Fixture in the house

THERE is no getting around Labor's fixed four-year term.

THE people of NSW will have to wait another 18 months before they again get a chance to say who should run their state. That's because NSW has fixed four-year terms and there are no mechanisms for removing Nathan Rees's Labor government ahead of the slated election in March 2011.

But the government cannot be removed just because some people desire it, says former NSW premier Bob Carr.

"There seems to be some notion that the government should dissolve itself and go to an election because of a campaign from some sections of the media," he says. "This is a nonsense. Under the rules of the Westminster system a government continues as long as it has a workable majority in the lower house."

Carr is right. The only mechanisms for removing the Rees administration are if NSW Governor Marie Bashir dismisses the government because it has acted illegally or unconstitutionally, or if a vote of no-confidence in the Legislative Assembly succeeds.

For all the controversy and incompetence of the NSW government, it has not acted illegally or unconstitutionally, and given that Labor has a majority in the lower house a no-confidence motion is never going to succeed.

When Opposition Leader Barry O'Farrell called for a no-confidence motion against the government, it was political posturing for the media. He knew it would not succeed but hoped it would continue to draw attention to the government's disarray in the wake of the resignation of health minister John Della Bosca after it was revealed he had been having an affair with a 26-year-old woman.

Calls for the government to commit hara kiri and go to an election right now seem hysterical, at best. And if the existing fixed four-year term was not indeed fixed, things would not be any different.

"The notion that the NSW government would be in any different position if it didn't have fixed terms is nonsense. Turkeys don't vote for Thanksgiving," former NSW premier Nick Greiner says.

Carr concurs, although he predictably defends the record of the Labor government.

"There has been no finding of corruption against the state government, the level of thestate's services are more or less in line with other states, the AAA credit rating hasbeen saved when it was lost in Queensland," he says. "There is simply no basis in political theory or constitutional practice for a government dissolving itself because it is down in the polls and the media thinks it is time for a change."

But there are other reasons a fixed-term system is not in the best interests of good governance. The notion that four-year terms deliver better government, more reforming government, is not supported by the facts.

Fixed four-year terms go against the flexibility that is so important to the principles of a Westminster system. The ability for a government to call on early election whether it is to seek a new mandate or to overcome an obstructionist upper house is important. Under fixed electoral systems there are provisions for this, but they are extremely limited.

Another former NSW premier, John Fahey, believes fixed terms are a bad idea but he does support giving elected governments four years.

"There is little doubt in my mind that if a government is unable to fulfil its program, for example, because it doesn't have the numbers in the upper house, it should be able to go to the people with an early election," Fahey says. "Equally, if you are a government that is performing badly, there needs to be some mechanism to go to the people early; for example, on the back of a joint sitting of both houses (that) casts no-confidence in the government."

When interviewed late last year about his introduction of fixed four-year terms in the context of the divisions inside the Labor government over electricity privatisation, Greiner said: "In retrospect, I believe that some recall mechanism is now necessary."

He was referring to a system similar to the one that operates in parts of the US. In 2003 Arnold Schwarzenegger became Governor of California when enough citizens, 12 per cent, petitioned to force another election for thepost.

"In practice, the notion of a recall system is a bit impractical. It is a bit of a theoretical rather than practical thing," Greiner says now. "You would guess it wouldn't happen more than once in a century." For Australia, Greiner believes 10 per cent would be an appropriate benchmark for a petition to force a general election. In the context of NSW the question is whether 10 per cent of the voting public would sign a petition to force an early election on the Rees government. If media hysteria is anything to go by, the answer is yes.

NSW got fixed four-year terms in 1991 when Greiner lost his working majority in the Legislative Assembly and was forced to negotiate a minority government with a gaggle of independents to remain premier.

One of their demands was fixed elections. In 1995, it was put to the people in NSW at a plebiscite, and subsequently included in the state's constitution (largely an act of parliament, unlike the commonwealth constitution).

Greiner stands by the reform. "I am very unrepentant about it," he says. "I can't see any logical case against fixed terms."

Proponents of fixed four-year terms argue they give governments certainty of representation. The guarantee of four years in control of the Treasury benches means governments can pursue the sorts of necessary, if unpopular, decisions that are in the best interests of the community free from the looming danger of an election.

However, what tends to happen in practice is that governments become complacent, knowing they won't have to face the judgment of the people for a substantial period.

In contrast, the three-year terms of federal government have seen the likes of Bob Hawke, Paul Keating and John Howard all pursue difficult and complex reforms despite needing to face re-election soon afterwards.

Howard credits the GST as a tangible reform that saved his government in 1998 because it galvanised the team around something significant it had achieved, even if the tax was unpopular at the time.

Overseas, longer-term administrations do not necessarily use their time between elections to pursue substantial reforms. US presidents get their best work done early in their first term and often second-term presidents become lame ducks quite early in their newly granted four-year mandate. Britain has a five-year electoral cycle, tantamount to an elected dictatorship, yet the British government has been extremely reform shy. But it is important to get the balance right. Where four years or five may be too long for a government to stay appropriately accountable to the public, the two-year electoral cycle for the US House of Representatives creates a form of perpetual campaigning that sees representatives spend more timing raising funds to fight elections than delving into policy debates.

Greiner accepts the argument that four years can make governments complacent, but he suspects whether it is three or four years does not really change the tenor of the regime in power. "I can see that four years is a long time not to face electoral scrutiny and it might make some governments lazy. But I think that at the end of the day governments pretty much do what they want to do, whatever the term they operate within."

Perhaps the more compelling argument against fixed four-year terms is the effect they have on oppositions and therefore indirectly on governments. Oppositions are said to benefit from fixed four-year terms but the evidence suggests otherwise. According to the theory for supporting fixed four-year terms they no longer have to worry about the government calling a snap election to take advantage of the electoral climate. Oppositions can focus, therefore, on developing alternative policies to the government of the day with a well-established timeline before needing to sell those policies at an election.

However, they end up with little incentive to stay disciplined and engage with holding the government to account when they know they will not be getting a chance of governing any time soon.

That has been the Liberal Party's experience in NSW. As a consequence, internal divisions grow and it becomes hard for oppositions to attract quality candidates when their time in the wilderness is so certain. Many MPs spend most of their time securing the numbers in their own seats for preselection time rather than focusing on the opportunity to get back into government.

A poor-performing opposition makes for apoor-performing government. There is littledoubt that one of the reasons NSW maynot have been as well governed during the past decade is because the opposition has not been good at holding the government to account. Fixed four-year terms have contributed to that.

The interesting thing about fixed terms is that despite the problems they cause for oppositions and even governments, and the controversy surrounding the guaranteed representation of the NSW government for the next 18 months, the moves across the country have been in that direction.

Victoria, Tasmania and the Northern Territory have all recently moved to fixed elections, joining South Australia and the ACT. Only Queensland and Western Australia do not have fixed terms, but in WA Premier Colin Barnett has pledged to bring them in.

What the changing dynamic towards fixed terms is likely to do is reduce the likelihood that oppositions remain effective and governments continue to pursue reformist policies. This will make it easier for rhetoric in favour of the commonwealth seizing control of state government responsibilities to win support.

So, while fixed terms are problematic and perhaps should be scrapped, when looking at this NSW government the reform that would force Labor to the polls is one that reduces the electoral cycle from four years to three. At least that way the voters would be able to determine who they want governing NSW come March next year, instead of having to wait an additional agonising 12 months.

Looking forward to March 2011, what willNSW get as its reward for the patience it shows in waiting to throw out the Labor government, if that is what it decides to do? Premier Barry O'Farrell.

Peter van Onselen is The Australian's contributing editor.