Dean, the Budget, Harriss, Hall and Hawkins

Independent MLC Ivan Dean has recently raised the possibility of the Legislative Council of Tasmania blocking the upcoming state budget if it entailed further cuts to health spending. This brought a sharp response from Greens leader Nick McKim and some online debate in the media. Political scientist Richard Herr and constitutional law expert Michael Stokes both responded negatively to Ivan Dean’s suggestion.

Richard Herr said (Mercury 27April12) that …
…the Upper House needed to be held accountable if it was to block the Budget. “They are the most powerful Upper House in the Western world,” Professor Herr said. “It is so far out of line with democratic practices anywhere in the world.” He said the ability for the Upper House to block the Budget was outdated.

Michael Stokes said (Mercury 27April12) that …
…sending the Upper House back to the polls if it blocked the Budget would be a fair outcome.
“But it is not legally possible,” he said. “If they seriously wanted to block supply [the Budget] they should agree to an amendment to the Act.” Under the Constitution Act 1934, the Upper House has the ability to block the Budget.

The Constitution Act (1934) Part IV gives the Legislative Council certain powers with respect to money bills which are initiated in the Lower House. In particular it gives the Leg. Co. the following power:

44. Power of the Council to reject Bills which it may not amend
The Council may reject any vote, resolution, or Bill.

MLC Ivan Dean has been quoted in the same Mercury 27Apr2012 article as saying that the call for the Leg. Co. to face an election along with the House of Assembly was a ‘lame argument’ on the grounds that Money Bills originated in the Assembly, not in the Council. However, his response overlooks the Council’s ability when faced with unsatisfactory Bills from the Assembly:

43. Power of the Council to request amendment of Bills which it may not amend
(1) The Council may, at any stage of a Bill which it may not amend, return such Bill to the Assembly, requesting, by message, the amendment of the Bill in all or any of the following respects, namely:
(a) The deletion of any item or provision;
(b) The amendment of any item or provision;
(c) The insertion of any item or provision.

Ivan Dean and his fellow MLCs, do not have to the limited choice of either passing the Budget or blocking it. They also have the ‘Constitutional Power’ to return the Bill to the Lower House and to both request and suggest deletions, changes and additions. I suggest that this Power should also be seen as a Responsibility. Blocking the Budget would be an inappropriate act. It smacks of the Upper House trying to usurp the role of the Governor, who alone has the prerogative of dissolving the Assembly. If Ivan Dean is trying to force an election in the Lower House, then he is exceeding his role as a Legislative Councillor. Instead, it would be better – far better – for him and his fellow Members to review the Budget Bill, and suggest improvements, if the Council thinks it’s not up to scratch, than to reject it out of hand. Legislative Councillor Ivan Dean has articulated an incomplete view of the Council’s powers. If his threats to the Budget are an attempt to ‘stir the electoral pot’ in the lead up to the election next weekend in Hobart and Western Tiers, then similarly, by trying to set the campaign agenda, he would be seen to be more partisan than Independent.

While we’re looking at the Constitution Act (1934), we might also consider that part of it which removes the Upper House from the control of the Governor:

12(2) The Governor, by proclamation, may prorogue Parliament or dissolve the Assembly whenever he shall deem it expedient so to do, but shall not have power to dissolve the Council.

and further…

19 Council elections
(1) Every Member of the Council, subject to the provisions of this Act, shall hold office for 6 years.
(2) Periodical elections of Members of the Council shall be held in every year.

…provides that the Legislative Council never faces a general election. That is, its 15 members never face election at the same time. Two members face election in one year, three the next and the pattern continues through a six year cycle, by which time all 15 members will have faced election once – terms are for six years.

What could reform these provision? Only the agreement of the Legislative Council together with that of the House of Assembly. I think that there has only been one occasion when the LC has agreed to any reform – and that was when they colluded with the Lower House reduction of Members which was designed to cut the influence of the Greens. We will never forget that.

My personal view (open to change) is that the Upper House should not block the budget. And I don’t say that just because they seem to be closet or de facto Liberals up there. It’s because Labor and the Greens promised to deliver a stable government, and they at least are doing that, despite Will Hodgmann’s endeavours and despite the disintegration of the forest industry. What we are seeing from Ivan Dean is another example of a member of a rogue body at loose in our state. Unfortunately for us, that rogue body is the Legislative Council.

The Legislative Council already is seen as betraying its primary duty to act as a House of Review. It has already infamously promised to reject any legislation that comes before it regarding the IGA reserves – if protests against the ongoing logging of areas that were granted immediate interim protection under the IGA continued. So much for a House of Review. Correct me if I’m wrong, but save for Kerry Finch and the two Labor Members, all the rest of the Upper House participated in this threat. We had the spectacle of them standing outside the Parliament to give voice to it.

Regrettably Rosemary Armitage having gained our trust here in the north, joined in with this. Ruth Forrest did so too. I am glad that there is an election on for two seats in the Upper House. One is for Hobart, the other for Western Tiers, where incumbent Greg Hall is facing a challenge from anti-mill campaigner John Hawkins. Hawkins has stated publicly that he is basing his campaign on the issues related to MLC Paul Harriss having disclosed that he accepted cash and travel contributions from Ta Ann Tasmania in 2008 and 2011 (TT here). It will be an interesting meeting in Deloraine this Tue 1 May …

“JOHN HAWKINS-GREG HALL DEBATE – WESTERN TIERS ELECTION MAY 5
Don’t miss this great debate at the Deloraine Community Complex Tuesday 1 May at 7.30 pm.”