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A conference, Improving Government Accountability in Queensland: The Upper House Solution, was held in Brisbane on 21 April 2006. It was convened jointly by Centre for Public, International and Comparative Law (University of Queensland) and Faculty of Business (University of Sunshine Coast).
The event was excellent and reflected credit on its organizers and presenters. An outline of proceedings at the Upper House Solution conference is included below.
The basic reform options for Queensland considered at the conference involved establishing a strong Parliamentary committee system either through a renewed upper house, or through the existing Legislative Assembly on something like the New Zealand model.
The purpose of the present document is to suggest an alternative / complementary strategy based on the assumption that competence could be a key consideration in improving accountability - as it is a lack of competence that both explains ineffective programs and motivates many abuses of power (and prevents them being combated within the machinery of Executive government itself).
|Notes on Proceedings||Notes on Conference Proceedings
Dr Bill Hayden: There have been many conferences on the subject of upper houses. They potentially have a powerful role in increasing accountability. An upper house would not necessarily require a net increase in the number of parliamentarians. There could be value in adoption of multi-member electorates / proportional representation to avoid excess representation of old established groups. For many people the national Senate became a haven of hope. Creating an upper house in Queensland would require a political process, not just research into the concept. Additional accountability is needed because: ministers can simply become tired; populism needs to be constrained; power can distort / corrode; and to avoid Executive dominance over Parliament. There may be a need for a Bill of Rights
A Constitutional History of the Parliament in Queensland (Hon Justice B. H. McPherson): Constitutional changes in Queensland have come close to being invalid (eg when Legislative Council was established in 1861 and when it was abolished in 1922). In 1922 ALP had majority of only two in vote to abolish it, however it may be that two were disqualified from voting. Before its abolition Council's members had long opposed everything - so it was stacked with ALP-nominated members who would vote for abolition. Queensland was the only state with a nominated upper house. Governor Bowen had pressured for a shift to an elected upper house. The lack of an upper house makes Premiers into temporary dictators. The argument against upper house was that it introduced delays that could be avoided. Restoring the upper house now would require a popular referendum. It could be asked whether creating a power to veto legislation could be a step towards re-creation of an upper house?
The Fitzgerald Inquiry and Parliamentary Reform in Queensland: An Unfinished Project (Dr Janet Ransley): In 1989 Tony Fitzgerald found not only police / public sector misconduct but also a political context to this (abuse of ministerial power; weak / compliant parliament / public sector / justice system / media - that allowed corruption to flourish). He proposed reform of government process - including reform of parliament to restore an idealized version of its proper role as forum for debate and inquest on public administration. However executive government is now subject to little more scrutiny / checks on its power by parliament than in 1989 - and gains are unlikely in current political / constitutional context. Key questions are: what is role of parliament; how can this be assessed; and how does Queensland's rate. Fitzgerald established a cataclysmic change process. He sought to analyze and propose actions to deal with cause of problems. The outcomes can still be debated - though it can be noted that his blueprint was never properly implemented. The role of parliament can't be to carry out comprehensive audit. It can only be a contribution to democratic governance as it is not possible to actually control government. Fitzgerald report was not based on a realistic understanding . Parliaments can be assessed in terms of criteria such as: (a) political equality (where Queensland's situation has improved, though government still dominates committees and there is still a lack of youth / indigenous people) (b) public review of administration (where situation is not good - eg estimates committee is active but not probing; there is little real engagement with supervision of independent accountability agencies) (c) rights and liberties (where though a committee is active it has no control over ministerial action, and departmental non-compliance is chronic) and (d) broad public participation (where situation is poor with: few sitting days per year; many more ministerial statements - but a lack of substance in them, as compared with political advancement). Reform of procedures has not improved outcomes. If parliament is to support independent accountability, there is a need to revisit the Fitzgerald agenda.
