This paper addresses vital issues in the Australian Constitution and political system, exploring and proposing changes for better government. Some have been debated in academic and other circles for years. Others are novel and challenging. They include: Removing Australia’s second tier of Government; Abolition of the Senate; Significantly opening the pool of talent to serve in the Parliament; Enormous multi-billion-dollar savings for the Nation, every year.
A Pandemic has Shone the Light on the Urgent need for Reform
Nothing could have shone a light more brightly on Australia’s dysfunctional, and frequently chaotic political system, than the onset of the Covid-19 pandemic. The pandemic demanded leadership from the Prime Minister, but leadership had to be shared with the State Premiers holding differing opinions, priorities, and attitudes. They too had to be accommodated. State borders were shut.
Prime Minister Morrison did everything in his power to take command and to lead. He created a National Cabinet in a brilliant effort to unite Federal and State Governments. Morrison invented a version of the war power provision in the Constitution which confers almost unlimited powers on the Central Government to act in times of war. But Covid-19 is not a “war”.
At first, the Prime Minister, Premiers and Chief Ministers successfully enlisted an accord of unity and solidarity, but it would soon fracture. State Premiers separately and individually asserted their authority as they were entitled and obliged to do. Ultimately, consensus proved unachievable. With some State elections looming, Premiers responded to popular demands to protect their State borders.[i] Nothing could have more effectively underscored the fragility of the Australian political system in this critical time. But Covid-19 is politically agnostic.
There is confusion in our political system. On 1 October 2020, the SMH reported on the aged care Royal commission report criticising the government’s lack of a dedicated plan or clear leadership, leaving families and facilities wondering “who was in charge”.”[ii]
Chaos and confusion emerges from any number of causes. These include:
· When the Central government and some or all States are “controlled” by different political parties;
· When different States are controlled by different parties;
· When the Senate (whether Federal or State) is driven by a party different to the House; and
· When political factions within parties undermine party “unity”.
For many years, Australian politicians, leaders, academics and journalists have called for change, highlighting the difficulties of a system brought into existence in the late 19th century, and introduced as the law of the Australian Federation on 1 January 1901.
A complete rewrite is needed but, the Constitution is deeply entrenched and requires a “double referendum” for a mere change, let alone a brand-new constitution.
What can be done?
A Brief History
The Australian constitution was drafted during the 1890s by a group representing the Colonies. These became the six Australian States. It was based on the British Westminster system brought into existence 700 years earlier. This would ensure that each State, with its own constitution and law-making powers would be retained in a federal structure. It was a grand compromise, preserving the authority and separateness of the Colonies. It is a historical anachronism forcing the Nation to live in the past.[iii]
Abolition of the States
In 1979, four years before becoming Prime Minister, Bob Hawke said that Australia was living in dangerous times. He spoke of the “potential chaos facing our society if we meander on, enveloped in the warm cocoon of apathy spun from the threads of an earlier, easier and increasingly irrelevant age.”[iv] He could not have imagined the advent, 41 years later of the Covid-19 pandemic.
Hawke talked of lines on a map, drawn by British explorers (some 200 years ago) as they etched out a colonial structure which would determine Australia’s present-day form of government, saying that “we must be surely the most over-governed country in the world”. Hawke did not pull his punches adding, “The perpetuation of this anachronistic lunacy is hurting Australians every day of every week.” He was referring, of course to the legislative autonomy of the States which continue, even now to bedevil effective governance.
How different were the times when Hawke spoke in 1979. Deng Xiaoping became the leader of China in 1978 taking that country through far-reaching reforms. The Berlin wall came down in November 1991. The Soviet Union collapsed in December 1991. Vladimir Putin became president of Russia in May 2000. 9/11 occurred in 2001 bringing down the World Trade Centre in New York. The US coalition under George W Bush invaded Iraq in 2003. The GFC occurred in 2007/2008. Xi Jinping came to power in China in 2012. Donald Trump was elected president of USA in November 2016. Covid-19 rages across the globe in 2020.
120 years after Federation, Australia has changed beyond recognition. Colonial compromises which worked in 1901 are not relevant today. We live in a digital age, an age of high-speed travel and instant communication. It is time to abandon the States and to move ahead.
Bob Hawke would continue, for the next 40 years, until his death in 2019 with his recipe to fix the nation saying we should think big, get better candidates, abolish state governments and use “rational, unemotional thinking” for the greater good. Speaking in typical Bob Hawke vernacular he referred to “so many comfortable seats to put bums on in parliaments all over this country.”[v]
In 2008, former Prime Minister, Tony Abbott argued that the States exist because, at the time it was the only way to make a nation out of six colonies but as he put it, no one is really in charge and this bedevils schools, major infrastructure, disability services, public housing, environmental management and public hospitals. He called for change and argued that mere tinkering would be a copout.[vi]
Australia is a great sporting nation. Abolition of the States does not call for abandonment of regional boundaries when it comes to “interstate” sport. Our great sporting rivals, New Zealand, South Africa, and England do not have second tier State governments, but they enjoy a high level of interprovincial sport including rugby and cricket.
