Reforming the Parliament

John Uhr

Introduction
I advocate ten measures for parliamentary reform, which cover the three activities that are central to an effective Parliament: representation, legislation and accountability. My model is a Parliament properly equipped to take responsibility for its own affairs, independently of the government of the day. Alternative reform approaches seek to bring greater leadership to Parliament through increased controls exercised by the political executive or increased regulation imposed externally. My aim is to identify opportunities for an independent Parliament to exercise greater self-regulation and to take greater responsibility for the governance of South Australia.

The Spirit of Spence
The reform agenda for Australian parliaments should not be controlled by governments. Parliament works best when it ‘adds value’ to government by acting independently of the government of the day, which is accountable to Parliament. Despite their misgivings, governments have to learn to share power with parliaments. Australians increasingly expect that public decision-making will reflect the shared responsibilities of Parliament and the political executive. Proof of this can be seen in the trend around Australia to ‘split-ticket voting’ where voters balance their preference for a governing party in the lower house with an alternative preference for a non-government majority in the upper house. 

The major example is the Commonwealth Senate, which demonstrates the public value of shared decision-making as a way of promoting accountable government. The Senate only came about because of the determination of the smaller states like South Australia in their demand for institutional insurance against a Federation dominated by the major parties in the larger states. South Australia has a proud history of parliamentary and electoral reform. For instance, the Federation five dollar note issued last year has two portraits of Federation founders: on one side is New South Wales politician Henry Parkes, and on the other is that great South Australian, Catherine Helen Spence (1825–1910), Australia’s first female political candidate. Spence stood unsuccessfully for election to the South Australian delegation to the 1897 Constitutional Convention on a platform of electoral reform. Her life was dedicated to the promotion of proportional representation and she hoped that the proposed Senate would embrace proportional representation to safeguard the minorities of voters whose voices would not otherwise be heard in the adversarial struggle between the major parties in the lower house. 

Spence deserves her place of prominence on the Federation five dollar note. She represents the spirit of parliamentary reform for which South Australians can take great pride. Spence was a community representative and not a member of any political elite. Her public advocacy of parliamentary reform was meant to bring the political system into line with the developing spirit of democracy and equal citizenship. My contribution here takes its inspiration from Spence’s promotion of that democratic spirit and her understanding that democratic majority rule means rule by a genuine majority of the ‘demos’ (or ‘people’), as measured by a majority of their preferred candidates, as distinct from rule by the party holding a majority of seats in one house of Parliament.

Independent Parliament or Parliamentary Independence?
I can indicate the general flavour of my reform options by stating why I reject the call for a ‘Parliament of Independents’ to replace the existing situation of a Parliament dominated by party members with a small minority of Independents. An effective Parliament should certainly be an independent Parliament, strengthened by considerable separation of powers between it and the political executive. Party government is best checked and balanced by parties in Parliament, in the spirit of ‘fighting fire with fire’. But a Parliament of Independents is less desirable than an independent Parliament, which is compatible with a robust multi-party system able to check the party in government more effectively than an institution of many independent individuals. 

My ten reform proposals are all designed to promote greater institutional independence for Parliament. But the important prerequisite for the success of these modest reforms is political will within Parliament. My approach is to get our elected representatives to take greater responsibility themselves for putting their house in order. There are plenty of alternative claims made by reformers who want to take responsibility away from Parliament and give it either to the political executive as the resident manager of Parliament or outside regulators like some sort of judicial commission of overseers. However, our task as a political community of citizens and commentators is to help clarify the appropriate standards expected of Parliament and its members, and then to do all we can to encourage Parliament to rise to its responsibilities. The task for elected representatives is to use this public trust wisely: by taking greater responsibility for self-regulation and demonstrating to the community that they can deserve this public trust and that they can put their house in order without resort to intrusive external regulation or cumbersome constitutional strait-jackets. 

