How to reform ‘weakest Parliament’

“Australia has one of the weakest legislatures in the democratic world,” says Clerk of the Senate,Harry Evans. Two changes could inject courage and power, says Dr Bede Harris, who proposes we change the voting system externally and the privileges system internally.

Reforms needed to the ‘weakest Parliament’

By Dr Bede Harris*

In a recent lecture, the Clerk of the Senate, Harry Evans, correctly identified party discipline as the cause of the inability of the legislature to hold the executive to account, saying that “We have one of the weakest legislatures in the democratic world…The Parliament here is under a degree of democratic control that would not be tolerated elsewhere, even at Westminster”.

It is worthwhile stepping back in time to see how the Westminster system is supposed to work, and why it now so spectacularly fails to maintain legislative control over the executive. As it originally evolved during its heyday in Britain in the late 17th and early 18th centuries, the system truly was one of “responsible government”. When the monarch chose a Prime Minister, that person had to be able to retain the support of a majority in the House of Commons. That was by no means easy: political parties were loose, informal groups with fluctuating memberships, and there were a large number of MPs who had no party affiliation. It was, therefore, a struggle for the ministry to retain the confidence of the House. Governments were truly frightened of Parliament, and needed to persuade, not command, Parliament to pass legislation.

Ironically, the expansion of democracy during the 19th century proved the death-knell of responsible government, because the increased cost of running election campaigns as the franchise was extended meant that membership of a party, and the support of its machine, became increasingly necessary for the aspirant MP. The quid pro quo extracted by parties was absolute loyalty on the floor of the House. This led to an inversion of the relationship between Parliament and government, with MPs being instructed on how to vote by the ministry, and afraid of withdrawal of support for re-election if they defied the whips.

Australian parliamentary discipline is notorious – the last government to fall to a revolt by its own MPs was the Scullin government of 1931. Australian Parliaments, federal and State, are controlled by a Coalition / Labor duopoly, whose participants happily alternate in power, and whose ministers need fear no independent thinking or scrutiny from their cowed backbenchers.

Two key changes are required in order to make governments accountable to Parliament: reform of the electoral system, and an enhancement of the power of parliamentary committees.

First, in order to break the Labor / Coalition duopoly, it is necessary to adopt proportional representation (PR) for the House of Representatives. Unlike electoral systems based solely on geographic electorates, which favour parties with concentrations of support, PR gives minor parties and independents a real chance of obtaining representation. This makes it far more difficult for large, monolithic parties to survive unless they act in a far more consultative way internally, because disaffected members can simply leave and form their own party. Under PR we could probably anticipate four or five parties (rumps of the current ones, plus new parties at the centre and on the radical fringes of the political spectrum) competing for votes.

Furthermore, since under PR parties obtain seats in Parliament directly proportional to their nationwide vote, it is extremely difficult for a single party to govern on its own. Coalition governments would be the norm, and this would lead to politics based on consensus and negotiation. Instead of a government drawn from a single party able to dominate its back bench, the cabinet would consist of ministers drawn from two or three parties who would need to persuade MPs from a variety of backgrounds to support their policies. In other words, the political landscape would be similar to that which existed when responsible government first arose, with MPs dictating to the executive, rather than vice versa.

Of course, the two major parties would make common cause to fight to the death to avoid electoral reform – which is perhaps the best advertisement for the project. Predictably, they will argue that coalition governments are inherently unstable. However this is to ignore the fact that it is in the interest of coalition partners to compromise with each other in order to maintain their coalition and remain in power. Germany, which has PR, has had fewer post-war governments than has the UK, which does not. In New Zealand, which has used the same PR system as Germany since 1996, every government has lasted its full term.

The other argument made against PR is that voters do not know what compromises the party they vote for may have to make in order to form s coalition, and that voters also do not have a clear choice of government before them, as they do now. This is true only if parties do not announce during their coalition preferences during the election. But even in that case, the key advantage of PR, which outweighs uncertainty over coalitions, is that a government formed under PR will always represent more than 50% of the voters, unlike under the current electoral system, where it is entirely possible for a party to win government with less than 50% of the first preference vote – or even with fewer votes than the opposition (as happened in every election between 1983 and 1993, and in 1998).

The second necessary reform is a radical change to the law of parliamentary privilege. Although in theory parliamentary committees have the power to subpoena ministers and public servants, and to sanction them if they refuse to answer questions, that common-law power has never been tested at Commonwealth level (although it has been affirmed by the High Court in the case of the NSW Parliament). Ministers frequently refuse to answer questions, and prohibit public servants from doing so. However, the law allows only a house as a whole, rather than a committee, to apply sanctions, and this means that the political reality is that ministers are never going to be called to account for refusing to answer questions: The two major blocs co-operate in shielding each other from scrutiny, as witness the refusal by Labor to support a motion of censure when Coalition government lies about the ‘Children Overboard’ affair were exposed during a Senate inquiry. Clearly Labor feared that, by setting a precedent, it might expose itself to such scrutiny when it next won government.

The remedy for this is to amend the Parliamentary Privileges Act so as to make ministers compellable witnesses before parliamentary committees, subject only to a court-adjudicated public immunity test, as was proposed by the Australian Democrats in a Bill introduced in 1994. Furthermore, the power to compel evidence should be exercisable by a committee or a member thereof.

* Dr Bede Harris is Senior Lecturer at the Faculty of Law, University of Canberra, and author of A New Constitution for Australia (Cavendish 2002), among other books. Born in Zimbabwe, he studied history at Trinity College, Dublin, before doing an LLB at Rhodes University, South Africa. He also has a DPhil from the University of Waikato in New Zealand. Dr Harris taught law in South Africa and New Zealand before coming to Australia. He is a member of CLA. This article appeared first in the Canberra Times.

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