What does Australian governance really look like? There are 151 members in the Australian House of Representatives and 76 senators in the Senate. There is a total of 405 members in the legislative assemblies of the six States and 155 members in the legislative Councils (upper houses) of five of the States (Queensland abolished its legislative Council 98 years ago, in 1922). There are 25 members in the legislative assembly of each of the Northern Territory and the Australian Capital Territory. Between the Federal government, the States and the Territories, there are 837 individuals “governing” the nation of 25 million people.
It is estimated that the annual cost to Australia of the existing federal structure amounts to between $40 and $50 billion every year. This money could instead be deployed year after year in providing improved education, health services, pensions, infrastructure and reducing budget deficits.
It is not just about money. Preserving the multiplicity of Australian governments involves enormous, inefficient duplication of laws, including laws governing families, property, succession, education, roads, health, business and more. Each separate State requires teams of lawyers. The laws which apply in each of the States and Territories are all similar with only tiny, mostly irrelevant differences, but they play havoc, for example, when dealing with national cross border transactions, disputes, or crises such as Covid-19. The administration of these laws requires multiple bureaucracies in every Australian region. Nine separate parliaments (without even counting the six separate Senates) requiring bureaucratic structures to support each of these legislative bodies.
Another huge benefit of removing State legislatures would be the significantly increased pool of potential candidates who would become available for election to the Australian House of Representatives. Removal of the States and Territories would release more than 600 serving members, many with excellent experience and credentials.
The Senate was part of the compromise reached at the time of Federation. It was intended to ensure representation for the smaller States. Each State, irrespective of its population size, has 12 Senators (each Territory has two Senators), giving the smaller States disproportionate representation. Tasmania with a population of about 540,000 has 12 Senators, and New South Wales with a population exceeding 8 million also has 12 Senators. As well, although State representation in the House of Representatives is based on a population ratio, the Constitution provides for a minimum of 5 Members from each State so that, although the formula would only allow 3 Tasmanian members, Tasmania has the minimum of five. This is not intended as an attack on Tasmanian representation, but it highlights the impact of a 120-year-old Constitution designed all those years ago to preserve the representation of the Colonies which would become the Australian States.
The Australian Senate (which derives from the English House of Lords) can block legislation and impede decision-making by the government. The power of the English House of Lords to reject bills has been severely restricted, but there is no such parallel in Australia. Today, Australia is one of only four countries (including US, Switzerland, and Germany) where the upper house can veto legislation from the lower house[vii].
The Senate is outdated and expensive. It is difficult to justify a second parliamentary body which reviews, and second guesses legislation proposed by a democratically elected House. By removing the Senate, Australia would have a unicameral Parliament with a single chamber - the House of Representatives. Notably, New Zealand abolished its Senate in 1950.
The Australian Senate should be abolished. Apart from the removal of the Senate as an obstruction to efficient governance, some 231 Senators (including those serving in the States) would become available as potential candidates for election to the House, enriching the pool of available talent.
Drawing Talent from Outside the House
In his 1979 lectures, Bob Hawke drew attention to the prohibition of anyone serving in the Ministry other than members of the Parliament[viii]. This derives from the Westminster system. However, there is a range of talent within the community including business, professional, scientific, and academic experts who would be willing to serve, but would not want to become “politicians”.
Appointees from the community who are not elected members of the Parliament would nevertheless be responsible to and be present at debates in the Parliament. They would have the right, and duty to speak, but not to vote. And so, Ministerial responsibility would be maintained, and government ranks enhanced. Hawke suggested that this category of appointee be limited to no more than 25% of the Ministry. That makes sense.
The Constitution prohibits dual citizens from serving in the Australian Parliament[ix]. This has been the subject, in recent years of hostile party-political infighting and disruption. Australia as a nation has a proud multicultural history. Millions of its citizens are either migrants or descendants of migrants many of whom have contributed immeasurably to the character, quality, and diversity of the nation. Many retain dual citizenship. Our migrants are encouraged to preserve and to take pride in their cultural roots. There is no prohibition against dual citizenship in Australia.
Australians are able to pursue careers in every possible field including the highest levels of leadership, the professions, science and the arts-but they are prohibited from serving in the Nation’s Parliament. Our dual citizens should not be treated as “second-class citizens” and the nation should not be deprived of their services. The prohibition should be repealed, arguably with two qualifications: Firstly, everyone standing for election should be required prior to election to disclose any existing dual citizenship and, if uncertain, their heritage which could give rise to dual citizenship; Secondly no member of the Parliament should be permitted, while serving, to adopt dual citizenship or to acknowledge allegiance, obedience or adherence to a foreign power. This would remove any risk or perceived risk of “disloyalty”.