Bicameralism vs Unicameralism
The Case for Bicameralism (Harry Evans): The case for an upper house depends on having legislature with some independence of executive. Australians have lost sight of the concept of legislative power and see parliaments as low quality debating panel controlled by governments (ie like lower houses). Ideal of legislature exists only where upper houses are not under government control. Principal value is forcing governments to disclose information and explain themselves (as illustrated by Senate and NSW Legislative Council). Upper houses can provide a control over government by dividing power. Power can only be resisted by power. Australia's founding fathers believed in the separation of powers. Alternative models in government involve: ministerial responsibility; cabinet government; or prime ministerial government (which arises now when decisions are highly centralized). In Queensland there is no separation of power - and former Premier Bjelke Peterson was improperly ridiculed for not knowing about it. Non-political safeguards are at risk from the political system. A second house of parliament in Queensland would enable (a) bicameral interchanges rather than rubber stamping; and (b) serious inquiries.
The Case against Upper Houses (Professor Paul Reynolds): Though upper houses have been adapted to changing situations, restoration of a Legislative Council is not the best option for Queensland. Where they have been abolished, they have not been restored. The tasks ascribed for upper houses can be better performed by a comprehensive committee system (eg New Zealand model). Legacy from Britain was directly elected lower house and appointed upper house - since time of Cromwell. The latter was changed in 20th century. Lords lost power to block supply in 1911. In Australia Chifley brought in proportional representation - though there were no minor parties until DLP emerged (and it supported government). In 1970, ALP / DLP together instituted committee system. Queensland's upper house had been totally obstructionist, and no one considered reforming it - merely abolishing it. New Zealand abolished its upper house in 1950. Characterizes of its comprehensive committee system include: 15 'select committees' dealing with whole-of-government issues; all legislation goes to committees - and public inquiries are routine; any unanimous committee recommendation is automatically accepted; committees are entirely back-benchers with no ministers. There is also an estimates committee and a petitions' committee (which seriously considers all petitions). Queensland eliminated its upper house before they started being reformed.
Bicameralism in Theory
Bicameralism and Constitutional Government (Senator George Brandis): Many constitutional lawyers and commentators see bicameralism as the chief means of enforcing government accountability (eg considering role of Senate) - and the absence of this in Queensland as the most important reason that state governments have a reputation for dictatorial and high-handed behaviour. However bicameralism is not necessarily related to better accountability. It predated responsible government by centuries - and originally reflected a medieval notion that different 'estates' in the realm need to be represented. Also bicameralism is not only associated with Westminster style parliamentary governance - eg consider French / US systems. However currently upper houses often do provide constraints on executive power. De Toquille spoke of the need to constrain populism. There has been no long lived republic without a senate. Bicameralism provides a restraint on the abuse of power. One observer suggested, in the case of US, that there tended to be a better quality of people in the Senate. Westminster government can operate on a unicameral basis. In Australia the Senate was dominated by governments for 40 years - a situation that was only changed when Senate numbers / state were increased from 10 to 12 (ie from 5 to 6 per election) which made it far harder to get a clear majority.
Bicameralism and Representations of Democracy (Dr Nicholas Aroney): Upper houses are usually critiqued as inherently oligarchic which place undemocratic restraints on popular will expressed through democratically elected lower houses. There are seen as either undemocratic and illegitimate or democratic and superfluous. This assumes that societies can be conceived of as a unity (ie a demos); that legitimate democracy can be achieved through majority rule; and that electoral systems give effect to rule of majority. However: demos can be complex; widespread participation may be better than majority rule; and prevailing electoral systems may merely facilitate plurality rather than majority rule. Bicameralism provides the opportunity to recognize the complexity of modern democratic societies - and goes some way to countering monolithic assumptions of unicameral institutions such as Queensland Parliament. Criticism of bicameralism can be traced to French revolution and to 19th century views about US system. At the time of French Revolution, upper house was seen as oligarchic. Upper houses have been regarded as either obstructionist or irrelevant. Their value depends on whether one sees only one demos. Diversity can be reflected in (a) electoral distributions and (b) local decision making. However some segments of society are not represented. Consensus democracy would seek to disperse power. Queensland has an extreme form of majoritarianism. A consensual model would be better. Electorate is not properly reflected in Queensland's system. Reform could take place with either a unicameral or a bicameral system.
Bicameralism in Practice: Federal Perspectives
Introduction (Bruce Grundy): It has been clear for some time that Queensland's parliamentary system has failed. Thus a suggestion was put forward (which is the basis for the conference) to consider bicameralism as an alternative system.
