The protracted death rattle emanating from the New South Wales state government has set many tongues to wagging of late about the iniquity of fixed terms. In the wake of the Rees government’s disastrous showing at the October 18 by-elections, The Australian complained that voters suffering “buyers’ remorse” would be “denied a refund for whatever hopes they may have invested in Morris Iemma’s team in March last year”.

The blame rested, as it usually does, on those with a “centralist, progressive and utopian view of the world”, which supposedly marches hand-in-hand with an enthusiasm for fixed terms. As has been noted by Andrew Bartlett and Mark Bahnisch, this argument is based on the strange assumption that Nathan Rees would freely choose to put his government out of its misery if only he were allowed the chance. The real problem, if problem it be deemed, is not the term’s inflexibility, but its four-year length.

Such concerns have obviously failed to cut much ice beyond the state’s borders. In Tasmania, Premier David Bartlett has recently flagged legislation to fix elections for the third Saturday of every fourth March starting from 2010 (setting up an ongoing clash with elections in South Australia). Northern Territory Chief Minister Paul Henderson last week introduced a bill to set future elections for the fourth Saturday of every fourth August, which his government committed to immediately after its recent brush with death at an election called a full year before time.

In Western Australia, the centralist, progressive and utopian Liberal government has approved drafting of legislation for quadrennial elections in February or March. This will commit the current government to a four-and-a-half year term, which had always been a possibility owing to the early September election and constitutional arrangements that fix the expiry of the Legislative Assembly at January 31.

There is also lingering in the background Kevin Rudd’s pre-election promise to hold a referendum on fixed four-year terms in conjunction with the next election. However, a previous proposal for four-year terms put to the people in 1988 illustrates the challenge the Senate presents to any such move at federal level. The Constitution currently provides for Senators to serve fixed terms of six years, unless they are cut short by a double dissolution. A simple extension of House terms to four years would require frequent half-Senate elections to be held independently of those for the House, which as well as presenting governments with unwelcome “national by-elections” would defeat one of the main purposes of the reform: reducing the frequency of elections, and hence their cost.

The Hawke government’s solution was to abolish staggered six-year Senate terms, so that the entire Senate would face election at the same time as the House. The favoured explanations for the heavy defeat of the proposal were the innate conservatism of the electorate regarding the constitution, a complacent sales pitch by the government and opportunistic obstruction from the Coalition (then in its first period under John Howard’s leadership). However, what seems remarkable in hindsight is that anyone expected it to succeed in the first place.

Lacking a provision for fixed terms, the measure merely sought to increase the power of sitting governments by giving them an extra year to play with. Less ambitious proposals to require simultaneous elections for the House and Senate, without fixing the terms or changing their length, had already been rejected in 1974, 1977 and 1984. The small states in particular were easily persuaded that tying full Senate elections to those for the House would have reduced the independence of the chamber that was established to safeguard their interests. While defeated in all six states, the proposal copped a particularly severe drubbing in Tasmania (74.4 per cent against), South Australia (73.3 per cent) and Western Australia (69.3 per cent).

None of these difficulties have gone away. The minister with responsibility for electoral matters, John Faulkner, recently signalled that the party remained committed to simultaneous elections and four-year terms for both houses, the only alternative being an untenable extension of Senators’ terms to eight years. The only substantial respect in which the next referendum will differ from the last is that terms will be fixed, which will add a new complexity to the required amendments.

Fixed terms clash with two of the assumptions on which The Constitution was based: firstly, that the conventions of the Westminster system would continue to operate, including the increasingly theoretical expectation that a government defeated in the House should resign or seek a new electoral mandate; and secondly, that elections could be used in the last resort to break deadlocks between the two houses. Fixed term legislation thus requires messy escape clauses making exceptions when the parliament has become unworkable.

Such measures have not caused controversy at state level – so far (though it’s interesting to note that of the states and territories currently considering a move to fixed terms, one has a minority government, another seems very likely to have one after the next election, and the third has a government with a one-seat majority). However, that won’t make any less vexing such issues as whether a fixed term will deprive the Senate of its power to force a government to the polls. Whatever views one might hold on these questions, they are plainly not the stuff of incremental reform of a kind likely to clear the hurdles of a constitutional referendum.

Even in the best of circumstances, a referendum proposing fixed four-year terms would face formidable obstacles. In an election that has Labor fearing a backlash against a New South Wales government entrenched until 2011, the whole endeavour begins to look like a waste of time. The Prime Minister indicated his recognition of this a fortnight ago when he told the Sydney Morning Herald there would be “little point proceeding with a referendum unless it had bipartisan support”. John Faulkner has likewise conceded the proposal “may be too much, too soon, to receive the level of broad bipartisan support that is a prerequisite for any referendum to be successful”.

If the government wants to take on something more achievable, it could very easily stick to fixing the term rather than extending it, which could be achieved by legislation alone. Given that this would involve throwing away the tactical advantage of deciding the election date with little corresponding political gain, you would do better to place your money on nothing happening at all.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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