Senate Terms: Human Headline Constitutionally Skewered

BY allocating six-year terms to the first Senators elected in each state, the new Senate will replicate the act of all others convened after a double dissolution since Federation; Derryn Hinch, aggrieved by a three-year term but worthier of six than most, offered a surprisingly undemocratic alternative his colleagues and precedent will sink. A touted lawsuit is constitutionally doomed. He should eschew pointless brawls in favour of more salient issues.

Short of criticising Malcolm Turnbull and the tentative early missteps of his re-elected government — over Kevin Rudd, the Don Dale fiasco, the continued triumphalism of moderate factional hacks in the Liberal Party in rubbing the majority conservatives’ noses in the dirt, or over his diminished authority and continued exhibition of poor or non-existent political judgement — there has been little to discuss over the past week, and as I am waiting to see how Turnbull fares when Parliament reconvenes in ten days’ time, I am reluctant to tear into his government. For now.

After the appalling election campaign and the events that led to it, readers can be well assured that whilst this column’s guns have not fired at the Prime Minister in recent weeks, they are trained in that direction and will do precisely that if my view is that Turnbull and his smug moderate cohorts are pushing the Coalition nearer to the electoral abyss: not that there’s very far to push these days, given the government was re-elected with the barest possible majority in the lower house and a diabolical position in the Senate.

But the news this week that the Coalition and Labor have “done a deal” to put a majority of the Senate crossbench on three-year terms is unexceptional, albeit one of the first items of real business for the new Senate to resolve, and even in the current era of rank negativity, pointless populism and incendiary tactics to achieve outcomes counter to the national interest but conducive to one political agenda or another, it is hard to have any sympathy for any of the Senators who have got it into their heads that they should have been installed for six years if they ended up being relegated to three.

Readers can access coverage of this issue, depending on preference, by the Fairfax and Murdoch stables; the allocation of six-year terms to 16 of 30 Coalition Senators and 13 of 26 from Labor is hardly excessive, and I would make the point that if this were indeed a conspiratorial stitch-up claimed by the likes of idiotic Communist Greens leader Richard Di Natale, then most or all of the seven of the 18 crossbench or Greens Senators in line for six-year terms would be contemplating just three years in the red chamber this weekend.

So let’s dispense with the bullshit: there hasn’t been a hatchet job done on the crossbenchers, even if obsessive self-interest has deluded some of them that there has.

The “order of election” method for allocating six-year and three-year terms to Senators after a double dissolution is the exact method used after double dissolutions in 1914, 1951, 1974, 1975, 1983 and 1987; it is impossible to argue that the utilisation of this method now is inconsistent with historical practice.

As part of its 1984 electoral reforms — which, at root, are responsible for the mess the Senate has descended into over the past ten years — the ALP enshrined in the Electoral Act a “countback method” (the so-called Section 282 recount) as an alternative mechanism for allocating terms based on the votes obtained by the 12 winning candidates in each state to the exclusion of preferences obtained from eliminated candidates; significantly, the Hawke government did not use this mechanism after the 1987 election, and as the article I’ve linked from The Age notes, the electoral commissioner advised the Clerk of the Parliament after the election that the Senate was in no way obliged to use Section 282 of the Electoral Act in determining the tenure of Senators.

And the reason is brutally simple, and brutal in its finality: the Constitution.

I have provided links to the Constitution in the past, and do so again today here; in the context of how three-year and six-year terms are carved up, the matter is entirely dealt with by S13, and that section itself makes no prescription whatsoever for the method to be used, merely noting that the Senate itself is responsible for dividing Senators into short-term and long-term Senators following a double dissolution.

As there is no recourse where the Constitution is concerned — clearly, any finding by a Court against the provisions of the Constitution would, by its nature, be unlawful — it is safe to assert that the method for this practice is as the sole discretion of the Senate; the fact the same method used on six previous occasions is again being used now merely adds the strengthening hand of precedent to the allocations announced yesterday, and it would be a foolish and wantonly expensive misadventure indeed for any aggrieved party to run off to the High Court seeking an intervention against the Constitution in their favour. It isn’t going to happen.

Family First Senator Bob Day found this out the hard way earlier this year, when he launched a ridiculous High Court challenge to changes to the way the Senate is elected, believing his interests and those of minor parties generally were disadvantaged; whether they were or not is irrelevant (and with a record 20 Senators set to take their places on the crossbench on 23 August, it’s problematic to argue the point), for S9 is unequivocal that the Commonwealth Parliament may prescribe the method of electing Senators provided such a method is uniform for all of the states: which, earlier this year, it did.

Assessed against the backdrop of constitutional provisions that confer unequivocal authority on Parliament to determine these matters at its absolute discretion, the actions of Victorian Senator Derryn Hinch are curious, to say the least.

Surprisingly, for a decent man ferociously (and rightly) obsessed with standards in public life, Hinch’s proposed alternative — that all represented parties be allocated at least one six-year Senator — not only flies in the face of both constitutional provision and parliamentary precedent, but also exudes a distinctly anti-democratic odour.

Taken to its logical conclusion, the Hinch proposal would have seen the Australian Motorist Enthusiasts Party Senator Ricky Muir, with his 0.5% of the primary vote, given six years in the Senate had that result and outcome been replicated last month; the Hinch proposal gives every appearance of being an unashamed attempted sop to minor parties at the expense of the traditional major parties, and those who rail against the major parties too often conveniently lose sight of the fact that they generally do win an awful lot more votes than their tiny counterparts.