Three general lessons about the process of parliamentary reform can be drawn from earlier Australian experiences: 
•	First, our discussion of reform options will only be productive if we distinguish among different reasons for reform and acknowledge that not all movements for constitutional reform are necessarily concerned about reforming Parliament. The reform movement is not united by very high expectations of Parliament. Unfortunately, these low expectations often translate into just the sort of intrusive external regulations or constitutional strait-jackets that rob Parliament of its self-confidence.
•	Second, calls for parliamentary reform most often fail when they confuse reform with external control, as though Parliament could be regulated to perform better. Parliamentary reform is most effective when it is an exercise in internal self-regulation by elected representatives. Part of the reform task is to devise smarter approaches to parliamentary self-regulation, balancing the public trust placed in elected members with new demands of public accountability (see below).
•	Third, the core function of Australian parliaments which is most in need of reform is a process issue: the framing of public deliberation, given that Parliament is a deliberative assembly organised around deliberative processes. My reform proposals will act as devices for better deliberation, taking examples from the three broad spheres of parliamentary activity dealing with representation, law-making and accountability.

Why bother with Parliament?
Much turns on how we answer this threshold question. Constitutional reformers come in many shapes and sizes, and not all have high hopes for Parliament. All who are interested in constitutional reform acknowledge that Parliament is necessary, but many reformers reduce Parliament to little more than a legal formality. However, Parliament can only be as good as we want and allow it to be. We too easily blame others for the poor performance of Parliament and its resistance to reform. But in a democracy we have to acknowledge that as citizens we have special responsibility for making Parliament the institution it is. Not all the blame can or should fall on politicians. If Parliament falls short of our expectations, we too have a part to play in explaining why that is so and in reforming its place in our democratic life, and our place in its democratic life.

Sadly, in much of the reform effort across Australia we look beyond Parliament. Many reformers call on the elected government to rise above the partisan fray and exercise some rare community leadership, while other reformers call on power-holders in government and corporate institutions to open themselves up to greater public participation, with more opportunities for independent review by tribunals and commissions of our rights to services and facilities. In both examples, Parliament is there but only in the background, either as the platform on which government ministers perform or as a tribunal of last resort where we can air our complaints about unresponsive bureaucracies, public and private.

Saving the Adversarial System
It is not hard to see why reformers tend to bypass Parliament. The community’s low expectations of Parliament reflect the common Australian reputation of parliaments as wastelands of adversarial partisan politics. Many well-intentioned reformers recoil from party-political argument and the parliamentary culture of antagonistic point scoring. They lament that if only government was structured so that our elected representatives could ‘get on with it’, cease their party wrangling and work together through consensus-based decision-making. But they know this goes against the parliamentary grain. Thus many reformers understandably prefer to take their chances with some combination of better executive leadership and stronger rights for direct access to those managing public and community services. 

For many reformers, Parliament is unavoidable but unimpressive. For instance, for enthusiasts of energetic leadership by executive government, Parliament provides no more than the formal authority for the executive’s hold on office. It is common to hear these reformers lament that Parliament rarely provides much policy or administrative leadership, and none can really be expected of it. And for enthusiasts of greater direct participation in public decision-making, Parliament is useful mainly because it rounds up ‘all the usual suspects’ in one place, making it easier for committed policy activists either to lobby the lot in their parliamentary lockup, or quietly to bypass Parliament and target the real decision-makers left relatively unprotected in their bureaucratic lairs. 

I have a more hopeful view of Parliament: hopeful but not completely rosy. The ideal of parliamentary government is often called ‘government by discussion’. Now the paradox of Parliament is that it promotes ‘government by discussion’ by protecting the value of disagreement. To take parliamentary reform seriously means to take seriously the public benefit of political disagreement, and to try to channel that disagreement along productive pathways. Democratic self-government is inherently political, and it is made better to the extent that political differences can be managed in institutions with free and fair procedures for open public discussion. I see Parliament as our distinctive institution for airing and sorting through our political disagreements. The real value of Parliament is in keeping diversity alive, in gathering competing perspectives together and forcing policy-makers to compare, explain and justify their political preferences. After all, the term and concept of the ‘adversarial’ system is drawn from the legal system with due processes for managing rights in conflict. While all adversarial-based systems have their excesses, they do exist for good purposes: to allow those with grievances to challenge those with power over their interests.

