1384.6 - Statistics - Tasmania, 2002  
ARCHIVED ISSUE Released at 11:30 AM (CANBERRA TIME) 13/09/2002   
   Page tools: Print Print Page Print all pages in this productPrint All

Feature Article - Parliamentary reform

In 1998 Tasmania’s bi-cameral Parliament reduced its overall numbers by 26% and its lower or governing house by 28%. Coming almost exactly 100 years after the introduction State-wide of the Hare-Clark electoral system of proportional representation, it was arguably the most significant change since that event; comparatively it was a massive change.

It was achieved amid the applause of many, mainly business and media interests, but to the anguish of others who saw the foundations of democratic representation severely strained.

Two critics of the move were notable for recognising that Tasmania’s Parliament did need overhauling but their remedies were different from the reduction in numbers strategy.  In 1997 Dr Ralph Chapman, formerly a member of the Morling Board of Inquiry into the Size and Composition of the Tasmanian Parliament, wrote an article that was prominently reported in the Mercury newspaper and is featured below. At the end of 1998 Harry Evans, Clerk of the Senate, gave a paper to the Australasian Study of Parliament Group’s 20th Annual Conference proposing a similar parliamentary structure; an edited version is produced below.


Extract from ‘Goodbye Westminster? A Small State Perspective on Changing Political Institutions’ by Dr Ralph Chapman, Honorary Associate, Department of Government, University of Tasmania

There are two alternative broad options for replacing Westminster. One is to move in the direction of a presidential executive system, the other is a different type of liberal democratic parliamentary system. Around the world there are numerous examples of parliamentary democracies in which legislature and executive are separate and which do not regard themselves as executive presidential systems because of the way in which accountability is maintained. The two offices of head of state and head of government can remain separate but as the representatives of the people parliament must retain the necessary authority to give legitimacy to those who govern.

Liberal democratic government demands an absolute commitment to governing in the public interest, on behalf of all people in the state. Accountability to the people for government actions is therefore of critical importance. Parliament must be so structured and its procedures so organised as to provide for true representation and accountability. A unicameral parliament is in greater danger of succumbing to executive dominance unless provisions to curb such occurrences are constitutionally entrenched. Parliament must be able to act as a forum for public discussion rather than merely a theatre in which to dramatise the two party  adversarial charade. Legislation and policies must be exposed to public debate and criticism through parliament.

Calling those clothed with state authority to account is a prime function of parliamentary democracies. In small states to ensure this happens solely through parliament is extremely difficult. Other means must be employed, such as an extra-parliamentary form of administrative law, including an ombudsman and freedom of information legislation.

A PROPOSAL

One possible institutional design for a single house in a state with a small population like Tasmania, is outlined below. It is intended to incorporate all the above facets. One issue on which I remain ambivalent is whether the parliament should appoint and dismiss the government. While I accept that parliament is not sovereign, in this proposal I am not certain that it is enough to rely on direct election of the premier and the representativeness of the parliament. I have therefore retained the need for there to be a  constructive vote of confidence in the premier much as occurs in the German Bundestag. The alternative would be some form of impeachment proceedings but this seems to much like letting the horse bolt when we could have shut the stable doors first.
  • Tasmania would have a unicameral Legislative Assembly of 40 members elected from the four electorates (rather than the existing five based on federal electoral boundaries) using the Hare-Clark electoral system of proportional representation. This method of voting has strong and unequivocal public support in Tasmania, enabling and encouraging the expression of community values in its political representation. Having ten members in each electorate will ensure a low quota, guaranteeing the return of independents and minor parties, therefore broadening the representativeness of the parliament and decreasing opportunity for major parties to be sure of majorities.
  • The link between the Legislature and the Executive will be broken by electing the Premier by a popular statewide vote. The election will be for a four year term with no opportunity to go to the people at will, as is now the case (although subject to some limits). The Constitution must provide for unforeseen eventualities such as death in office, corruption, maladministration, etc. and also for a situation where the Premier loses the confidence of the parliament.
  • The Premier, once elected, must appoint no more than five ministers who will form the Executive. They must not be members of parliament but must be on the Tasmanian electoral roll. Their appointment will be subject to the formal approval of parliament. This procedure will ensure that the separation of legislature and executive will be maintained and the executive remains accountable, collectively and individually, to parliament.
  • Because the ministers will not be members of parliament, procedures will be required to ensure they can introduce their legislation personally and be called before either the whole of parliament or its committees. A system of rostering ministers to appear before committees should be implemented. A committee system with power to subpoena is an essential aspect of accountability with separation of powers. A Legislative Assembly of 40 members will contain enough members to form a highly effective committee system. It is unlikely that the Executive would be able to control its operations through a majority on the floor of the House so it would be free to function as a strong constraint on government. At the same time it would be able to involve interested groups and community organisations in its deliberations engendering a participative political climate appropriate for a small population. A committee system would have to be protected in some way against the money power of the executive. It could be entrenched in the Constitution to ensure its protection from executive intervention or parliament could ensure control of funds for its functions.
  • The organisation of the public service would be at the discretion of the Premier as would allocation of portfolios amongst appointees. There are a number of possible options from one for each executive (no longer cabinet) member to having each member responsible for several (as is now the case). Whatever is decided the CEOs of departments, i.e. appointed officials, would be required to appear before Legislative Assembly committees, if requested. The distinction, currently practised, between policy and operations (administration) would not prevail and CEOs would be able to be questioned on any aspect of their activity as part of government accountability. A body similar to a Public Service Commission would be needed to prevent nepotism etc.
  • Parliamentary procedures would have to be changed and standing orders re-written. While the Premier or a proxy, would be required to attend Assembly sittings. Ministers whose legislation is before the Assembly will also be required to attend. They would not have a vote in the Assembly. There would be no Question Time as at present and much of the effort that now goes into that would become part of the committee system. This would give much more time for debate on the policies for which legislation or regulation is required. It would also open up the opportunities for individuals and communities to become part of that process by their attendance at Assembly and committee sittings.
  • A number of extra-parliamentary arrangements for accountability, such as the Ombudsman, the Auditor General, the various Commissions for Human Rights, against discrimination and corruption should be retained. Their establishment and functions should be constitutionally entrenched as directly responsible to the Legislative Assembly not the executive.
The above outline has not addressed many questions of detail but it is argued that there is sufficient to enable others to assess its potential. Essentially, the proposals will guarantee the seven critical purposes of a democratic parliamentary system and the five functions of an effective parliament. It allows the community opportunities for involvement in political issues other than merely by protest rallies and confrontation. It removes the highly damaging adversarial two party and two house conflict which has the effect of making parliament irrelevant to the people. This proposal balances the exercise by the collectivity of final control over the agenda of government concerns and a commitment to individual liberty which Hindess posits as the essence of democracy. (B. Hindess “Democracy and disenchantment” Journal of Australian Political Science 1997 32(1) p. 83) It inhibits political arrangements tending to exclude the direct involvement of the people in their government, especially where a small population makes this probable.


