How our constitution allows the Senate to remove Prime Ministers

We will never know what effect exposure of the truth about the children overboard "incident" would have had in the 2001 federal election. Given the intensity of the electorate’s support for John Howard’s asylum policies, maybe the answer is "not much" or "none". But it is worth pondering that had 7657 electors in eleven marginal seats voted the other way, Kim Beazley would be Prime Minister today.

However, the retrospective is less important than what lies ahead and whether any concept of accountability can be imposed on this increasingly sorry scene. For all the sentimental blather of monarchists and minimalist republicans, cases like this reveal the inadequacy of the Westminster system, as it has evolved in Australia, in terms of ensuring that the executive is answerable to the legislature, and through that process, to the Australian people.

While we imported the American notion of personal "impeachment" into our constitution, we restricted its application to the judiciary, believing naively that Prime Ministers and ministers could be held to account through the ordinary workings of parliament.

Because the Australian party system is so inordinately and dysfunctionally disciplined, there is no prospect of the majority in the lower house doing other than closing ranks and supporting a Prime Minister and any of his colleagues who may be found to have lied or to have gone to extraordinary lengths to avoid learning the truth.

Major party discipline extends also to the Senate. The days when maverick Liberal senators (such as the late David Hamer) could cross the floor and still secure entry to the party room are long gone, although the Democrats proclaim adherence to voting freedom and demonstrated it over the GST.

This means that any Senate inquiry will not be free from charges of partisanship, but in the absence of any independent inquiry, it is the best we’re likely to get. Where might it go and what might be its political consequences?

Let us assume that the inquiry discovers that the Prime Minister knew, or could reasonably have been expected to know, before election day, that the "children overboard" story was false. Yet, he made no effort to inform the electorate, preferring to have this misconception advance his re-election chances in a hothouse and divisive campaign.

Armed with this finding, the Senate majority could take one of a number of courses. First, it could pass a censure motion against the Prime Minister and call on him to resign, but this would have nil effect. Without the threat of any sanction, it will be the same flick with a piece of wet spaghetti as on previous occasions when ministers have been "censured" by the Senate. Political life will go on and no blow of any sort will have been struck for accountability.

Alternatively, if the Senate majority has the will and, dare we say it, the "ticker", it could adopt a more dramatic and decisive posture. In 1974 and 1975 the Opposition in the Senate made passage of money bills conditional on the government calling an election. In the former year, the Prime Minister accepted the challenge, while in 1975, intervention by the Governor General ultimately settled the political impasse when Whitlam refused to recommend a dissolution.

The events of 1975 will forever remain controversial, but what is non-contestable is that the Senate acted within its powers, powers which it retains. The normative question of whether it should have done so is only incidental to this discussion, as is the behaviour of the then Governor General.

It is within the power of the Senate to make passage (or even consideration) of the May budget dependent upon anything it demands, but we would advance for consideration the following, depending upon the gravity of any findings against the Prime Minister.

First, the Senate could, like its predecessors in 1974 and 1975, demand an election. We do not propose this, for several reasons. It is not clear that the recent result would change radically and it is far from self-evident that the ALP is yet fit to govern.

Most importantly, the necessary conditions for a double dissolution are unlikely to exist by May and there is a sound, principled objection to upper houses forcing lower house elections and not facing the people themselves. There exists a too-common misconception that the blockage of supply by the Senate triggers a double dissolution.

What does merit consideration is for the Senate to demand the resignation of John Howard as leader of the parliamentary Liberal Party as a condition for consideration and passage of the budget. This would have the effect of censuring the current Prime Minister without requiring an election and without occasioning a 1975-style "constitutional crisis".

Obviously, such a demand requires a credible sanction. A forced election would remain an option, notwithstanding the above reservations. The more damaged Howard’s credibility, the more likely that integrity would be a key election issue, to the advantage of neither Howard nor his party. Indeed, unless that state is reached the election option lacks value.

A second, quite realistic option, is for the Senate majority to decline to deal with the coalition government until Howard was replaced as Liberal leader. There would be no cooperation with the government’s legislative agenda and there would be a cessation of the normal conventions and civilities (eg pairs). It should be stressed that such a strategy does not constitute a rejection of supply and poses no threat to the routine business of executive government.

The political climate would determine the viability of this option. The more Howard’s credibility is damaged, the less downside for the Senate majority. After all, the Prime Minister stands on sand: the distinction between "core" and "non-core" promises doesn’t feature favourably in many textbooks on political morality.

Inherent in this discussion is an assumption that Peter Costello will emerge unscathed from the Senate inquiry, and thus can assume the Prime Ministership without a cloud over his integrity.

To those cynics who claim that all elections are full of lies and that this is all much ado about nothing, we would counter as follows. There is a considerable difference between dubious promises (no child in poverty, lower inflation or lower unemployment) and an outright, blatant untruth, where ample opportunity exists to correct that untruth. If we don’t make that distinction, then our polity is very sick indeed.