—Katharine Young, Boston College Law School
[cross-posted from Online Opinion (Australia)]
The government’s bold, unpopular budget has attracted bold, popular dissent. Last week, amongst criticisms of the budget’s disproportionate impact on students, the unemployed, the poor, the sick and disabled, and the aged, Independent Andrew Wilkie announced an audacious response: that he would vote against the government’s appropriations bills, and would call on Labor, the Greens and Palmer United parties to join him. These parties could form a critical majority to block the legislation in the Senate. Wilkie’s gesture seemed to track popular opinion: an Essential poll reported that 47 per cent of voters would support a blocking of the budget bills. If successful, such an act would block the moneys needed to keep the government running after July 1, therefore forcing either a revision of the budget or an election.
Labor, however, was quick to scotch support for such a move: despite its heavy criticisms of the Abbott/Hockey budget, it reported that blocking supply would not only be anti-democratic, but would take Australia down the path of “[American] Tea Party-style politics”. It also warned that any opposition “that uses the Senate to block supply would be creating a noose for its own neck should it ever form government and not control the upper house itself.”
Putting aside the Opposition’s own pragmatic calculations, how feasible is such a move in Australia?
Let’s look first at the Tea Party analogy. In October 2013, the US Congress refused to pass an appropriations bill for the 2014 fiscal year, resulting in a sixteen-day shutdown of government services. Government employees were furloughed, government contracts suspended, and all “nonessential” government services ceased. The Republican-controlled House of Representatives, influenced by Tea Party strategists, had conditioned its support for the budget on the delaying or defunding of President Obama’s healthcare legislation. Ultimately, the threat was unsuccessful: Obama held out until the House capitulated on October 17, but not before the incurrence of substantial financial and reputational losses to the US – the shutdown was estimated, for example, to have cost between two to six billion dollars in lost output.
There are a number of big differences between Australia’s current situation and the US example. One is structural. The US presidential system lends itself particularly to budgetary gridlock: it is no surprise that the 2013 shutdown followed a long, and increasingly more frequent and serious, line of budgetary standoffs (numbering 18 since 1976). The parliamentary levers available to resolve impasse in Australia – loss-of-confidence motions, double-dissolutions or other pro-representative procedures, are simply unavailable to end the impasse between America’s President and Congress in an increasingly polarized partisan setting. As I have written elsewhere, other modern Constitutions have deliberately departed from the US model by including a constitutional default rule that automatically passes contentious budgetary legislation. And although Australia’s closest comparator, the U.K., no longer allows the Upper House to reject supply (but only delay it by one month), Australia’s Constitution contains no such rule. Structurally, our Constitution enables US style (bicameral) deadlock to occur, but with the safeguard of certain pro-representative solutions.
Another difference is contextual. The Tea Party had conditioned its support of the budget on the defunding of a separate policy item: the (already-paid for) Affordable Health Care Act. Its gesture of budgetary blackmail was therefore unrelated to the content of the budget itself. This is a pertinent contrast with the current criticisms of the appropriations bills’ direct cuts to the ABC, SBS, CSIRO and the indexation tweaks to pensions that would be stymied by the refusal of appropriations. Of course, the move to block supply is also directed to the GP fees, NewStart changes and fuel excise cuts found in enabling legislation, and Labor has announced its preference to concentrate on blocking those bills separately. The Tea Party’s single-minded campaign against Obamacare was categorically different from the budgetary politics on foot in Australia.
Next, let’s assess Labor’s cautionary statement about the precedent this would set. Would blocking the budget embolden a renegade Senate against future budgets? This assessment depends upon how secure the convention is currently, that the Senate does not vote to block supply. Certainly, there is constitutional text – section 53 – to support the Senate’s power to block supply. It was famously – and notoriously – used by the Coalition-controlled Senate to block Whitlam’s budget in 1975, leading to his dismissal by Governor-General Kerr and the election of Malcolm Fraser. The political fallout from that dramatic crisis still echoes. The late constitutional scholar George Winterton described the blocking of supply as “political insanity” for modern Australia. In short, voters are unlikely to respond favorably to such a drastic option. Neither incumbents nor opposition members would be eager to test the public’s verdict, save in highly charged moments of budgetary dissent. It is unlikely, despite widespread criticism of the budget, that we are at that point now.
Hence, the option may not be politically viable, although it appears both constitutional and even democratic. The Australian Constitution was designed to be less tolerant of deadlock than the US Constitution. Parliamentary procedures exist to return impasse to the people. In Australia’s case, party discipline, political calculations, and the long shadow of 1975 all make the refusal of supply a somewhat feasible, but very unlikely, option.
[This post adapted from American Exceptionalism and Government Shutdowns: A Comparative Constitutional Reflections on the 2013 Lapse in Appropriations, 94 Boston University Law Review (forthcoming 2014).]