Long-term readers know I have a lot of time for Hinch — and have had for decades — and I welcome his presence in the Senate; some of his positions (such as his support for gay marriage) I do not support, but others (such as disclosure and tougher sentencing for sex offenders) I wholeheartedly endorse. I am not having a go at Derryn today. But it does seem that in trying to push a proposal that would in fact benefit him, he has highlighted problems not just with Senate elections more broadly, but with the conflict that erupts at the intersection of standard parliamentary practice and the “modern” political practice of doing business with a sledgehammer and voluble amounts of intimidatory hot air designed to force opposition into submission.

But as I said earlier in today’s piece, were this simply a stitch-up, there would be worse things to bleat about than Derryn only being given a three-year term.

The good news is that odious actual Communist and national disgrace Lee Rhiannon has been added to the list of those who must face election before June 2019: an opportunity to get rid of an appalling blight on the national polity once and for all. Diversity be damned; this is someone whose past activities verge on treason, and who should be permanently disqualified from holding elective office in this country altogether.

Also to be welcomed is the fact Rhiannon’s rival as the Greens’ most contemptible parliamentarian — the obsequious Sarah Hanson-Young — will also be forced to provide voters with a further opportunity to get rid of her the next time a federal election is held.

And all three of Pauline Hanson’s One Nation buddies will be forced back to the polls at the same time; the prospect of any or all returning to Canberra after the next election must be regarded as low given the almost doubled quotas they will require in order to do so.

The bad news is that good people — like Hinch, Day, and Liberal Democrat David Leyonhjelm — will likewise be marched off to the polls again; this is not the result of any personal targeting but the even application of a system that has been used repeatedly at double dissolutions. In this case, it has produced outcomes that are not desirable.

Similarly, the news that Pauline Hanson and Jacqui Lambie will spend six-year terms in the Senate is a cause for rue; Hanson, by virtue of the vote recorded in Queensland, is entitled to such a term whether you like it or not, but Lambie — in my view the stupidest person ever elected to an Australian Parliament, and much, much worse than Hanson in any case — is a presence whose voice adds precisely nothing of value to the national debate in any way, shape, or form.

But “the system” is just that — the system which, by consent under law, we agree to abide by — and too often in recent years, the refusal of some (mostly, but not exclusively, on the Left) to accept the outcomes it delivers is a disturbing symptom of anti-democratic momentum that runs counter to the national interest, and it is for this reason I was dismayed by Hinch’s “give all parties six years” approach when such a position lacks merit, credibility, and legal integrity.

My criticism of Hinch starts and ends there, but my ongoing critique of others in Canberra — whom we have repeatedly discussed this year in their attempts to subvert process in one way or another — does not.

If I was honest, I would have to say I’m just about fed up with the Senate: the niceties of allocating three and six-year terms aside, it’s not democratic, it’s not representative, and it most certainly isn’t functional in the sense a reasonable person would understand the term to imply — just like proportionally elected Parliaments in Europe, which are usually gridlocked and are a direct cause of the economic and social malaise that now afflicts the EU and its neighbours on the continent.

Perhaps all of this lends weight to the possibility of constitutional change to overhaul Parliament itself, along the lines we have discussed in this column across the journey: breaking the nexus between the Houses that dictate their relative size, along with a recasting of the Senate into upper house districts that return a single member at a half-Senate election and two members at a double dissolution.

But any such change would require the courage and perspicacity of MPs and their organisational structures to formulate arguments for such change, and the skill to sell those arguments and carry public opinion: attributes I don’t think anyone believes exist right now, to any great degree, among the group currently charged with governance in Canberra.

To be clear, the changes made to Senate election procedures earlier this year were entirely within the Parliament’s jurisdiction to make, but were in fact little more than a Band-Aid on a suppurating sore: they were no more “real reform” than the idea a superannuation tax rise and a business tax cut was a “clear economic program.”

In this context, whatever merit or otherwise might rest in Hinch’s musings on the carve-up of terms for Senators, the point is moot: and even if his concept were valid (and I don’t believe it is), such a change would be just as much a rearrangement rather than an overhaul as those electoral reforms are already proving.

Hinch was elected on credible (and in some cases, urgently indicated) policies: he should shun the allure of picking a pointless legal fight guaranteed to end badly, and focus instead on those policies. The Constitution has him snookered. The High Court would simply pot the black on him. It would be a silly waste of time, money, and public goodwill.

But this wouldn’t stop him attempting to explore, as a Senator, substantial ideas for genuine reform of the Senate, although the record level of self-interest and obsession with keeping their snouts in the trough means that whatever else is said of Australia’s MPs, the interest factor will be virtually zero.

Best to get on with the job at hand. Most of the people in Canberra, despite their protestations to the contrary, are really only concerned with staying there. If Hinch is to be different, there’s a big opportunity to prove it by standing out from the pack.

The clock is ticking.

 

Constitutional Denial: Palmer Rant Shows Need For Senate Reform

A RANT by Clive Palmer against reforms to how the Senate is elected merely underlines the need for reform to occur; as the instigator of a party that directly benefited from current unacceptable Senate election mechanisms, Palmer has a vested interest in preserving the status quo: if, of course, his motives aren’t simply to cause trouble. The Constitution explicitly provides for reforms he claims are unconstitutional to be made by Parliament.

