and independent public service. This is where the Howard Coalition has really contributed a historic debauching of the Australian system of government.

Sure, the rope never completely held, and was rotting for some time before 96. Whitlam’s mass introduction of ministerial minders was a decent blow, although justified in my view; Hawke’s removal of permanency for department heads and the creation of the SES was another big blow, but it was accompanied by measures to reinforce equal opportunity and industrial democracy (remember that!).

But, despite allowing for these antecedents, ever since the principle of public service independence was first introduced in the 1880s, no government in Australia’s history has so thoroughly debauched the idea, extending the rot as far as the armed forces (refer, only for the most recent instances: Marr and Wilkenson, Dark Victory).

This has of course been accompanied by outright attempts to intimidate the judiciary, and now an assault on the Senate. The Darkness continues to descend.

Alan
2022 years ago

It wouldn’t work. When NSW mandated a secret ballot in election of MLCs by a joint sitting all that happened was the NSW Right invented a complex mathematics of giving each voter a slightly different order of preferences so they could identify any deviant votes.

A constitutional amendment of the kind you advocate would be subject to similar abuses. The executive dominates the house completely because of the voting system and because the wide powers available to a prime minister give him (it is always a him) the ability to do so.

None of our partisan speakers ever admit to partisanship. They just go for a rhetoric of insisting that they are acting independently of the executive.

The only way to restore the House to some real role in government is to reduce the prime ministerial prerogative or to alter the method of election. I’d support both.

Ken Parish
Ken Parish
2022 years ago

Chris,

I agree that the events surrounding the “children overboard” affair were disturbing in indicating just how far the politicisation of the public service has gone, including the fact that it seems now to embrace at least the upper echelons of the defence forces.

However, almost all the significant acts of removal of the planks underpinning public service impartiality and professionalism were actually perpetrated by the Whitlam and Hawke Labor governments. Your comment partially acknowledges this, but then obfuscates it by talking about industrial democracy and equal opportunity. I’m not aware that the Howard government has removed EO principles from public sector selection, nor has the great bulk of the Commonwealth Public Service been downsized, outsourced, or put on “Australian Workplace Agreements”. It’s certainly true that Howard has further reduced the role of the AIRC in duspute settlement, but I remain to be convinced that this has had a huge additional impact on public sector impartiality.

It was Whitlam and Hawke who did the dirty deeds; your plea in mitigation is unconvincing.

cs
cs
2022 years ago

Ken
The Children Overboard affair contains simply the most widely acknowledged instances of public service politicisation … it is very far from the only instance … and the Howard government has also removed many more institutional planks. Much of this, I feel sure, was the work of the now departed Max the Axe.

Nonetheless, I do agree with you that what His Darkness has done here is yet another instance of taking to further extremes changes that were first introduced in principle by former Labor governments. This is a big issue … and worthy of a separate post.

Ken Parish
Ken Parish
2022 years ago

Chris (reply 2),

You conclusively assume that “it is impossible to stop this extra-constitutional organising”. In a sense you’re right. However, it’s a matter of political culture and expectation. British culture and expectations are different, despite the lack of any prescriptive legislative or constitutional enactment. They’ve made different choices, and those choices are now entrenched by practice and ingrained habit, as well as community expectation. There’s no reason why we couldn’t use this relatively small constitutional change as a catalyst for changing the political culture, conventions and expectations.

Many aspects of our constitutional and governmental system are primarily underpinned by culture, convention, expectation and history, rather than by prescriptive law. The question is whether and to what extent it’s possible to engineer a particular evolution of culture and convention in part by formal legislative or constitutional means. I think such a process COULD be useful, because the referendum process itself would focus public attention and discussion on the problem, and public expectations and demands of their politicians would evolve as a result. I’m canvassing the change as part of a process of cultural evolution, not as a constitutional reform that could ever be complete and effective in itself.

cs
cs
2022 years ago

Ken,
Yes and no … there’s much room for debate … but I’m off … get back to you later.

Gabi
Gabi
2022 years ago

Ken,

I agree that the absolute party discipline is probably the biggest problem in the Australian system. However, I see 2 difficulties with your suggestion.

1. I don’t see how any sort of constitutional prohibition on party discipline could be effectively enforced by the courts – and there needn’t be any overt threat, much in politics is more subtle.

2. The main technical difference between the US Senate (of which there is much to admire) and the Australian Senate is the Australian voting system. It is complicated to the point of impossible to vote for an individual candidate instead of a party. For example, being a Victorian, if I wanted to vote Liberal in the Senate but not for Richard Alston, I’d have to individually number 80-100 boxes, many of whom are obscure candidates of parties I’ve never have heard of. I don’t have the stats of above-the-line voting on hand, but it’s a huge percentage – something like 95%. It’s difficult to ask Senators to act individually if they’re held accountable collectively.