Parliament is important because it is the public stage on which our shared political deliberations are acted out. Parliament is the primary deliberative institution for our shared democracy. Deliberation implies debate that can flush out competing interests weighing in the policy balance. Parliamentary deliberation is no parlour game: the parliamentary process has rules of order precisely because debate is meant to test the capacities of elected representatives. My theme is that reformers can learn from concepts and practices of ‘deliberative democracy’ where public decision-making has to meet many tests of due deliberation: weighing and balancing the varied contributions of all those with a stake in the outcomes, including those convinced that decision-makers are asking the wrong questions, and pursuing the wrong agenda. For a Parliament to work as a deliberative assembly, it has to take public deliberation as its central task. A Parliament has to do more than compliantly react to the pressure of interest groups, including the pressures of government interests. Parliament has to become proactive and seek out the views of community stakeholders on policy options, as well as on the appropriate agenda and timetable for public decision-making. 

Three reform themes
I have to admit that to many constitutional reformers, this view of a deliberative democracy is hopelessly idealistic. Australian parliaments have poor reputations because of their adversarial culture of ceaseless partisan animosity, reinforced by media stories drawn almost overwhelmingly from reports of Question Time, which I think should be totally overhauled. 

The valuable home truth is that Parliament is important because it is the most fundamental of the links between the people and government. It is the anchor point of public legitimacy in the whole governance process. What generates public legitimacy in the system of public governance is not just voters’ engaged in voting: it is also representatives’ engaged in representing. Thus Parliament is fundamental because it is a stage and not just a platform, that is, Parliament is more than a politically convenient platform (either for the governing majority or indeed the official opposition). The better image is that Parliament is a socially valuable stage representing the community at large, staging community deliberation as our elected representatives go about their parliamentary work. 

Parliament promotes public legitimacy in the system of public governance by the institutional leadership it can bring to the three tasks of representation, law-making and accountability. These are Parliament’s core public responsibilities: guaranteeing  political representation, facilitating the forms and processes of law-making and promoting public accountability. 

The direction of reform in each of these three areas is relatively easy to state: more diversity, more time and more information. Representation should be reformed in order to promote more diversity of viewpoints within Parliament. Law-making should be reformed to allow more time to be devoted to the legislative process. And accountability should be reformed so that more information is available to Parliament to promote accountable government. But although it is easy to identify the general reform requirement in each case, it is more difficult to know precisely what specific reform mechanisms will work in the South Australian setting. A number of specific possibilities follow. 

Representation: more diversity
The South Australia Parliament resembles the Commonwealth Parliament: two houses, each with a distinctive electoral system, with the upper house using proportional representation (PR) since the 1980s. The real advantage of one house elected on proportional representation is that it means that at least one parliamentary house approaches genuine majority representation, with seats allocated fairly on the basis of votes won. However, proportional representation is not all about minority representation. Remember the case originally put by the great South Australian pioneer of PR, Catherine Helen Spence, that the end or purpose of PR is to establish genuine majority representation. PR certainly does this by promoting minor party candidates; but minority representation is only the means and not the end, which is a better arrangement of majority representation. The end is decision-making that reflects a genuine majority, as distinct from the governing party that just happens to have a majority of seats.

And just as the federal government is restless about the Senate, so too South Australian governments are uncertain of the merits of minority representation in the Legislative Council. The Howard Government has sparked a fresh debate over how to minimise the minorities by modifying proportional representation to make it harder for small parties to win Senate seats. The one virtue of this debate is that it has forced Labor into defending the merits of the existing system, which is a feature of the electoral act and not entrenched in the Constitution. So too in South Australia. Therefore, my first reform priority is to entrench PR in the system, to put it beyond the interfering reach of the major parties. This could be done by changing the electoral act to require a special majority of each house to alter the core of the PR system, or by requiring a referendum to alter this PR core.