I am pressed for time and on the run again today, although I will attempt to revisit the column with something different tonight; I have, however, been reading a piece from The Australian this morning — featuring a bellowing Clive Palmer in full flight against Senate reforms that he claims would impose an “Eastern Bloc and communist-type regime,” and in view of the apparent constitutional ignorance the remarks suggest I wanted to make some comment on them.

Regular readers know that aside from a complete opposition to proportional representation, I have regularly spoken of the awful — and deferred — consequences of the Hawke government’s changes to the Senate in 1984; that election enlarged the Senate from 64 to 76 Senators (in part, to maintain the nexus the Constitution stipulates, that the House of Representatives by roughly double the size of the Senate) and introduced, among other things, the group-ticket voting that in conjunction with the lower quotas for election that apply in a larger Senate are responsible for the chook’s breakfast we now see at Senate elections.

For some extra reading or a trip down memory lane, my own thoughts on Senate reform can be accessed here.

Palmer’s arguments are almost exclusively composed of the kind of sentiment that emanates from minority groups that seem to think parliamentary representation is a right, not something to be garnered by argument, persuasion, and making a case to earn the votes and trust of the Australian public.

This is, of course, a variant on my longstanding theme that defenders of the present Senate — speaking, as they do, of a “diversity of voices” the current system throws up as somehow justifying the election of Senators on a sliver of the vote thanks to convoluted preference arrangements — are wrong, and advance arguments that might seek to legitimise obscure candidates being elected with minimal support, but which fail to satisfy a reasonable threshold of being democratic.

The changes mentioned in the article from The Australian would put an end to clandestine preference deals being done to get a fringe candidate — any candidate — elected with virtually no support, as Ricky Muir was in Victoria in 2013 with half a percentage point of the primary vote.

They will stop group-ticket voting, whereby convoluted deals negotiated by each party dictate where electors’ preferences are distributed if they vote above the line for the Senate, providing more control for individual voters to determine how their votes are counted.

And whilst the quota for the election of a Senator will remain at 14.3% of the vote at a half-Senate election in line with those 1984 reforms, making it easier for smaller parties to achieve election than had previously been the case, the changes that are set to be implemented — subject to parliamentary approval, of course — will make it harder for the Senate to simply be the place you stand if you are unable and/or couldn’t be bothered to get out and campaign for a reasonable stipend of public support.

By contrast, Palmer — in a characteristic show of belligerence — claimed the changes would “rig and destroy democracy,” although it’s hard to see how: they would simply repeal measures introduced in 1984 that arguably should never have been introduced, and Senate elections (and Australian democracy) ran just fine without them until then.

How the changes will “disenfranchise Australians” as he claims is unknown, and Palmer’s assertion they would establish “Eastern Bloc and communist-type tendencies (sic)” amounts to nothing more than blather: in former communist bloc countries, of course, there was no choice at all other than between a selection of pre-approved Communist candidates, and nobody is suggesting such a system be adopted here.

Even so, Palmer and his acolytes claim the proposed changes amount to a “breach of the Constitution,” and the really interesting thing about that is that I can see no grounds on which a challenge on constitutional grounds could have any hope of succeeding.

If you go to the relevant part of the Constitution — and I’ve linked directly to the clauses that deal with he structure of the Senate, for ease — sections 7 to 9 in particular are explicit (and emphatic) that “Parliament” (in this case, the House of Representatives and the Senate passing enabling legislation as per normal parliamentary process) is solely responsible for the determination of how the Senate is elected, and is silent insofar as any prescription surrounding electoral methodology is concerned.

I wouldn’t ordinarily comment on matters that are before the Courts or might reasonably be expected to be tried there, but in this case the only grounds I can see for Palmer’s opposition is a giant dummy spit on the basis that his preference-addicted, preference-dependent party — if you could still call it “a party” — is about to find it far tougher to win or retain seats in the Senate.

Ignoring the supplementary Senate election that occurred in Western Australia earlier last year — unrepresentative as it is of a “normal” electoral event, and more closely resembling a by-election — Palmer’s candidates failed, in every Australian state and territory, to win enough votes to fill a single Senate quota or to even get close to doing so: and whilst plenty of candidates are elected despite failing to win quotas on their own, and will continue to be elected despite failing to do so under the flagged changes, the fact remains that Palmer, his candidates and his party had insufficient appeal anywhere in the country to muster 14.3% of the vote for the Senate.

I have opined plenty of times that there is no automatic right to seats in Parliament just because people have entitlement complexes over them: in my new, if you can’t muster a reasonable number of votes then you can hardly claim to have the support of the public.

And in that sense, Palmer’s opposition to, and tantrums over, the changes being contemplated should simply be ignored.

Heavily dependent on preferences to get anyone elected at all, Palmer’s outburst is an excellent reason in its own right for these changes to be made, for they have fostered just the culture of entitlement Palmer himself is effectively defending by trying to scuttle them.

In the end, the Constitution is explicit that Parliament has the right to determine the way the Senate is elected and — if these changes are legislated, and Palmer still doesn’t like it — then that is just too bad.

Perhaps Clive Palmer would be better served concentrating on his lower house seat of Fairfax, where he was also elected despite falling far, far short of enough votes on his own account.

