Howard’s media megaphone

The Australian newspaper is obediently singing in harmony from the John Howard songbook in its editorial of this morning:

JOHN Howard is being denied his right to govern by alliances of convenience between Labor and the motley collection of minor party and independent eccentrics that infest the Senate.

However, Senator Brian Harradine pointed out yesterday that 95% of all government original legislation and 99% of all amending legislation has been passed by the Senate during the current Parliament. It hardly sounds like “Senate obstruction”.

Certainly, the 6 current double dissolution trigger Bills are all ones the Howard government regards as very important. That’s because they’re part of the Coalition’s core political/ideological agenda or wish list, rather than being mere ordinary legislation generated by departments and agencies. But does that mean that blocking them amounts to “obstruction”?

That can only be so in any democratically meaningful sense if the blocked Bills were ones for which the Government has a mandate. This Parliamentary Library Research Paper by John Nethercote discusses in depth the concept of mandate.

Arguably, the minimal requirement for any measure to attract a mandate is that it was part of a winning party’s election manifesto at the previous election. As far as I can see, only three of the six current double dissolution trigger Bills fall into that category. They were all part of the Coalition’s so-called third generation industrial relations reforms: measures which would make secret ballots compulsory for strikes, allow small businesses to sack people more easily, and enable the Australian Competition and Consumer Commission to intervene to stop a union carrying out a secondary boycott against a small business.

The remaining three are entirely post-election phenomena, so their rejection can’t on any reasonable view be labelled Senate “obstruction”. The fact that the Australian’s editorial writer simply parrots John Howard’s propaganda so unthinkingly makes it a parody of a decent broadsheet newspaper. That said, the editorial usefully summarises the main options for constitutional reform currently being seriously canvassed. I actually think the proposal floated by former Liberal Party National Director Andrew Robb has considerable merit:

The third proposal, from former Liberal adviser Andrew Robb, as reported in The Australian yesterday, extends Mr Lavarch’s idea by restricting legislation that can be passed at a post-poll joint sitting to issues that the government had campaigned on at the most recent election and the one before it.

The Robb proposal would ensure that only the three current Bills for which Howard can arguably claim a mandate could be rammed through a joint sitting of Parliament. Moreover, that would only apply if Howard won the next election, at which these Bills would certainly be a significant focus of public attention (at least if there was a competent opposition).

Finally, Robb’s proposal would also avoid the current situation whereby the only way a government can break a legislative log-jam by proceeding to a joint sitting is to submit to a double dissolution election, where there is a very high probability of ending up with a Senate full of minor party Senators and Independent ratbags elected on a tiny popular vote. No doubt that’s why there’s only ever been one joint sitting in the century since Federation.

I heard Labor’s John Faulkner suggesting last night that the ALP might support such a proposal (or at least the Michael Lavarch one, which I regard as less satisfactory than Robb’s idea) if Howard agrees also to put up proposals for a 4 year fixed term of Parliament and abolition of the Senate’s power to block Supply. Frankly, if Howard is really interested in sensible constitutional reform rather than just cynical wedging, he’d agree to both these propositions. Neither of them disadvantages the Coalition, and both would improve the workings of the Australian political system. Sadly, my money is very much on Howard’s being merely engaged in a wedge, so I won’t be holding my breath for a bipartisan constitutional reform deal.

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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Homer Paxton
Homer Paxton
2022 years ago

There is a statistical difference between the votes for parties in the House and the Senate.

In 1998 for example the Liberals gained the lowest vote in the Senate since Victor Trumper padded up.
Whilst the Libs/Nats won the election it was clear from the vote the majority of people didn’t want a GST. ( I actually supported a pure GST and still do).
The Democrat falling vote can be traced directly back to their GST agreement with the government.

Ironically this distrust of government has increased with the present Government because of arguments Ken has previously made.

I favoured elimination of the Senate when I was young and silly.
Now I am older and sillier I like the Senate and how it puts a brake on Prime Ministerial power!

mark
2022 years ago

Wow, Homer, Ken’s got a lot of power :-)

Ken Parish
Ken Parish
2022 years ago

Don’t diss me dude, if you know what’s good for you … I think I’ve been brainwashed by Rebecca’s Eminem MP3s played incessantly at high volume.

Homer Paxton
Homer Paxton
2022 years ago

Ken,
Can you translate that please.

Ken Parish
Ken Parish
2022 years ago

I have enough trouble with English let alone teenage. I just heard it on a MP3. It may mean something, then again it might not. Go ask a teenager, or wait for one of the young cool dude commenters to tell us!

Ron Mead
Ron Mead
2022 years ago

Faulkner is entitled to issue a quid pro quo bargaining chip, and it may well lead to progress in this issue, just as Meg Lees’ insistence on no-GST-on-food led to a useful compromise.

To limit parliamentary progress only to those matters disclosed in a campaign would be a backward step. Circumstances do change between elections, sometimes dramatically so. Rabbitting on about core and non-core promises ad nauseam is hardly useful and just indicates a lack of appreciation of how governments must respond dynamically to changes in all sorts of environments mid-term.

As for wedge politics, I’m all for it. Wedges can’t be driven in unless gaping holes already exist and a PM is entitled to play politics just as much as the opposition. Oppositions continually bag governments with their carping negativity and to expect government ministers to make themselves static targets is unrealistic. The best form of defence against these tactics is often attack. Howard is just as much entitled to wedge as Crean is entitled to his carping negativity. The problem for Crean is that Howard is far more accomplished as PM than he is as Opposition Leader. He’s hardly entitled to an even break.

Geoff Honnor
Geoff Honnor
2022 years ago

Homer – “Don’t diss me dude!” can be interpreted as “I warn you, my good man, not to offer disrespect towards me.”

