THE RESPONSIBILITIES OF OPPOSITION

Bob McMullan

Shadow Minister for Industry and Technology

Discussion Paper No. 64

May 1999

ISBN: 0 7315 3407 7

ISSN: 1 030 2190

Foreword

This Discussion Paper was originally prepared as a public lecture which was delivered on 22 March 1999, as part of the series on Democratic Governance: Improving the Institutions of Accountability organised by the ANU Graduate Program in Public Policy. The series involved public presentations on a number of Monday evenings from March to June 1999.

The series of public lectures was opened by the Hon Philip Ruddock MP Minister for Immigration and Multiculturalism speaking on ‘Executive Government and Improved Accountability’. Other speakers included: Harry Evans, Clerk of the Senate, on ‘The Senate and Parliamentary Accountability’; John McMillan on ‘The Courts and Government Decision-Making’; Pat Barrett, Commonwealth Auditor-General, on ‘The Responsibilities of the Auditor-General’; and Philippa Smith, former Commonwealth Ombudsman, on ‘The Office of Ombudsman’.

The Program is grateful to the invited discussion openers who contributed so much to the effectiveness of the series through their comments and discussion: including Alan Ramsey of the Sydney Morning Herald; Lauchlan MacIntosh of the Australian Automobile Association; Dr Marian Simms of the ANU; Sue Tongue of the Immigration Review Tribunal; and Verona Burgess of The Canberra Times.

John Uhr

Series Convenor

I congratulate the Graduate Program in Public Policy for its continuing initiative in generating heightened debate about important issues concerning the governance of Australia. It is all too rare for a concerted and intelligent approach to be taken to issues affecting our democracy; to the need to bring our democracy into a modern context; to the need to apply the principles of democratic government to the circumstances of 21^st century Australian society. There has never been a more appropriate time to focus on the importance of accountability. Recent high profile issues have highlighted the outcome of power and responsibility without accountability. There is now a very simple question and answer approach which would illustrate the importance of the often misunderstood, sometimes frustrating and much maligned checks and balance of a democratic constitution.

One question could be ‘What do you get when you put responsibility for important and commercially valuable decisions in the hands of unelected people without effective scrutiny?’ The answer to that question would be the International Olympic Committee. Our second question might be, ‘What do you get when you allow appointed people to make governmental-type decisions while the powers of the body which is elected to ensure that those executive functions are properly scrutinised, are hamstrung?’ The answer to that question might be the Commission of the European Union. Logically, that would lead you to believe that our institutions of accountability should be held in high esteem. They should be valued and cherished by Australians and their virtues recognised. However, we all know that is far from the case. Of course, this is not only true for political institutions, political parties and politicians. It is also true for the standing of most, if not all, of our major national institutions including the media and possibly also our universities. But for the purpose of this evening’s discussion, let me focus on the implications of these circumstances for the responsibilities of oppositions.

There is evidence that respect for the political process, the political institutions and politicians in general are at a very low level. Whether it has been higher in previous eras would be a subject for an interesting study on another occasion. It seems to me that the old phrase that ‘a statesman is a politician who has been dead for a long time’ might be paraphrased now to say that respect for periods of government in Australia are in inverse proportion to their proximity. If this process continues for long enough, we might even treat the McMahon government with respect. But there is no doubt that respect for politicians and our political institutions is at a low level and that this is an issue which much be addressed. In 1995, a published opinion poll in The Bulletin of 12 September, indicated that 56 per cent of respondents said that they had lost faith in the political system. More recently, the travel rorts scandal was measured as causing 55 per cent of voters to think less of politicians and other polls in 1997 indicated that 81 per cent of respondents agreed that public trust in Federal Parliament had been damaged by the allegations against Senator Colston. It may well be argued that the sudden rise of One Nation in the 1996 to 1998 period could, in large measure, be attributed to the alienation that many Australians feel from mainstream politics. A 1998 Morgan poll analysing the reasons Queensland electors were proposing to vote for the One Nation Party at the State election showed that the second most importance reason at 43 per cent was the dissatisfaction with the major or other parties. Solving this problem will not be easy.

My colleague John Faulkner, the Leader of the Opposition in the Senate and spokesman for the Opposition on public administration issues, gave an example of the dilemma that an Opposition faces when it tries to bring the spotlight of accountability to bear on allegations of improper behaviour:

In responding to this apparent crisis in our institutions of accountability, the Opposition has a number of roles to play. Realistically however, the Opposition is not the major player in determining and influencing public assessment of these institutions – the government is more important and the institutions themselves and the way they are structured has more enduring impact. While referring briefly to the range of Opposition functions in our democracy, I want to focus particularly on attitudes to the roles of the two Houses of Parliament in the process of accountability.

