Friday, April 20, 2018

How Could The Tasmanian Legislative Council Be Reformed?

In the leadup to Legislative Council elections for Prosser and Hobart, the fact that the current Legislative Council has a left-wing majority that seems likely to make life difficult for the re-elected Hodgman Liberal Government has been receiving some attention.  Since the balance of power in the LegCo is not likely to move much to the right this year at least, this raises the age-old questions of whether it is too easy for the Legislative Council to obstruct an elected Government, and if so what might be done to change it.

As I mention this is a very old debate, but the novelty in the present situation is having a left-wing LegCo overseeing a right wing government. Up until the late 1990s, malapportionment meant the other way round was much more common.  Discussion quickly turns to the unusual features of Tasmania's upper house system.  The system was designed to check perceived short-term democratic excesses and members are elected on a rotational basis with two or three of the fifteen seats coming up for their scheduled election every year.  There is no mechanism for a government that finds its legislation or even its budgets blocked to force the Legislative Council to an election, and the Legislative Council can never be dissolved all at the same time.  This makes it extremely powerful.



Tasmania, with its multi-member House of Assembly, is often described as having an "upside-down" system.  Victoria, New South Wales, South Australia and Western Australia all have a single-member-per-electorate system in the Lower House and a multi-member-per-electorate (or per the state as a whole) system in the Upper House.  This makes it easy to win majorities in the house of government, but these are then accountable to a more proportional view of the populace in the upper chamber.  (This is, however, blighted by some ludicrous malapportionment in WA and Group Ticket Voting in WA and Victoria.)

Having a multi-member Hare-Clark system in the Lower House gives Tasmania the great advantage of within-party contests for seats.  This keeps all MHAs on their toes and means that all voters have something to vote for, rather than having their votes rendered irrelevant to the outcome if they live in too safe a seat.  Assuming that we want to keep that for that reason, then it makes sense to elect the Legislative Council by a fundamentally different system to the Lower House.  The idea is that testing the will of the people as demonstrated in one system against the will of the people as demonstrated in another is a good protection against any democratic shortcomings of, or short-term effects in, either system.   Having two proportional representation systems, which would probably often get the same results as each other, would be silly.

Concerns About The Legislative Council

From the perspective of any government that wants to get things done, a hostile upper house is a serious problem.  Among the concerns governments will have include:

1. The Legislative Council can in theory block supply and force the government to an election without having to face one itself.

2. The Legislative Council mandate is slow to refresh.  If a government that finds its bills blocked seeks to persuade voters to elect MLCs who will support its views, it may take the government most of a term or longer to take control, even if its preferred candidates win the majority of contests.

3. The small enrolment base, low profile and spending and electoral law restrictions of Legislative Council elections all favour incumbents who can win by focusing on "parish pump" style local campaigning.

4. LegCo elections also provide a chance to send a by-election style message to a government, making it hard for government candidates, or candidates obviously connected to a government, to win.

Of these, I think that 3 is not the issue it was.  The rise of the internet has made it easier to generate and publish discussion of state issues during Legislative Council campaigns and to create a focus on state issues that is then picked up by the mainstream media.  However it is still very hard to argue that the Legislative Council has a mandate comparable to the House of Assembly's.

Recent unusual adventures in mandate theory by the Hodgman Government (eg on gun policy) have led to responses from some Legislative Councillors that the government's mandate is only to introduce the laws taken to the people, and not necessarily to have them passed.  In practice, voters should be entitled to accept that the core issues a government fights and wins a campaign on will be respected by the Legislative Council, but that does not mean the government has the same kind of mandate for poorly-framed niche culture-war positions that did not influence many votes.

Possible Solutions - General

In considering any possible solution it is worth remembering that unless a proposal to reform the Legislative Council actually passes the Legislative Council, it won't happen.  So there is no point canvassing solutions the Legislative Council simply won't accept with anything like its current makeup, including abolition (which I don't support anyway). 

I stress that I do not support all of the possible solutions discussed below (as should be clear from my comments about some of them.)  Even where I make positive comments, in some cases I'm still thinking about them.

Ditch the power to block supply

The Legislative Council last blocked (or, more accurately, put a time limit on) supply and forced a government to an election in 1948.  A few months earlier, the ALP Premier, Sir Robert Cosgrove, had stood down as Premier to fight criminal corruption charges but had been cleared of them and resumed his position.  Cosgrove won the election forced by the Legislative Council (although his party did drop back from 16 to 15 of the 30 seats) and the Legislative Council was seen as having been chastised by that outcome.