Elected in Fairfax with just 26.5% of the primary vote (or a bit over half the votes polled by the defeated LNP candidate with 41.4%), nobody could realistically claim Palmer himself heralded any sort of tangible mass appeal to the overwhelming bulk of voters even in his own electorate.

After an obstructive term in the House of Representatives during which his party has fallen to pieces as MPs walk away from Palmer’s rumoured behaviour as a control freak — and during which Palmer has aided Labor by frustrating the conservative government, which will not sit well in a solidly conservative seat like Fairfax — it’s hard to see Palmer’s personal support trending anywhere but downwards when next he faces his constituents.

If, that is, he bothers to stand for re-election at all.

But Palmer’s outburst over the changes being considered to the method for electing the Senate stink of the self-interest and entitlement that goes with an assumption the system exists to feather the nest of anyone who is prepared to play it and game it.

It doesn’t, and it shouldn’t.

In this sense, all Palmer is doing is reinforcing the need for the touted changes to be implemented, and it is to be hoped his intemperate remarks merely stiffen the resolve of those determined to do something to clean up the undemocratic shambles and embarrassment the Senate has become.

In an irony Palmer will not like, his own party — operating under his own instructions — has been a direct exacerbating factor in terms of the embarrassment the Senate is and the dysfunctional character it has assumed since the 2013 election.

If he wants to complain about anything, perhaps he should look in his own back years first.

 

Reform Of The Senate: Fixing A House Of Ill Repute

THERE IS MUCH that is wrong with Australian politics, not least the way it is practised by some in the political community; but the Senate — rigged and booby-trapped by “reform” in 1984 — is arguably very near the root of the problem. Far from the “unrepresentative swill” decried by Paul Keating, the end effect of the 1984 reforms has seen the Senate become a house of ill repute that casts a pall across politics — and government — in Australia.

I must apologise to readers for the length of time it has taken for this article to materialise since I flagged it on Monday and I will admit — at the outset — that the bare bones of the idea presented here today were published in this column a little over a year ago, in a more cursory but wider-reaching article that looked at electoral reform in Australia.

This time, however, I want to look beyond the problem (as it exists at face value) as well as expanding on my proposal for Senate reform: for whilst presenting a model for seemingly radical change is well and good, there’s little point in doing so without making the case based on historical context.

One key difference between the article last October, however, and the political reality as it stands today is very simply that the consequences of last year’s election are now writ large for all to see.

The Senate is a mess; aided by the lower quotas required for winning Senate spots that have applied since the Hawke government enlarged the chamber in 1984 — and exacerbated by activities in “gaming” the system, as typified by the so-called “preference whisperer,” with the specific objective of getting inconsequential fringe candidates into Parliament on a sliver of the vote — fully one-quarter of the Senate’s membership is now constituted by minor parties which would hold little or no representation based on the pre-1984 64-member Senate.

So poorly has Australia been served by the process for electing the Senate it isn’t necessary to invent fanciful hypotheticals to criticise it, for the reality is that bad; and far from a simple rant about an unsatisfactory election result, I believe the problem with the Senate cuts to the very architecture of the institution itself, as fiddled and manipulated and rigged over time to suit the agenda of different governments — usually led by the Labor Party.

I would go so far as to say that the Senate — in constitution, by design, and in practice — has become a house of ill repute; the fault for this lies with Parliament, insofar as it has exercised its right under the Constitution over the decades to turn the Senate into something that I don’t think anyone can credibly claim was intended at Federation.

There are a few points I want to be extremely clear about before we go too far. I dare anyone to try to rebut them.

There is no codified “House of Review” function ascribed to the Senate in the Constitution.

There is no right to Senate representation for minorities embedded in the Constitution.

The number of Senators is constitutionally tied to the size of the House of Representatives.

Each of these points will become relevant as we go on.

If we go back to 1984, I don’t think anyone could argue with the need to enlarge the size of the House of Representatives. After all, the voting population in Australia was growing quickly, and the capacity of 125 MPs to properly service close to 80,000 constituents had become a big ask, to say the least.

Yet the Constitution stipulates that the House of Representatives must be as close as practicably possible to double the size of the Senate: increasing the size of one meant increasing the size of both. But thanks to the proportional voting system used to elect the Senate, enlarging that House meant reducing the quotas required to gain election to it, opening the door to minor parties and Independents.

As reasonable as it was to enlarge the House of Representatives in 1984, the Hawke government was motivated, at least in substantial part, by the ALP’s determination to ensure that the events of November 1975 could never happen again: the dismissal of the Whitlam government was an entirely proper and constitutional course of action. But it viscerally scarred the ALP, which resolved that such an outrage could and would never again be visited upon it if the means to prevent it ever became available.

It is Parliament — not voters directly, nor the Constitution — that determines how Parliament is elected; control Parliament, and you can change the way it is elected. After the 1983 double dissolution Labor, with the balance of power support of the Australian Democrats, did exactly that.

The true effects of those 1984 reforms have taken decades to become fully apparent, but the logical end destination of this exercise in retributive Senate redesign was arguably reached at last year’s Senate election; a record 18 of the 76 Senators elected sit on the crossbench, and some of these — such as Motoring Enthusiast Party Senator Ricky Muir — were elected with what, in round terms, can only be described as virtually no electoral support.

