Ben Ritchie on section 57 of the Australian Constitution.
At the next election the public will be asked to vote in a referendum to recognise Indigenous people in the Constitution. It seems astonishing that this is the question that the Government is hoping will move the nation forward rather than an attempt to fix the backward political system used to govern this nation. While there are countless ways of improving the political process, I will focus on just one: reforming the double dissolution process.
Since the adoption of proportional voting, it has been incredibly rare for a government to possess a Senate majority. The balance of power is usually held by minor parties and/or independents. While minor parties pursue genuine policy outcomes, independents have a habit of using their vote to extort billions of dollars for their respective states, the textbook example being the former Tasmanian Senator Brian Harradine. The people or groups who possess the numbers to help the government pass legislation over the objections of the opposition thus have an enormous amount of negotiating power, because the only alternative for the government is to pass the legislation through a double dissolution election.
The process for a double dissolution election is that the House of Representatives must pass the bill, the Senate must reject the bill, the House must pass it again at least three months later and the Senate must once again reject the bill. If this happens, the Governor General can dissolve both houses immediately and after a fresh election both houses will vote in a double dissolution.
The logical reason that the process has been so rarely invoked is that people hate elections. The classic example is the GST. Howard scraped through in 1998 with less than 50% of the two party preferred vote but couldn’t pass the legislation without winning over the Democrats or the independents. Instead of returning to the polls again, Howard decided to make serious concessions to the Democrats and the legislation was passed. Since victory was in doubt, a double dissolution was never an option. Unsurprisingly there have only been six double dissolution elections since Federation, the latest being in 1987. Even in this example, the Hawke government simply used the process to go to the polls early. The Australia Card legislation over which the election was supposedly fought was quickly abandoned afterwards.
The root of the problem is that a double dissolution requires the government to bear the risk because of the opposition’s political grandstanding. The solution then is to force the risk onto the opposition. Instead of the Governor General having the right to dissolve parliament, they should have the right to pass the bill OVER THE OBJECTIONS OF THE SENATE. However to balance this, the Senate should then have a period, before the law is enacted, in which to demand that the Governor General dissolve both houses of parliament. What this does is shift responsibility for the election from the government to the opposition. This means that the opposition will bear the onus of justifying the action which is potentially a huge electoral liability. This will force the reason for the dissolution to become a central campaign issue because the opposition has to convince the public that they were right to do so.
It is easy to overstate the extent to which government power will increase. The procedure is still long and, if the government is not clearly ahead in opinion polls, it could easily be too risky to allow the opposition the power to call an election. The steps necessary to pass legislation this way will give the media and the public ample time to examine the bills, so if the government maintains its popularity then the matter is either unimportant enough to justify an election or the public is likely to be on their side.
The results become clearer when each actor is analysed individually. The Government will only pass legislation over the objection of the Senate if they believe that either no election will be called or they will win any election i.e. they get to continue in power. The Opposition will only choose to force an election if they believe they will win but can only force an election with the support of the ‘neutrals’. It is more difficult to predict the actions of independents and minor parties. Independents would effectively compromise their independence by helping the Opposition call an election but the implications of this will change depending on other factors which will depend on the scenario.
Minor parties are more likely to be hesitant as they will suffer the downside of seeming to cause the election while the upside, seeming to stand up for their cause, is all diverted towards the more interesting story of the head to head clash between the two leaders. If Beazley had forced a double dissolution about the Workchoices Laws (pretending that the Senate was controlled by the Greens) then the Greens would bear resentment for causing the election without being seen as the defenders of worker’s rights, as the opposition wears the same mantle and is naturally more interesting and so gets all the attention, which leads to the minor party’s support base being stolen by the opposition. However minor parties do have motivations to force an election. Minor parties aim for representation in the Senate for the sole purpose of influencing political outcomes. If they consistently refuse to take the risk of forcing an election, then the government will be aware that they are bluffing and will have no reason to make concessions.
This means that minor parties, if the issue is important enough and the government is on the wrong side, minor parties will allow an election to be called. Because the issue is important enough, the opposition can use public sentiment about the issue to counter the negative of seeming to have caused the election. This means that they can win the election, which would prevent the Government from giving them an opportunity to call it in the first place. They will make sufficient concessions so that either the minor party is satisfied or the Government is not sufficiently extreme enough for an election to be justified.
The possibility of passing legislation this way will give the government much needed bargaining power in negotiating. The current double dissolution process is little more than a bluff, and everyone knows it. By changing the rules, the game changes and the entire nation will no longer be held to ransom according to the whims and sectional interests of an independent senator from Tasmania with a ‘mandate’ of 50,000 votes.