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[2] This article examines the
nature of representative and responsible government in Australia, with
particular emphasis on the role
of the Senate. That body, while originally
designed first and foremost as a States’ house, quickly failed in that
role and
became a second party house. As a second chamber, the Senate has in the
latter half of the 20th century developed as a house of review.
As
such, the Senate can be seen as enriching and enlarging the way the Australian
system incorporates notions of limited parliamentary
democracy.
[4] As Reid and Forrest noted in
1989:
The founders of the Australian federation were united in their expectation that the Commonwealth Parliament would embrace the highest ideals of political representation ... they were unanimous that both houses should be elected and that commitment to representative government was embedded in the Constitution. The Constitution (ss 7 and 24) provides that both houses of the Federal Parliament are to be ‘directly chosen by the people’. The Constitution also embraces the democratic commitment to ‘one person, one vote’, by providing in ss 8 and 30 that in choosing members of parliament ‘each elector shall vote only once’.[1]
[6] Of course
the Australian system was, and is, a system of responsible government because
governments are formed exclusively by
the majority in the Lower House; but it
was also designed as one of joint democratic representation.
[8] Because representation in the House of Representatives is based around single-member, geographically determined electorates, elections regularly produce distorted results, in that governments are often elected with a majority of the seats, without having gained a majority of the vote. The chance for distortion in Australia is made greater by the requirement that electorates are drawn up within State boundaries. Even when governments achieve a majority of the vote, the percentage of seats gained frequently bears little resemblance to the percentage of the popular vote.
[9] Campbell Sharman
examined the vote in the 1998 election for each
House.[4] He found that the
Coalition parties won just under 40 per cent of the vote for the House of
Representatives, but gained over 54 per
cent of the seats. The Senate, however,
produced the result that the Coalition won 42.5 per cent of the seats with 37.7
per cent
of the vote. Sharman stated that:
Even including those senators who began their terms in 1996 the composition of the new Senate gives the Coalition 46 per cent of the seats, a figure which is a much more accurate reflection of the party vote for the House of Representatives than the House of Representatives result itself ... It is the House of Representatives that is unrepresentative, not the Senate ... The Senate is certainly more than representative enough to have its actions underpinned by a powerful sense of popular legitimacy.[5]
[11] On the other hand, and of profound importance, remains the fact
that because the
Constitution gives equal representation to the States, and because the
Australian States have different population sizes, the Senate does not
embody
the notion of ‘one vote, one value’. If that notion is seen as
central to representative democracy, the Senate
fails.
[13] The Australian population has a very different
profile. The present mix comprises about 74 per cent Anglo-Celtic, 19 per cent
other European, 4.5 per cent Asian and around 1.5 per cent Aboriginal and Torres
Strait Islander. Twenty-three and a half per cent
were born overseas, and 15 per
cent speak a language other than English at home. While Australia prides itself
on being multicultural,
its Parliament is not. Indeed, the parliaments of the
UK, New Zealand, Canada and the United States (‘US’) have much
stronger ‘ethnic’ representation than does Australia.
[15] The Senate has also been the house in which more women play leadership roles; thus the Senate can claim to be more representative in the sense that it enables the world views and values of women to be heard through their attainment of such leadership positions.
[16] To conclude, in terms of representation,
proportional representation has helped create a situation where the Australian
Senate
not only reflects the mass party majorities as well as or better than the
Lower House, but it also allows for better representation
of minority
interests.
