Reforming the Political Process

CHAPTER 2

INTRODUCTION:  THE CONTEXT OF REFORM

While it would be fairly generally agreed that the last decade has revealed very serious shortcomings in the processes of government in this State, there is more than a little disagreement about the precise starting-point of the various programmes of reform which have been proposed, either formally or informally.  It is worth our while, therefore, to start with a short analysis -- which we hope is reasonably impartial -- of the prevailing political temper;  not least because such programmes (no matter how ambitious their scope) not initially rooted in some current common political ground will not have much chance of succeeding.

The activities of the Western Australian Royal Commission Into Commercial Activities of Government should have brought the processes of government into the light as never before.  The Royal Commission itself, outside the formal process of hearing and sifting evidence, actively sought public comment on changes to aspects of administrative or decision-making procedures which might be desirable in the public interest.

The Royal Commission brought down two reports late last year:  the first giving its findings on the specific issues of corruption, illegality or impropriety on the matters referred to it;  the second on those desirable changes to the processes of government or administration.  The first report is, in terms of specifics, beyond the scope of this book.  The second is of direct relevance.  (Indeed, an earlier draft of this chapter was submitted to the Royal Commission in response to its call for public comment.)  While some of the second part of the Royal Commission's Report was sensible and useful, it was nevertheless a disappointing document.  The reasons for this judgement will emerge in this chapter;  but it is noted here simply by way of explaining that we believe that the report still leaves ample room for fully-fledged alternatives.

It is, in fact, far from clear how far the events of WA Inc, and the activities of the Royal Commission, have actually succeeded in provoking any very wide or deep debate about the relationship between what has happened and the institutional context in which it happened.  There is not a great deal of evidence either way.  We might, however, consider the following points.

• Despite the recent best efforts of some of the media, most notably The West Australian newspaper, there has been very little continuing discussion and debate on State constitutional issues.  None of these issues emerged as significant at the State election.
• The current constitutional debate at the national level, centred largely on issues of constitutional monarchy and republicanism, has no State content at all.
• Opinion polls, both those published and those undertaken by political parties, appear still not to show any deep concern about the adequacy of political institutions in the context of WA Inc, focusing rather on the wrong-doing of individual political actors, and on the remoteness of government from the concerns of ordinary citizens.
• There is apparent, so far at least, no marked swing away from the major parties to new political movements explicitly offering new constitutional alternatives.  Public and private polls do show very considerable disillusionment with both major parties.  And there does appear to be more support for independents and minor parties;  but this can be fairly plausibly explained by other reasons, not least the continuing internal problems of one of the major parties.  Voters seem for the most part to be resigned to a choice of the lesser of two evils,

None of these factors is unambiguously reliable;  but taken together they offer support for the argument that the public as a whole does not see our present problems as being rooted in our forms and processes of government.  (And to that extent, it must be said that the Royal Commission's basic approach was more than justified.)

This, if true, need not deter us from advocating constitutional change.  Nor need it surprise us.  Australians on the whole do not tend to think naturally in constitutional terms -- except on those rare occasions when they are asked to vote on alterations to the Commonwealth Constitution.  In the State context, it is even less surprising, since very few citizens would be aware that the State had a constitution.  That is understandable in that there is no single document equivalent to the Commonwealth Constitution.  We have a Constitution Act, which offers a threadbare outline of responsible government, a number of subsequent relevant Acts, by proxy the Australian Constitution, the Australia Acts, the Standing Orders of the two chambers, and a number of less formal conventions and practices.  It is difficult to think of these as "a constitution", although in practice they are, and this tends to make debate difficult.

It is well worth trying to come to grips with these issues, particularly the issue of public perceptions.  Clearly there are problems with the processes of government in Western Australia.  But for any such set of problems there is a wide range of possible solutions, ranging from a bit of constitutional good housekeeping to revolution and the guillotine.  Solutions to the present problems have not only to deal with political realities, and with the classic dilemmas identified by liberal democratic theorists, but with intangibles such as legitimacy.  Legitimacy is worth some fairly serious thought.  It is not at all clear that the present political system has suffered a crisis of legitimacy, that it has forfeited its claim to be considered legitimate.  It is arguable that its legitimacy rests at least partly on historical continuity, and it is equally possible that too radical a political reform will itself fail to command legitimacy.  These are intangibles;  but they must carry some weight.

The events of WA Inc taken together comprise a shocking episode of political fraud perpetrated against the State, by means of the systematic abuse of the institutions of government.  That has a cost which is measurable in political terms -- even if only incompletely for the present -- and a cost not easily assessed in terms of the damage done to the standing of the political process.

But that is far from being the only consideration bearing on our examination of government.  Indeed, to a considerable extent, the strong focus on WA Inc has served to divert attention from what may well be in the longer run a greater problem:  the systematic wasting of the State's fiscal resources and standing.  The full extent of this is measured in Chapter 3.  It is also important to note that comparatively little of this fiscal activity actually arose from the activities usually associated with WA Inc;  that it was incurred at a time of rapidly growing tax revenues and tax base;  and that it was incurred for the most part for recurrent rather than capital spending.

This is a problem not addressed by those few commentators and critics who have tried to tackle the problems of WA Inc.  At the very least it must reinforce our concerns for accountability and transparency.  But it must also lead us to further concerns not usually addressed:  the need for strong fiscal rules, the need for better bureaucratic design, and the need for independent public advice -- as well as the more detailed recommendations in the following chapters.

Our preference for a basically Westminster-style government is reinforced by our belief that fiscal responsibility is probably more easily achieved under this sort of government than under one in which executive and legislature are separated.

We need also to give some weight to the consideration that our present constitution is not in itself the only or even the major source of corruption and bad government;  that, in the present context, the events of WA Inc were not the inevitable products of our institutional arrangements.  Those arrangements, after all, served us apparently well, or at least unexceptionably, for quite some time;  and could quite easily do so again.  There is no doubt, in fact, that, given a better-than-average transfusion of honesty, leadership, intelligence and dedication to the public interest, the system could be made to work extremely well, without a single change.  That is, in all realism, too much to hope for;  and constitutional arrangements based on optimism are likely to come to grief all too quickly.