What Paul Keating lamented in 1992 had become “unrepresentative swill” has now progressed to being a full-blown house of ill repute, with warring blocs of Senators seemingly unable to agree on anything without first emasculating it, and with an overriding flavour to the Senate’s activities of seeking to destroy the government elected in a landslide in the lower house.

Meanwhile, the disenchantment and resentment of ordinary voters with politics grows, with blame disproportionately being aimed at the major parties; in turn, this simply drives the emergence of even more minority entities in the Senate, fracturing governance even further, and perpetuating the whole destructive process.

The Senate majority acquired by the Howard government in 2004 was, in this sense, an electoral oddity; two very solid election wins (2001 and 2004) enabled Howard to carry half the Senate in 2001 and a little better than that three years later. But prior to 2001, the Coalition faced a Senate that was hostile to varying degrees; since its defeat in 2007, it has slipped further and further from being able to get anywhere near controlling the upper house.

Ironically, Labor — thanks to its alliance with the Greens — carried the day in the Senate more than it lost during its time in power.

But while there are exceptions to every rule, most of the non-major party Senators elected in the past 30 years have been either openly hostile toward the Coalition or at least sullenly disposed toward it, and when Labor was last in office, its virtual control of the Senate was tempered by the incompetence of its governance, especially on matters concerning money management, and some of the ridiculous laws it passed as the price of retaining the support of the Greens.

Now, the House of Representatives needs to be enlarged again; its 150 MPs are charged with providing effective service to an average of more than 110,000 electors, which is quite patently a ridiculous expectation of any elected representative.

But enlarging the House of Representatives comes with what only the vested interests who stand to benefit from it would describe as anything other than a constitutional headache: the Senate would need to be enlarged as well, and based on the current system of proportional representation, that simply means the chaos and fragmentation that now characterises the upper house would become even more entrenched.

The Constitution does not prescribe the Senate as a “house of review,” although in practice it undoubtedly fulfils such a function. Yet governments have to be able to govern, and a complete inability to pass legislation makes such a proposition impossible — an absurdity in a system of democracy.

Readers know I have accused Labor of repeatedly fiddling the system by which the upper house is elected: by introducing proportional representation to it in the first place in 1948, and then by enlarging it to try to stop the Coalition from ever controlling it again in 1984.

But if it was Labor — and not the Coalition — with the superior historical record of controlling the Senate, would it have done so? I think not.

And in turn, this points to the ALP having behaved to compensate for its inability to win the votes it needed to win control of the Senate by making it impossible for anyone else — especially those who once could — to do so.

Pardon my French, but that’s fucked, even allowing for the follow-up disclaimer that “that’s politics.”

Every time I have a discussion with people of Left-leaning persuasion about the problem of the Senate, their responses are pure emotive gobbledygook designed to make me sound like an undemocratic tyrant. Don’t you welcome diversity of opinion? Don’t you think there should be a variety of voices having input into government? Do you think it’s a good idea to disenfranchise minorities? And so forth.

Well, to be blunt, I think that if parties and/or candidates are incapable of winning a reasonable stipend of electoral support then there is no place for them in Parliament.

There is no entitlement to a seat in Parliament simply because you want one; there is no right for a particular party to win seats even if it can garner next to no support.

And if someone like Ricky Muir can win a Senate spot with 1,500 primary votes when the quota is 480,000 votes, then it is the system elections are conducted on that is broken.

One of the arguments that often gets thrown at me in response to my advocacy of First Past The Post (FPTP) voting is that in a hypothetical election featuring 12 candidates, someone with 8.5% of the vote might win.

Enter the 2013 Senate election. Muir didn’t even win 0.85%, let alone 8.5%, yet he was still elected. There goes the theory FPTP is worse than the present system.

There is an elected government that has been unable to pass virtually any legislation without it being mangled and emasculated; some would argue this improves outcomes. Yet the same government — beholden to the emaciated version of its program the Senate has enacted — is nonetheless paying a heavy political price in terms of popular support despite the “improvements” forced upon it by the upper house.

There goes that theory too.

And I do hold to the opinion that elected governments should be able to implement their policies; if these are bad, or have adverse consequences for too many people, then the next election is only ever three years or less away in Australia: and the people can vote the government out.

As things stand, the Senate has evolved into a professional wrecking chamber, aiming to destroy the Abbott government, holding an unconstitutional inquiry into an elected government in one of the states, and irrespective of whether you vote Liberal, Labor, Greens or whatever, if you care at all about democratic process in this country, this should enrage and terrify you.

But the Senate has to be enlarged to enable the House of Representatives to grow as well.

To this end — and to borrow from the October article — I propose the following:

  • The wholesale abolition of proportional voting in the Senate.
  • The division of each state into six upper house districts (or provinces, or constituencies, or ridings, or whatever name they are given).
  • Each of these districts — at a normal half-Senate election — to elect one Senator using an optional preferential voting system.
  • At any future double dissolution election, each district would elect two Senators rather than one, in the way Legislative Council members were elected in Victoria prior to 2001, only using optional rather than compulsory preferential voting.
  • The territories — whose Senators face election whenever the House of Representatives does — would return two Senators at each election using the altered voting method.

To enlarge the House of Representatives from 150 to 180 seats, the six Senate regions this plan calls for would simply become seven, with each state electing a total of 14 Senators rather than 12. But those Senators would need to assemble majority support on preferences in single-member electorates.