Edited version of  ‘Constitutional Safeguards, Bicameralism, Small Jurisdictions and Tasmania’, by Harry Evans, Clerk of the Senate

Two of the primary difficulties of framing a satisfactory system of government are, first, to provide constitutional safeguards which are effective, and secondly, to provide such safeguards in small jurisdictions.

The aim of constitutional government is the avoidance of simple majoritarianism. In practice this means the avoidance of the situation where a political party which gains a simple majority, which is usually less than 50% of the total votes, rules the country. This form of government is exemplified by the so-called ‘Westminster system’ whereby such a party controls the legislature and forms the government. In the Australian context this means, or would mean but for constitutional safeguards, that the leaders of the faction which controls the party which gained the majority, rules the country.

Simple majoritarianism tends to destabilise democracies, because it produces overbearing majorities and alienated minorities. Simple majority government is more easily captured by a self-perpetuating faction to bring about this situation.

The cure for the evils of simple majoritarianism are institutional arrangements, particularly in the construction of the legislature, to encourage the formation of distributed majorities. If institutions require, for the making of major political decisions, the support of majorities distributed across different groups in society and different regions, factious government is made more acceptable and stable.

Federalism is a particular institutional arrangement which seeks to ensure the formation of distributed majorities by requiring special majorities for the passage of laws. But in the individual states of the federation this safeguard does not operate. How then are safeguards to operate at the state level.

Small jurisdictions pose particular problems. Structures to ensure constitutional government are inevitably complex and difficult to maintain; they are also relatively more expensive in small jurisdictions, yet have to operate often in a climate of concern about cost of government.

Tasmania has provided a particular manifestation of this problem. The moves to create a smaller parliament are an indication of the natural tendency to simplicity and economy of government. With a small legislature however, it is more difficult to secure adequate representation of all shades of opinion, and this makes an undistributed factional majority more likely. It also undermines a fundamental virtue of legislation by representative assembly, that of adequate deliberation as a small assembly tends to become more like a caucus and deliberation is contracted. In short constitutional government can be weakened by mere changes in the size of the legislature. There is an optimum size for a legislature which is not related to the size of the electorate and Tasmania is now below this optimum size.

There is a further problem; the maintenance of cabinet government where a Ministry is appointed from the majority and a shadow ministry from the minority. This is a system which evolved in a house of over 600 members. With a small house there are too few backbenchers left to undertake the parliamentary roles of monitoring executive activities and scrutinising legislation. The proper performance of such roles depends on there being significant numbers of backbenchers who have no hope of ever reaching the front bench and therefore have no incentive to be either servile to their party leaders or simply troublesome in the hope of gaining promotion.

There is also the problem of restricting the choice of ministers to a small pool of candidates. This leads to the conclusion that cabinet government cannot work properly in small jurisdictions with small assemblies. It simply becomes a form of absolutism: the cabinet controls the legislative as well the executive power.

Difficult problems require radical solutions. The houses of parliament of the state could continue with their current composition and powers. At the same time as the lower house is elected, a governor would be directly and separately elected by the electorate. The governor would be head of state as well as head of government and would appoint a small cabinet of ministers from outside the parliament, thus enlarging the ministerial talent pool. The parliament would perform the legislative functions of passing laws and scrutinising the operation of government. As governor and parliament would each be elected for a fixed term, there would be no power of dissolution and no early elections.

It is suggested that the houses have the ability to scrutinise, but not to veto, executive appointments while an executive veto of legislation could be overridden by a special majority of the houses.