From a slightly different perspective, however, the human element in politics is of concern to us.  One of the questions we do need to ask in looking at WA Inc is how far the various affairs at issue were allowed to start and to continue simply because more than a few members of Parliament were not very good at their job, were sometimes not, indeed, very bright or even energetic.  Perhaps we need to pay as much attention to improving the quality of members as to improving the institutions.  Relevant here, too, is the consideration of what we do about the perceptions of remoteness we mentioned earlier, the feeling of alienation from the institutions of government.

Within the context of the present book, there is the additional consideration that we have a preference for the kind of government identified in the preceding chapter:  that is, one which maximises liberty, democracy, a free market, the rule of law, and limited government,

Putting together responses to this range of considerations requires a certain amount of patience and forbearance.  Taking all things into account, the most rational approach would be one involving two stages.  First, we need to strengthen existing institutions in such a way as to tackle the immediate problems identified by the various events which go to make up WA Inc, and by identified fiscal mismanagement.  We need, second, to suggest ways of building on to those institutions to address what are in the end deeper problems.

PARLIAMENT AND THE EXECUTIVE

To be clear about what changes are then necessary, it is important to be clear about the nature of the defects in the system exposed in the last decade.  In the present context, two things most concern us, things that form a common thread through the whole range of misdeeds:  first, the almost total domination of the executive over the whole of the rest of the system, and, second, the ability of the executive to maintain secrecy and to mislead, almost indefinitely, over matters of compelling public interest.  In the language of Westminster, we are talking about the almost complete failure of accountability, and in both senses:  the failure of the executive to hold itself accountable to the Parliament, and the failure of the Parliament to bring the executive to account.  This, in turn, has serious democratic consequences, in that the possibility of genuine accountability of Parliament to the electorate is almost negligible.

Accountability can be improved by a few relatively simple reforms.  It will remain, however, an abstract virtue unless reforms of whatever kind are based on the firm understanding that accountability in turn can only be based on information.  The prior need is, therefore, transparency in government.  So while structural reform is necessary, it must go hand in hand with procedural reform.

We start by observing (as few seem so far to have done) that the phenomenon of transparency and the process of accountability can and should begin in the executive itself.

The structure of Western Australia's government -- looking first at the cabinet -- is eccentric and ramshackle.  In the last year of the last government, there were effectively 50-odd departments, shared around among 16 ministers.  The Premier, for instance, had, in addition to her Premier's post, the portfolios of Treasury, Public Sector Management, The Family, Aboriginal Affairs, and Multicultural and Ethnic Affairs.  There is very little reason or positive benefit in this kind of arrangement, while the drawbacks are obvious:  confusion of purpose, and expense.  It is a sensible first step, therefore, to reduce the number of departments to match the number of ministers, and at the same time to reduce the number of ministers.  The precise allocation of ministries is properly, however, a political decision depending on political circumstances.  One major change, however, needs to be addressed here.

It has been traditional in Western Australia -- as, historically speaking, for most of the time in most of the States -- for the Premier to be Treasurer.  There have been some slight variations on this theme in recent years, with the introduction of ministers for finance or budget management, for instance;  but this has not much affected the basic principle.  As a first step toward better government we recommend that the offices of Premier and Treasurer be completely severed.  This would leave the Premier to concentrate more on overall policy direction and leadership, a somewhat neglected task in the last decade.  Rather more significantly, it would set up a strong alternative focus of power and advice within cabinet and the government in general.  Much of the worthwhile reform undertaken by the Hawke government between 1984 and 1989 came from the diffusion in advice and interest in Cabinet between Prime Minister, Treasurer and Minister for Finance.  Some of that creative conflict can be duplicated at State level.  Second-guessing and simple bloody-mindedness can, of course, be destructive;  but that is to be weighed against the demonstrable need to break down the Premier's traditional dominance over policy and finance.

This recommendation has a number of further implications, aimed largely at redefining Treasury's role, and at restoring its strength and independence.  (These will be examined in Chapter 5.)  In the present context (and to shift for the moment from the structural to the procedural), one recommendation needs to be made here:  every Cabinet submission must be sent to Treasury before it reaches Cabinet;  when it does get there, it must have a Treasury assessment attached.  (It may be that the Premier's department may also wish to participate in the assessment process, particularly in those cases where the original submission comes from Treasury itself.  But this is a less pressing requirement, and need not concern us as greatly.)

From this recommendation, another follows:  no decision on any Cabinet submission should be made until at least two weeks after its first being submitted.  This is necessary to avoid the all-too-common situation wherein busy ministers receive lengthy and complex (or short and deceptive) submissions from their colleagues the night before or even the morning on which Cabinet meets, with no reasonable chance of proper and sober consideration.  Cabinet should, of course, retain the ability to suspend its own rules to deal with genuine emergencies;  but Ministers should make sure that they are genuine emergencies, of the flood, fire and famine variety.

The Department of the Premier should retain the responsibility for servicing the Cabinet.  It should also publish in its annual report figures on the flow of submissions, so that it can be seen whether or not the rules are being followed.

These few changes are important in that individual members of Cabinet will be less able to wash their hands of collective Cabinet decisions;  being better informed, they will be less able to escape the onus of participating seriously in Cabinet discussion and decision-making.

There is little need here to lay down any very particular rules for the administration of Cabinet.  The Premier should, for obvious reasons of good government, try to reassert sound principles of collective Cabinet responsibility, and our suggestions will make that easier.  (Much of the administrative detail could profitably be lifted from New South Wales.)  A further helpful suggestion would be to insist that Cabinet set aside regular meetings -- one a month should be adequate -- to discuss policy and policy directions only.

The customary fate of Cabinet submissions after Cabinet approval is to go back to the originating department, where, in close consultation with parliamentary draftsmen, legislation is prepared.  This is occasionally a lengthy process, sometimes abortive:  there may be second thoughts, or a proposal may be difficult to translate into statute.  In most cases, however, a Bill will eventually make its way to the Parliament.