As I said in October, I also propose two further reforms to apply to elections for both Houses of Parliament: one, to slightly raise the threshold at which candidates become eligible for public election funding, from 4% of the vote to 5%; and two, a threshold introduced to bar candidates who poll less than 5% of the primary vote in any electorate or upper house district from being eligible to be elected on preferences.

Yes, these changes would favour the major parties and certainly — in the case of the Senate — would stop forever the election of fringe groups with no electoral backing from getting to Canberra.

But why is that such a bad thing?

Anyone who can get out and do the hard work to put together a majority of the vote — not necessarily under their own steam, provided they clear the 5% threshold — could be elected to the upper house. Simply surfing complacently onto red leather off the back of a residual few percentage points would cease to be a red carpet ride into the Senate.

Creating upper house districts, rather than forcing candidates to campaign across a given state in its entirety, can only help them in this endeavour. And so too can the fact that in urban areas especially, pockets of (for example) Greens support are likely to be concentrated — such as in the area covered by Northcote, Brunswick, Fitzroy and Carlton in Melbourne — and therefore conducive to returning a minor party candidate.

My point is that the Senate is broken: and it needs to be fixed.

Arguing that Labor (with the Greens) can control things in power, so there is no problem, is simply wrong: the Senate as it stands was explicitly crafted to cause difficulties for the non-Labor parties. And now, finally, it has. Those difficulties will only worsen as Coalition support recedes from its election high last year. Holding the present rabble in the Senate up as evidence of fault on the part of the Coalition is perverse.

And in any case, the Constitution, whilst prescribing nothing, does actually allude to the system I raise here: it makes provision for Queensland (until or unless federal Parliament provided otherwise, which it did) to be carved into upper house districts at the discretion of the state government of the day. To those who say I’m advocating tampering with “democracy,” I’d counter that at least the Constitution contemplated what I am suggesting, and in doing so considered it feasible architecture for the Senate.

There is not a word in the Constitution about “diverse voices” or proportional representation or the political interests of lunatic fringe entities who, on balance, probably shouldn’t be anywhere near a legislative chamber anyway.

What do people think?

The only way this (or any other meaningful change) can be enacted is if a broad coalescence of parties — probably, the Liberals and Labor — embrace the need for urgent structural reform of the way the Senate is elected and constituted.

That means putting aside petty partisan agendas and instituting a ceasefire in hostilities, however hard that might be.

It means, ironically, that Labor is the key to undoing the very damage its handiwork 30 years ago has ultimately inflicted.

Could Bill Shorten engage in a bit of constructive conduct in the national interest?

I think I’ll leave others to answer that one this time.

 

Constitutionally Possible: Getting Rid Of The Carbon Tax Without An Election

If the Gillard Government’s so-called “clean energy bills” pass the Senate, and if the Prime Minister refuses to call an election before the resulting carbon tax is implemented next year, is the hoodwinked Australian public bound to cop the fruits of an election lie? Not necessarily…

First, a disclaimer: I’m indebted to Tom Elliott, who is standing in for Derryn Hinch as 3AW Drive host, for the bones of this article; he pointed out on his program this afternoon that sections 58 and 59 of the Commonwealth of Australia Constitution Act — the Constitution, in short — still provide for the Queen to disallow any bill passed by both Houses of the Australian Parliament.

I’ve done a little digging around in the hours since Elliott led his program with this; not only is this true, but those sections of the Constitution are unencumbered.

And this got me thinking about our system of government within a Constitutional Monarchy, recourse open to our citizens within that system, and attempts to bastardise it by the Whitlam, Hawke and Keating governments — whilst keeping sight of the arguments of the republican movement from the corner of my eye.

It’s an irony, but no coincidence, that this subject presents on the day Her Majesty has been in Melbourne. Apparently a small band of noisy protesters attended one of the public gatherings with placards reading “Welcome, your Majesty, please dissolve parliament” and “Carbon tax corruption.”

Elliott joined the dots and dug out the relevant sections of the Constitution, and I thank him for that.

However, I’d like to go further.

Before I do, and so readers can see what I’m on about, here are the relevant sections 58 and 59 in full:

S58. When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, (s)he shall declare, according to his/her discretion, but subject to this Constitution, that (s)he assents in the Queen’s name, or that (s)he withholds assent, or that (s)he reserves the law for the Queen’s pleasure. The Governor-General may return to the house in which it originated any proposed law so presented to him/her, and may transmit therewith any amendments which (s)he may recommend, and the Houses may deal with the recommendation.

S59. The Queen may disallow any law within one year from the Governor-General’s assent, and such disallowance on being made known by the Governor-General by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

There are reasons — good reasons — why Australia’s founding fathers embedded so many checks and balances into the Constitution; succinctly put, one of these was to ensure that power in Australia was decentralised, and to ensure that each tier and institution in our structure of governance was accountable to another.

With the Monarch — in this case, the Queen — at the top of the structure.

The merits or otherwise of republican argument are utterly irrelevant to the discussion I’m putting on the table; as it stands, today, the present Constitution represents and underpins the laws of the land.

Mind you, I’m partially surprised to find these sections of the Constitution intact and unchanged; only partially though, which reflects the nigh-impossibility of enacting constitutional change by referendum — the only way that august document may be altered.