My second reform priority is the existence of a standing parliamentary committee on the state electoral system. It is not enough to have electoral law and an electoral commission. The people of the state deserve a public forum where they can take their views about how well the system is working, just as Parliament itself deserves a dedicated committee that can promote regular public discussion of the electoral system. Voters and representatives should be able to come together with other interested groups to place on the public record their informed exchanges about the development of the electoral system. The Commonwealth Parliament has such a committee, which can stimulate valuable public deliberation over existing policy and options for improvement. 

Parliamentary committees are not necessarily models of community benefit. Such committees face two hazards: they can become dependent on and even subservient to the public agencies they are meant to supervise; or they can become bullies, micro-managing agencies when they really should be standing back and evaluating agency performance.

My third reform priority is ensuring that parliamentary power is shared around proportionately. At one extreme is the ‘winner-takes-all’ approach, typically seen in Australian lower houses where the governing majority dominates each and every position of power and influence, from the speakership down through all the committees. This culture of ‘winner-takes-all’ even affects upper houses such as the Senate where, despite its loss of a majority, the governing party controls the presiding officer and the position of chair in all routine legislative committees. The conventional approach is to treat each committee as a miniature replica of the lower house, with the party composition of each committee reflecting a government majority balanced by a minority reflecting the relative strengths of each non-government party. 

But this approach means that the smaller parties and Independents can never really gain control of any significant levers of parliamentary power. Hence my call for South Australia to take the lead and insist that positions be distributed so that all parties, big and small, have opportunities to run committees. There is enough work to go round that even Independents could get together and seek their fair share. This alone could energise the Legislative Council where many non-government parties hold the balance of power but rarely get a chance to set the parliamentary agenda with community issues ignored by the major players.

Law-making: more time
Parliament is the legislature, and law-making is one of its most formal and necessary tasks. Almost all Australian parliaments give themselves too little time to do justice to this legislative task. Compared to parliaments overseas, Australian parliaments meet infrequently. This probably suits serving governments and probably also indicates that governments fully appreciate the political risks of having to front Parliament, where they can come unstuck if they let the opposition steal the initiative. But whatever serving governments fear is probably a clue to what might benefit the community. And the community could certainly benefit from having its elected representatives devote more time to detailed consideration of ‘the laws we live under’, to recall the title of Catherine Helen Spence’s pioneering 1880 text book of civic education originally commissioned by the South Australian Government. 

So my fourth reform priority is to increase the number of parliamentary meetings by increasing the number of sitting days per year. Speaker Lewis aims at 69 sitting days; Premier Rann has mentioned 70 days; the exact number is less important than the trend-line, which should be upward. Any increase would be a step in the right direction, prompting our politicians to provide the community with better ‘value for money’ for the substantial public investment in Parliament and related political costs. In South Australian the Parliament meets around 54 days a year on average and passes around 90 acts, thus averaging a little less than two acts for each sitting day. This is on a par with most Australian states but that is no reason for comfort. The fact that governments prefer fewer rather than more meetings of Parliament is a good reason to wonder whether the community is being short-changed. 

Another way of ‘buying time’ is through specialisation involving a division of labour that would spread round many of the legislative tasks among the available elected members. My fifth reform priority is to reshape the legislative process so that as many bills as possible are referred to legislative committees and are the subject of public hearings. Even those bills from non-government parties that have little effective chance of obtaining parliamentary approval deserve attention, when supporters and doubters can use public forums to test one another and the merits of legislative proposals on the public record. Few bills would not be improved from a process of transparent public examination and cross-examination. Even where the precise details of bills remain unchanged, as is frequently the case after estimates hearings, there are important improvements in political, policy and administrative understanding all around the committee table: improvements for ministers, back-benchers, public servants, expert witnesses and interested community activists. The point is not that Parliament possesses drafting excellence that is superior to that available to the government’s professional legislative drafters; the real point is that government, Parliament and the community all gain from a slower and more deliberate legislative process. Greater use of legislative committees with public hearings is essential to secure this deliberative benefit.

My sixth reform priority builds on the old adage that ‘time is money’. Additional time is not necessarily ‘quality time’ if it is just more of the same. All public institutions need money to do their job, and it would make little sense to expect other public institutions like schools or hospitals to do their jobs better simply by extending their opening hours. This is even more true for the state Parliament, and the parliamentary budget must be large enough for all of the many institutional responsibilities that the community expects. 