While the Legislative Council blocking supply might be seen as the red meat of Tasmanian political culture wars, the threat is made often enough.  The Liberal Opposition to the previous government was reported to be considering lobbying for such an action in 2012.

It may be argued that the ability to block supply need not be removed since it is not ever going to be used again anyway.  But if it is not going to be used it may as well be removed, and if it is going to be used, it probably shouldn't be used anyway.  I cannot see why the Upper House should retain the power to block supply while not facing an election itself (which is in turn not a good idea, see below).

More elections at the same time

This one is often argued along the lines that having more Legislative Council seats polled at once would increase the importance of the elections and hence the media focus on them.  Versions of the proposal include having all LegCo elections on at the same time as the Assembly elections, having them all on at the same time mid-term, and clustering the rotation more so that there are, say, five elections on a single day every two years, rather than two or three every year.

The last one might have something going for it though I think that the rise of electronic media has helped to address the problem with lack of media focus and discussion of state issues in campaigns anyway.  Holding all the Council elections on the same day would make the Council's makeup very prone to the political mood of the time, which would make the "obstruction" problem worse rather than better if the elections were held mid-term and tended to be influenced by a backlash against the incumbent government.

Holding Council elections on the same day as state elections would not only carry the risk of the same mood taking over both houses, but would also create messy problems with different styles of campaigning and different boundaries overlapping, not to mention the increased workload for the Electoral Commission.

Post-election joint sittings

Tasmania has no equivalent of the federal double-dissolution mechanism under which bills blocked by the Senate in a previous term can be taken by a re-elected government to a joint sitting in which the Government's numbers may dominate.  However even without a double-dissolution mechanism something like the following could be possible:

1. Where a House of Assembly bill is repeatedly rejected (or returned with amendments the Lower House does not agree with) over a certain time frame and with the last rejection sufficiently long before the election, the House of Assembly may choose to register it as a joint sitting bill for the time following the election.

2. Following the election, if the House of Assembly passes the registered bill again and the Legislative Council defeats it again, the House of Assembly could choose to take the bill to a joint sitting of all 40 MPs, with all MPs having a deliberative vote.

So, for instance, if a government has a bill lost 7-7 on casting vote in the Legislative Council, but the government then wins the next election by one seat, the government will get the bill through if the President of the Legislative Council now supports it.  If the government wins by two seats, then it only needs 7/15 MLCs to pass the Bill.  The requirement to register bills as joint sitting bills to make the option available would mean there would be plenty of debate about the bills during the state campaign.

Reforming the chairing conventions

Currently, the President of the Legislative Council has a casting vote, which by convention is cast so as to continue debate on a matter but ultimately so as to avoid disturbing the status quo.  So if there is a 7-7 split on the floor, a Bill will pass its second reading but be defeated at its third.

The problem with this is that the President effectively gives up their own power to be the eighth vote in favour of something, and Bills are sometimes defeated although 8/15 MLCs would agree with them if all MLCs had a deliberative vote.

While some points might be made in favour of this convention encouraging better debate, in my view such points are greatly outweighed by the distorting impact of the convention on democracy.  Because of the small size of the House, 6.7% of Tasmanians are effectively stripped of their indirect representation in order to maintain this convention.  The price of accepting the Presidency is this loss of ability to represent one's constituents.  The current President, Jim Wilkinson, represents a relatively pro-Liberal electorate.  Is it right that a policy his electorate would be expected to support, and that is the policy of the state government, can be defeated in the Upper House because of a casting vote convention even if the majority of MLCs support it?  I don't think it's right at all; I think it's absurd.

There are a few options here.  One is that the President could have a deliberative vote instead of a casting vote, with any tied motions automatically lost.  Another is that the President could retain the casting vote, but the conventions surrounding using it could be modified.  For instance the casting vote convention could allow for the President to use their casting vote in favour of the exercise of a government's mandate, if the President so desired.

A similar issue applies to amendments in "committee".  When a Bill passes its second reading (effectively an in-principle vote in favour) and moves to discussion of possible amendments prior to the final (binding) third reading vote, the President vacates not only the chair but also the room, meaing that an amendment is defeated unless 8 of the remaining 14 MLCs support it.  Again, the President's seat is effectively disenfranchised from the vote on the amendments.

