I’ve got two stories in Crikey, on Thursday and Friday, about the fall of Victorian premier Ted Baillieu. The first looks at the history of factionalism in the Victorian Liberal Party and the strange intensity of the right’s recent hatred for Baillieu; the second looks at Baillieu’s decision not to preference the Greens at the last election and the ramifications that might have had.
I’ll come back to the topic of Greens preferences soon (maybe tomorrow), but for now I want to draw attention to something I said in the conclusion to Thursday’s story:
Perhaps if Baillieu had won a bigger majority, none of it would have mattered. (…) Even now, if Victoria didn’t have fixed terms, [new premier Denis] Napthine would have the option of a snap election to cut [rogue MP Geoff] Shaw loose and dare the Herald Sun to support Labor.
Instead, it’s now become Shaw’s choice as to when he brings down the government. Baillieu wasn’t willing to serve under those conditions, and frankly, who can blame him?
Like the majority of developed democracies, Australia runs a “Westminster” system of government: one where the executive is drawn from and responsible to the legislature. As it originally developed, one of the fundamental features of that system was flexibility of parliamentary terms. Whenever the executive saw the opportunity of improving its parliamentary position – whether or not it had actually lost control of parliament – it had the option of a snap election.
That’s how things still work in Canberra. But several states, including Victoria, have introduced fixed parliamentary terms, depriving the government of that flexibility.
Section 8 of the Victorian Constitution deprives the Governor of the power to dissolve the Legislative Assembly, with two exceptions. One (s. 65E) is in the case of a deadlock with the Legislative Council. The other is in section 8A(1):
The Assembly may be dissolved if-
(a) a motion of no confidence in the Premier and the other Ministers of State for the State of Victoria is passed by the Assembly; and
(b) during the period commencing on the day of the passage of the motion of no confidence and ending 8 clear days after that day, the Assembly has not passed a motion of confidence in the then Premier and the other Ministers of State for the State of Victoria.
This works for the classic situation of loss of confidence, where a group of government MPs desert and go over to the opposition. That’s what happened the last time a government lost control of Victoria’s lower house, in 1955 (well before the introduction of fixed terms). Paragraph (b) provides for the case where the loss of control is only temporary (for example, an MP accidentally missing a division), and also where a defeated government resigns without calling an election and a new majority can be formed.
Section 8A also works, potentially, for the case where a government has a secure majority but just wants an early election for its own political purposes. Either its own MPs can pass a no confidence motion in it, or it can just resign and then pass a motion of no confidence in whoever the governor appoints in its place.
This hasn’t been tried in Australia, but it happens in other countries. In Germany in 2005, for example, chancellor Gerhard Schroeder engineered a loss on a confidence vote in order to engineer an election a year before it was due. As in Australia, the head of state had a theoretical discretion to refuse the request for an election, and as in Australia the discretion was meaningless: if the majority party refuses to carry on, there is simply no alternative to an election.
In other words, fixed term provisions in a Westminster system don’t prevent early elections, but they provide a heavy political deterrent for them by forcing governments to engage in subterfuge (Schroeder lost his early election).
What they don’t provide for is the case that Victoria now faces, where a government has lost its majority but no hostile majority has been formed. Assuming Labor wins next month’s Lyndhurst by-election, it will have 43 seats on the floor of the Legislative Assembly; the Coalition government also has 43 seats (plus the speaker, who only votes to break a tie), and Geoff Shaw holds the balance of power between them.
Without fixed terms, the government could threaten an early election to keep Shaw in line. But since Shaw is unlikely to ever support a no confidence motion (because it would mean the loss of his own seat), the only way Napthine can go to the polls early is by some sort of agreement with the ALP. Failing that, Shaw can frustrate the government with impunity.
None of this means that fixed terms are a bad idea; I still think they’re better than the alternative. But we should keep in mind that their natural home is in systems rather different from Australia’s, and perhaps we need to give some more thought to just how they work.
The World is Not Enough 
The problem with fixed terms – in the sense of fixed minimums rather than fixed maximums – is that they are undemocratic.
The main principle in a democracy should be that the majority rules. If the majority of a house thinks a new election is warranted, on what principle can their wish be denied?
We should not have Premiers advising Governors to dissolve the House, or Governors doing so or refusing to do so on their own initiative. Control of the timing of early elections for a house of Parliament, at any level, should be vested in the house.
At the Commonwealth level, this is proposed as part of the Advancing Democracy model: see proposed s.58A(iii) at http://www.advancingdemocracy.info/cmspage.php?pgid=125&pid=8.
Apart from being consistent with principle, placing the power to call an early election with the majority of the house allows flexibility, while indirectly limiting the number of early elections. Members in marginal seats are less likely to risk an early end to their careers than leaders relying on a temporary surge in the polls.
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Thanks for that Philip. Personally I’m a supporter of fixed terms; they’re undemocratic only in the sense that lots of constitutional restrictions are undemocratic, because we want to limit the majority’s power to do things that would disadvantage the minority. Giving the government power to hold an election whenever it wants is quite a powerful political weapon.
What we need, however, is a provision to enable an early election when a government has lost control of the lower house but in a way that doesn’t lend itself to passage of a no confidence vote (as I see the Advancing Democracy model does, although only after a 60 day delay, which seems a bit long). That’s the situation that Victoria might be headed for.
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