“MP3” is a web-based sound recording format

“Eminem” is an American rap artist whose evocations of the twisted lives of deprived urban youth have proved to be wildly popular with urban youth and deeply unpopular with Peter Slipper – who tried, unsccesfully, to ban him from performing in Australia. This naturally made Eminem even more popular with Australian youth.

“Rap” is basically “spoken street poetry” set to a specific musical form that arose in the black ghettos of metropolitan America

Ken Parish
Ken Parish
2022 years ago

Or better still, a middle aged cool dude!

Dave Ricardo
Dave Ricardo
2022 years ago

According to Ron, Simon Crean is guilty of “carping negativity”.

As opposed to the way Johnny Howard and Ron’s other mates behaved during he Hawke and Keating governments, which wasn’t carping negativity all, but constructive and fully justified opposition.

It’s funny isn’t it, how when your side is in government, the other side is always guilty of carping negativity, but when your side is in opposition, the other side is guilty of running the country into the ground and fully deserving of all the criticism they get.

Michael Jennings
2022 years ago

Finally, Robb’s proposal would also avoid the current situation whereby the only way a government can break a legislative log-jam by proceeding to a joint sitting is to submit to a double dissolution election, where there is a very high probability of ending up with a Senate full of minor party Senators and Independent ratbags elected on a tiny popular vote. No doubt that’s why there’s only ever been one joint sitting in the century since Federation.

Firstly, the senate hasn’t always had the same electoral system. It has not always been the case that a full senate election could lead to lots of minor party senators (and even now, I think that the risk is often overstated – I could explain this but there is a whole post in it).

As for this being why there has been only one joint sitting since federation, I doubt it. There has only been one joint sitting, but there have been six double dissolutions since Federation. One of these was 1975, where the double dissolution mechanism was used to resolve a constitutional crisis, and one did lead to a joint sitting. However, there are clear reasons why each of the other four did not, and none of them have to do with a large number of minor party senators.

On two occasions (1914 and 1983) the government lost the election of the House of Representatives and there was thus no joint sitting needed. On one occasion (1951) the government won majorities in both houses and no joint sitting was needed. On one further occasion (1987) the government won re-election and a joint sitting would have been called, except that the bill in question (the Australia Card bill) was demonstrated to be incompetently drafted and thus unenforceable, and the government thus dropped the bill.

The final possible outcome of a double dissolution election, in which the government is re-elected in the House of Representatives but does sufficiently badly that it lacks the total votes in a joint sitting to get the bills passed, has never happened. If John Howard were to call a double dissolution for the next election, and this were to happen to him, my guess is that he wouldn’t last six months as Prime Minister after the election.

Ken Parish
Ken Parish
2022 years ago

Excellent points Michael. I was aware of the 1975 and 1988 events, but not the others you mentioned. Nevertheless, I still think the major risk of lots of Independents etc is an excessive deterrent to governments choosing a double dissolution.

Although I strongly support the role of the Senate as a check on majoritarian tyranny, it’s nevertheless a question of balance. I think there’s a pretty strong argument that a government which has campaigned and won twice in a row on a legislative agenda, and had that legislation knocked back twice in the interim, has a good case to be able to put its agenda to a joint sitting without having to pay the price of an almost unmanageable Senate for the balance of the following term of Parliament (and possibly beyond). I think Robb’s proposal strikes a reasonable balance between the will of the majority and the legitimate restraining influence of the Senate.

Homer Paxton
Homer Paxton
2022 years ago

Ken,
The kids of today listen to muck. Why don’t they have the good taste of their parents!!

It seems to me if Howard called a double dissolution then for the first time you would have an election where the bills would be central to the campaign indeed I doubt if Crean would believe his good luck if this happened.
The bills may have some intrinsic merit for neo-whatevers but most of them are merely going to either put prices up for most people or make life tougher. Market forces are all that popular with middle Australia or ‘battling’ Australians.

Michael Jennings
2022 years ago

Ken,

My problem with the “If it was in the government’s manifesto twice, then ” situation is that someone is going to have to decide what constitutes “being in the party manifesto” from a legal point of view for the first election. (For the second election, the situation is quite straightforward as I see it – the bill passed at the joint sitting must be precisely the bill rejected by the senate before the election). I can see political parties making lots of vague statements in order to qualify for this later.

As for the lower quota of a double dissolution, when you look at the mathematics of it, the double dissolution is not actually likely to lead to a larger number of minor party senators and independents in total than an ordinary election, and actually may lead to a smaller number. The government is likely to lose seats compared to at an early half senate election, but at the expense of the opposition rather than at the expense of minor parties. (It is also possible that the larger minor parties will lose seats at the expense of smaller minor parties. This is why Howard and Harradine did a deal on Wik before the 1999 election, because it kept One Nation from winning seats. However, those seats would likely have been won at the expense of the Democrats, rather than the major parties). Again, I can explain why this is so, and I will do so by writing a longer post when I have time. (If you would care for a guest post, I could do it for this blog, or alternately I will do it for my own. Actually perhaps one of the newspapers might be interested).

Just as an example, look at the past senate resultshere, since the size of the senate was expanded in 1984. After the double dissolution election in 1987 there were a total of 10 minor party and independent senators. The comparable situations to a half senate election being held next year are those following the 1993, 1996, 1998 and 2001 elections. (1984 and 1990 were half senate elections following double dissolutions, and thus not comparable). After these elections there were 10, 10, 12 and 12 minor party and independent senators respectively.

There is actually a serious flaw in section 13 of the constitution, that deals with the division of senators into two classes after a double dissolution, and I would strongly favour a constitutional amendment to fix this. However, I don’t think there are enough people aware of this problem for there to be a mass movement to fix it. (Plus it favours major parties at the expense of minor parties).