The overlapping roles of the Opposition in our democracy as I see them, can be summarised as follows:

(i) to provide a viable alternative government

(ii) to develop coherent program of policies and communicate them to the electorate as the basis for that viable choice

(iii) to provide and ensure that the public receives information about the political process

(iv) to subject the Government to parliamentary scrutiny in both Houses of Parliament

(v) to provide opportunities for the public to express their views and be heard.

This last aspect is an area of accountability which is changing. Senate Committees have opened up opportunities for individuals, and particularly for community organisations, to express their views about legislation.

The traditional avenue for public communication to the parliament, the petition, has essentially fallen into disuse. It is not that the public is not interested. Many petitions are tabled and great effort is mobilised in the community to gain signatures on these petitions. The process of collection of the petitions and the publicity around the presentation of the petitions can be very important. But the way that the Parliament in general and the House of Representatives in particular deals with those petitions or fails to deal with them, is verging on the scandalous. It needs review. Proposals have been put forward for enhanced handling of petitions. At this stage, no significant action has been taken or proposed by the government.

Information technology is opening new opportunities for public input into the political process. These are possibilities which need to be considered and applied. The institutional arrangements developed for the quill pen and the bicycle may need upgrading for the instant communication era of the silicon chip. The principles and goals of representative democracy and democratic accountability remain valid but we need to be open to pursuing new paths to the traditional destination.

Let me turn now to the question of the accountability roles of the Houses of Parliament. They are different but each are important. To generalise, I regard the House of Representatives as the executive chamber and the Senate as the legislative chamber.

The House of Representatives is where governments are made and unmade and where the Opposition discharges its alternative government function. The most obvious instrument of parliamentary accountability in Australian democracy is Question Time in the House of Representatives. Nevertheless, the House of Representatives, through the manner in which Question Time is conducted and communicated, has failed to win the respect of the Australian public. It draws a crowd, it is seen as good theatre, but neither the direct telecast nor the news coverage of Question Time enhances the overall image of the Parliament.

The importance of debate in the House in underestimated. It is an important vehicle for citizens, communities and organisations to convey their views to the wider community through their elected representatives and for alternative and emerging views on issues to be aired. This is not often front-page activity but it is nevertheless important. The substantial cannot always be ignored simply because primary attention is paid to the controversial. Nevertheless, it is important to recognise that the function of legislative review is almost entirely absent from the House of Representatives. Important issues are raised about legislation, important statements are made about legislation, important opportunities are used to air views about legislation. But governments invariably do not respond. The arithmetic of the House of Representatives means that amendments are never carried and suggested changes are never adopted.

It is important to remember that issues of propriety and administration as well as policy issues are pursued, sometimes on a grand scale, in Question Time and in major debates and routinely through House of Representative Committees, Adjournment Debates etc. But the nature of the high-profile performances in the House and the nature of their media coverage does not lift the image of the House in the eyes of the public.

As someone who has been Manager of Opposition Business in the House of Representatives now for approximately 6 months, can I tell you I have despaired of reforming the House of Representatives from Opposition. I don’t pretend it would be easy from Government and the temptation not to do so would be strong. But any attempt to be less strident, less combative in the House of Representatives from Opposition is interpreted by the Government and the media as weakness. This raises the risk that more important issues which have the capacity to affect the lives of Australians immediately, run the risk of being sacrificed in the pursuit of a changed mode of behaviour in the House of Representatives.

Therefore, I have concluded it is a battle which cannot be effectively pursued from Opposition; which has not been addressed by governments in the House and which is not likely to be addressed by the current Government during the course of this term. I have described my attempts to negotiate with the Leader of the House, Mr Reith, as amiably useless. This is of course better than acrimoniously useless, but in terms of encouraging one to pursue the course, it is low down the time allocation scale when the outcome is known before the negotiations commence.

The issue of more immediate concern and public attention is the role and potential for reform of the Senate. The Senate has become over the last 3 decades, the effective legislative chamber through legislative and general purpose committees and estimates committees. It is the place in which effective scrutiny can be pursued. Properly managed, some of this process of effective committee scrutiny could be conducted much better and could be conducted by joint committees rather than exclusively Senate committees. These are reforms to be pursued on another occasion.

