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‘The Westminster System’ at work

Part Twelve of a history of European occupation, rule, and brutal imperialism of Indigenous Australia, by Dr George Venturini.

‘The Westminster System’ at work

There are solutions to the problem in countries other than Anglophone ones and even the comparison with those three countries is of no great help: different electoral system for New Zealand where the voting takes place according to the mixed-member proportional since 1996. The MMP was introduced after a referendum in 1993. It replaced the first past the post system New Zealand had previously used for most of its history.

At the 2008, 2011 and 2014 elections Maori gained seven seats.

Two members remained with the Maori Party until the election of 24 September 2017. No Maori seems to have been elected.

So, how does the Australian electoral system work? The House of Representatives is composed of 150 members, elected in designated electoral divisions for three years with the preferential voting system and full allocation of preferences.

Only a person paid for her/his biased opinion could state that such a system does not leave Australians unequal by result, and weight of their representation.

The present-day federal parliament has a number of distinctive features including compulsory voting, with majority-preferential instant-runoff voting in single-member seats to elect the House of Representatives, and the use of the single transferable vote proportional representation system to elect the Senate.

The date and type of federal election is determined by the Prime Minister who advises the Governor-General to set the process in motion by dissolving the lower or both houses and issuing writs for election.

Compulsory voting was introduced for the federal level in 1924. Australia enforces compulsory voting. About 5 per cent of enrolled voters fail to vote at most elections. People in this situation are asked to explain their failure to vote. If no satisfactory reason is provided (for example, illness or religious prohibition), a fine of up to $170 is imposed, and failure to pay the fine may result in a court hearing and additional costs.

The immediate justification for compulsory voting at the federal level was the low voter turnout: 59.38 per cent at the 1922 federal election, down from 71.59 per cent at the 1919 federal election. Compulsory voting was not on the platform of either the Stanley Bruce-led Nationalist/Country party coalition government or the Matthew Charlton-led Labor opposition. The actual initiative for change to compulsory voting was made by Herbert Payne, a backbench Tasmanian Nationalists senator who on 16 July 1924 introduced a private member’s bill in the Senate. Payne’s bill was passed with little debate (the House of Representatives agreeing to it in less than an hour), and in neither house was a division required, hence no votes were recorded against the bill. It received Royal Assent on 31 July 1924 as the Commonwealth Electoral Act 1924. The 1925 federal election was the first to be conducted under compulsory voting, which saw the turnout figure rise to 91.4 per cent. The turnout increased to about 95 per cent within a couple of elections and has stayed at about that level since. Compulsory voting at referenda was considered when a referendum was proposed in 1915, but, as the referendum was never held, the idea was put on hold.

After distribution of the forced ‘preferences’ the results of the most recent federal election in Australia – 2 July 2016, with 93.6 per cent of the votes counted as at 5 August – challenge any pretence at democracy in action.

The Coalition of the Liberal and National parties, with 5,693.618 votes, equal to 42 per cent of the votes, obtained 76 seats. Each seat required some 74,916 votes.

The Labor Party, with 4,702.314 votes, equal to 34.7 per cent of the votes, obtained 69 seats. Each seat required some 68,149 votes.

The Greens, with 1,385,651 votes, equal to 10.2 per cent of the votes, obtained 1 seat. Repeat: the Greens’ seat required 1,385,651 votes!

The Xenophon Team, with 250,333 votes, equal to 1.8 per cent of the votes, obtained 1 seat.

The Katter’s Australian Party, with 72,879 per cent of the votes, equal to 0.5 per cent of the votes, obtained 1 seat.

Christian Parties, with 490,816 votes, equal to 3.6 per cent of the votes, One Nation with 175,020 votes, equal to 1.3 per cent of the votes, Palmer’s United Party with 315 votes and others with 663.142 votes equal to 5.7 per cent of the votes and thus for a total of 10.6 per cent of the votes, gained no representation.

The unfair effect of the votes, as compared with the seats gained by the parties, is glaringly obvious – and so much for “one person, one vote, one value.” (Results – Australia Votes, Federal Election 2016, ABC).

How that result could be satisfactory, and above all democratic, is beyond belief. But self-willed ignorant, illiterate, innumerate, indifferent people, could be made to believe anything, if sufficiently and frequently lied to.