Opposition View of the Australian Senate (Senator John Hogg): The degree of criticism by the Senate of the government of the day is a measure of its success. To be successful an upper house requires: independence in determining its own processes; power that is almost equal to other house; a proportional representation electoral system; a constituency that does not tie it down in day-to-day issues; and an active Committee system. Australia is the world's 4th oldest parliamentary democracy. The Senate offers opportunities to oppositions to review / amend / challenge government actions. Public perceptions of parliament generally are poor when Senate is controlled by government. The effectiveness of Senate was increased by (a) proportional representation involving STV model - which allowed emergence of independents and (b) independent committee structure. Senators have different constituencies to members of House of Representatives. All review of legislation is done by Senate Committees as a result of pressure from their different constituencies. Senators are less susceptible to changes in public opinion. The takeover of the Senate by federal government is a reflection of its arrogance.
The Senate from the Cross Benches (Meg Lees): The Senate has extensive opportunities for genuine scrutiny of legislation. Information / opinions can be sought from those affected by legislation. This is real parliamentary democracy. Upper house works best without government control - and both houses were able to work together for many years on this basis to pass legislation. Compromise, cooperation and genuine debate were all needed. Senate has often taken 'nasties' out of legislation (eg in new tax system). Senate forces government to assess itself, and gives a voice to diverse groups. It can open up processes within government. The Senate is more representative than House of Representatives and has delivered.
The Senate in Practice (John Nethercote): Australia has a good record in bicameralism - and in this regard the Senate stands out like a beacon - though naturally things could be improved. Rigid party discipline ('Caucus rule') is normal in Australia. Public comments about Senate are often nonsense (eg proposals by David Solomon to get rid of Senate). Backbenchers in Senate have a major role in making it work. Reform options that could be considered include (a) dissolving both houses of parliament if supply is blocked; (b) fixing distortions associated with filling of casual vacancies (c) improving quality of general debates in parliament and (d) increasing the role of experts.
Bicameralism in Practice - State Perspectives
Recent Upper House Reform in Victoria (Brian Costar): ALP gained majority in Victorian Legislative for first time in 100 years, and enacted parliamentary reform which included (a) adoption for Council of Senate-type STV proportional representation system; (b) removing Council power to block supply (c) new mechanisms to resolve deadlocks - involving joint sittings (d) aligning terms (e) entrenchment of some aspects of constitution. These changes to bicameral arrangements were enacted in 2003, but not yet implemented. Historically Victoria's Legislative Council was bad - in that it opposed everyone. Accountability is a hard concept. Council historically was not interested in this - but only in partisanship and defending its own power and status. Council did nothing when Victoria encountered major government problems in the late 1980s. It has been hard for minor parties to get elected. Regions tend to want representation of their interests, rather than accountability. Entrenchment of constitution without explanation has made government more rigid. Moreover some things that were entrenched were not part of the constitution.
Australian Legislative Councils: Comparative Perspectives (Bruce Stone): Senate gets most attention but 5 state Legislative Councils also express Australia's bicameralism. Upper house is vital in Australia because of strong party discipline. Role of Upper houses is more acceptable following their democratization (and for many situation was further improved by proportional representation). Review of legislation and scrutiny of executive is better everywhere in upper houses compared with lower. The status of Legislative Councils as been enhanced as they have become more involved in legislative review. They have more effective question times than lower houses. However different designs result in different capacities. In particular (a) size can limit ability - eg Tasmania and SA have too few members. About 40 are needed. There is no ideal ratio to lower house (b) power - they tend to be powerful - though power is used circumspectly because political balance changes quickly (c) dealing with deadlocks - where some leave this to negotiation (d) length of term and rotation (e) election systems are fairly uniform. Members of lower houses need to be more focused on parliamentary business, and more independently minded. Joint parliamentary committees undermine a bicameral system.