[18] Nonetheless, many of the federation fathers were concerned about the powers of the Senate. Because the election of the Senate was based on equal representation of the States, there was serious concern about the relationship between that chamber, which would give a powerful voice to the States, especially the smaller States, and the more popularly elected chamber, the Lower House. There was extensive debate around the issue of Money Bills in particular. On the one side, there was concern that were the Senate given power to block Money Bills, it would thwart the will of the popularly elected chamber in the interests of the smaller States.[6]
[19] There
was an equal concern on the other side that:
The whole principle of federation is to recognise the co-ordinate power of the population and of the states. There can be no federation if you give all the powers to the popular assembly. ... It is no use giving representation to the states house if you emasculate that house by placing all power in the other house.[7]
We are introducing into this federal system responsible government, and the underlying principle is that the house of representatives, representing the people, is amenable to some degree of criticism on the part of the house which imposes the check, and that it is within the constitutional consequences that it shall go to its constituents. If it comes back supported by the people, the senate must either give way or go to its constituents.[8]
I have always been apprehensive that misconstructions would be given to the federal constitution, which would disappoint the views and expectations of the honest among those who acceded to it, and hazard the liberty, independence, and happiness of the people. I was particularly afraid that, unless great care should be taken to prevent it, the constitution, in the administration of it, would gradually, but swiftly and imperceptibly, run into a consolidated government, pervading and legislating through all the states, not for federal purposes only, as it professes, but in all cases whatsoever. Such a government would soon totally annihilate the sovereignty of the several states, so necessary to the safety of a confederated commonwealth, and sink both in despotism. [10]
[24] For example, the Hon Isaac Isaacs stated:
I have supported equal representation, because I recognise, as a fact, that the smaller colonies so-called – the less populous colonies – will not come into a federation without it. I recognise that as a matter of fact; it is a political fact, and it is a fact that has the justification of expediency ... The states, as states, according to my view, have no place in the federation ... I cannot understand why it is being insisted upon that equal representation in the senate is to be regarded as any sign at all of state autonomy. [11]
[26] In terms of the powers of the two American Houses, the job of keeping the executive in check is more strongly given to the Senate – not the popular house. The Senate must ratify treaties that the executive has negotiated; the Senate must approve presidential nominations for Cabinet positions and for the Supreme Court, and the Senate tries an impeached President and makes the final determination of his (or her) guilt or innocence.
[27] The powers of the Australian Senate, and
the philosophical assumptions of Australia’s federation fathers, bear
little in
common with the above description of the American Senate. The Lower
House in the Australian system is constitutionally the stronger
house, with its
power to form governments and power to amend Money Bills.
[29] By and large, we have a system that most of the time looks and acts as if it were a unitary system of responsible parliamentary government dedicated to the idea of majoritarian democracy. The government formed from the Lower House calls the tune, dominates policy and overwhelms the Lower House.
[30] Nonetheless, the constitutional arrangements place the Senate as a second chamber whose representative democratic character justifies its having been granted extensive powers to review and reject legislation, as well as to judge and to hold to account the government formed from the majority in the Lower House. While governments are formed from the Lower House, and only the Lower House has the power to dismiss a government through a vote of no confidence, governments are answerable to both Houses and both Houses can review and amend all normal (ie, non-money) legislation.
[31] When I first made the case that Australia’s system was unique, I argued that the system was an entirely different species, a ‘Washminster’ mutation, which had some genes drawn from its Westminster heritage and some genes drawn from its Washington (federal) heritage, but which had mutated into a system all of its own. I emphasised that Australia had many features of a separation of powers system (like that of the US). Separation of powers was, I argued, an important feature of the Australian system and one which had been under-emphasised in most political science books on the Australian system that concentrated almost entirely on the British heritage of responsible government and on the way the federal division of power between the States and the centre had developed.
[32] In the 20 years since those arguments, the idea of the Australian system being unique has become commonplace. Moreover, some of my arguments, while being correct in strict constitutional terms – especially those concerned with the powers of the formal executive (the Governor-General) – over-emphasised the theme of separation of powers.
[33] The emphasis in this article is that the relationship between the Senate and the executive government today (and perhaps the relationship between the judiciary and the executive) should also be understood as part of the system of limited and responsible parliamentary government. A number of factors strengthen a view of the Senate as integrated into responsible government.
[34] First, despite challenging the executive on individual – and often important – issues, the Senate acknowledges the legitimacy of the government formed from the Lower House, and either yields to the policy direction chosen by the government, or at least favours it a priori.
[35] Second, ministers are regularly drawn
from the Senate as well as the House of Representatives, and those ministers are
questioned
on their executive conduct in the Senate. It should be remembered
that the Senate-based ministers have been elected – unlike
their
counterparts in the House of Lords or the Canadian Upper House whose members are
appointed. Having elected ministers held answerable
to an elected house makes
the Senate a strong candidate for being a partial partner in a system of limited
responsible government.
