Peter Jean August 18, 2012
Voting. Photo: Andrew Meares
Does the Hare-Clarke system really work for Canberra? PETER JEAN reports
It's the election that follows an election. On October 20, ACT residents will cast their votes for a new Legislative Assembly. History tells us that local voting habits and the Hare-Clarke electoral system make it unlikely any single party will win a majority in the Assembly (Jon Stanhope led the only majority government since self-government from between 2004-2008).
After a period of haggling, the 17 members of the Assembly will vote to elect a chief minister who will appoint a cabinet from among their fellow MLAs. The ultimate decision about who will form government will probably rest with the minor party or independent members who sit on the crossbenches. In the current Assembly, the decision to keep Labor in power after the 2008 election was made by the four Greens who make up the cross-bench.
The Greens will reaffirm that decision next week when they combine with Labor to vote down a motion of no-confidence in Chief Minister Katy Gallagher to be moved by Liberal Leader Zed Seselja.
In our parliamentary system, the chief minister must maintain the confidence of the majority of Assembly members or forfeit his or her job.
But what if we chose the chief minister ourselves instead of outsourcing the decision to the Assembly?
Most Australian local councils now follow the US tradition of having mayors directly elected by voters instead of selected by councillors from among themselves.
But the ACT Assembly is more than just a council that looks after rubbish, roads and rates. It has responsibility for state-level services such as hospitals and schools. Unlike Australian councils, it can pass laws and not all members are part of the executive. But that doesn't mean the territory couldn't embrace direct-election of its executive. Israel briefly experimented with direct election of its prime minister. In the US, state governors are chosen by the public separate to the legislature.
In 1997, a paper by Dr Ralph Chapman outlined a model by which Tasmania could overhaul its system of government. The state would have a single chamber of parliament. The link between the legislature and the executive would be broken by the statewide election of a premier, who would appoint ministers who were not members of parliament. A series of changes would be made to the way parliament operated to hold the premier and ministers to account.
In 1998, the then clerk of the Senate, Harry Evans, gave a paper at an Australasian Study of Parliament Group Conference outlining a similar model. The Tasmanian people would directly elect a governor who would be head of state as well as head of government. Ministers would be appointed from outside parliament.
In the case of the ACT, the appointment of non-Assembly members would vastly increase the small talent pool from which ministers are currently drawn.
Obviously, Tasmania has never taken the opportunity to overhaul its system of government in such a radical way, but that doesn't mean the ACT couldn't steal the idea.
Without endorsing the idea of direct election of the executive, Professor George Williams, of the Gilbert and Tobin Centre of Public Law, at the University of NSW, says it is a possibility that could be pursued if it had the support of voters.
''You'd of course need the Commonwealth to amend the ACT Self-Government Act to provide for that because the ACT doesn't have control over those sorts of basic features of its system of government,'' Williams says.
''But if that was done, or if the power was repatriated to the ACT Assembly, then yes it is something that could be achieved in Australia. There's no barrier to that sort of experimentation if you do it in the right way.''
Professor Williams says direct election would be a fundamental departure from the Australian understanding of the Westminster system of government. ''The understanding there is that the government, including the leader, is accountable to parliament, rather than directly to the people,'' he says.
''But again, there's nothing to prohibit experimentation and already the Australian system amounts to a high degree of experimentation on the Westminster system.''
One of the downsides of a direct-election model is the risk of US-style ''gridlock'' when the chief minister is a member of a different party to the majority of members of the legislature. In the most extreme cases in the US, this has led to government virtually shutting down when a budget can not be passed.
''I think you'd need to re-think Hare-Clarke because you could have the problem of electing as your chief minister someone who can't command a majority in parliament and that would be an intolerable outcome with the executive controlled by someone who can't get legislation through,'' Professor Williams says.
The ACT Liberals once proposed the direct election of a mayor or chief minister of the ACT. But at present there is little appetite in the Assembly for a direct-election model.
Chief Minister Katy Gallagher says she is happy to be referred to as the ''mayor'' of Canberra, but sees no need for her position to be directly elected. She asks rhetorically: if the system is not broken, why fix it?
''I think the current system seems to be serving Canberra well. To bring about this change, we'd need to make changes to the Self-Government Act to change the system and this, being a Commonwealth act, would require an amendment by the Commonwealth Parliament,'' Gallagher says.
''There are probably more pressing national legislative requirements. We'd then have to totally restructure the ACT government and find new checks and balances on the executive to replace the current Westminster system.''
Liberal Leader Zed Seselja thinks there would be little support for changing the electoral system to let the people elect the chief minister.
''I think that changing to a direction model is probably a bridge too far for most people,'' he says.
''But the idea of us being more focused and operating more like a council I think would have some pretty broad community support because the feedback that we get is that they really want us to focus on the basics - not unlike a council - plus health, education, police and things.''
Greens Leader Meredith Hunter thinks the current system of the Assembly electing the chief minister now works well after the teething issues experienced earlier on.
''Apart from the early years that were a little bit wild and a bit of a roller coaster ride - apart from those initial teething problems in the very early days of this parliament - I think it's been quite straightforward and quite stable in as far as the processes are concerned in terms of choosing chief minister,'' Hunter says.
Hunter says that after the results of the 2008 election were known, the four Greens MLAs, who had all been elected to the Assembly for the first time, worked hard to decide who to elect as chief minister within two weeks. Their decision was to vote to re-elect the then chief minister Jon Stanhope. She says the publication of the Labor-Greens parliamentary agreement ensured a high-level of transparency.
''We had consultation with our party, we obviously sat down and had a lot of discussions around who we believed we would be able to work with, who would deliver those parliamentary reforms as well as the policy asks.''
But Seselja, who missed out on becoming chief minister, does not believe the process was transparent.
''There was no transparency last time and we tried to bring some transparency to it,'' he says. ''I think the Labor Party and the Greens were pretty secret, they weren't giving anything away along the way. There wasn't much good faith I think, there certainly wasn't transparency.''
Before the end of the year, Seselja and Gallagher will most likely find themselves competing for the votes of crossbenchers.
There seems to be no immediate prospect of local politicians pushing for the direct election of the chief minister. But might we one day see the direct election of Australia's federal executive?
''I didn't vote for Julia Gillard, I voted for Kevin Rudd,'' my Gen Y friend fumed as we drank coffee a few days after the fall of the former prime minister.
Like many of her university friends, she'd cast her first ballot in a federal election in 2007 and used it to help oust the Howard government.
Having studied political science at university she knew that technically she hadn't voted for Kevin Rudd at all: she'd voted for the local Labor House of Representatives candidate. But the candidate was a member of a party whose slogan Kevin07 made it pretty clear who would be in charge.
Australian political parties run presidential-style campaigns but their parliamentary leaders don't enjoy the same guaranteed tenure as real presidents. My friend hated the fact that the Labor caucus had taken the choice of the nation's leaders out of the voters' hands without warning.
She and many of her friends decided to dump Labor at the next election, depriving the party of its majority in Parliament.
But once again the decision on who would lead the country ended up outside the hands of voters. The decision would be made by independent and Green MPs who supported Labor and its leader Julia Gillard.
What if my friend and her friends could cut out the middlepeople and elect the prime minister themselves? It would be a massive departure from the version of the Westminster system this country has long enjoyed. But if the public loses confidence in the system they might one day demand that it change.