The political instability in New South Wales and the underperformance of its economy have led to calls for an early state election. Federal Opposition Leader Brendan Nelson, for example, has said that the 2 1/2 years until the next scheduled vote is too long for voters to wait.
The push for an early election is at odds with the NSW constitution. That law says that the NSW Parliament is elected every four years. It also fixes the date for the poll, so that we know that the next election will be held on March 26, 2011. Unless the constitution is changed by the people at a referendum, this will almost certainly be when the NSW Government is next determined by the people.
There are very few exceptions that would allow an early election. One is that Governor Marie Bashir can call an early election if the Legislative Assembly, the lower house of the NSW Parliament, passes a no confidence motion in the Rees Government or rejects a government budget Bill.
This would require Labor members to vote against their own premier and party. Self-interest, if nothing else, dictates that this will not occur. The only other path to an early poll is a cryptic provision in the NSW constitution that says the Governor can dissolve Parliament ''in accordance with established constitutional conventions''. There are very few conventions that allow this.
One is where a premier loses a vote of no confidence in the Legislative Assembly, a possibility already catered for. Another is where a government breaches a fundamental constitutional principle. Dismissal on this ground has happened only once in Australian history, when NSW Governor Sir Philip Game dismissed Labor Premier Jack Lang in 1932. It occurred in the midst of the Great Depression when Lang, contrary to federal law, stopped making interest payments on state debts.
The only other example of a dismissal was that of the federal Whitlam Government on November 11, 1975, by Governor-General Sir John Kerr.
This took place after the Senate refused to pass the Whitlam Government's budget Bills. This precedent might encourage the NSW Opposition and minor parties to band together to provoke a constitutional crisis by blocking budget Bills in the Legislative Council, the upper house of the NSW Parliament. However, even if they did so and they do have the numbers to bring this about it is hard to see that it would provide a basis for the Governor to dismiss the Rees Government and bring about an election.
Kerr's action remains highly contentious and should not be seen as an ''established constitutional convention'' as required by the NSW constitution.
The bottom line is that the next NSW election will almost certainly be held in 2011. There is no basis in law for an earlier poll due to a change of premier or difficult economic circumstances. In fact, even if the Rees Government itself wanted to call an early election, it lacks the power to do so.
This exposes another problem with the public debate on the NSW electoral system. The underlying sentiment seems to be that having a set election date prevents voters from getting rid of incompetent governments. In fact, fixing the election date makes little or no difference. Even if the election date were changeable, there would be no likelihood of an early election. The decision when to go to the people would rest solely in the hands of the premier and his government. The idea that a government in strife and facing defeat would willingly submit itself to the people and give up any possibility of redemption defies political reality.
A key reason why NSW, the ACT, South Australia and Victoria introduced fixed terms is to limit the benefits of incumbency. One of the greatest advantages for any government is the ability to manipulate the electoral cycle by calling an election at the time of its choice. It can seek to wrong-foot its opponents or to ensure that the election coincides with good economic news and even a peak in the government's popularity.
Fixed terms prevent this manipulation and provide politicians, business and the community with certainty about the electoral cycle. It would be wrong for a reform designed to limit the power of government to be removed now because of a mistaken impression that this could bring about early elections in NSW. In recent weeks the Northern Territory and West Australian governments have come under strong criticism for going to the people early under systems that leave the election date open.
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