Those points aside, I agree something should be done about party discipline – I just don’t don’t know what. I think it’s a problem that can only be solved by a change of political culture, not any constitutional prohibition.

SP
SP
2022 years ago

Another issue that strikes me about party discipline is how quickly everyone jumps on any dissent, however mild, within a party – look at how everyone berates Labor when anyone doesn’t immediately conform. If we can’t tolerate debate within a party outside the parliament, what hope is there within it?
One of the things that I found interesting about what Costello had to say after Howard announced that he wasn’t retiring, was that he hinted that he wanted a say in what happened. If, as deputy leader of the Liberal Party he doesn’t get to contribute to decisions and feel that he has some say in the country’s direction, what chance is there for anyone else. It might as well be a dictatorship.

cs
cs
2022 years ago

Gobsmacked

Speaking of the politicisation of the public service, and the neo-conservative extension thereof to the armed forces, how about this editorial from today’s New York Times:

The Bush administration is moving quietly toward the most sweeping reform of the Civil Service system in a generation, a mammoth turnabout that would empower the Pentagon to scrap and replace the way it hires, pays, promotes and disciplines its roughly 750,000 civilian workers. The House has already rubber-stamped a plan proposed by Defense Secretary Donald Rumsfeld, who wants the “flexibility” to become in effect the potentate of payroll. Under that bill, Mr. Rumsfeld and his managers would have final word on the merit, demerit and pay raises of workers, who would have minimal recourse to appeal (emphasis added).

Rummy … cor blimey … now there’s an impartial figure! Now it’s definitely not April 1st, so what the hell is this … the US effectively edging towards a purely neo-con military administration …!

Ken Parish
Ken Parish
2022 years ago

Chris,

That’s just about the most depressing news out of the US I’ve heard in a long time. Since it’s pounds to peanuts the Howard government will adopt and try to emulate it, it’s an even more powerful reason not to touch watering down the Senate’s power with a barge pole.

Gabi,

I agree there are lots of ways MPs can be pressured that could never be effectively regulated (or even discovered). However, as I suggested to Chris, I’m looking at a referendum process as a vehicle to change the political culture by changing the public’s expectations and demands about our politicians’ behaviour. Only a change in political culture can achieve the desired result; no conceivable legislative or constitutional regime could ever do so on its own.

Finally, your point about the difficulty of voting for individuals in the Senate is a good one. I don’t really have any brilliant ideas for solving it, because in large part it flows from the fact of a PR election for 6 Senate positions, which I also think is the current system’s great strength (because it facilitates diversity of representation where the US Senate system doesn’t). Maybe we could have larger election deposits required to be lodged with a higher threshold achieved vote for return of deposit. That might deter most of the fringe ratbag candidates who know they have no chance whatever of election but stand for a variety of idiosyncratic reasons. However, you wouldn’t want to set the bar so high as to exclude genuine but impecunious candidates.

In any event, my point about accountability and MPs’ voting records related mostly to the House of Reps, where identifyng and voting for an individual really isn’t a problem.

Scott Wickstein
2022 years ago

Chris – the US Civil service has been, in effect, politicised since the days of Andrew Jackson and Martin Van Buren- in their time, a change of party in government meant collossal changes in the civil service; your local postmaster might be axed.

Rumsfeld’s changes, I suspect, don’t seem quite as radical to Americans as they would to us.

As for our system, I simply don’t see any hope for reform until the culture changes. And that can only happen from the expectations of the population as a whole.

A very good post and good comments as well.

cs
cs
2022 years ago

I hope you’re right Scott, but I can’t feel comfortable reading statements like this:

The Bush administration is moving quietly toward the most sweeping reform of the Civil Service system in a generation.

Steve Edwards
Steve Edwards
2022 years ago

Thought I’d mosey over here to peddle my snake oil.

The best way to reform the House of Reps would be to force all party preselections into the public domain by having party registered voters (like the US) who then get to vote in primaries for each seat. The loser hacks who stitch up preselections via bloc votes will then be destroyed. Party discipline will then almost completely break down, and all will be good.

mark
2022 years ago

Steve, doesn’t that risk the possibility that candidates could fight dirty and desperately for each seat, so come the Federal election, the voters are already disillusioned (heard all the dirt about each candidate during the primaries, sort of thing)?

Thersites
Thersites
2022 years ago

Apparently Gough Whitlam has been a cynical bastard like Howard for 45 years when it comes to the issue of senate reform !!!!!!

Alternatively maybe it’s just another example of Howards cynicism by stealing Goughs iseas ????

http://www.capitalr.org/opinion/new/whitlam.htm