I teach constitutional law, and every so often do a course on comparative constitutional law here, or overseas. One thing that few know, even here in Australia, is that our Aussie constitution is by far the most successful copier of the US’s.
The framers of our Constitution looked at Canada and the United Kingdom and all the models on offer and opted to copy lots and lots of key things from the US. Take bicameralism. We went for a US-style strong and genuine Upper House that is elected and can block legislation, one that has real, democratically legitimate power.
The UK doesn’t have that. Its Upper House is still unelected. So is Canada’s. In fact, Canada’s is worse because at least the Brits don’t pay their appointed Upper House hacks and placemen a full salary the way Canada does.
And then there’s the version of federalism we chose. Again, we’ve got the US model of a single list of the centre’s powers, with everything else going to the States. The Canadian version of one list for the centre and another for the Provinces, meant to make the centre strong ironically, was rejected. We went for the US version meant to deliver strong States, not counting on a ridiculously pro-centre High Court that would over the years side with Canberra on virtually every important case going.
Basically except for our amending formula (from the Swiss), a specific decision to eschew a Bill of Rights, and the need to work it all into the Westminster parliamentary system we inherited from the British, you can think of Australia’s constitution as being a copy — an improved and better version — of the US constitution. As an aside, I reckon it’s the best-written Constitution in the world.
So if that’s the case, some might be inclined to wonder what the recent US election tells us about the one coming up Down Under. After all, there’s a certain sort of superficial sameness between the two countries. Both have populations more or less split on the big government/small government political questions related to such things as the NBN, BER, massive stimulus and carbon tax (here) and expanding healthcare, massive stimulus, huge deficits and tax reform (up there in the US).
That being the case, what does the Obama victory suggest to those trying to read the electoral tea leaves down here in Australia? And I’m afraid the answer in my view is ‘basically nothing’. You see for all the constitutional similarities, we have a parliamentary system and they don’t. And that matters a lot for those trying to draw conclusions from the Obama win.
First off, notice that in the House of Representatives the Republicans won, and won easily, taking 242 of the 435 districts. In Australian terms that would make them the only game in town. For Westminster systems like ours, the election winner is the winner of the Lower House where the entire country is divided into more or less equally-sized districts and you count up who wins the most.
By contrast, in the US the House result is in many ways the least important of the three in play. The presidential winner gets the most attention. And for Americans the Senate (in which small states like Vermont and giant ones like California get exactly two Senators each, thereby quite massively skewing and undermining the majoritarian credentials of that legislative body) nevertheless generally enjoys greater status than the House.
Not here in Australia though. Our Senate and Senators have lower status. You win elections here in the House, not the Senate. Heck, even the Greens can win a spot on occasion in our Upper House.
And then there’s a second big difference. For all the many important ways that we copied the Yanks, at core ours is the inherited-from-the-Brits majoritarian Parliamentary system. The US system is fundamentally a checks and balances system. By explicit design it’s exceptionally hard to get things done in the US. In our system it is much, much easier. Of course, that cuts both ways. If you think the proposed law is a bad one, the US system makes its passage way tougher than here, and that’s a good thing. But if you think a new law is needed, things can be brutally tough in the US, which is bad.
Here are two examples. As I write, the US is running debt levels per person well above those of Greece. Depending on which estimate you go for it is somewhere between US$50,000 and $60,000 per person. And they have a deficit in the neighbourhood of eight per cent of GDP, or $1.5 trillion dollars more of spending than of revenue each year.
Fixing that, or trying something that might fix that, is way easier under our system because what the governing party with the most seats in the Lower House wants, it generally gets. And even an obstructive Senate can be threatened with a double dissolution.
Not in the US though. There the House can block any Bill. So can the Senate. In fact, in the Senate 40 out of the 100 Senators can filibuster and so effectively block it. And the President has a veto that requires a two-thirds vote to overrule. In other words you need lots of bipartisanship agreement or you can’t fix the problem. You can’t even try to fix the problem.
That’s one side of the coin, the one that makes us look way better. Here’s the other side: in the 2008 US Presidential election both McCain and Obama went to the voters pledging some sort of cap and trade carbon scheme. Obama won. And the Democrats also won the Senate in 2008 and the House. They had all three branches of government. And yet they still couldn’t get any law through. In fact Obama didn’t even try to do so, really. There were too many legislators in his own party he couldn’t win over.
Meanwhile, here in Australia in 2010 Julia Gillard went to the election promising voters there would be no carbon tax. It was an explicit promise. After squeaking through by cobbling together a coalition of Greens and rural socialist independents, she ignored that promise and brought one in any way. No one in her own party showed any resistance at all, Lower or Upper House. That’s the side of the coin that reflects poorly on the Australian model.
Of course, in the real world no system is perfect and you have to pick your poison, the system you think is least bad. That’s the only option on the table. Just be highly sceptical that any meaningful comparisons can be made with the US election. Personally, I reckon whoever wins the current Labor seats in Queensland will decide things here.
James Allan, a professor of law at the University of Queensland, will be on sabbatical at the University of San Diego School of Law next year.
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