The consequence of this monstrously undemocratic and un-representative system is the axiomatic proposition that the ‘Labor’ Party cannot win anything close to a majority without the Greens ‘preferences’ and the Greens cannot win any seats without the ‘Liberals’ ‘preferring’ them in odium of ‘Labor’!

Of course, the system is favoured by both Her Majesty’s governments and oppositions. The liturgy of the ‘Westminster System’ provides for an Opposition opposing everything – in Australia even on the light of the day, and a government caught by the preoccupation of being re-elected, surviving the most destructive attacks of the Opposition, and when ordinary, or ordinarily led as the present, running for cover under the constantly unfavourable pollster opinions.

But in that way ‘The Westminster System’ is safe, and Parliament may carry on daily with its ritualistic, procedural farce.

Did anyone say: modern, liberal democracy? What would those words mean to Aboriginal and Torres Strait Islander People?

Section 28 of the Constitution says: “Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be soon dissolved by the Governor-General.”

Well, not really – this section is interpreted literally in the sense that no House of Representatives may continue for longer than three years, but an earlier dissolution of the House is not exclusively decided by the Governor-General.

Officially, the Prime Minister calls upon the Governor-General ‘to request’ a dissolution. In most cases, the request is granted, but a Governor-General is not duty bound – not to the Australian people, anyway.

There have been historical incidents of Governors-General rejecting or querying the Prime Minister’s advice. There were three occasions between 1901-10 when such requests were rejected by the Governor-General, and in 1983 when the Governor-General, Sir Ninian Stephen, sent Prime Minister Malcolm Fraser away with instructions to provide detailed argument in support of his request for a double dissolution of the Parliament.

Chapter 2 of the Constitution on the Executive Government sets out in Sections 61-70 how the Government of Australia shall operate. Significantly, it makes no mention of the Cabinet, political parties or the Prime Minister.

Government by cabal would be ‘constitutionally’ possible in Australia. It often is.

An Australian federal ministry must meet a number of constitutional requirements and conventions. Section 64 requires that all ministers must be Members of Parliament.

Furthermore, the ‘Westminster System’ requires that the ministry must command the support – that is to say, have the ‘confidence’ – of the House of Representatives.

This Convention is reinforced by the requirement of Section 53, whereby all appropriation bills must originate in the House of Representatives. Without the ability ‘to secure supply’ from the House of Representatives, a ministry is obliged to resign or call an election.

Then there is high-sounding Section 61: “The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.”

Practically, it is the Cabinet, led by the Prime Minister, which performs this task.

Section 62 provides that: “There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.”

In fact, the Governor-General, acting on the advice of the leader of the majority party in the House of Representatives, summons members of the majority party and swears them/or takes their affirmation in as ministers. The Executive Council operates in accordance with the Constitution, but the Governor-General always acts on the advice of her/his ministers.

The section locates the effective executive power in the Ministers of the Crown. It was that section upon which the ‘conservative’ Australian Government relied in a well-known incident in 2001 when it prevented a Norwegian vessel, the Tampa, from bringing more than 400 asylum seekers on to the Australian mainland.

Government and Opposition were then half-way that period of competition in meanness which animates the two opposing factions of the ‘Westminster System’ in Australia.

Since 1992 intending refugees – some of ‘the other others’ – have been mandatorily imprisoned if arriving in Australia by sea, undocumented. Such criminal treatment of poorcrists marks the systematic barbarism and violations of no fewer than seven basic international human rights treaties and conventions and no fewer than six optional protocols to those treaties that Australia has signed and ratified.

Only Australian governments enjoy the privilege of being ‘liberal’, xenophobic and in violation of criminal law at the same time!

Early in 2017 a conversation passed between President Trump and Prime Minister Turnbull. The subject matter was, principally, to obtain confirmation from Trump that the United States would honour an agreement which had been reached between President Obama and Turnbull for the United States meticulously to vet and possibly to receive up to 1,250 U.N.H.C.R.-recognised refugees and other asylum seekers some of whom have been imprisoned in Manus Island, Papua New Guinea and Nauru for the past four and a half years.