The Bill will be debated, briefly or at length.  It has to be said that debates in the Assembly and Council are too often, for various reasons, unsatisfactory.  The Bill in question may perhaps be part of the end-of-session logjam, in which an accumulation of legislation -- sometimes up to 20 or 30 Bills -- is pushed through, sometimes with the aid of the "guillotine", in the last two or three weeks of the session.  (This is sometimes simply bad management on government's part, sometimes a deliberate ploy to ensure that contentious legislation is not scrutinised.)  Members too often debate only the general subject, airing their homegrown opinions for the sake of an impressive-looking Hansard extract to send to their electorate mailing list.  The committee stage, when the Bill is considered and (sometimes) amended clause by clause, is too often sketchy and unfocused.  This is hardly a recipe for good government.

Members badly need more time and information.

They can, to a limited extent, satisfy the first requirement themselves.  Standing Orders can quite simply be amended to the effect that no Bill should be debated until it has lain on the table of the House for 14 days (days, not sitting days) after its first introduction.  Ministers would then have to improve their own and their departments' time management;  the government's manager of business in each House would also have to improve his or her performance.  (A useful and natural evolution would then be a formal management committee for each chamber.)  It may be thought by those well acquainted with the ways of Parliament that Standing Orders would be too often suspended to avoid this requirement;  if that cynicism is well-grounded, it may well be that the further requirement of a two-thirds majority for suspension be added.

Information is more expensively acquired.  We suggest here two or three means;  unlike most of the recommendations in this book they do involve some increase, not major, in outlays.

1. Members of Parliament in general, and some in particular, need more staff.  (For comparison:  Federal Members and Senators have a minimum of three staff, with the ability to split positions;  there is a considerable further establishment of staff for Ministers and senior members of the Opposition, but this is substantially augmented from both departmental and private sources.)

   The needs of Opposition members are somewhat greater than those of government members, since they lack their degree of access to Ministers' offices and departments.  The Leader of the Opposition needs at least three extra staff at senior level.  The Opposition Leader in the Council also needs more staff, although for somewhat different tasks.  Other less senior Opposition members also need more staff.  But, given that more than a few do not even now make good use of their available resources, we recommend the allocation of extra staff to Opposition Members in the ratio of two positions to each three Members.  In this way Members will have to prove that they can use staff well -- or lose them to their more eager colleagues.  Independent Members who, in theory at least, have no access to Party resources and therefore need most help, should have one similar extra staff position each.  Government backbenchers should have additional staff allocated on the basis of no more than one extra staff position for every two Members.

   These numbers are independent of allocations resting with the Parliament itself -- as, for instance, to chairmen of committees.  These new staff positions for ordinary Members should be adequately salaried, say, at the level of departmental research officers.  To encourage quality and mobility, Members' staff should be excluded from permanency of tenure and the government employees' superannuation scheme:  their superannuation should be fully-funded and portable, as is the case with Federal Parliamentary staff.  (It would be pleasing if some of the establishment costs were met by a substantial reduction in the number of press secretaries, media consultants and PR advisers.  There is, of course, a fine line between ensuring an adequate flow of information to the public and the systematic dissemination of propaganda;  in the last decade it has been vigorously transgressed.)

2. The facilities offered by the Library of the State Parliament should be upgraded, though not massively.  One of the reasons that Federal Members sometimes manage to sound wiser than their State colleagues is that they can call on the considerable resources of the Commonwealth Parliamentary Library to augment their wisdom.  Improvement at the State level need not be very costly.  A positive step -- which would also force Members to become moderately computer literate -- would be for the State Parliament to buy access to the Commonwealth Parliament's statistical data base, including, if possible, a suitable version of the current economic model.  It might also buy access to MICAH -- a very comprehensive media- and journal-accessing programme -- from the same source.  These two initiatives, with three or four additional staff, and taken together with the other two recommendations, may well suffice.

3. We recommend, strongly, the establishment of an Independent Policy Secretariat, separate from the Public Service, and funded out of Parliament's own appropriation.  This need have no more than eight or nine staff, biased toward economists (or, more broadly, policy analysts) with perhaps one lawyer.  The task of the IPS would be to provide an independent assessment, primarily economic, of each measure introduced into Parliament, before debate takes place.  A particular task will be a comprehensive analysis of each year's Budget.  The IPS might be assisted in all this if Treasury provided an economic impact statement, to be appended to each Bill.  Time and increasing skill permitting, it might also provide independent comment on departmental and other annual reports.  Appointment should be made on a bipartisan basis, after consultation with Treasury.  There is no reason why the IPS should not, like the Commonwealth government's Economic Planning Advisory Council (EPAC) be permitted to commission research from external consultants.  All the IPS's advice must be public.

The last sentence of the last paragraph is extremely important.  Many people affected by legislation -- particularly, but not only, businesspeople -- how nothing of a legislative measure until it actually affects them.  They often, even if they do know of a Bill's existence, have no means of effectively expressing reasoned concern or opposition, or even making informed comment.  Our suggestion will, therefore, make it easier not only for Members but also for those outside the Parliamentary process -- not least the media -- to see through the jargon of statute law and the sometimes equally obscuring language of Ministers' second reading speeches.  Plain English drafting might help:  the results of the Commonwealth government's progress in this area can now be seen to a limited extent in the rewritten Social Security Act.

This small measure of enlightenment is not, however, the only improvement we shall suggest to public access to the process -- see our recommendations below concerning citizen-initiated referendums.

Given time, with the leisure to examine legislation properly, and information, with the increased ability to assess the intent and effect of legislation, the potential for Parliament to do its job better is enhanced.  The Parliament can do its job better still with a few more improvements, mostly minor, improvements which should be on any standard agenda for parliamentary reform, and indeed have been for some years.

Question Time should be lengthened from its present half hour to a full hour.  Within that time, limits should be placed on Ministers' answers:  two or three minutes is more than enough, with extension subject to leave of the House.  Genuine supplementary questions, that is, follow-up questions from the same side of the House, should be permitted.  More use should be made of Questions on Notice, particularly for those matters on which large quantities of factual or statistical information are sought.

