James Allan

Governments That Govern … or Don’t

justicesIt gets a bit tiresome hearing commentators talk of how New Zealand’s centre-right government has managed (albeit incredibly slowly) to achieve a surplus.  ‘Wow, look at that how a centre-right government just gets on with fixing the budget mess left by its Labour [Kiwi spelling] predecessor!’, they mutter.  ‘Geez, wouldn’t it be nice to have a conservative government in Australia that just implemented conservative spending cuts, rather than lefty tax hikes?’, they moan.

Well, leave aside the fact that what Prime Minister John Key heads is by no means my idea of a vigorous centre-right government, and notice instead the obvious difference between government in Australia and government in New Zealand (and those in Canada and the United Kingdom, for that matter).

The founders of our Constitution looked around at what was on offer and opted over a century ago to copy the US model when it came to federalism and bicameralism.  They explicitly shunned the Canadian model.  In my most recent book , Democracy in Decline, I claim that Australia has the most successful US-style constitution of any country going — including the US, as it happens.  Indeed, transplanted into a Westminster setting, we basically have the constitution that James Madison, later to serve as the fourth president, first proposed to his nation’s fellow founding fathers before being pressed into supporting a Bill of Rights in order to overcome the anti-federalists.

Ignore the disgraceful way 90-plus years of our High Court’s judgments have destroyed the clear federalist intentions and design of our Constitution by endorsing an incredibly broad and wholly unwarranted interpretive approach to the reach of the Commonwealth’s legislative powers.  Leave aside, too, the Court’s expansive view of what constitutes ‘inconsistency’ under section 109, another factor in giving us the world’s worst vertical fiscal imbalance and emasculated states.   Forget how the High Court has waved through the tied-grants ploy under  Section 96, and signed off on such awful decisions as the Tasmanian Dams case, Work Choices and the two Uniform Tax cases , leaving the states with no practical way to levy income taxes (unlike Canadian provinces, US states and, well, the regions in any successful federation you might care to name).  Our top court has made an absolute mess of the federalist design it was supposed to police (though, laughably, it also used that rationale to invent the Separations of Powers doctrine that it later imposed on state courts). And nothing in a few recent cases such as the school chaplaincy ones changes that awful record.

So let us pass over that schmozzle, now that I have vented my frustration.  When it comes to bicameralism, the other main pillar of the Madisonian edifice, we have the US system while New Zealand, Canada and the Brits do not.  New Zealand has no upper house at all and Canada and the UK have wholly unelected, entirely appointed upper houses which, in this day and age, means they boast zero, or next-to-zero, legitimacy and block virtually nothing. What a majority government wants to do in the UK, Canada and New Zealand, it can do.  Or rather, can do if top judges refrain from gainsaying. Judges in Canada and the UK are worse than here and have taken on Philosopher King status in some respects and become uber powerful.  That said, there are no worries there about an overly officious and meddling upper houses.

If Mr. Abbott had won the election last September under a New Zealand-style set-up I can tell you that the carbon tax would be long gone, the mining tax scuttled, spending down, university beneficiaries (namely the students) paying more for the benefit of their educations and, on the downside, a ridiculous and pricey Paid Parental Leave scheme on the books, plus anything else the Coalition might deem an improvement to Australia as we know it.  Abbott & Co.,  would have had three years to see if its program was successful enough to convince a majority of Australians to re-elect them.

Here in Australia, of course, we emphatically do not have that system.  We have a checks-and-balances Madisonian system with a really strong Senate that can even block Supply and may, in extremis, actually bring down a government, as seen in November, 1975.

Is this sort of checks-and-balances system a good idea?  How you answer,  I think, ultimately depends on your attitude to government.  If you believe government generally gets things right, that it is far more often than not a force for good in the world, then you will prefer the New Zealand, UK and Canada unicameral (or effectively unicameral) set-ups.  Checks-and-balances are silly if government has a pretty sound record for making good calls.

If, on the other hand, you are sceptical of government and think it gets things wrong more often than right, that it tends to over-reach or frequently miscalculate, then placing potential roadblocks in the way of getting Bills onto the statute book will seem a good idea. Like Mr. Madison you will prefer a strong upper house.  Better to make things tough for everyone, even when you think they have a good program to be legislated, than make things easy all the time.

So that’s the bet you have to make.  Both options come with likely bad outcomes as well as likely good ones.  You’re picking between least-bad choices, not trying for some near-perfect option.  Until recently, the US couldn’t pass a budget for years and years and years.  When commentators lamented this, and talked of dysfunction, what they really should have said is that they want a New Zealand set-up with no upper house.  Paralysis and gridlock are frequent and likely side-effects of the Madisonian conception.

What no one can expect to see in those jurisdictions are strong upper houses blocking Bills you think asinine or incompetent but not blocking Bills you believe to be crucially important.  You pays your money and you takes your chances, as they say.

Me? I come down, on balance, for a strong upper house at the national level, but don’t think such clout is warranted or desirable at the state level. But that doesn’t mean we have to like the voting system used to elect our Senate.  I happen to think it’s awful.  Indeed, I think it was a mistake back in the late 1940s to move to the Single Transferable Vote-proportional voting system we have now.  We’d be better off  if the upper House were largely a two-party affair, as is the case in the US Senate. But that seems to be a very, very, very minority point of view.

James Allan is Garrick Professor of Law at the University of Queensland.  His new book, Democracy in Decline, is out now from Connor Court Press


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