During the course of that conversation the Prime Minister of Australia referred more than once to the illegal detainees as ‘economic refugees’ in order to overcome a possible hesitation by Trump. Here was an over-rated Australian lawyer talking about ‘economic refugees’ – a category which simply does not exist in legislation. Turnbull also referred to himself and his interlocutor as ‘high transactional businessman’, probably for conviction and more likely in an attempt to charm a refractory president. (‘Full transcript: Donald Trump and Malcolm Turnbull conversation’, Fully unedited reproduction of Mr Trump’s conversation with Mr Turnbull, 28 January 2017, The Sydney Morning Herald, 4 August 2017).

It is beyond one’s possibility to describe the repugnance of such empty moral calculus about circumventing a seventy-year-old seven-year-old (thank you, Maureen Dowd!), the degrading bazaar language employed by two human beings – two tricksters with little dignity, driven by local political imperatives, without consideration of ethical values, only of control and expediency. There is no appeal to truth, only the need to maintain appearances: Trump for the desire to appear good by keeping out immigrants, Turnbull by the desire to appear strong in denying help and condemning to gaol for years asylum seekers whom Australia was bound to receive if under no other law under the provision of the Universal Declaration of Human Rights co-authored in 1948 by Eleanor Roosevelt and another kind of Australian: Dr. H. V. Evatt.

Continuing the examination of the document in which the Indigenous and Torres Strait Islander Peoples should be ‘recognised’, one sees that, pursuant to Section 64, “The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.”

In reality the Prime Minister is the person who leads the party with a majority in the House of Representatives. The ministers are chosen by the Prime Minister who advises the Governor-General of the names and portfolios to be allocated to them.

It was this section of the Constitution that the Governor-General mis-used in the Royal Ambush to dismiss the Whitlam Government in 1975. This is not the only instance in federal political history of the Governor-General exercising the so-called ‘reserve powers’ in this way.

Section 68 states: “The command-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.”

In truth, the Prime Minister and the Defence Minister are in charge of the armed services. It is they who take charge of, although no responsibility for, sending troops around the world, often and increasingly on lies such as in the cases of Vietnam, Iraq, Afghanistan – and given the lack of information available, where else?

It is unlikely that the armed services would accept orders from the Governor-General if they were not also Government orders.

Section 72 states: “The Justices of the High Court and of the other courts created by the Parliament shall be appointed by the Governor-General in Council.”

In fact, judges are appointed by the Cabinet. The Governor-General simply rubberstamps the decision at a meeting of the Federal Executive Council.

There is a basic Convention of the ‘Westminster System’ which provides for cases of collective ministerial responsibility, and another by which individual ministerial responsibility is enforced – theoretically, that is to say.

Cabinet meets in secret and speaks with one voice. Ministers who are not prepared to accept the collective decisions of Cabinet are expected to resign. Ministers who speak out in public against Cabinet decisions can expect to be dismissed by the Prime Minister.

Cabinet solidarity is not always upheld.

Ministers are expected to take responsibility for the administration of their departments, the actions of their staff and themselves. This principle has become increasingly difficult to interpret and enforce, given the size and complexity of modern government. Often the political support of the Prime Minister is the most crucial factor determining whether ministers survive scrutiny and criticism of their conduct. With the support of the Prime Minister there is no problem. Otherwise, personal responsibility is brought to work and the culprit must resign.

As for amending the Constitution, a referendum process is the only process available – although extraordinarily difficult. This is one of the reasons why constitutional referenda are relatively infrequent. There have been only 44 attempts on 19 separate occasions to change the Constitution. Only 8 of these have been successful, the most recent in 1977. Only 4 referenda have succeeded in the past 50 years.

Recognition of the Aboriginal and Torres Strait Islander Peoples in the Preamble to the Constitution could become quite difficult, if in any way associated with the unfavourable opinion about the Gillard Government.

The two major parties have a serious interest in maintaining things as they are, each hoping to be ‘the winner’ – as in a football/rugby match, or a two-up intellectual exercise, or a race of horses some of whom are often than not drugged. It is only a game, mate!

And why would Indigenous and Torres Strait Islander Peoples be willing to play?

Continued Friday with: The Uluru gathering (Part 1)

Previous instalment: A belated “Recognition’ and a ‘new policy’ (Part 3)

Dr. Venturino Giorgio (George) Venturini, formerly an avvocato at the Court of Appeal of Bologna, devoted some sixty years to study, practice, teach, write and administer law at different places in four continents.



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