There are many things wrong with Australian democracy but stealthy, piecemeal reform by a Coalition Government is not a promising way forward, writes Barry Hindess.
I MAKE NO CLAIM to special expertise about Australia's Parliament, but I write this because, like many of us, I find it difficult to understand how an Australian prime minister could imagine himself able to cancel a scheduled sitting week of the House of Representatives and how he could get away with it.
After his announcement, there was media speculation about the reasons for Turnbull's decision, much of it suggesting that his motive was basically one of fear — specifically, a fear of losing a vote over a banking royal commission, the minimum wage, or the ongoing, government-created disaster on Manus Island.
Yet, there seems to have been little in the way of informed discussion about what in our system of government enables Turnbull or any other PM to unilaterally cancel a scheduled Parliamentary sitting week.
Since Australia's system of government is often said to be modelled on that of the UK, in spite of important differences – we have an elected upper house and the UK does not – it is worth recalling the recent decision of the UK's Supreme Court that Prime Minister Theresa May's Tory Government could not formally commence the Brexit process without putting the matter to a vote of Parliament. The Court, in effect, ruled in favour of the sovereignty of Parliament, not of the Government appointed by a Parliamentary majority.
Of course, Britain's Brexit process and the cancellation of a few scheduled House sitting days are hardly equivalent, but Turnbull's and May's attempts to bypass the House of Representatives and Parliament, respectively, display an impatience with, if not a contempt for, due process. So, what gave Turnbull the power to bypass the House, while Mrs May, the Court decided, did not have that power? The UK Supreme Court's decision suggests that Turnbull's small change may have overridden the sovereignty of Parliament, albeit on a smaller, less significant scale than Theresa May's Tories.
The Australia Constitution Act, which has been in the news a lot lately, does not even mention the office of prime minister or the cabinet. So, whatever gave the Prime Minister Turnbull the power to cancel a sitting week, it certainly is not the Constitution. But what of the House of Representatives' standing orders? These have changed over the years, but the most recent set (as at 13 September 2016) does not give a PM this power either. Standing orders 29 and 30 give the House of Representatives itself the capacity to determine its schedule of sitting days while enabling the schedule to be changed by a vote of the House or, when the House is not sitting, by the speaker. Unlike speakers of the British House of Commons in Britain, Australian speakers are normally active members of their party and continue to attend party meetings — but they are nevertheless expected to perform the role of presiding officer in a more or less independent fashion.
The confusing usage of the word "independent" in Australian politics deserves a full discussion of its own. We might begin by noting, for example, that the NSW ICAC (Independent Commission Against Corruption), often touted as a model for a Commonwealth anti-corruption body, is funded by a vote of the NSW Parliament, in effect, by the NSW Government — a fact that, on many understandings of the term, might seem to compromise its independence. Yet, it is sufficient for the moment, simply to note the tension between active party membership and independence. If the cancellation of a scheduled sitting week simply followed a request from the Turnbull Government, the Speaker's office clearly has questions to answer
Of course, the Constitution and standing orders do not entirely determine what happens in the House — custom and practice are also important. In practice, the House usually follows, without debate, pretty much the same schedule from one year to the next, with variations to make room for Easter, the date of which varies according to an esoteric Christian calculation that takes no account of Australian political conditions.
This special allowance for Christian holy days is puzzling given that, according to our most recent 2016 Census, only a little over 50 per cent of Australians identify with any version of Christianity while 30 per cent identify themselves as having "no religion" — many more than the 22.6 per cent who identify as Catholic, Australia's largest Christian sect. Fortunately, we have no need to worry about avoiding Christmas, which falls in the middle of our summer and is sacred in a different, barely religious, sense. No allowance is made for days sacred to other religions represented in Australia.
My guess is that the Speaker's office normally draws up a proposed schedule for the year and consults with the Government and Opposition managers of House business – and perhaps a few others – before reaching a final decision. Governments are usually able to arrange for additional sitting days to get through what they regard as urgent business — again usually without debate. So, custom and practice do allow limited flexibility. Yet, to the best of my knowledge, there is no Australian precedent for a PM unilaterally cancelling a scheduled sitting period.
Turnbull's decision to shut down a scheduled sitting week of the House of Representatives is unprecedented and so, too, is the decision by the Speaker and the Department of Parliamentary Services to go along with it. Does this mean that Australia is moving away from the familiar combination of legislature, executive and judiciary — effectively relegating the legislature to a secondary role?
I sincerely hope not. To object to the PM's attempt to bypass the House of Representatives is not to defend the way the House normally operates. There are many things wrong with what passes for Australian democracy, but stealthy, piecemeal reform by a Tory Government is not a promising way forward.
Barry Hindess is an emeritus professor at Australian National University’s School of Politics and International Relations. You can follow him on Twitter @barryhindess.
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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