Even as John Brumby is cutting a nationwide figure as the key holdout on Kevin Rudd’s hospital plan, the Victorian premier is in trouble at home over an escalating constitutional conflict with the Legislative Council.

A committee of the upper house wants to question several government staffers over the leaked media strategy for the Windsor Hotel planning dispute. What started out as a polite request has become increasingly nasty, with opposition members openly hinting at the threat of jail for non-compliance.

The constitutional position, as Greg Taylor explained in The Age on Wednesday, is beyond serious dispute. Either house of parliament is entitled to request — and if necessary demand — the attendance of anyone  it believes can assist with an inquiry. Those who refuse to obey a summons, or who prevent someone else from obeying, can be jailed for contempt.

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There are ample precedents, stretching back hundreds of years. Brumby’s threat to take the matter to court is empty: it is simply unthinkable that a court would interfere with such a core privilege of parliament.

But the lesson here is the same as with the premier’s struggle over federalism: power atrophies when not used, and those who complain of their powerlessness often have only themselves to blame. Just as the states have meekly allowed Canberra to take over large parts of their responsibilities, so parliaments over the years have failed to stand up to the executive.

The most obvious case is the one Brumby is using as a precedent: the Senate’s 2005 “children overboard” inquiry. Faced with the Howard  government’s refusal to allow its staff to testify, the opposition-controlled Senate rolled over, unwilling to use its undoubted powers to compel attendance.

Most of parliament’s privileges were first claimed and defended by the English House of Commons, at a time when it couldn’t be taken for granted that governments would command a majority in the lower house. The growth of responsible government and party discipline has pretty much put an end to that, although there are still places (now including Tasmania) where it’s possible for the lower house to keep a government in check. For the most part, however, we now depend on upper houses for that sort of accountability.

But no government really likes accountability, and in the Labor Party in particular there is a deeply held view that upper houses have no legitimate role in supervising the executive.

At a time when the legislative councils were designed to frustrate democracy and keep power in the hands of the land-owning class, that was an understandable view. But in Victoria today it’s ludicrously inapplicable, since on any possible test the upper house is significantly more democratic than the Legislative Assembly. That also means its members have less reason than ever to back down.

An election year isn’t a good time to be getting on the wrong side of democracy. Brumby should probably try to settle this dispute as quickly and quietly as he can.

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Peter Fray
Peter Fray
Editor-in-chief
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