In a recent lecture, the clerk of the Senate, Harry Evans, correctly identified party discipline as the cause of the inability of the legislature to hold the executive to account, saying that, ''We have one of the weakest legislatures in the democratic world. The Parliament here is under a degree of democratic control that would not be tolerated elsewhere ...''
It is worthwhile stepping back to see how the Westminster system is supposed to work, and why it now so spectacularly fails. As it originally evolved during its heyday in Britain in the late 17th and early 18th centuries, the system really was one of ''responsible government''.
Political parties were loose, informal groups with fluctuating memberships, and there were a large number of MPs with no party affiliation. It was, therefore, a struggle for the ministry to retain the confidence of the House. Governments were truly frightened of Parliament, and needed to persuade, not command, Parliament to pass legislation.
Ironically, the expansion of democracy proved the death-knell of responsible government, because the increased cost of running election campaigns as the franchise was extended meant that membership of a party, and the support of its machine, became increasingly necessary for the aspirant MP.
The quid pro quo extracted by parties was absolute loyalty on the floor of the House. This led to an inversion of the relationship between parliament and government, with MPs being instructed on how to vote by the ministry, afraid of withdrawal of support for re-election if they defied party whips.
Australian parliamentary discipline is notorious the last government to fall to a revolt by its own MPs was the Scullin government of 1931. Australian parliaments are controlled by a Coalition/Labor duopoly, whose participants happily alternate in power, and whose ministers need fear no independent thinking or scrutiny from their cowed backbenchers.
Two key changes are required in order to make governments accountable to Parliament: reform of the electoral system, and an enhancement of the power of parliamentary committees.
First, in order to break the Labor/Coalition duopoly, it is necessary to adopt proportional representation for the House of Representatives. Unlike electoral systems based solely on geographic electorates, which favour parties with concentrations of support, proportional representation gives minor parties and independents a real chance of obtaining representation. This makes it far more difficult for large, monolithic parties to survive unless they act in a far more consultative way internally, because disaffected members can simply leave and form their own party.
Under proportional representation we could probably anticipate four or five parties (rumps of the current ones, plus new parties at the centre and on the radical fringes of the political spectrum) competing for votes. Furthermore, since under proportional representation parties obtain seats in parliament directly proportional to their nationwide vote, it is extremely difficult for a single party to govern on its own. Coalition governments would be the norm, and this would lead to politics based on consensus and negotiation.
Instead of a government drawn from a single party able to dominate its back bench, the cabinet would consist of ministers drawn from two or three parties who would need to woo the support of MPs from a variety of backgrounds.
In other words, the political landscape would be closer to that which existed when responsible government first developed, with MPs dictating to the executive, rather than vice versa. Of course, the two major parties would make common cause to fight to the death to avoid electoral reform which is perhaps the best advertisement for the project. Predictably, they will argue that coalition governments are unstable.
This ignores the fact that it is in the interest of coalition partners to compromise with each other in order to remain in power.
Germany, which has proportional representation, has had fewer post-war governments than has Britain, which does not. In New Zealand, which has used the same proportional representation system as Germany since 1996, every government has lasted its full term.
The other argument made against proportional representation is that voters do not know what compromises the party they vote for may have to make in order to form a coalition, and that voters would not have a clear choice of government.
This is true only if parties do not announce during their coalition preferences during the election. But even in that case, the key advantage of proportional representation, which outweighs uncertainty over coalitions, is that a government formed under proportional representation will always represent more than 50per cent of the voters, unlike under the current electoral system, where it is entirely possible for a party to win government with less than 50per cent of the first preference vote or even with fewer votes than the opposition (as happened in every election between 1983 and 1993, and in 1998).
The second reform is a radical change to the law of parliamentary privilege.
Although in theory parliamentary committees have the power to subpoena ministers and public servants, and to sanction them if they refuse to answer questions, that common-law power has never been tested at Commonwealth level (although it has been affirmed by the High Court in the case of the NSW Parliament). Ministers frequently refuse to answer questions and prohibit public servants from doing so. However, the law allows sanctions to be applied only by a House as a whole, rather than by committees.
The political reality is that ministers will never be called to account for refusing to answer questions: the two major blocs cooperate in shielding each other from scrutiny, as witness the refusal by Labor to support a motion of censure when Coalition government lies about the ''Children Overboard'' affair were exposed during a Senate inquiry. Obviously Labor feared that, by setting a precedent, it might expose itself to such scrutiny when it next won government.
The remedy for this is to amend the Parliamentary Privileges Act so as to make ministers compellable witnesses before parliamentary committees, subject only to a court-adjudicated public immunity test, as was proposed by the Australian Democrats in a Bill introduced in 1994.
Furthermore, the power to compel evidence should be exercisable by a committee or a member thereof.
This is the position in the United States, where it is well established law that congressional committees, and even their individual chairpersons, can sub-poena members of the executive. It is a matter of supreme irony that the legislative branch in the US has far greater power over the executive than does Parliament under our supposed system of responsible government, where the executive operates safe in the knowledge that it will never be subject to sanction by parliamentary committees so long as the two major parties collude in ensuring that Parliament's powers are never fully exercised.
Dr Bede Harris is senior lecturer at the Faculty of Law, University of Canberra
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