Reforming the Electoral Act

A thorough review of the state's Electoral Act has been flagged by Attorney-General Elise Archer, and it's not before time either: this state election showed up several aspects of the Act as outdated, as have several other elections (notably the Nelson Legislative Council contest in 2014 with lobby groups exploiting a loophole to run super-PAC style campaigns outside of the funding restrictions, albeit ineffectively.)

Issues relevant to both houses will presumably come up in the review, such as:

- bans on reporting on the election in print media, but only print media, on polling day (Section 198)
- authorisation issues, especially in relation to space-sensitive social media forms such as Twitter (Section 191)
- restrictions on naming or depicting candidates without their consent in an arbitrary list of items that are somewhat difficult to define (Section 196).  In my view, this unnecessary restraint will be the first against the wall if the Act is ever challenged in the High Court.  Not only is the constraint it imposes on political communication not properly adapted to achieve any especially useful purpose but I think anyone trying to defend it would be flat out determining what its purpose even was.

However, there are some points specifically relevant to the Legislative Council.  Firstly, the campaign spending limit ($16,500 per candidate this year and rising by $500 every year) is rather low, and makes it harder to campaign against incumbents.  This limit can also be argued to disadvantage those candidates who are best suited to campaigning through advertising rather than intensive doorknocking or volunteer campaign teams.  I think the limit should be doubled.

Secondly the recycling of signs from other elections in practice disadvantages new candidates, who have to purchase their own signs out of their spending allowance.  While in theory the original cost of a sign might be deemed to be expenditure (see section 5 (1)(iii)) this is very unlikely to stick in court if a sign was originally purchased with a different election in mind, and would be easy to get around even if it did.

Suspensory Veto

In a suspensory veto system an Upper House cannot reject bills permanently but can only delay them for a period of time while they are further considered.  I understand this has been under consideration recently, though I don't know whether it was envisaged only in the context of supply bills or all bills.

I actually think that if the Legislative Council made all its blocking powers temporary, its ability to block truly terrible legislation (my example being the full scope of the previous government's hamfisted attack on free speech under the guise of anti-discrimination reforms) would be dangerously reduced.  I think it is good for the Upper House to at least be able to block bad laws until after a government has taken them to an election and been re-elected.

Human Rights Act (alongside other changes)

This might seem like a very left-field inclusion, but I think it's something worth mentioning.  It might be said that the argument for needing the LegCo to block bad Assembly bills would be less of a problem if Tasmania had a Human Rights Act, under which many of the worst government bills (from either side) would fall over.  However the form of Human Rights Act currently being campaigned for in the state is itself functionally another kind of suspensory veto.  Moreover, Human Rights Act type campaigns in Australia always seem to involve lists of claimed and often very nebulous "rights" that are as long as they are selective - when a list of rights has 31 items including even a right to "protection of the environment [..] from ecological degradation" (hang on, I thought this was about human rights!) but no direct reference to a right to do business and trade, there's a problem. 

I may add some more suggestions later - this piece is intended not as a final position but to stimulate discussion.  It's also intended to make the point that one can accept both that the Legislative Council does a fine job of blocking shocking legislation and that there is room for a little more acceptance of the will of the people as on display at state elections.

Further reading: here's a paper about the reform issue by Legislative Council staffer Nathan Fewkes from 2011.  And in this old LegCo submission document, near the bottom are the recommendations of the 1982 Beaumont Royal Commission.

Further listening: Some of these issues were canvassed in a recent debate between Ivan Dean and Ruth Forrest, independents at the opposite end of the LegCo's political spectrum.  I correct one point: my analysis (including voting back to 2010) has never shown Ruth Forrest as on the right. She was confusing mine with earlier analyses by William Bowe (example), which provided no left-right sort but which at one stage she says showed her voting with the then Labor government less than half the time.

During the 2010-14 Labor-Green coalition government, Forrest voted with the government most of the time, but I have not compiled similar stats for the Bacon-Lennon-Bartlett majority years.  It would be an interesting exercise and I may do it some day.  Also, my methods do not necessarily put the government of the day on either end, and would not automatically clump MLCs on the right if they often disagreed with Labor - it would depend on whether they disagreed on the same bills as the ultra-conservatives do, or different ones.

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4 comments:

  1. Leaving the President`s seat effectively unrepresented for the convenience of the Legislative Council is undemocratic. That likely means scrap the casting vote and have a tied vote is a fail system, like the Senate.

    Either a joint sitting or a referendum provision should be introduced.