Private Members' time, that is, the time not devoted to the Government's business, should be increased to at least one day a week.  This would improve the chances of getting Private Members' Bills into an advanced stage of debate, and would enable more genuine airing of grievances.

Over the last few years, the ability of both Houses to form and operate Committees has been exploited with varying degrees of success.  The Public Accounts Committee of the Legislative Assembly has done some useful work recently and should be given every possible encouragement, including such secretariat support as it reasonably may need.  It has to be said, however, that Lower Houses in general, being, for quite legitimate reasons, more overtly partisan and gladiatorial, are not usually very successful at running a great number of Committees.

In the Legislative Council, special-purpose committees have been particularly prominent and have served, perhaps more than any particular short-term political purpose, to reassert an encouraging degree of parliamentary sovereignty.  The Council's main task now must be to ensure that a good system of Standing Committees becomes more firmly established.  In this, it might look more closely at some of the Senate Committees:  the Senate appropriations procedure, and the Regulations and Ordinances Committee, in particular, are well worth closer emulation.  "Regs and Ordinances" serves the indispensable purpose of examining much of the huge body of law outside Acts proper;  they prevent, to a useful degree, both too much and too much bad regulation.  Again, attention must be given to adequate skilled secretariat support.  The Council cannot, of course, duplicate all the various committee functions of the Senate:  its smaller membership precludes that.  But those functions mentioned should be high on its list of committee priorities. ⁽¹⁾

In Chapter 5 we will be recommending the publication in April or May each year of the Forward Estimates for the following fiscal year, in the form used by the government's own expenditure review process.  It would be helpful to the achieving of transparency if at least one parliamentary committee were to discuss the Estimates publicly and to invite public budget submissions.  The public should be able to see the shape of the budget, to understand the constraints, to make reasonable suggestions, and to have the kind of access usually available only to bureaucrats and peak organisations.

Parliament should sit more, or at least as long as is necessary to allow the unhurried and proper consideration of a well-managed legislative programme.  We suggest that the Parliament sit as long as the Government and Opposition agree -- suggestion already current at the Federal level.  Translated to the State level, however, it encounters a constitutional difficulty.  Under the State's Constitution Act, s.3, the power of fixing "...the place and time for holding the first and every other session of the Legislative Council and Legislative Assembly", of proroguing both Assembly and Council, and of dissolving the Assembly, rests with the Governor.  Furthermore, by virtue of the Australia Act 1986, s.7(5), "The advice to Her Majesty in relation to the exercise of the powers and functions in respect of a State shall be tendered by the Premier of the State".

All this effectively puts the power to call and to terminate sittings of the Parliament at the pleasure of the Premier.  Nor is this merely a theoretical reserve power:  it was used by the last government, and in disgraceful circumstances -- when the Premier prorogued the Parliament in January 1991 to halt the activities of two Council Committees.

There is some doubt as to whether the power to prorogue should exist at all these days.  As Odgers remarks, "In its early use, prorogation was a device employed by English monarchs to rid themselves of troublesome Parliaments and unwelcome legislation.  A lost head or two changed all that. ..." ⁽²⁾  This effective transfer of sovereign power from monarch to premier is a historical step backwards which should be seen as an affront to both Parliament and people.

We recommend, in the first place, that the practice be discontinued, by repealing the relevant words of the State Constitution Act.  As a second step, all remaining discretion in the calling of Parliament after an election should be removed by stipulating a "latest possible" commencement date either in the same Act or in the Electoral Act.  Third, the Parliament should not be dissolved prior to a similarly stipulated date before an election except by resolution of both Houses.  Fourth, the Council's and Assembly's committees should be given the explicit capacity to sit in recess as each House wills.

A necessary consequence of the foregoing is that Parliament be in control of its own finances.  An executive committee -- Speaker, President, and the two Clerks -- should be formed to run the Joint House Department, and to decide on an annual budget (which should cover parliamentary officers, members and their staff, committee secretariats, the library, and the IPS).

This recommendation raises two further points, one of practice, one of principle.  First, it is only sensible to acknowledge that parliamentarians do not, on the whole, have a reputation for parsimony in respect of their own remuneration and perquisites.  We recommend, therefore, that the executive committee suggested here should also include the head of Treasury.  If that is not sufficient to induce a sense of fiscal responsibility, it may also be advisable to have Parliament's accounts audited by Treasury.  Second, the point of principle.  It seems to us that there should be a distinction drawn between those parts of the public service which are properly considered "departments of state", and therefore properly answerable to ministers of state, and those which properly answer to the Parliament.  On these grounds, it seem desirable to transfer the office of the Auditor-General to the parliamentary establishment, and in all respects -- appointment and funding in particular.  Similar arrangements should apply to the office of the Ombudsman (now notionally a part of the parliamentary establishment, but, therefore, under the Premier's Department), the parliamentary counsel and draughtsmen, and other similar offices. ⁽³⁾

Most agendas for parliamentary reform make reference to increasing the independence and respect accorded the Presiding Officers.  Rightly so:  an impartial and authoritative presiding officer is essential to the functioning of every legislature.

The usual suggestion is that we follow the Westminster example, whereby the sitting Speaker of the Commons is not opposed in his or her constituency at a general election, and returned unopposed to the speakership after each election.  This is in theory a good idea;  it suffers from the difficulty that no one ever wants the Speaker of the day to be the first to benefit from such a change.  (Westminster practice, in fact, falls short of the theory.)  Considering the standard of some of the Speakers of the House of Representatives in recent years, for instance, the reluctance is understandable.  It suffers, too, from the objection that if the Speaker is unopposed at each election, his constituents may be thought to be disenfranchised.  The theory is still worth consideration, however, and bears repeating here:  to the extent that it puts another curb on the unthinking domination of Parliament by the executive, the point is an important one, and worth some exploration.

A simpler option may be to specify that the election of Speaker requires a two-thirds majority.  This could ensure that the successful candidate had at least the minimum of respect from both sides of the House;  and the requisite horse-trading between major parties would tend to eliminate those whose main qualification for the office was factional favour or the ability to call in debts.  A further simple option would be to elevate the office of Deputy Speaker somewhat, and to institute regular alternation between Speaker and Deputy, ensuring what would effectively be a rotating speakership.  Assuming that the Deputy Speaker regularly comes from the non-majority party, this may have the potential to work well.