Bicameralism and Civil Liberties (Terry O'Gorman): Committees in Queensland parliament are currently not a substitute for an upper house - eg consider Scrutiny of Legislation Committee. As it would be hard to get change to a bicameral system, better use of existing arrangements is needed. Fitzgerald emphasized importance of parliamentary reform, as good government requires debate. In the absence of an upper house, Fitzgerald recommended that EARC recommend on committee system. After 1989, committees matured and there are now six. Scrutiny of Legislation Committee has prime purpose of considering whether fundamental legislative principles are satisfied (eg rule of law; consideration of rights and liberties - natural justice; unambiguous). Requirements are set out in Legislative Standards Act. However there are problems (a) committee lacks independence as most members are from government - whereas in New Zealand committees are independent of government (b) lack of time (c) public involvement is prevented by this lack of time - in fact public doesn't even know about the Committee's work (d) recommendations to parliament are ignored. Parliament of Queensland Act specifies that a response is required from Ministers (eg about what would be accepted, and reasons for rejection). But this doesn't apply to Scrutiny of Legislation Committee. To give committees more impact (observing New Zealand model) (a) circulate Bills for public comment before cabinet - at present departments capture minister and present legislation without options (b) refer Bills to Committee before second reading (c) mandatory responses (d) provide resources to conduct reviews and call ministers (e) ability to redraft Bills (f) enough time. Absence of upper house puts greater responsibility on government to properly prepare legislation. This is not working at present. Upper house would introduce delays. Secret bills enacted by Bjelke Peterson government was one of Fitzgerald's criticisms. There is a current scandal with 160 pages of new legislation (related to police powers) not being externally sighted before being presented to parliament.
Implementing Parliamentary Reform
Amending the Queensland Constitution: The Legal Requirements (Professor Gerard Carnley): Reintroducing another parliamentary chamber would be possible by amending Constitution except for restrictive procedure set out in Section 53 of 1867 Act and Section 3 of 1934 Act - which both require referendum approval for any Bill proposing an additional chamber. It could be argued that those provisions were unconstitutional - because they were not supported by referenda. In any event a referendum would be warranted whether or not legally required.
Establishing an Upper House in Queensland: The Political Hurdles (Dr Scott Prasser): Abolition of upper house in 1922 was for a clear political purpose, so any reinstatement would also require such a purpose. Questions are (a) would this be a vote winner (b) can support be built, over what timescale and with what cost (c) is issue important enough to get support from incumbent government (d) given that a referendum was needed, would it pass (e) there would be complexities related to voting systems / boundaries (f) what research institution exists to progress the issue.
Constitutional Change and Business Certainty (Joseph Siracusa): A lack of confidence in public bodies can be an obstacle to useful activities. They thus require respect - and this demands order and stability. The impact on business of upper house would depend on whether it increases uncertainty which had a negative impact on business. Uncertainty could be introduced in many ways (eg need to reach compromises with special interests). There is Australian and international experience (including that related to sovereign risk). of the effect of democratic institutions on perceptions of stability.
A Model Parliament for Queensland
A Model Upper House for Queensland (Colin Hughes): Seven questions need to be considered (a) should upper house be / not be a mirror-image of lower house (b) should overall numbers be increased or remain unchanged (c) should all upper house members be elected at the same time - and should this be for fixed terms or tied to lower house (d) should electorate be districts or whole state (e) should election involve single transferable vote (STV) or other forms of proportional representation (f) should ministers sit in upper house - or be required to appear (g) is there a need for special machinery.
Raising the Bar of Accountability in Queensland: The Upper House Solution? (Professor Michael Lavarch): Would an upper house be an inappropriate 19th century solution to a 21st century problem. key issue involves how conflicts between houses are resolved at present. Dynamic conflict is important in bicameral legislatures - and whether it is constructive depends on mechanisms to resolve conflicts. Policy goals to be sought include: efficiency; responsiveness; and accountability. Victoria's conflict resolution model appears best at present. There are larger issues in play, and focus on reform of parliament might be inappropriate. Extra-parliamentary mechanisms can provide better remedies for individuals dealing with government while Executive government is challenged by forces of globalism and corporatism.
Conference was given short statements by representatives from major political parties.
Hon Mr Mike Reynolds (MLA) indicated that as far as the ALP was concerned the establishment of an upper house was not needed because it was believed that there were already sufficient accountability mechanisms.
Mr Mark McCardle (MLA) indicated that an upper house was not a central issue as far as the National Party was concerned.
Another Strategic Option: Boosting Accountability through Enhancing Competence?
