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Among the Federalists: a Weekend in Hobart

August 27, 2011

No soft sand running at Maroubra this weekend, or reading the Russians. I am in Hobart attending a conference of the Samuel Griffith Society, named after Australia’s first chief justice. Strange? Let me report as it goes.

Right now listening to Paul Pirani, a legal officer of the Australian Electoral Commission. I am reminded of how superior Australia’s system is from that of a comparable federal democracy, that of the USA. On these enlightened shores an independent body over which the relevant minister has no control supervises elections. Not so in America where a state cabinet member – that is, either a Democrat or Republican – will make decisions about allocation of voting machines or validity of ballot papers. Here in Australia these decisions are the responsibility of an independent commission.

Even more important is the redistribution process, or reapportionment as it is called in the US. Every 10 years, armed with the latest census data, it is the state legislatures which determine the boundaries for House of Representative, or Congressional, districts. So there are partisan squabbles on the floor of state legislatures as politicians draw federal boundaries. That is, Democrat and Republican politicians draw the boundaries. They have been making seats safer for their federal colleagues. Fewer contestable seats, less need to appeal to the centre, more need to appeal your own base.

In Australia you don’t have state MPs draw federal boundaries. Instead the process is run by the Australian Electoral Commission with transparency and independence. Arms length from government.

The most useful democratization of the US electoral system would be a replication there of our own commission. And wrenching the right to draw Congressional boundaries off state legislatures.

Former Treasury secretary John Stone has just risen to say that my comments along these lines are irrelevant. What matters is the possibility of fraud here in Australia. In replying to this staple argument of the far-right, Pirani points out that interestingly the 2010 federal election which produced a hung parliament produced no close results. There is, in addition, no evidence of fraud.

The Australian electoral system is one of our nation’s proudest attainments.

Now Professor James Allan is slamming Australian High Court activism on electoral laws. The court is not interpreting the law but stating its own preference in respect of prisoner voting rights and other matters. Very amusing. He is one of my mob – an opponent of imposing a charter of rights and more judge-made law on Australian parliamentary democracy.

James Allan refers to the game-playing, second-guessing, supervisory role that judges assert for themselves when they move into activist mode.

One judge at this forum – not one of the two High Court members who is present – told me he is an opponent of a charter of rights precisely because he knows what judges would do. What they would get up to.

  1. Tom Round permalink
    August 27, 2011 10:27 am

    > “Not so in America where a state cabinet member – that is, either a Democrat or Republican – will make decisions”

    To be fair, the American system of directly electing separate executive positions in many States makes it entirely possible that, say, a Democratic Secretary of State will be in a position to make decisions contrary to the interests of a Republican Governor or Legislature. There is no legal rule or convention of Cabinet solidarity at State level and indeed the federal courts have at times had to rule whether it is the Governor or, say, the Attorney[-]General who represents “the Executive thereof” when acting for the State as a whole vis-a-vis the Feds.

  2. Alan permalink
    August 27, 2011 11:23 am

    In the US reapportionment generally means calculating the number of seats each state has in the House of Representatives. Redistricting is what they call redistribution. An ugly word for an ugly process, although to be fair several states have reformed the redistricting process. California, for instance, uses an independent commission of citizens selected at random.

  3. August 27, 2011 4:52 pm

    Bob Carr makes a very important point about the separation between elected officials and the management of the electoral system. Politicians of all stripes find it hard to separate the public interest in fair elections from short term partisan advantage.

    I lived in California through the now infamous redistribution (redistricting) designed by Democrat Congressman Philip Burton in 1982. He exploited the Democrat majority in both houses of the state legislature to push through a set of federal boundaries that turned the congressional delegation for California from evenly divided between the two parties into an overwhelming majority for his party.

    Such was the irregularity of the geometry of the boundaries to achieve this outcome that Burton was moved to describe the plan as his “contribution to modern art.” Jerry Brown (strangely enough then Governor of California and recently re-elected after almost 30 years out of office) signed the unfair Burton gerrymandering plan into law.

    Burton and his brother outraged California again in two subsequent redistrictings leading to irresistible pressure for reform. In 2008, the movement culminated in a successful Citizens Initiated Referendum which placed responsibility in the hands of the largely apolitical Citizens Redistricting Commission.

    Phillip Burton and his brother (also a congressman) had a proud progressive track record. Sadly they smeared their own reputation using the redistricting process for partisan advantaged. It is a fair guess that they damaged their own party in the long run.

    The moral of the tale is that Bob is right (on this issue, at least): it is important to not lead politicians into temptation but deliver them from their own ability to use their position to advantage their party.

    That being said, I still believe there is a lot to learn from the US federal structure and much of it is positive. I am increasingly interested, for example, in the separation of the administration and the legislature, but that is a topic for another day.

    John Kaye
    Greens NSW MP

    • Bob Carr permalink
      August 27, 2011 5:03 pm

      Thanks, John. I was not aware of that Californian history. Nor until an earlier response today that the system had been reformed in that state.

  4. Alan permalink
    August 29, 2011 3:59 pm

    One resists the temptation to say that apparently parliamentarians can be trusted with human rights but not with electoral rights.

    • Tom Round permalink
      August 29, 2011 6:53 pm

      Alan, that position is not unreasonable. Note that one of the few rules that is entrenched even in jurisdictions with flexible Constitutions is the maximum term of the Parliament. In Qld and NSW, it requires a referendum. In other States, a qualified majority of Parliament. In NZ, either a referendum or 75% of MPs. Even in the UK, it remains the sole matter on which the House of Lords retains an absolute veto over a Bill from the Commons. Evidently a large proportion of the common-law world is willing to trust a simple majority of MPs with the last (or even the only) word on, eg, whether “freedom of speech” permits regulation of media monopolies – but not to trust them with power to vote themselves a Septennial Act.

  5. Tom Round permalink
    August 29, 2011 8:17 pm

    A correction to myself – of course, entrenching a maximum term for the legislature does remove power from the legislature but does not transfer it to the judges, since there is very little discretion to re-interpret “four years” (etc). Apart from fine-tuning the calendar (akin to replacing Julian with Gregorian) or perhaps having to decide if some massive calamity (Nicholas Kristof’s alien invasion, perhaps) justifies a _de necessitate_ extension of the electoral term, there’s almost nothing in such provisions that a Justice William Brennan could interpret differently from a Justice Gerard Brennan.

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