There may be other points that could be added to those already mentioned, but the intention that emerges from them should by now be fairly clear.  If our recommendations were adopted, the Parliament would be able to hold the executive to account for its actions.  Less formally, the executive would have to manage its relations with Parliament somewhat better, and adjust to both a more powerful Parliament and to a more informed Parliament.

Reason would suggest another quite worthwhile benefit:  in time, as Members of Parliament acquired power and independence (and skill in using them), the standards both of parliamentary behaviour and of parliamentarians as professionals will improve.  Commentators -- and indeed the general public -- often deplore parliamentary standards.  They need to realise that the standard of entrants into parliamentary life will be raised only if Parliament is a strong and useful institution in which all members have a useful role.

The foregoing programme of reform would truly strengthen the Parliament, and make possible a very considerable degree of accountability.  So far, then, it fits in with orthodox theories of Westminster-style government which have as their central tenet the absolute sovereignty of Parliament.

Events in Western Australia and in the rest of the Commonwealth, however, raise the question as to whether it is any longer enough simply to fortify Parliament and to give it better mechanisms for accountability;  whether, indeed, a more completely sovereign Parliament is a realistic and sufficient answer to the problems revealed.  After all, while the Commonwealth Senate (one of the most autonomous chambers in any "Westminster" system) has steadily improved the quality of Federal legislation, it has not markedly diminished the potential sovereignty of the Federal executive.  And we too often forget that the Western Australian governments between 1983 and 1993 did not control the Legislative Council.

We do well, in fact, to contemplate what night have happened in this State had governments from 1983 to 1993 indeed controlled both Houses;  and equally we should contemplate the life expectancy of true parliamentary sovereignty should any future government, both strong and unprincipled, control both Houses.

In the same way it is necessary for us to contemplate what happens when (as often) government and opposition agree on measures conducive to bad government.

Such considerations lead us into advocating the need to look beyond merely strengthening the Parliament.  We have, simply to avoid too much abstract argument, avoided discussion about where true sovereignty now in fact lies, and, too, where it should lie.  Without directly addressing that question, we will advocate what amounts to a preventive diffusion of sovereignty, which at the same time leads forward to our second stage of institutional -- or constitutional -- reform.

THE PEOPLE

The people of Western Australia have not, on the whole, been well governed over the last decade.  The end result, in tangible terns, is that they are being obliged to pay for a series of quite preventable mistakes which were none of their doing.  That is bad enough.  In some ways, the intangible results are somewhat worse.  There is now, as far as any amount of anecdotal evidence will show, an unparalleled degree of cynicism and antipathy toward politicians and politics.

Cynicism toward politicians is not to be greatly regretted;  indeed we could, on the whole, have done with rather more of it at various times in the 1970s and 1980s.  Provincial charisma has been, after all, a poor substitute for the public interest.

Cynicism toward politics, toward the political process itself, on the other hand, is more regrettable.  It strikes a blow at the heart of the legitimacy that in the end makes government possible.  This will not be fatal if it is indeed (as we have proposed above) directed at the business of politics, rather than at institutions.

A party which was seriously committed to the reforms we have so far suggested might well restore some of the faith lost in the processes of government.  Political enthusiasm, despite repeated disillusionment, is strangely resilient.  We will in this section, however, put forward further reforms which should have the effect of restoring both faith and life in politics.

The first recommendation is an obvious one:  we propose the abolition of compulsory voting.  Compulsion in voting is an unnecessary infringement of freedom:  and failing to register a vote can be as real an expression of political opinion as any other.  In the present climate, in particular, compulsion merely increases cynicism and hostility.  It can be argued, too, that compulsory voting enables the parties to concentrate their resources on fairly small numbers of voters in a small number of seats.  To the extent that this results in policies designed with narrow and selfish interests in mind, it probably works against the wider public interest.  If politicians have to work to get all voters interested enough to consider voting, policies should be broader-based.  It can also be argued that compulsory voting, simply because it muffles popular feelings about politics and politicians, obscures, in an unhelpful way, future developments in democratic politics -- developments, which, for instance, might involve the demise of the traditional groupings of the major parties.

(This is in itself a quite simple reform.  It would, however, follow, that serious consideration be given to the consequences in terms of maintaining the integrity of the electoral roll.  This is not an insuperable difficulty in those countries which already have voluntary voting;  at most, the difficulties would boil down to the necessity of adjusting the election timetable to allow last-minute enrolments.)

Next -- and this should hardly need saying -- it is essential that the franchise for both Houses be as nearly as possible based on an equal weight of individual votes.  No amount of special pleading can counter this.  It is perhaps necessary to point out that the Legislative Council throughout the 1980s, consciously or not, denied itself the independence and legitimacy conspicuously available to the Commonwealth Senate. ⁽⁴⁾  The casualty was good government.

A third relatively simple reform is the introduction of effective legislation for Freedom of Information.  FOI adds considerably to the transparency which we have already spoken of as being the necessary prerequisite for true accountability.  In practice, it is frequently used to best effect by politicians themselves and by investigative journalists;  that in no way lessens its value to the people.  Western Australia's FOI legislation completed its passage through the State's Parliament late last year.  It remains grossly inadequate, and is still in need of very substantial amendment.  The exemptions exclude so much of the State government's operations from scrutiny that the improvements to accountability are probably negligible. ⁽⁵⁾

Our fourth reform is a major one, involving potential change of some magnitude, over time, to the way politics operates in this State.  We propose the adoption of a fully-fledged system of citizen-initiated referendums.  The concept has been argued at length in the Australian context by Professor Geoffrey Walker in his book, The People's Law; ⁽⁶⁾  we need not, therefore, go over the history of the system elsewhere, or, indeed, the administrative arrangements, in any great detail.  Briefly, then, we advocate that the entire range of citizen initiatives be available to the people of Western Australia, namely:

• the legislative veto (that is, the power effectively to repeal any Act of the Parliament, whether ordinary or delegated legislation);
• the legislative initiative (that is, the power to make new law without parliamentary intervention);  and
• the executive recall (that is, the power to remove any elected or appointed official, whether in the Parliament, the Public Service or the judiciary).