My surprise derives from remembering — before thinking the matter through fully — that previous ALP governments have already abolished the right of appeal to the Privy Council; passed the Australia Acts; abandoned knighthoods as part of the national honours; and removed many references to the Monarchy from government and institutional life. Just to name a few that spring to mind.

Yet at the end of the day, we remain a Constitutional Monarchy; the Constitution retains powers for the Queen or her representative to act; and some carbon tax protesters appear to have made the link.

And I think that power in the Constitution should be used in appropriate circumstances.

How could this mechanism be used to overturn the so-called “clean energy bills” once the Senate passes them?

To me it’s a question of making use of the provisions of the Constitution, an exercise in direct democracy, and a challenge for Tony Abbott to utilise his leadership of the Liberal Party to galvanise public opposition to these measures in a tangible and practical fashion.

In Britain, the current Conservative government has introduced a mechanism by which any petition bearing 100,000 signatures from registered voters (whose bona fides are validated against the electoral roll) automatically triggers a vote in Parliament on whether the issue in question ought be put to a referendum.

This happened just this week — 100,000 people signed a petition calling for the UK to leave the EU (something I endorse, but that’s another matter).

The government took the petition and instructed its MPs to vote against it to the man; it was duly voted down, but only after 30% of David Cameron’s MPs crossed the floor of Parliament to vote in support for the referendum.

I think that on the issue of carbon tax, a petition needs to be made, in the first instance, of the Governor-General, Quentin Bryce, in her titular role as Head of State and Vice-Regal representative of the Crown.

There’s no point petitioning the Prime Minister, who’s beholden to the lie by her commie mates; nor is there any point in petitioning the Speaker (a member of the ALP) or the Clerk of the Parliament (a public servant).

There are 14,000,000 enrolled voters in Australia; of these, half cast a vote — after preferences — for the Liberal and National parties at last year’s election.

In the 15 months since, their ranks have swollen by as many as another 1.2 million, largely on the back of Julia Gillard’s broken promise on refusing to introduce a carbon tax.

Now, if 100,000 can sign a petition in the UK on an issue of governance, 100,000 signatures in Australia carries three times the weight — our population is 22 million; the population of the UK is 63 million.

But given the depth and intensity of community anger over this issue, the gathering of 100,000 signatures should be child’s play; indeed, I’d be unsurprised if there aren’t hundreds of thousands of people who would sign a petition for the G-G to intervene.

Let’s say half a million signatures are gathered…it’d be the biggest opinion poll ever conducted in Australia outside an election.

The petition would be presented to the Governor-General, who (in the proper execution of her duties) would declare a conflict of interest (her son-in-law, Bill Shorten, is a minister in the Gillard government and thus bound by government policy).

The appropriate course of action in such circumstances would be to send the petition “upstairs” for the Queen to consider.

At this point, the Monarch would be the arbiter. However, such a course of action would likely involve representation from both sides of Australian politics, and with advisors and equerries at Court to minimise the direct involvement of the Queen personally as far as possible.

Does this sound far-fetched?

Well, the Constitution confers the authority on the Queen; clearly, given her family relationships, the Governor-General would be compromised in ruling on such an issue.

In 1975 — when “Labor Man” Sir John Kerr dismissed the Whitlam government to resolve a political deadlock (without consulting the Queen) — “experts” said that convention dictated he could do nothing of the kind; the law won the day, the deadlock was broken, Australia had an election, and Whitlam was swept into the dustbin of history.

I reiterate: the Constitution provides for the Queen to break the deadlock. Just as the “reserve powers” in the Constitution had never been used or explored prior to their employment in 1975, sections 58 and 59 need to be employed now.

This could take the form of a national campaign orchestrated by the Coalition and funded by its donors; backed by a significant media campaign (remembering trade unions threw $13 million at John Howard’s WorkChoices legislation) it could provide a singular focus point for Tony Abbott’s leadership of the Liberal Party — especially considering the fact that once the laws are passed, they’re likely to be forgotten for a while until the tax itself materialises.

This government lied to the people of Australia; its Prime Minister said — unambiguously — that “there will be no carbon tax under the government I lead” and then proceeded to introduce one.

It’s completely irrelevant as to whether it was an outright lie, or one told in the process of selling out to the Communist Party Greens, but the fact is that Australians were duped.

It’s made much, much worse by the Labor Party and the Greens already saying they will refuse to recognise any mandate obtained from the people by the Liberals and Nationals at an election to rescind the tax, and will vote any attempt to do so down in the Senate if they collectively retain the numbers to do so.

The Parliament should not be above the people; it should be answerable to them.

This is a special case; it’s been many years since such a flagrant lie was foisted on people, only for them to be told after the event that they would never be able to avail themselves of redress.

People want an election. The clamour for a fresh vote is virtually unprecedented in my own 39-year lifetime. If the government won’t give the people a say, then an appeal to another arbiter — any legal arbiter — must be made.

It turns out that the Constitution provides one.

The law is the law, and the Constitution the ultimate expression of it in Australia.

And if our system of government allows it, then it should be utilised.

God Save The Queen!

“I Did But See Her Passing By…And Yet I’ll Love Her Till I Die”

So said the Prime Minister of Australia; the official State visit of Her Majesty the Queen, Elizabeth II of Australia, excited patriotic and nationalistic fervour and pride; and the country basked in the glory of the presence of its monarch.

