Earlier this week the media reported that the discussion about moving to four-year fixed terms was back on the agenda. David Coleman, the Member for the electorate of Banks in NSW, announced that later this year he will introduce legislation to change the duration of the term in the House of Representatives. This would involve implementing legislation to enable a referendum where Australians would choose whether or not to change the Constitution to allow four year fixed terms. He wrote on his website:
In my view, introducing fixed four year terms would improve the quality of governance in Australia. Our current system of unfixed three year terms is very short by world standards – most major democracies have 4 or 5 year fixed terms. In addition, all of our states except Tasmania have fixed four year terms. The average term of our Parliaments since Federation is just over two and half years. Introducing fixed four year terms would create greater certainty, leading to improved business investment. It would also mean that governments would get more done.
Here at CEFA, we’ve written about this subject a number of times. But this time we started to think about why the length of Parliamentary terms is a flexible three years. This week we have examined the reason why the constitution was written this way.
Let’s have a look at the section of the Constitution that stipulates terms for the House of Representatives:
Section 28 Duration of House of Representatives
Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor‑General.
The colonies that became the Australians States were initially formed with five year terms, but by the time the Constitution was written most had been reduced to three years terms (Western Australia had four year terms). So three year terms were the norm at the time. Many of the delegates at the Constitutional Conventions were or had been representatives a colonial Parliament. There was discussion at the 1897 constitutional conventions about making the terms up to four years. Votes were held about this matter, but the majority of delegates voted no.
Much of the debate about section 28 of the Constitution was about when the term should start. The practice in the colonies was for the term of Parliament to begin on the return of the writs (i.e. after the vote counters informed the Governor of what the results were). However, because of the federated nature of our system of Government, there was concern that writs might be returned on different dates by different States. To overcome this the three year term for the House of Representatives begins on the date that the House first sits.
To put this into practice let’s look at our last election. This election was held on 2 July 2016, but the Parliament was not opened until 30 August. This means the terms starts on 30 August. So, the House of Representatives term must expire on or before 29 August 2019 (although, the term will probably not last that long because a half-Senate election for the Senators who were given three years terms must be held by mid May 2019).
Much of our Constitutional and legal history comes through from common law which is a series of customs that have been built upon over centuries. For us in Australia a lot of that common law comes from the Britain. So while our Constitution is unique to any other in the world, when it came to writing the Constitution in the 1890’s we looked at normal customs and practice from our British history. This British history had filtered out into the colonies that became the Australian States in 1901 and so as well as examining the British Parliament, the people who wrote our Constitution looked at the colonies.
The history that was debated at the Constitutional Conventions goes back centuries. For example, before the 1688 revolution in England there was no legal provision for the termination of a Parliament after a certain period of time. The British Parliament sat until the King or Queen died or they were sacked by the by the Sovereign (this is what they call sitting at her Majesty’s pleasure). This had often caused problems, for if a King or Queen died, then the Parliament was also immediately terminated and there was no one to help during the transition process between the new King or Queen.
It wasn’t until 1694 that a law was enacted so that no Parliament in England could sit for longer than three years and in 1715 that period was increased to up to seven years. The people who wrote our Constitution looked at this history when they were debating and voting on what went into the Constitution. Another thing they looked at was the royal prerogative to dissolve the Parliament.
The right to dissolve the House
At the time the Constitution was written the right to dissolve the House of Representatives was reserved to crown and was one of the few prerogatives that could be exercised by the Queen’s representatives in the colonies (the Governors). In fact in 1899 there were three occasions when the Governors of the colonies had to exercise this prerogative.
Through the implementation of the Westminster and Australia Acts, plus the conventions that have been created since federation, the role of the Governor-General has been more clearly defined and limited. However, still today the Governor-General has the ability to exercise this royal prerogative. For example if the Government lost a motion of no confidence in the House of Representatives the Governor-General would then offer Government to the opposition. If that new Government then lost a motion of no confidence, the Governor-General would dissolve the House of Representatives and an election would be called.
It should be noted that the draft legislation to move to four year terms keeps this royal prerogative.
The need for a referendum
Because the rule about maximum three year terms is in the Constitution, to alter it the Government would need the parliament to agree and then the majority of people in at least four states and more than 50% of people overall to vote yes in a referendum.
Why is something like this in the Constitution?
If this was something that could be simply altered by the Parliament they might decide to give themselves ten year terms or as some dictators have in other countries they could give themselves a seat forever.
This topic pops up a lot in the media and last time we wrote about this subject in September last year. The comments on social media were not positive about changing the current terms. A number of people stated that they would like to recall the Government and this was only a couple of months after the election. Many Australians are quite unhappy at the moment. Do you think now is the time to have a referendum on moving to four year terms?
Image attributed to SBS.