The system works so well in other democracies that the detailed design can be appropriated as necessary.  We do recommend, however:

• a regular referendum day, not less than once a year, with a preference for a date late in December to allow fiscal consequences to be considered in the following budget, and the option of holding referendums concurrently with general elections;
• a relatively small number of signatories for the initiating petition, say, 3 per cent of registered voters;
• the simplest possible techniques to verify the genuineness of the petitions (with particular consideration to be given to sampling);
• certification by the parliamentary draftsmen that the wording is acceptable technically;  or access to draftsmen to ensure the best possible wording;
• the option being available to the government of proposing alternative wording (with preferential voting on options as necessary);
• ratification by a simple majority of those voting, except where the effect is to alter the State's constitution, where a two-thirds majority should be required.

The mechanisms necessary to establish CIR are relatively simple to establish in legislative terms;  but it will almost certainly require, in addition to the enabling legislation, amendments to the State's Constitution Act, not least to establish beyond doubt the power of the people to legislate.  The process itself should receive explicit recognition in the same Act, and should be double-entrenched.  (That is, not only should the procedure be entrenched, but the entrenchment section itself should be entrenched.) ⁽⁷⁾

The arguments for and against CIR have been put forward by a number of writers, not least Professor Walker, whose work has already been referred to above.  Against the background of the concerns of the present work, it may be worth singling out some of the probable benefits for particular emphasis.

• We would certainly expect greater accountability, and not only of the executive to the Parliament, as has been our concern so far, but of the Parliament and executive to the people.  After all, there is little point in setting up Parliament as a watchdog over the executive if Parliament itself is not subject to the same sort of discipline.  The old adage of "quis custodiet" applies with some force.  An unbridled Parliament is no better than an unbridled executive.  Without, again, entering into protracted speculation about the ultimate locus of power or sovereignty, we plump for diffused power.
• CIR now represents the only available way (short of much more radical constitutional arrangements than have so far been proposed anywhere in the world) of seeing that the law does actually represent the common interest.  It is all too clear now that, on the whole, the political agenda is set by the influence of narrow interest groups (both overt and covert) on parties bidding for success.  The majority interest, for reasons now well known, is neglected.
• Because of the way CIR works, because of the need to form large majorities around single broad issues, the ability of narrow vested-interest groups to damage economic processes and outcomes is limited.  In time the economic benefits of CIR may indeed be considerable. ⁽⁸⁾
• As with a number of other proposed reforms, CIR should act to restore faith in the political system.  Participation, with the consequent need to weigh issues singly, will improve popular political skills.
• Importantly, CIR does have the effect of unbundling the whole policy process, and in two ways.  It separates politics from personalities, indeed, from the whole collective trivia of elections.  It separates one policy from the whole bundle on which a government is elected.  It would be possible, for instance, to elect a new government, thought on the whole to have good policies, even if one policy were unpopular -- as it might be, the introduction of a goods and services tax.
• CIR should lessen the alienation felt by some voters who live in blue-ribbon seats not of their own political persuasion.  The committed Labor voter resident in Peppermint Grove can hardy feel that his vote is worth casting.  Comparatively, every vote cast under CIR is equal and equally important.
• Whether or not four-year parliamentary terms are desirable is not a question we need to go into here;  it can, however, be argued that CIR is a useful check on both the excesses and the fatigue which may well be inherent in the longer terms.
• CIR de-emphasises the role of parties, particularly as being the only effective access to genuine participation in the political process.  This will be an effective challenge to the party organisations to widen their base, to dean up their image, and to improve their performance.
• CIR need not be resorted to, measure by measure, for its beneficial effects to be felt.  Its very existence has a minatory effect on public officials, who will be wary of actions and measures liable to be reversed.

CIR has been much criticised, though rarely on any very convincing grounds.  It is, for obvious reasons, not very popular among practising politicians, who, on the whole, believe that the people may exercise their collective wisdom only once every three or four years, at election time.  (The irony of this, unsurprisingly, escapes most politicians.)  Fears of popular radicalism, perhaps popular bigotry, may play a more-or-less legitimate role in this opposition;  although that is a little strange in a polity like Australia's, given the level-headed conservatism evident in the history of our constitutional referendums.

One objection, virtually never raised, but entirely valid, is that CIR does have the potential to enhance the tyranny of the majority.  Given that the doctrine of the separation of powers is more or less dead in Australia, and that the tyranny of the executive is (as a consequence) alive and well, this concern may be thought perhaps oversolicitous.  Good liberal democrats should nevertheless take it seriously.

Bearing in mind the dangers inherent in simple majoritarian democracy, our belief is that the natural corollary of CIR is an entrenched code of freedoms, or bill of rights.

This is a matter which has been at times of considerable interest at the Federal level, although comparatively neglected at the level of State jurisdictions. ⁽⁹⁾  The notion is fairly simply dealt with at the State level:  all that is needed is a relatively brief list of basic rights (including only time-tested, "negative" rights), entrenched, and justiciable.  The flaw in the Federal legislation -- large and intrusive administrative bureaucracy -- need not be repeated.

This move would have implications well beyond the original consideration of CIR.  We regard it as a first, important step toward giving Western Australia a real constitution.

The second, logical step would be to add the basic elements of a fiscal constitution;  setting down clearly two or three fundamental rules on such basic matters as limits on taxing and spending, and the relationship between taxes and expenditure in the budget context.  The reasoning behind this, and the necessary steps toward it, are set out in later chapters.