There is no better place for parliamentary self-regulation to begin than with the budget. If Parliament is serious about taking greater responsibility for its contribution to accountable government, then let it begin to demonstrate this welcome sense of responsibility by putting the parliamentary budget on an open and transparent footing. All Australian state parliaments require a bigger budget if they are to perform their critical role as deliberative assemblies. But that larger budget should not come pre-determined by the political executive. It should be hammered out publicly and responsibly by a dedicated parliamentary authority (it does not really matter whether it is called a committee or a commission) with input from both the political executive and the legislature. Just as more time alone will not necessarily improve parliamentary performance, so too more money alone will help less than will more money openly determined to pay for all the staffing, research and drafting expertise now denied to non-ministerial members of Parliament.

Accountability: more information
The accountability function of Parliament is often its most constructive function. Elections are of course a vital form of public accountability for governments as well as parliaments, demonstrating that politicians are directly accountable to the electorate. But if elected representatives are accountable to the electorate, what are they accountable for? One answer is that the institution of Parliament is not only accountable downwards, to the people; it is also accountable upwards, for much of the governance framework regulating the general conduct of government. 

There are several reform areas where existing forms of parliamentary accountability fall short of delivering the qualities of public accountability called for by contemporary democratic governance. Government is led by ministers so it comes as no surprise that a prominent form of parliamentary accountability is Question Time. South Australia conforms to the common Australian practice with an hour or so each sitting day set aside for members’ questions to ministers. The conventional reform call is for an independent speaker to ensure impartiality in the management of this most publicised part of the parliamentary day. Premier Mike Rann recommends that the opposition should be guaranteed a minimum number of questions each Question Time. I would welcome an independent speaker and any guarantee of an opposition quota of questions, but these are not the most urgent of reforms. To see an independent speaker as a stand-alone reform is misguided. Speakers get into trouble because oppositions get frustrated and have no one else to blame for the way the system limits their opportunities to keep ministers in the glare of adverse publicity (‘adverse’ as in adversarial). 

My coolness about independent speakers stems from my belief that heated arguments about the partiality of speakers miss the main point. The real problem with Australian practice is the misplaced impartiality of alternating questions between opposition and government members. This practice reflects the polite fiction that the major division is between ministers and the back-bench, which perhaps it once was. But as contemporary governments know only too well, the real division is between government parties and non-government parties. 

Hence my seventh reform priority is to get government members as far out of the business of asking questions as possible. The quota of ten questions for the opposition is good as far as it goes but we can go much further. The government back-bench have plenty of opportunities for submitting written questions to ministers. In the event that they really are seeking information on the public record, they should focus more on this avenue and drop their scripted role as ‘Dorothy Dix’ where their only contribution is to provide an excuse for a well-rehearsed ministerial statement about government success and opposition failure. The function of public accountability would be strengthened if substantially more questions came from the non-government side of the house. At a minimum, I think that opposition questions should take priority over government questions: non-government members should get all their quota of questions asked (and answered) before government members. Ideally, questions during dedicated Question Time should be limited to non-government members, but any increase in the relative proportion of non-government questions is an improvement. 

My eighth reform priority builds on this and relates to ethics and integrity. Parliamentary ethics come into two levels. First, the base level of standards expected of all elected representatives; and second, the higher level of standards expected of ministers, who exercise greater powers and therefore face more onerous obligations of public duty. At both levels, the community has a right to expect a public declaration by Parliament of the appropriate standards of official conduct. Australian parliaments are very slowly getting around to devising base-level codes of conduct for elected representatives, but they typically defer to the ministry and leave it to chief ministers to formulate codes of conduct for ministers. This trust is misguided. The base-level standards (where they exist) are little more than well-meaning words. Parliaments leave this job only half-finished: they establish no monitoring mechanism or internal regulatory mechanism such as a parliamentary integrity commissioner. With few exceptions, Australian parliaments fail to take responsibility for more effective self-regulation of their members’ conduct.

