By Crispin Hull
Many people complained that Malcolm Turnbull was running scared by cancelling next week's sitting of the parliament. But that was a political reaction. The more important constitutional question, and its implications for democracy, went unanswered: how is it that a prime minister without a majority in the House of Representatives can prevent that house from sitting?
Well, section 5 of the constitution says: "The governor-general may appoint such times for holding the sessions of the parliament as he thinks fit, and may also from time to time ... dissolve the House of Representatives."
In theory, the governor-general does what the prime minister tells him or her to do. So Turnbull can just tell the Governor-General, General Sir Peter Cosgrove, that the parliament should not sit, and the parliament does not sit. He could tell the governor-general to dissolve the house and call an election.
On only one occasion has a governor-general acted unilaterally and not sought nor taken the advice of the prime minister: in 1975, when the prime minister was dismissed. On one other occasion – in 1983 – a governor-general asked for more information and time before accepting a prime minister's advice to call a double-dissolution election.
Cheers to democracy: Malcolm Turnbull and Peter Cosgrove last month.Credit: Lukas Coch
Turnbull's action in cancelling the sitting augurs badly for democracy in a time of falling support for the two major parties and the increasing likelihood of hung parliaments. It is even more messy in a parliament haunted by the spectre of the possibility of a critical number of members being ineligible to sit, thus threatening the government's majority.
At present, the government would not lose a no-confidence motion because it has enough crossbench support. But that could change with a couple of by-elections caused by our defective constitution disqualifying MPs who were elected democratically.
If that happened, the governor-general would then need to decide whether to make up his own mind as to whether parliamentary sessions continue or follow convention and accept the prime minister's advice, whatever that may be – a fresh election, on one hand, or cancelling parliamentary sittings until all the by-elections are over, on the other.
Cancelling sittings prevents embarrassing defeats for the government or the passing of legislation it doesn't want – a royal commission into banks, for example.
There is much too much uncertainty in all this. And far too much leeway for short-term political opportunism.
Between them this week, an unelected governor-general and a minority prime minister prevented the people's representatives from meeting.
In the American colonies, the people rebelled against the monarchy and the unelected colonial governors. As a consequence, the US constitution provides that congress must meet on the first Monday in December after an election and that congress itself determines its sitting times. And the term is fixed.
British MP Tony Benn, in his farewell parliamentary speech, said there are five critical democratic questions to ask people in power: " 'What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?' If you cannot get rid of the people who govern you, you do not live in a democratic system."
Our constitution has some serious anti-democratic structural defects.
If you answer those questions for Australia's governor-general, the answers are disturbing.
What power does you have? In some circumstances, a lot. The governor-general can dismiss an elected government and can prevent the people's representatives from meeting.
Where did you get the power from? From the prime minister's recommendation to the hereditary monarch in London, without any input from anyone else.
In whose interest do you exercise it? According to the oath of office, first to the monarch, then to the people.
To whom are you accountable? No one, according to the events of 1975. The prime minister, however, could ask the monarch to replace the governor-general.
And how can we get rid of you? We can't.
In all, our constitution has some serious anti-democratic structural defects.
Further, the marriage plebiscite highlighted the constitution's weakness in providing for human rights, on one hand, and an appetite for change and getting things done on the other. Poll after poll shows voters want action, not just in key policy areas but in the system of government itself.
Benn's questions about power are a good start.
On the question of accountability and "whose interests do you serve", we should have a federal anti-corruption commission; real-time declaration of MPs' interests and political donations in computer-readable and searchable form; a ban on foreign donations; and a cap on corporate donations.
On the question of who gives power and how do we get rid of those in power, we should make sure that only the people's representatives choose governments and get rid of governments. Usually that happens, but with the spectre of no party having a majority and the Senate having a veto over everything, including money to run government, that isn't always the case.
It means getting rid of the monarch and the unelected governor-general, and ensuring that any figurehead Australian head of state cannot override the House of Representatives on who is prime minister, when elections are called, and when parliament sits.
So the House of Representatives should elect the prime minister after an election (just like the ACT Assembly elects the chief minister); the house could equally vote the prime minister out, but must name the new prime minister when it does so.
The term should be fixed and the meeting times determined by the parliament. The Senate should lose its power over money for the ordinary services of government.
Dealing with section 44 and Indigenous recognition should be part of the deal.
This week's cosy arrangement between a minority prime minister and an unelected governor-general to deny the people's representatives the right to sit is an undemocratic dangerous precedent which might have more severe consequences next time.