We do not go into the first of these last two points in any great detail, for one quite practical reason:  there is a limit to the amount of change that can reasonably be proposed and digested at any one time.  It is nevertheless a matter of central importance.  Western Australia does, of course, have a constitution, in the sense that we pointed out at the beginning of this chapter.  That is no longer enough.  It is not sufficient any more to define only the institutions of government and their rules of proceeding.  What is necessary -- and this has to be one of the most important lessons we learn from WA Inc -- is a better set of rules, which defines the limits of government, both in size and in function.  One of the greatest of parliamentary theorists, A.V. Dicey wrote in 1885 his Introduction to the Study of the Law of the Constitution.  He envisaged a sovereign parliament working within the rule of law.  Subsequent theory and practice have elevated the first at the expense of the second.  The only way for parliamentary democracy to flourish, to work well, and to maintain its legitimacy, is now to reestablish parliament within the rule of law.

PARTIES AND THE BUSINESS OF POLITICS

Much of the more sensational evidence brought before the Royal Commission has concerned the relationship between political finances and political favours.  The Commission's full report makes it clear that one of the most unpleasant features of the last decade in Western Australian politics has been the extraction of large sums of money from businessmen in return, explicitly or implicitly, for commercial advantage.  Whether any of this amounts to criminal bribery is not for us to determine, of course;  that it did amount to large-scale corruption of the political process is now widely accepted.

It is clear that while unusual circumstances may have been operating in some of the relevant cases that have come to the Commission's attention -- not least an apparently remarkable degree of simple greed -- one of the principal contributing factors to this corruption was the pressure now experienced by parties to fund increasingly expensive election campaigns and to maintain essential parts of the campaign armoury between elections.

Campaigning now much resembles the arms race of the "Cold War":  the weapons get more sophisticated and expensive, with a fairly high degree of obsolescence, and the cost of falling behind is fatal.  So pamphlets and brochures get glossier and more colourful, the advice from marketing and advertising experts becomes more indispensable and costly, and new techniques -- like direct mailing -- become obligatory.  Direct mailing is particularly expensive, since it requires the acquisition and maintenance of a comprehensive and refined database between elections.  And as elections become increasingly close-fought, the advantage increasingly lies with the better database.

Various solutions have been proposed to the various problems raised by this arms race over recent years.  It is safe to say that few of those officially proposed are without a conspicuous degree of self-interest.

One cure now apparently institutionalised at Federal level is public funding.  This is unsatisfactory from most points of view.  It was introduced and operates without any conspicuous public support, and without any satisfactory philosophical basis in political theory.  It clearly disadvantages small and new parties, who cannot count the funding in their contingency budgets, as do the major established parties.  And it simply provides those major parties with a funding base on which to build ever bigger fundraising efforts.  It is difficult to see how public funding could be made to achieve its object without unacceptably draconian limits on campaign expenditure itself.  Other measures of campaign restraint, most particularly the ban on electronic advertising, have been introduced at the Federal level:  they were introduced in a spirit of naked cynicism, and involved unacceptable restraints on important liberties.  The ban was, of course, overturned by the High Court, in an important judgment bearing directly on freedom of speech

The overall solution to these problems is far from easy to find.  On the one hand, there is undoubtedly strong opinion in favour of universal public disclosure both of political donations and of politicians' own financial interests.  On the other, it has to be recognised (though this is in fact seldom publicly argued) that an individual's financial support for a political organisation is, more often than not, an expression of political opinion which should remain private, as private as is the secret ballot,

This last is a point worth some serious deliberation, the more so since it has to a large extent been overlooked in recent debate at both State and Federal level.  There are visible practical consequences:  people can, even in Australia, be persecuted for their political beliefs.  There can be no doubt, for instance, that one of the episodes within the Royal Commission's terms of reference arose simply out of a desire to disadvantage one businessman clearly identified as a prominent supporter of the then Opposition.

One practical factor to be taken into the balance here is the difficulty of writing disclosure laws without loopholes.  The Federal legislation applying between 1984 and 1991 is worth examining in this respect.  The distinction between campaign funds and party maintenance funds was a loophole through which one could drive a truck, or at least a Porsche.  Campaigns officials were not required to account separately for individual donations at "fundraising events", enabling quite large sums to be dispersed and concealed as takings from cocktail parties, quiz-nights or sausage-sizzles.  Donations in kind (which might include stationery, computer access, postage or printing) are extremely difficult to track down.  As with the Federal income tax legislation, greater strictness led merely to more sophisticated evasion.  Moreover, the decisions so far made in courts following prosecution may seem to indicate that ignorance in good faith is an easy defence.

That together with our concern at the infringement of a basic freedom leads us, not without a few misgivings, to recommend against the current trend toward disclosure of political donations.  The State legislation is now in place, and to that extent our concerns are irrelevant.  At the very least, however, when the matter comes up again -- as it is sure to -- there should be room for a dissenting view.

Our preferred alternative to disclosure is to offer solutions to the separate manifestations of corruption.

We start by making the obvious but neglected point that the more government is involved in (rather than simply with) business, the more corruption is possible.  It has simply been too easy to avoid accountability by pleading commercial confidentiality, or by removing entities involved in or with business from even the rudimentary scrutiny of the usual budget process.  This leads to the conclusion that for this reason (and others addressed elsewhere) government should as a matter of principle be as little involved in business as possible.  (And following from this it is important that, as the Royal Commission has noted, "All public sector bodies, programmes and activities involving any use of public resources, be the subject of audit by the Auditor-General" -- Part II, Recommendation 9.)

Further, the evidence before the Royal Commission leads to a more particular and practical observation.  It is clear that in most, if not all, of the commercial activities under investigation, an extraordinary degree of executive discretion was employed to avoid recourse to accepted standards of public tendering, whether for purchase or for sale of property, goods and services (including, in the latter case, advisory and consultancy services).  Much happened at the State level which could not, for instance, at the Commonwealth.  We therefore recommend a thorough overhaul of the laws and procedures covering the process of tender, with statutory provision for parliamentary scrutiny and adequate public access through Freedom of Information.

There are, of course, many kinds of corruption.  We have seen, for instance, executive interference in the accepted process of legal prosecution.  This requires serious consideration, certainly;  but it can be observed here that the possibility of executive recall through citizen-initiated referendum would be a strong precautionary discipline on politicians in such Instances.

