Monday, August 30, 2010

Constitutional meandering

Nothing like a hung parliament and a slow vote to promote constitutional meandering.

I was fascinated to read the suggestion today that "Recruiting outside experts into federal cabinet would not be possible unless Australia's Constitution was changed." The supposed source of this is s64 of the constitution.

Terribly inconveniently the constitution itself never refers to "cabinet" as such. The collective decision making executive in the constitution is the Federal Executive Council which is chaired by the Governor-General. These days that body largely only meets for the purposes of the GG exercising the executive power as in "The GG in Council"...but in the history of the "loans affair" it was the convening of the Executive Council and what transpired there that was the politically relevant act.

Interestingly the Executive Council Handbook explains that the title "The Honourable" is applied to members of the Executive Council for the term of their appointment - usually for life. (Which is why some opposition members are still called The Hon - as an aside some Australian Ministers wre also in the past appointed to the Privy Council whereupon they were called The Right Honourable - an honorific now not used in Australia). Any time an Act gives a power to the Governor-General (e.g. to make an appointment) this is actually a reference to the GG in Council.

The position for which one must be a member of either house of parliament is that of Minister of State (under s64), though one can be a Minister for a period of up to three months without holding a seat. Ministers are the politicians to whom other legislative instruments delegate powers - one of the documents produced along with a Ministry list is the "Administrative Orders" which details which Acts a Minister is responsible for (that is, who is the individual to whom a reference in the Act to "the Minister" refers".

Section 64 specifies that Ministers will be members of the Executive Council, but does not limit the Executive Council to Ministers - and as noted above technically everybody previously a member of the Executive Council continues to be so.

Elsewhere Henry Ergas has extolled the virtues of proportional representation. His primary argument appears to be to avoid the policy distortion inherent in marginal seats campaigning - built on the twin assumptions that the marginal voter across the country is different to the marginal voter in a marginal seat, and that expenditure programs can be better targeted geographically than taxation programs hence marginal seat campaigning results in excessive expenditure promises.

The first assumption is probably invalid. In the increasingly a-philosophical electorate the marginal seats are possibly well defined as concentrations of marginal voters - and the attempt in line with public choice theory to appeal to the "median" voter probably results in the same outcome. Ergas claims that the marginal seat focus results in "infrastructure where we don't need it" - which doesn't explain why the area of Sydney's "marginal seats" - from Greenway to Macquarie - is the Western Sydney area devoid of transport infrastructure and under-served with quality schools and hospitals.

Ergas second reason seems to be more partisan - being an observation that PR in Europe combined with the rise of the Greens has sen a fracturing of the progressive vote that used to be housed in democratic socialist parties (or social democrats). Hence he believes PR would be good because it would advance the conservative cause.

In my recent post on this topic I did suggest a possibly different variant that accommodated both the idea of formalising our increasingly "presidential" campaign style, the need to be able to secure relatively easily places for the prospective ministry and a better representation of minorities. The proposal bridges between US style "executive presidency" and the Westminster system.

The lower house (where the executive Government is determined) could be elected by a full national PR vote. This vote would be a "list only" ballot - you choose the Party (or group - though you might limit it to a party) - you choose the parties in order of preference. Basically each party would lead their ticket with their leader - that is candidate PM. One would hope that the highest ticket positions would be allocated by parties on the basis of people they most want in a Ministry. This would never deliver an absolute majority - but would work as an electoral college for the selection of a PM - that is the PM is formally elected by the House at a meeting - by an exhaustive vote of members (that is anyone can nominate, everyone votes, person with least votes is eliminated, and so on till one person commands a majority).

The PM gets to appoint from the house the Cabinet which also equals the Ministry which also equals the Executive Council. (Whether it includes representatives from other parties then depends on any agreement reached for support). There needs to be a relatively simple process for votes to replace the PM - which needs to be more intricate than just the "no-confidence motion". A baseline suggestion would be "mini-impeachment" - that is the petitioning members make a written case of the basis on which they think the PM should be dismissed, and the PM gets the chance to provide a written response. Only after these are considered is the vote actually brought on.

Parties in Government don't get to just change their leader and hence the PM, though a PM can still resign mid-term.

The upper house is a house selected from geographically distinct electorates. No one from the upper house can serve in the Ministry. The electorates could be single member or multi-member (2,3 or 5 but no more). Ideally the electorates would not be of equal size but a members vote would be equal to either the size (by total votes) of the electorate or the actual vote they received (that is for example you could have two-member electorates and both people get elected and have their actual 2 party-preferred vote - so the total vote in the house equals the national two-party preferred vote. To provide stability you actually need to allow members to appoint "proxies" for votes in the chamber and "alternates" for extended absences.

This new upper house is the true "legislature" that has no roll in executive Government. It should be limited in its powers on money bills, and quite possibly on the origination of any legislation.

There need to be a number of rules to ensure that things don't become ungovernable - some of which would be based on the concept of joint sittings. (e.g. in the unlikely event the lower house can't choose a PM).

One would hope that a political career would thus start by winning a constituency seat and as skills develop progrssing to the other house, alternatively external "leaders" can still make their way straight to the lower house.

I have some associated theory of party reform - that includes democratic rules that must apply within parties - no 50% union representation etc.

1 comment:

ian said...


Do I detect a wavering in your view of the NSW Right?

I find some of your views on constitutional reform interesting, but cannot agree with you on parties.

If public companies behaved the way parties do, the ACCC would be down on them like a ton of bricks.

I cannot escape from the view that the lack of separation between the Executive and Legislature is a problem for the Australian (Westminster?) system - mind you the US system seems much worse.

On another matter, the poor standard of political debate would be immensely improved if the media did not report politicians slagging each other (we ignore this anyway) - but his is probably less likely than politicians treating each other with respect.

I have just finished watching Q&A, and can't help thinking it would have been much better if Malcolm Frazer acted while PM, the way he now speaks.