It is often claimed that there is something inherent in the nature of the Senate or of Upper Houses, which means they operate in a different style and that they are more prone to be objective and effective in reviewing legislation. This is merely humbug. There is nothing inherently more effective about the legislative scrutiny process of Upper Houses in general or the Senate in particular. As a Western Australian, I know that for more than 100 years, the Legislative Council provided no effective scrutiny of conservative party legislation until the electoral system changed such that the possibility and then the reality of conservative parties losing control of the Upper House led to effective scrutiny. It is the same in the Senate. In periods when the Government has had control of the Senate, Senate behaviour and processes have been as dominated by the executive as those of the House of Representatives and amendment of and scrutiny of the legislation has fallen away dramatically.

The processes of Senate reform and Senate scrutiny are driven by the balance of power in the Senate. This balance is a product of two related processes. Firstly, the electoral system and secondly the determination of voters to use that electoral system deliberately to create that balance of power situation. The combined effect of these two processes leads to two important outcomes:

(i) it ensures that processes are in place in the Senate to enable parliamentary and public scrutiny of legislation; and

(ii) it provides a forum for minor parties and independents to provide scrutiny of the major parties.

However, Australian history shows this legislative review process can be misused. Standard analysis refers of course to 1975 but there is healthy debate in our community about the relative importance of governability versus accountability. This is a creative tension that needs to be addressed. It is as useless for advocates of the Senate’s untrammelled power to focus exclusively on questions of accountability as it is for those who yearn to see their legislative priorities enacted quickly to focus exclusively on governability. What we need is a system which manages the inevitable tension between these two imperatives which strikes a balance in the resolution of the democracy/efficiency dilemma.

It seems to me the fundamental issue to recognise is that no institution, including the Senate, needs to have all the power potentially available to it to have any effective power. If we are to review the current balance in reconciling these matters, it is important that we do so against a framework of principle. The first principle should be: this is not a matter which should be resolved by fiddling with the electoral system so that those characteristics of legislative review, of scrutiny of the major parties and of access for the public are undermined and that the Senate is turned merely into a mirror of the House of Representatives. We need to have an effective and elected Upper House but how close to equal do its powers need to be to those of the House of Representatives for it to discharge this function? Of course they are not equal now. The constitution makes it clear that there are some powers of initiative and amendment which lie exclusively with the House of Representatives.

The existing range of Senate powers do not descend as a mandate from heaven, they are not set in concrete, they are as open to rigorous review as any other aspect of our institutional framework. In other countries, and in our State legislatures, the balances between Upper and Lower Houses are different. In a circumstance in which we are contemplating the move to a republican constitution, the question of the powers of the Senate is an appropriate one for review and re-examination. Since minor parties claimed the balance of power in the Senate, with a commitment not to block supply, we have had an effective limit on the Senate’s power, that is, it does not block supply. But there is no guarantee that that situation will be sustained. Therefore, at the very least it seems to me worthy of serious consideration and of course, in my view, positive consideration that as a first step we should remove the Senate’s power to block supply.

Let us make it crystal clear that governments are made and unmade in the House of Representatives while laws must be made in both Houses. The Executive Chamber, the House of Representatives, should maintain that priority and focus. The Legislative Chamber, the Senate, should be able to discharge that function.

So there are several elements of the outcome of a proper review of the role of the Senate that I think are clear and appropriate for the foreseeable future.

Firstly, that the Senate should continue to be elected on a proportional representation basis in a manner which enables the voters, if they so choose (and I believe that they will) to give the balance of power to someone other than the major parties.

Secondly, that the legislative review function of the Senate should be sustained and maintained and in some way enhanced perhaps in conjunction with joint committees with the House of Representatives.

Thirdly, that the capacity to make and unmake governments which resides in the power to initiate and to block supply should clearly reside with the House of Representatives and not the Senate.

Beyond that, in the context of our current republican debate, this is a very appropriate time for those interested in the nature of our governance to review and examine the appropriate balance of power between the House of Representatives and the Senate. But let us not go down the path of rorting the electoral system to pursue the governability goal at the expense of accountability nor should we fall for the seductive trap of arguing that what is must be and must remain and that all change is inherently dangerous. They are both comfortable doctrines but neither strikes the appropriate balance of power between efficiency and democracy between governability and accountability which a modern democracy demands.

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