There is already some interest in other State legislatures in the development and promotion of codes of conduct for politicians.  This is something worth working on, even if it does provoke reflections of a gloomy kind about the way it symbolises the decay of personal codes of ethics.  It is doubtful, however, that statutory or quasi-statutory codes will do much good.  They will tend to be pitched at a fairly low level, to lack teeth, and to become dead letters.  A better idea is the promotion of voluntary codes, developed by politicians themselves;  codes which would encourage politicians to compete among themselves for better definition, and better observance, of self-regulating political ethics.  A matching development of voluntary codes governing party business, promoted by the state presidents of the parties, would help the process -- and may help the parties to recover some of their credibility.

We have already spoken of the corruption arising out of direct involvement with business.  What is usually less apparent -- and obscured by the very notoriety surrounding some of the more spectacular malfeasances -- is the virtually unlimited potential for corruption that exists by reason of the power available to all governments to affect all stages in the life of a business.  Zoning and planning permission, release of Crown lands, licensing of industrial activities, access to naturally-occurring resources, environmental approval, subsidy by grant or loan or tax preference, deals on union coverage, agreements on occupational health and safety issues, licensing and surveillance of polluting activities, preferential access to water or gas or electricity, royalty arrangements outside the normal tax regime, implicit taxation in the use of transport networks, subsidy or implicit taxation in the provision of infrastructure, licensing of occupations and professions -- the list could be extended indefinitely.  No businessman and, indeed, no citizen of working age, is uncaught by some aspect of this net of power.

Some of those concerned will tolerate the regime, and do their best to operate under it as honestly as they can -- even to the point of going down under the weight.  Others will, inevitably, turn some of their entrepreneurial abilities to evasion or avoidance, or to the negotiation of deals, overt or covert, with government itself.  However legal and public these may be, they are all, in the end, corrupting;  corrupting, most particularly, to the rule of law.

Aside from all economic considerations (even if they could be separated) -- the existence of this power is one of the best reasons for a comprehensive programme of deregulation, and the withdrawal of government from many areas best left to the operation of a free market.

AFTERWORD

It is only right to end this chapter on a note of realism

Parliamentary reform has a chequered and not very inspiring history in Australia.  The Senate committee system, largely put in place 20 years ago, is an encouragement to advocates of reform.  But against that we might for instance count the calculated failure of an embryonic committee system in the House of Representatives ten years later.  Again, on the positive side, we should acknowledge recent reform in New South Wales, and, too, some of the changes over the last year or so in our Legislative Council.

Looking at those and other similar examples, we might well draw the conclusion that it is, these days, too much to expect that parliamentary reform will arise out of purely virtuous intentions.  That need not worry us greatly.  It is to be expected that even in politics self-interest will sometimes produce beneficial public effects.  Hence our comments earlier on the probability that reform may well be an attractive policy for governments and oppositions to pursue.  It does seem to us that parliamentary reform should be a major plank in the platform of any party sensible enough to see that good government is good politics.  Indeed, without that self-interested impetus, the prospects for adequate reform seem fairly poor.  There is, to be fair, a number of individuals already in Parliament who have a genuine interest in the matter;  but they have neither the numbers nor the weight of influence to achieve much.

In the same vein of realism it is worth saying that reform will not achieve much without a change in attitude.  Both ministers and members must be made to understand that they are the servants of the people, and that the common good always comes before partisan and private interest.  Changes in attitude cannot be achieved by waving a magician's wand.  The press have significant potential power in this.  But perhaps this is where CIR would be most effective:  it gives politicians the explicit choice between serving well and not, between being trusted and not. ⁽¹⁰⁾

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ENDNOTES

1.  The Royal Commission implicitly recommends that as the Legislative Council becomes a single-purpose "House of Review" it should lose the power to block supply -- see paragraph 5.3.12 of Part II of its Report.  The suggestion leaves all sorts of questions unanswered -- what becomes of Council ministers?  Who handles legislation?  What conceptions of "responsible government" are implied? and so on.  It encounters one objection which most observers of Western Australian and Queensland government over the past decade should find a fatal one:  a Council without power over supply would be gutted and powerless, and would quite quickly be reduced to a cipher.

2.  J.R. Odgers, Australian Senate Practice, fifth edition, Canberra, AGPS, 1976, page 621.

3.  The Royal Commission, in adopting this notion, has also included the Electoral Commissioner, which is sensible -- see its Recommendation 31 (a) in Part II.

4.  The Senate franchise is not, of course, equal, in that each State, large or small, has the same number of Senators.  Its perceived legitimacy of franchise rests roughly equally on its Constitutional mandate and the fairness of the electoral process, which tends to give remarkable accuracy of proportion.  The Council shares neither of these attributes.

5.  The Royal Commission addresses the matter of FOI at some length in Chapter 2 of Part II of its Report.  The points made there are well made, but do not go far enough.  Their further thoughts on the conflict between FO1 and statutory secrecy, on the other hand, are much to the paint, and should be included in any agenda for reform.  "Whistleblower" legislation is probably worth having, but it is by no means as significant as some of its proponents suggest.

6.  G. de Q. Walker, Initiative and Referendum:  The People's Law, Sydney, Centre for Independent Studies, 1987.

7.  See R.D. Lumb, The Constitutions of the Australian States, Brisbane, University of Queensland Press, 1972, page 104,

8.  See the paper by Franz Lehner, "Pressure Politics and Economic Growth:  Olson's Theory and the Swiss Experience", in Dennis Mueller (ed.), The Political Economy of Growth, Yale, 1983, pages 203-214.

9.  See, however, the article by Mark Allan Gray, "A Victorian bill of rights:  judicial review and other issues", The Australian Quarterly, Autumn 1991, pages 74-90.

10.  Perhaps one further general remark on the Royal Commission's Part II is in order.  Some commentators have already suggested that the Commission's determination to adhere religiously to its terms of reference resulted in a series of unnecessarily timid recommendations.  That is true, and the recommendations are characterised as well by an unwillingness to go beyond currently fashionable academic political theory.  Perhaps the most significant failing, however, is the deferral of same matters for the consideration of a Commission on Government.  To do that was immediately to lose an already failing impetus to reform.  One opportunity, one very big opportunity, has now been lost.