On the basis of analysing the strengths and weakness of government in Queensland for many decades, it is suggested that the most effective way to improve the performance and accountability of Executive government is to boost the competence of support to Parliament. In particular this could involve:
In the absence of competent support it is very difficult for the Executive to make good policy choices and implement them successfully, and very easy for abuse of power to be seen as a way of surviving and for corruption to get out of control.
Worldwide there is a strong correlation and a positive feedback between incompetent government and that which is corrupt and autocratic. There is also increasing uncertainty about the effectiveness of democratic government for developing countries (1, 2). Moreover it seems that democracy can in fact be ineffective and counter-productive without strong supporting institutions (1).
More Competent External Support to Parliament
Queensland’s has suffered from populist governments. The widespread perception that state governments tend to abuse power, support cronies and be excessively secretive, is probably mainly a symptom of a deeper malady. The real problem seems to be less a lack of responsiveness to the electorate, than responsiveness to ill-informed purely-self-interestd groups.
Parliament is weak in calling Executive government to account mainly because opposition's are weak - and this seems to result from a lack of good quality raw material for assessing policy options (see Queensland's Weak Parliament). This material has not traditionally been seen to be needed presumably because policy options have been assumed to be simple and obvious because of (a) the limited conflicts in a large sparsely settled state; (b) rich natural resources (land, minerals, energy) which appear almost universally to give political influence to those who profit from those natural assets, but provide poor overall economic leadership (see Resource Curse); (c) the high dependence on external investment, which can be seen to merely require following instructions; and (d) the tradition of merely copying policy initiatives developed elsewhere in the Anglo-American / Western world..
However the limited availability of competent / up-to-date / practical inputs to public policy debates from civil institutions (especially from those oriented to lobbying for benefits for association members at public expense rather than identifying what would be in the overall public interest) allows populists to gain a mandate from an under-informed electorate even though their performance in governing may be extremely poor. Governments can't really be called to account for poor performance if neither oppositions nor anyone else can say with any certainty that something else would be better.
Populists (who might be little more than political confidence tricksters) do not need to do much more than pretend to be governing seriously - and this can give rise not only to implementation problems but also to cronyism and secretiveness to help cover-up all resulting problems.
The author was involved in strategic policy work in the Premier's Department in the 1980s and it quickly became apparent that there was often something like a 15 year gap between the adoption of key new policy options in leading global societies and their public recognition in Queensland.
The author was also involved in a (so called) Preparing for the Future Project in the mid 1990s which resulted an interdepartmental committee concluding that government machinery lacked systematic arrangements to identify strategically significant developments to which government should be responding.
Huge delays in coming to grips with changing requirements reflect the lack of institutional capacity to provide constructive options for the political system to consider in developing policies, and this can have have serious consequences.
The first attempt to reform Queensland's political system that followed the Fitzgerald Inquiry was crippled by the absence of independent institutions able to properly advise Ministers. There was, for example, a disastrous lack of understanding of how to manage change or to give practical effect to widely-supported new policy options (eg see Toward Good Government in Queensland; Queensland's Worst Government?; and Journey Towards a More Effective 'Fitzgerald Inquiry').
The quantity and quality of external contributions has been improving since that time - though many still seem to be based in trendy theories rather than practical experience and strategic intelligence and it was such an insecure foundation that led to the problems that resulted from the mismanagement of reform after 1989.
Without many more serious initiatives by Queensland's civil society in dozens of different functional areas (eg in education, transport, health etc), no matter what is done to change the Parliament itself little is likely to be achieved.
Even if strong Parliamentary Committees were established (eg as a result of constitutional changes) they would face serious constraints on their effectiveness (just as oppositions do now) without a useable flow of information about potentially better genuinely-public-interest alternatives. They would be empowered to ask questions, but probably not know what questions to ask.
Moreover if oppositions were well- informed and thus stronger they would, by influencing public opinion, be able to pressure governments to establish viable Parliamentary Committees even without the need for constitutional amendments.
More Competent Internal Support to Parliament
A second contributor to irresponsible government can be a lack of competence in the Public Service. Again this makes electoral 'success' dependent on populist rhetoric, and encourages the emergence of abuses.