Term of Government
At present, a federal election must be held every three years, with the government having the discretion to bring forward the date for the election. A three-year term is too short. It places too great a demand on the voting public, it is an unnecessary expense, and it forces short-term thinking and short-term planning. A fixed four-year term is proposed.
To bring greater stability and leadership to government, it is also proposed that the Prime Minister, once elected should retain office for the full four year term with only limited exceptions: incapacity; resignation; “impeachment” due to prescribed offences, but only through a judicial process; and possibly, also removal by not less than a two third majority of the members of the House. Australia should never again be subjected to a period of disruptive “revolving door” Prime Ministerships as occurred in the recent past.
Following the removal of States and Territories, Australia would have the benefit of two tiers of government, a central Parliament, and local councils. There have been suggestions for the consolidation of local councils into larger bodies. However, recent attempts at consolidation have not been universally popular. Consolidation should not be imposed, but councils should be able to consolidate where this is supported by their voters. A possible exception could apply if a particular local area becomes too small as a result of a shrinking population or in the event of corrupt or other unacceptable action justifying intervention.
Overcoming Major Obstacles to Reform
Many politicians, academics, and commentators have written and spoken, over many years about reform, but no meaningful action has yet been taken to bring this about. The challenges are formidable. There are two major obstacles:
· Section 128 of the Constitution requires, not only a majority of the electorate to vote in favour of the change but also requires a majority vote in a majority of the States – not only a referendum but a “Double Majority”. Hawke referred to these provisions in his lectures as “very difficult, almost impossible situations set up in the Constitution which are a real roadblock to reform.” There are good and substantial reasons to ensure the stability of the Nation’s Constitution, but the present restrictions are counterproductive. Arguably a two third majority in a unicameral Parliament would suffice without the need for a referendum (although it would be open to the Parliament to call for a referendum in appropriate circumstances).
· Self-interest. Without strong support from the major, and preferably all political parties at both Federal and State levels, it would be difficult if not impossible to bring about the proposed reforms.
Paul Keating admired Jack Lang[x] who is alleged to have said, “Always back the horse named self-interest, son. It’ll be the only one trying.” Although there is both truth and humour in that statement, the question of vested or self-interest calls for serious consideration. Without the fulsome support from the nation’s politicians at all levels of government and from all strands of political persuasion, it would be virtually impossible to secure support from the voting public to achieve the required double majority.
Most, if not all of Australia’s politicians are hardworking, committed and dedicated to serving the interests of the people. As many as 600, roughly 75% of those currently serving would lose their careers by supporting these proposals. Not only would they forego a career, but they would also forgo the incomes upon which they and their families depend, as well as retirement benefits most of which might be lost. Reluctance to support such an outcome can hardly be regarded as selfish.
A financial solution is indispensable. The savings to the nation of implementing these proposals would be of the order of $40 billion per annum, and more. Only a tiny fraction of the $40 billion saving comes from wages paid to politicians. As already discussed, the many other benefits would be enormous and immeasurable. A generous redundancy/compensation scheme is required. Our politicians serve at different levels and in different capacities. The amount of compensation would vary from one person to another. However, a generous approach is essential. A failure to achieve a successful outcome would hold the country back for generations to come. It is impossible, in this paper to make a dollar recommendation. However, if we assume an average lump sum compensation package for 600 individuals (who will either retire or seek alternative careers) of say, $2 million, the aggregate cost will be $1.2billion, or only 3% of one year’s $40 billion savings. Even if the average compensation were increased to $3 million per person, that would amount to $1.8 billion or 4.5% of the annual savings This would be a small price to pay if regard is had, not only to the ongoing annual savings in purely financial terms, but also to the overall efficiency and qualitative benefits which would flow permanently to the Australian people.
These proposals are not an academic treatise nor an exercise in legal drafting, but rather a plan for long-awaited sweeping reforms of the Australian democratic system of government, proposing:
· Streamlining of the Nation’s governance and legislative process, including elimination of overlapping jurisdictions
· A unicameral Parliament with a single legislative chamber
· Removal of Australia’s second tier of government and elimination of States’ Rights
· Massive multi-billion-dollar annual savings
· Significantly expanding and enhancing the pool of talent available to serve in government.
[i] Sydney Morning Herald (SMH) – opinion – 7 September 2020 [ii] SMH – 1 October 2020 [iii] Beyond Federation (Options to renew Australia’s 1901 Constitution) published 2014 [iv] The Boyer Lectures by RJL Hawke delivered in 1979 [v] SMH 28 December 2016 [vi] Beyond Federation (Ibid) [vii] SMH 19 Nov 2018 – The Policy Chaos Eroding our Faith in Democracy [viii] Section 64 of the Constitution [ix] Section 44 of the Constitution [x] Jack Lang served as NSW Premier well before WWII [xi] Important issues not addressed are the recognition in the Constitution of Australia’s Aboriginal people and a move to a Republic. Both are the subject of ongoing but unresolved discussion. It would be inappropriate, in this paper to interfere in that discourse.