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    1. A referendum provision was recommended by the Beaumont Royal Commission (1982) - for bills blocked for more than six months - but has never been adopted. The Royal Commission also recommended that a government should be able to choose to take a Bill blocked for more than six months to an early election, and if the government won the election the Bill could become law without any LegCo involvement. (This last recommendation included a proviso about not stockpiling multiple bills, but I assume that would have fallen over once someone pointed out there was nothing to prevent a government presenting an omnibus Bill covering a wide range of issues that it knew would all be rejected.)

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  2. Forming two chambers in a small state is problematic. If you use the same electoral system you get identical majorities and searching out artificial ways to differentiate the two chambers is problematic. Denmark resolved this by abolishing the upper house, the Landsting in 1953 and expanding the Folketing or lower house. They also included an interesting rule that I reproduce in full from their constitution:

    42.
    1.Where a Bill has been passed by the Folketing, one-third of the Members of the Folketing may within three week-days from the final passing of the Bill request of the President that the Bill be subjected to a Referendum. Such request shall be made in writing and signed by the Members making the request.
    2.Except in the instance mentioned in subsection 7, no Bill which may be subjected to a Referendum, confer subsection (6), shall receive the Royal Assent before the expiration of the time limit mentioned in subsection (1), or before a Referendum requested as aforesaid has taken place.
    3.Where a Referendum on a Bill has been requested the Folketing may within a period of five week-days from the final passing of the Bill resolve that the Bill shall be withdrawn.
    4.Where the Folketing has made no resolution in accordance with subsection (3), notice to the effect that the Bill will be put to a Referendum shall without delay be given to the Prime Minister, who shall then cause the Bill to be published together with a statement that a Referendum will be held. The Referendum shall be held in accordance with the decision of the Prime Minister not less than twelve and not more than eighteen week-days after the publication of the Bill.
    5.At the Referendum votes shall be cast for or against the Bill. For the Bill to be rejected a majority of the electors taking part in the voting, however, not less than thirty per centum of all persons entitled to vote, shall have voted against the Bill.
    6.Finance Bills, Supplementary Appropriation Bills, Provisional Appropriation Bills, Government Loan Bills, Civil Servants (Amendment) Bills, Salaries and Pensions Bills, Naturalization Bills, Expropriation Bills, Taxation (Direct and Indirect) Bills, as well as Bills introduced for the purpose of discharging existing treaty obligations shall not be subject to a decision by Referendum. This provision shall also apply to the Bills referred to in sections 8, 9, 10, and 11, and to such resolutions as are provided for in section 19, if existing in the form of a law, unless it has been provided by a special Act that such resolutions shall be put to a Referendum. Amendments of the Constitution Act shall be governed by the rules laid down in section 88.
    7.In an emergency a Bill that may be subjected to a Referendum may receive the Royal Assent immediately after it has been passed, provided that the Bill contains a provision to that effect. Where under the rules of subsection (1) one-third of the Members of the Folketing request a Referendum on the Bill or on the Act to which the Royal Assent has been given, such Referendum shall be held in accordance with the above rules. Where the Act is rejected by the Referendum, an announcement to that effect shall be made by the Prime Minister without undue delay and not later than fourteen days after the Referendum was held. From the date of such announcement the Act shall become ineffective.
    8.Rules for Referenda, including the extent to which Referenda shall be held on the Faeroe Islands and in Greenland, shall be laid down by Statute.

    Perhaps Tasmania could abolish the council, expand the assembly by the number of MLCs, and adopt a version of the Danish rule.

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  3. I think there's a lot to be said for an independent Legislative Council reviewing and improving legislation and with power of veto or even blocking of supply if truly warranted.

    Factors like long terms, low spending limits for campaigns, and staggered elections that aren't aligned with state elections all help to encourage that independence, even if it favours incumbents. I think we've seen _with exception clarity_ from the state election that allowing unlimited spending and third party campaigning does not make an election more democratic!

    Ruth Forrest put it very well in the interview you linked to in saying that no election is held on a single issue and people vote for very different reasons so the government of the day should not be considered to have a "mandate" to pass every piece of their agenda unopposed.

    The real issue here is the parties have been allowed to infiltrate the traditionally independent Legislative Council at all. A "Labor bloc" voting against the Liberal government just to cause problems (rather than for genuine policy specific reasons as part of representing their electorates) is indeed highly undesirable, as it would be the other way around. I think the first amendment that could be made would be to ban any party affiliation in election advertising in an effort to preserve independence.

    Some of the more specific items you have highlighted are obviously ripe for review to match modern times e.g. specifying print media and nothing else.

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