March 13

Recall elections for NSW? O’Farrell proposal.

New South Wales may introduce recall elections. The Leader of the Opposition Barry O’Farrell has said that if he were to win the 2011 election, he would go to the people of NSW with a referendum at the 2015 election to change the political system in NSW.

"It's a debate we need to have. The spectre of being forced to an election by the community would, I believe, provide the stimulus needed for the Government – even a Labor Government – to perform through its term," he said. Mr. O’Farrell is to be congratulated for raising this issue. In my view, the concept of fixed terms – not the length of the term- is difficult to reconcile with the Westminster system.

There would be few people who would say that  the  promise that four year year fixed terms would improve the quality of government has been delivered. According to a report by Simon Benson in the Daily Telegraph on 13 March, the dumping of former premier Morris Iemma by the Labor Party last year prompted calls for a constitutional change to NSW to force an incoming premier to be tested at the polls.

Premier Nathan Rees has not faced the people and was elected Premier by his own caucus following union and party head office pressure on Mr Iemma to resign after the failed electricity privatisation. It also prompted strong public support for an end to four-year terms in NSW. Mr O'Farrell said he still supported the idea of four-year terms but said he would support a recall provision ‘to sack useless governments mid-way through a term’.

He appeared on the Alan Jones 2GB programme on 13 March to discuss his proposal – Alan Jones has been a longstanding proponent of recall elections.

….the reserve powers…

This was raised in the context of the exercise of the reserve powers in a book published by ACM in 2006, “ Her Majesty at 80: Impeccable Service in an Indispensable Office”.  Since then this possibility has been raised in this column from time to time.

The exercise of one of the reserve powers of the Crown, the power to dismiss a prime minister or premier, or more accurately withdraw their commission, will always be controversial.

 The crisis in 1975, which Sir David Smith rightly categorises as a political and not a constitutional crisis, was the product of two politicians unwilling to compromise.  The Prime Minister, Gough Whitlam had in opposition asserted that any prime minister refused supply by the Senate should resign. 

As Sir David has meticulously detailed, Mr Whitlam and his party had frequently tried to persuade the minority parties to refuse supply and thus bring down a government. So had he done in 1975 what he had preached consistently in his years in opposition, there would have been no crisis.

 And had the then Leader of the Opposition, Mr. Fraser waited until the next election, he would have enjoyed a victory untainted by accusations that he had behaved shamefully. Their actions forced the Governor-General,  Sir John Kerr, to act.

The extraordinary aspect of 1975 was that both politicians tried to shift the blame for their own acts on to the Crown. Mr Whitlam did so immediately; Mr. Fraser did so later when he converted to republicanism. Many in the media joined them in their attempts to rewrite history.

It is little wonder, then, that a Canadian constitutional scholar has asked whether the Crown could easily absorb another such crisis, “however justifiable the Governor’s decisions might be from a purely legal point of view”.  Could this imperil the future exercise of this reserve power?  Is it a wasting asset? 

Perhaps there is a solution which is consistent with the Westminster system. Such a solution might lie in allowing a “recall” election. This is typically a three stage process, with the final two stages taken simultaneously.  The first stage is a petition for a recall election in an electorate signed within a prescribed time by a minimum percentage of electors, say, 10 or 12%.  

This is followed by a vote open to all electors to determine whether an election should be held. For convenience a ballot for the election is held at the same time, although this could subsequently be found to have been unnecessary. 

The recall election has been adapted to a Westminster parliamentary system, that of the Canadian province, British Columbia. In practice, successful recall elections are rare, but it is arguable that if this mechanism had been available in Australia in 1975, the opposition would have concentrated on investigating its availability rather than in refusing supply. The legitimacy of its use, successful or not, would be difficult to challenge.

 This is in no way a proposal to remove, amend, codify or reduce the reserve power to withdraw the prime minister’s or premier’s commission. This power would still exist and would remain available for use against an errant head prime minister or premier. 

…Citizen Initiated Referendums…

The attraction of the recall election is that it is not inconsistent with the Burkian concept that democracy under the Westminster system is not direct but representative. Edmund Burke expressed this principle succinctly:  

“Your representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it you your opinion.”     This proposal for  a provision for recall elections may thus be distinguished from other proposals  for direct democracy and which involve initiatives by the citizenry, usually known as CIR’s , Citizen Initiated Referenda.  As these are intended to have direct legislative effect, they involve an exception to the Burkian principle.was discussed in detail by

The question of CIR’s was the subject of an excellent paper by Joseph entitled  “Australia — a democracy or just another ballotocracy?”, was  by Joseph Poprzeczny, a respected Perth-based freelance journalist and historical researcher. 

He traced the interest in Citizen Initiated Referendums in Australia in the drafting of our Constitution, and in early platforms of the Labor Party. This was presented in an abridged version in issue 9 of The Australian Constitutional Defender, copies of which are available from the ACM office by email to [email protected]     

This is of relevance today. Without necessarily having a brief for CIR’s why are the politicians proposing to hold a plebiscite on an issue which raises little concern in Australia, when Australians are not allowed to initiate votes on all sorts of matters of concern to them?  The plans to hold a plebiscite or plebiscites on a politicians' republic could well rebound on the politicians. 

In any event Mr. O'Farrell has performed a significant public service by putting the question of recall elections on the political agenda.

 


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