Since the 1940's Australia's federal fiscal imbalances have been a growing constraint on the the ability of state administrations to take responsibility, or be held accountable, for their nominal functions. However in the 1970s the potential effectiveness of state administrations began to be very severely compromised through the explosive growth growth of special purpose federal funding. This put states into a position similar to that of manufacturers under Australia's traditional high tariff protection regime. It became more important for state agencies to focus on lobbying the federal government for funding than to be competent in doing their actual jobs; and power was shifted away from those with the technical competence to know what needed to be done towards central agencies concerned with intergovernmental relations and financing. The subsequent emergence of what are now seen as infrastructure backlogs are very likely to have resulted from thus inducing a decline in the ability of states to undertake their constitutional responsibilities (just as happened in the early 21st century in relation to electricity distribution networks as a consequence of a highly centralized approach to determining policies and plans).
Then in the 1980s there was a marked reduction in efforts that had been made in Queensland through the 1970s to ensure that public functions were improving when the state administration as a whole was required to focus on facilitating the activities of large foreign investors. And it was almost certainly the fact that no one was then really 'minding the store' that allowed corruption to blossom in the latter half of the Bjelke Peterson era.
Unfortunately the institutions that provided advice about public sector reform in the post-Fitzgerald Inquiry era lacked practical understanding of how to manage change or to achieve outcomes (see above).
A mantra of 'increasing accountability' was reflected in practice in an obsession with gaining unquestioning compliance with people who often did not really know what they were talking about at the expense of professional competence. This seriously damaged the knowledge and skill base and sense of responsibility in the Public Service required to deal with the innumerable strategic and practical problems that government confronts and that require competent initiatives (but which neither Ministers nor Parliament can ever know much about or control in detail).
Machinery of government was created, and continues to operate, that tends to produce idealistic, rather than realistic, policy and programs because it is highly politicized and centralized. This divorces decisions from those with practical knowledge and favours decisions that will sound good in press releases. As a result of unworkable and unskilled government machinery, crises have become publicly apparent in: electricity distribution; child care; and health. Various observers have predicted future potential crises in many other areas (see Improving Public Sector Performance in Queensland ), and identified dysfunctions in a huge number of other areas. The main strategy for dealing with problems has tended to be increased spending, rather than technically challenging innovations (presumably because the latter would be hard to manage). Not surprisingly there are signs that financial difficulties are now looming. Large increases in infrastructure spending have been committed through dysfunctional government machinery - and huge cost blow outs have emerged to compound the growing financial risks. Strategies for development of the state's economy, that are needed to raise incomes and strengthen the tax base, have been very weak.
Submissions about these problems have been made to, and totally ignored by, every conceivable authority since 1992 (see Chronological Summary). A formal submission about the need to restore professional accountability was made to the Queensland Council of Professions in 2003. Members of the Council seemed to agree that there is a real problem. But they didn't know what to do about it - perhaps because politicization of the Public Service has been so popular and thus has had bipartisan support.
There is a valid case for strengthening the ability of Queensland's Parliament to inquire into the activities of Executive Government. Though it was reasonably noted that government stability is required for business confidence, and increasing democratic accountability could put this at risk, given the widespread dysfunctions that have occurred in Queensland (see above) the current situation is clearly satisfactory. There is a need for 'good government' and Queensland does not have this at present.
However until Queensland's Parliament gains support from strong civil institutions and a competent Public Service, government will not need to be much more than a pretense - and the scope for abuses that are interpreted as requiring more democratic accountability will remain high.
Moreover there is a need to broaden the way such matters are addressed. There seem to be fundamental challenges to Australia's system of government that go well beyond incompetence and abuses of power in Queensland's administration. For example, Australia's Governance Crisis refers to challenges such as:
In general such issues were not addressed at the Upper House Solution conference as considerations in reforming Parliament because they were outside the specialist domains of participants who often had a 'legal / constitutional' background. For example:
It would be counterproductive to develop proposals for reform of the Parliament which address only a few of many areas of deficiency. As Dr Janet Ransley correctly pointed out, the Fitzgerald Inquiry had limited effectiveness because it put forward reform proposals based on a narrow and outdated perception of the role of Parliament.
If a group is established to advance a bicameralism agenda, they should: