I make no claim to special expertise about Australia’s parliament but I write this because, like many of us, I find it difficult to understand how an Australian PM could imagine himself able to cancel a scheduled sitting week of the House of Representatives and how he could get away with it. After his announcement, there was media speculation about the reasons for Turnbull’s decision, much of it suggesting that his motive was basically one of fear, specifically a fear of losing a House vote over a banking Royal Commission, the minimum wage or the ongoing, government-created disaster on Manus. Yet, there seems to have been little informed discussion about what what in our system of government enables him or any other PM to unilaterally cancel a scheduled House sitting week
Since Australia’s system of government is often said to be modelled on that of the UK, in spite of important differences (we have an elected upper house and the UK does not), it is worth recalling the recent decision of the UK’s Supreme Court that Mrs May’s Tory Government could not formally commence the Brexit process without putting the matter to a vote of Parliament. The Court, in effect, ruled in favour of the sovereignty of Parliament, not of the Government appointed by a parliamentary majority.
Of course, Britain’s Brexit process and the cancellation of a few scheduled House sitting days are hardly equivalent, but Turnbull’s & May’s attempts to bypass the House of Reps & Parliament respectively display an impatience with, if not a contempt for, due process. So, what gave Turnbull the power to bypass the House (Mrs May, the Court decided, did not have that power)? The UK Supreme Court’s decision suggests that Turnbull’s small change may have overridden the sovereignty of Parliament, albeit on a smaller, less significant, scale than Theresa May’s Tories.
The Australian Constitution, which has been in the news a lot lately, does not even mention the office of Prime Minister or the Cabinet. So, whatever gives the PM the power to cancel a sitting week, it certainly is not the Constitution. But what of the House of Reps’ Standing Orders? These have changed over the years but the most recent set, as at 13 September 2016, does not give a PM this power either. Standing orders 29 & 30 give the House itself the capacity to determine its schedule of sitting days while enabling the schedule to be changed by a vote of the House or, when the House is not sitting, by the Speaker. Unlike Speakers of the British House of Commons in Britain, Australian Speakers are normally active members of their party and continue to attend party meetings – but they are nevertheless expected to perform the role of presiding officer in a more or less independent fashion.
The confusing usage of the word independent in Australian politics deserves a full discussion of its own. We might begin by noting, for example, that the NSW ICAC, Independent Commission Against Corruption, often touted as a model for a Commonwealth anti-corruption body, is funded by a vote of the NSW Parliament, in effect, by the NSW Government – a fact that, on many understandings of the term, might seem to compromise its independence. Yet, it is sufficient for the moment, simply to note the tension between active party membership and independence. If the cancellation of a scheduled sitting week simply followed a request from the Government, the Speaker’s Office clearly has questions to answer
Of course, the Constitution and Standing Orders do not entirely determine what happens in the House: custom & practice are also important . In practice, the House usually follows, without debate, pretty much the same schedule from one year to the next, with variations to make room for Easter, the date of which varies according to an esoteric Christian calculation that takes no account of Australian political conditions. This special allowance for Christian Holy Days is puzzling given that, according to our most recent Census, only a little over 50% of Australians identify with any version of Christianity while 30% identify themselves as ‘no religion’, many more than the 22.6% who identify as Catholic, Australia’s largest Christian sect. Fortunately, we have no need to worry about avoiding Christmas, which falls in the middle of our Summer and is sacred in a different, barely religious sense. No allowance is made for days sacred to other religions represented in Australia, not to mention the closet knot of devil worshippers who are reputed to convene around midnight in Peter Dutton’s office.
My guess is that the Speaker’s office normally draws up a proposed schedule for the year and consults with the Government & Opposition’s managers of House business and perhaps a few others before reaching a final decision. Governments are usually able to arrange for additional sitting days to get through what they regard as urgent business – again usually without debate. So, custom & practice do allow limited flexibility. Yets, to the best of my knowledge, there is no Australian precedent for a PM unilaterally cancelling a scheduled sitting period.
Turnbull’s decision to shut down a scheduled sitting week of the House of Reps is unprecedented and so, too, is the Speaker and the Department of Parliamentary Services’ decision to go along with it. Does this mean that Australia is moving away from the familiar combination of Legislature, Executive, & Judiciary, effectively relegating the Legislature to a secondary role? I sincerely hope not. To object to the PM’s attempt to bypass the House of Representatives is not to defend the way the House normally operates. There are many things wrong with what passes for Australian Democracy but stealthy, piecemeal reform by a Tory Government is not a promising way forward.