I speak, of course, of Sir Robert Menzies; Prime Minister of Australia, 1939-1941, and 1949-1966.

And I speak of course of Her Majesty’s first visit to Australia in early 1954, nearly 60 years ago.

How have things changed?

It’s an odd issue; the concept of republicanism barely registered on the political spectrum prior to Paul Keating listing it as an agenda item in 1992.

Even following on from the Dismissal in 1975, based on reputable polling in the years afterwards, an overwhelming majority of Australians remained committed to the monarchy as a constitutional institution.

After Keating placed republicanism on the mainstream agenda, public support rocketed; it reached its zenith at the 1999 referendum on the subject, at which roughly 44% of the country supported change, and roughly 56% preferred the status quo.

And support for a switch to a republic has been slipping ever since.

A Morgan poll today shows support for a switch to a republic at 34%, with 54% supportive of the retention of the constitutional monarchy.

I too saw the Queen “passing by;” in 2006, when working in the advertising division at Fairfax, I’d gone for a cigarette outside our building at the corner of La Trobe and Russell Streets, Melbourne…

…and noticing the streets were clear, and seeing a lot of motorcycle Police and then a Police escort, I saw the Queen’s Rolls-Royce come up La Trobe Street.

I was the only person there; so when the Queen waved to me, I waved back.

I did but see her passing by…some 50-ish years after Menzies did.

And I liked what I saw.

I’m a staunch, committed, and died-in-the-wool constitutional monarchist; it might surprise people that someone from fairly pure Scottish stock would think that way, and I will come back to the point.

But the issue has become topical again, with the 85-year-old Queen Elizabeth on her 16th (and probably last) visit to Australia.

I believe in the monarchy through no particular loyalty to the royal family; to me, the question is constitutional, and not a judgement based on whether you like the family involved or not.

I actually do like (some members of) the royal family though; I’ve always especially had a soft spot for Zara Phillips — Princess Anne’s daughter — and I think Charles will make an excellent King, but I digress.

The problem with a switch to a republican system of government in Australia is that it would be — by necessity — very heavily politicised.

The so-called “minimalist” republican model — where someone is chosen and ratified by two-thirds of the combined numbers of both Houses of federal Parliament — is ridiculous, for the following (simplified) reasons:

  • A constitutional crisis will ensue whenever the 66.7% threshold cannot be met (which, politically, will be almost always based on election results over 110 years);
  • Constitutionally, some states in Australia are entitled to remain (and would choose to remain) sovereign with the monarch as their Head of State, irrespective of what transpires nationally; and
  • The “minimalist” republicans see the Head of State as a purely ceremonial figure, ignoring totally the requirement for an arbiter should something similar to 1975 ever occur again.

The case for direct election of a President is even worse — anyone who thinks such an elected office wouldn’t end up being a tug of war between (read: abused by) the Liberal and Labor parties is utterly delusional.

I’ve said it before, and will say again: I wouldn’t want a Liberal Party politician in such an office, and I’m a 20-year member of the Liberal Party. I certainly wouldn’t want someone from the ALP in the role either.

Sorry Malcolm; sorry Paul.

Plenty of people think like this. There’s no resolving this argument.

And for those who (naively) advocate that Australians would be on their best behaviour in any electoral dealings with a republican head of state, I have one word.

BOLLOCKS.

Politics is politics: there is no such thing as an office voted on by lemmings sitting on their hands, hoping against hope that all things good and nice will flow from their decision, and that everyone will simply play nice because the whole exercise is an effort in touchy-feely niceness.

That’s horse shit, people, and it doesn’t matter how any republican wants to interpret it.

By accident of history, we have a system of government that incorporates some hefty checks and balances; some of these derive directly from the Constitution, and some derive from the system of constitutional monarchy we enjoy.

There is an impartial apex at the summit of the structure: the Crown. Whether people like it or not, it can’t be replaced by an elected republican politician without destroying the integrity of the entire system.

I’d like to welcome Her Majesty back to Australia; it is known that the royal family generally harbours deep and genuine affection for this country, and indeed, many of them have spent protracted periods of time here.

I will see Queen Elizabeth II at a function next week, and I am very much looking forward to it.

And on account of my Scottish heritage — the Union (the real Union between England, Scotland and Wales, not some Trade Union consideration) has been better for Scotland than the alternative; separatist moves by the so-called Scottish First Minister, Alex Salmond, stand to rob that wonderful country of very, very much if they’re ever successful.

It’s a horrible example, but Salmond backed off during the so-called GFC when it became clear that whilst Westminster might be able to rescue Scottish banks that were in trouble, Holyrood couldn’t.

And of course, once the crisis passed, up came Salmond’s rhetoric yet again.

As someone who identifies as much as being Scottish as I do as a third-generation Australian, I have to say that people like Salmond are, in the big scheme of things, a gigantic red herring.

I did but see her passing by…I have done so already, as others have done before me; and metaphorically speaking, I look forward to she, her heirs and successors, doing so again.

No “royal bashing” folks, but the floor is yours — what do you think?

And if you want to argue for a republican system in government I’m happy to hear your views, but anything that boils down to “we need an Australian head of state” is old news.

We already have one: the Governor-General. There’s a separation already between the Crown and the functional head of state.

I’m interested to hear what people think.