Time for an Upper House rethink?

There’s a good case for Upper House reform, says Justin Harding

LIKE many parliaments based on the Westminster system, Tasmania’s consists of two houses — the House of Assembly and the Legislative Council.

The House of Assembly is where government is formed by the party or parties holding a majority of seats.

It is subject as a whole to the people by way of fouryearly general elections, and that’s how it should be.

In a democracy, the government answers to the people.

The Legislative Council is a different fish entirely.

The late Professor W.A. Townsley wrote: “The Upper House was designed to be a conservative brake upon hasty legislation, and that it would function better if it had a permanent, indissoluble and continuing character.”

This meant that the Council could never be collectively held to account in the same way as the House of Assembly.

Instead, each Member of the Legislative Council (MLC) was — and still is — elected for a fixed six-year term.

Elections are held apart from those of the Assembly in May each year, with two or three MLCs up for election.

The main effect of this is that the Legislative Council can never be held collectively responsible for its actions.

In other states with an upper house and the federal Senate, half or all members are up for election at the same time as members of the lower house.

That makes them responsible to the people for what they have done over the previous three or four years.

Here’s another thing: “deadlocks” sometimes occur between the houses over a proposed law, usually meaning that the Assembly has passed a proposed law twice and the Council has rejected it twice.

In other states with two houses and the federal parliament, there are constitutional means of resolving deadlocks.

These generally involve both houses in their entirety being subject to a vote of the electorate, what’s called a “double dissolution” at federal level.

But in Tasmania, the Legislative Council can keep saying “no” until hell freezes over, and there’s nothing that can be done about it.

Also, the system of fixed six-year terms and annual elections has the potential to disenfranchise voters, especially those who live close to the boundary between two or more upper house electorates.

Normally the Council’s boundaries are redistributed every nine years, but in some cases population shifts can bring on an early redistribution.

If that happens, someone who has been enrolled in one electorate for a number of years without ever having voted for their MLC may suddenly find themselves moved into a new electorate, and potentially unable to vote for another six years.

That punishes an individual for where they live and is fundamentally undemocratic.

Finally, there’s the question of MLC’s six-year terms.

In Tasmania we’re lucky to have five local members for each of the five House of Assembly electorates, each one elected for four years.

In all other states and federally they only get one local member in the lower house.

Then we have our MLC who is effectively another local member: one person chosen from one small electorate, responsible with representing that electorate’s interests.

So why do they need a sixyear term?

Their role is, to all intents and purposes, identical to members of the Assembly.

I hope this article does something to kickstart public debate on a body that wields immense political power, but which is — in my opinion — both seriously flawed and little understood.