The mischief does not end there. When it comes to investigating ministerial misconduct, Parliaments also let the community down by deferring to the convenience of the political executive and letting the chief minister formulate and regulate ministerial conduct. This practice is not so much self-regulation as self-indulgence. My strong recommendation is that Parliament should take greater responsibility for parliamentary standards, holding hearings on an appropriate code of general conduct for elected representatives, and on the powers and responsibilities of a parliamentary integrity commissioner to oversee the code, working closely with a parliamentary ethics committee in each house. Further, Parliament should also take direct responsibility for devising a ministerial code of conduct to be policed by the integrity commissioner. This bottom-up ministerial code should express the standards of conduct expected of ministers by the community, and not simply by their employer, the chief minister. 

My ninth reform priority relates to the office of Auditor-General. I welcome Premier Rann’s ‘Honesty and Accountability’ package of legislation which will do much to increase the clout of the state Auditor-General. But my interest is in the clout of Parliament, which is not really being called on to do that much more by this package. I accept that the Auditor-General is the most fundamental of all those public officers or so-called ‘independent parliamentary officers’ who provide Parliament with the institutional capacity to test government claims about performance and accountability. Nothing is more fundamental to the Parliament’s pursuit of public accountability than the existence of an impartial, well-resourced and independent audit agency capable of working closely with Parliament to provide elected representatives with professional analysis of government performance. I also accept that Parliament can do its accountability job only if it has access to reliable information about the reality of government operations. In my view, this requires an audit agency holding the confidence of Parliament, with an Auditor-General selected after parliamentary approval, protected against unfair dismissal by executive government, and budgeted at levels determined directly by Parliament. 

It is no surprise that the ‘Honesty and Accountability’ package falls short of involving Parliament in the selection of state auditor and budgeting of the audit agency. Thus far, Parliament has demonstrated very little interest in responding institutionally to audit reports or showing much concern for audit independence. The good work done by audit staff has rarely been taken up by Parliament, for example, through public hearings on audit reports designed to generate community debate over government accountability. It is time now for Parliament to respond to the ‘Honesty and Accountability’ initiative with its own measures of support for the audit agency. The real power of an audit agency is the verified information it provides Parliament for use in promoting public accountability. This use of independent expertise, when protected and promoted by Parliament, would be a good example of the sort of smart self-regulation parliaments have to adopt more generally, if they want to retain public confidence as valuable public institutions.

Conclusion
It pays to keep things in perspective. Hence the special importance of my tenth reform priority. Just last month, leading QC Julian Burnside argued that the best recipe for improving Australian parliamentary performance was to soak our members of Parliament in Shostakovich, the great Russian musical composer who antagonised but somehow survived Stalin. The general point was that there is only so much that can come from institutional reform: at the end of the day we depend on the character, culture and good sense of our elected representatives. Soaking them in Shostakovich might just work, helping our elected representatives to get a better perspective on what really matters, on the things of deep and enduring value. 

The good news is that this strategy has recently been put to the test, not by Julian Burnside but by the astute electors of Tasmania. The Tasmanian state election held in July 2002 saw the parliamentary majority of the Bacon government increase handsomely. Premier Bacon’s cabinet reputedly includes fans of Shostakovich, something apparently valued by Tasmanian voters who are prepared to put up with a smaller Parliament so long as it is dominated by larger characters like Premier Bacon. So I conclude with my tenth reform priority which is: when all else fails in my list of reform priorities, soak the elected representatives in Shostakovich and watch culture work its magic on a re-composed Parliament.

Summary of Reform Proposals
1.	Entrench proportional representation.
2.	Establish a dedicated parliamentary committee on electoral policy and administration.
3.	Distribute committee chairs among all party groupings.
4.	Increase the number of sitting days.
5.	Refer all bills to legislative committees.
6.	Increase parliamentary budget, especially resources to non-government members.
7.	Minimise government questions at Question Time.
8.	Establish a parliamentary integrity commissioner.
9.	Bolster the operational independence of the Auditor-General.
10.	‘Soak them in Shostakovich’!