By Malcolm Mackerras

This article contains my latest thoughts on constitutional reform and my views are simply stated. At the next federal election in 2019, there should be a referendum to fix section 44 of the Constitution. That should be done regardless of whether or not the High Court decides to confiscate the Senate seat from Matthew Canavan (Nationals, Queensland). I believe the referendum for a new section 44 would be carried. There would be a significant negative vote from the many people who would see this as the politicians helping themselves. However, I believe reason would prevail and the change would be made. I return to this subject below.

Apart from the above, no change to the Constitution should even be considered, let alone a referendum be held, during the next three years. I am totally opposed to the idea of a fixed four-year term for the House of Representatives under the present circumstances. My reasons are many, but let me state just one. There would be no chance for such a referendum to be carried.

The argument most commonly put is that the six states and both territories have four-year terms, so the Commonwealth should follow suit. Let me remind readers, however, that Victoria, Tasmania, South Australia, Western Australia, the Northern Territory and the ACT introduced four-year terms by simple act of parliament. The people were never consulted.

In New South Wales, the present situation (fixed four years for the Legislative Assembly and fixed eight years for the Legislative Council) has prevailed since 1995, but that is not analogous in any way to the situation of the Commonwealth. The NSW situation has been the consequence of a series of legislative decisions and referendums going back sixty years. The first relevant referendum occurred in April 1961 and I lack the space to explain all the subsequent developments beyond noting their total lack of relevance for the Commonwealth.

In Queensland, there was a referendum on Saturday 19 March 2016, at which voters were asked whether or not they approved “A Bill for an Act to provide for fixed four-year terms for the Legislative Assembly in Queensland.” There were 1,302,398 affirmative votes (53%) and 1,157,043 negative votes (47%). However, note the lack of an upper house in Queensland!

My main objection federally is to the idea of giving senators terms of eight years. Like many other people, I think the present Senate voting system is the worst in Australia and is the worst-ever Senate voting system. Senators who get their places under such a system should not have their terms extended. In this regard, I commend readers to the article on Tuesday July 25 in “The Australian” newspaper by Paul Kelly titled “Con job: four-year terms good only for pollies”. His conclusion on the Senate is: “What should change is the voting system.”

I wrote a long e-mail letter of congratulations to Kelly in which I noted, among other things, that all his examples of the undemocratic nature of the system were taken from Tasmania, our least populous state. “What about South Australia?” I thought. Consequently, I hope readers will not object to my quoting two paragraphs from my letter to Kelly:

“Permit me, however, to add this thought to your present very straight thinking. It concerns Nick Xenophon whose name you did not mention. An important reason for my intense hostility to the change last year to the Senate voting system was my knowledge that the change was DESIGNED to increase the number of Xenophon senators from one to three. That was the only part of its design which succeeded and it caused me to be very hostile to Xenophon, a man to whom I had previously been quite friendly. The new system was NOT designed to shift a net two Senate places from Liberal to Labor! It was NOT designed to resurrect the political career of Pauline Hanson and give her a parliamentary party of four! It was NOT designed to cause the re-election of David Leyonhjelm, Bob Day and Jacquie Lambie. Those were predictable but unintended consequences. However, the new system WAS designed to increase the number of Xenophon senators from one to three.

“That is a bad thing. The present position is that the Greens and the Nationals regret voting for this system. It is now “owned” by the Liberal Party, the Xenophon party and that serial pest Antony Green. If you doubt my word I invite you to read recent debates in the parliament of South Australia where it is seriously proposed that the voting system for their Legislative Council should COPY the Senate system.”

Finally, I return to the topic of my opening paragraph. My most recent article on this website was My sympathy for Culleton, Day, Ludlam and Waters posted on Thursday July 20. With further thinking on it, I realise that I should have asked for it to be titled “My sympathy for senator-elect Hill and for senators Culleton, Day, Ludlam, Waters and Canavan”. The High Court decision which really outraged me was in 1999, when the judges confiscated the Senate seat from One Nation senator-elect, Heather Hill. I lack space to give details beyond noting that she was elected for Queensland in October 1998, but was never allowed to take the seat to which she was elected with a first-preference quota in her own right. That is why I think we need a new section 44 which is fool-proof against the kind of judicial law making of the High Court which that case exhibited.

(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.