[37] However, for the first half of the 20th century, because of the electoral systems chosen, the party with the majority in the Lower House dominated the Senate. Hence, the Senate was the puppet of the government of the day. Since the introduction of proportional representation in 1948, the Senate has developed into a vital, representative, democratic second chamber, which actively attempts to ensure ‘that laws are supported by a majority, properly representative of the country, and ... that ministers are accountable for their conduct of government to the Australian public’.[13]
[38] The Senate, through the use of its power of censure, has developed an important role in holding ministers answerable. It will censure a minister if it believes that a minister has not acted with propriety; has failed to declare an interest in a matter; has refused to produce documents in compliance with a Senate order; or has misled or lied to the Senate.[14]
[39] The power of censure is taken very seriously not only by the Senate but by the government because a Senate censure can have, and has had, repercussions on the credibility of the government as a whole. It has led to the resignation of ministers. For example, in 1992 during the Keating Labor Government, the Senate censured Graeme Richardson, Minister for Transport and Communications, for among other things, ‘attempting to interfere in the justice system of another country’. Richardson resigned.
[40] During the period of the Howard Government, the Senate’s actions also led to ministerial resignations. In 1996, the Senate passed a resolution calling on the Assistant Treasurer, Senator Short, and the Parliamentary Secretary to the Treasurer, Senator Gibson, to explain apparent conflicts of interest arising from their shareholdings. Those two office-holders subsequently resigned.
[41] In that very direct way then, the Senate is the chamber that holds (at least some of) the executive individually accountable.
[42] The Senate has also extended its scrutineering and oversight activities with respect to legislation.[15] This process began seriously under then Senator Lionel Murphy in the late 1960s and gathered strength from 1970, when major reforms were put in place creating new standing committees. In 1970, a comprehensive system of legislative and general purpose standing committees, which would ‘stand ready’ to inquire into matters referred by the Senate, was introduced. These committees looked at policy and administrative issues covering the full scope of government activity. Estimates committees were also established to scrutinise the particulars of proposed government expenditure.
[43] Between 1979 and 1982, the Senate Standing Committee on Finance and Government Operations, chaired by Senator Peter Rae, began its investigations by surveying all of the non-departmental units of government (the ‘quangoes’) it could find, and recommended that annual reporting, financial oversight and governmental control be vastly improved.
[44] In the 1990s, the Senate was
instrumental in bringing the sports grants case to a constructive conclusion with undertakings that accountability mechanisms in public administration will be strengthened. In its review activity, it has revealed serious deficiencies costing millions of dollars in the performance-based pay program in the public service. It disallowed a generous determination in favour of the former controller-general of customs. And it maintains a continuing and active vigilance over the civil liberties of citizens through the work of its standing committees on regulations and ordinances and scrutiny of bills.[16]
[46] The
Senate has built up its committee expertise and has developed
multi-purpose bodies, capable of undertaking policy-related inquiries, examining the performance of government agencies and programs or considering the detail of proposed legislation in the light of evidence given by interested organisations and individuals. The scrutiny of policy, legislative and financial measures is a principal role of committees.[18]
[48] The Senate also reviews the budget in ways unimagined by the federation fathers who were intent on preventing budgetary review by the Upper House, which they believed would give undue influence to small States.
[49] In 1993, because the Government lacked a majority in the Senate, the budget was held up for so long that Parliament sat until Christmas. In recognition of the fact that the budget will no longer go through Parliament as a fait accompli, the timetabling for budgetary negotiation has been extended.
[50] The difference from the past is that previously, out of the closed processes of Cabinet came a budget that was non-negotiable, and its progress through both Houses of Parliament was regarded as automatic. Today, the budget that emerges in May can be challenged by the Senate on some items at least.
[51] In 1999, because the Australian Democrats controlled the balance of power in the Senate, central portions of the Government’s major policy, the introduction of a Goods and Services Tax (‘GST’), had to be negotiated with the Democrats and modifications made.
[52] It is tempting to make comparisons with the US Congress. Like an American President, an Australian Prime Minister has to negotiate more or less in the open with senators who hold the balance of power. American-style negotiations have forced governments to back down publicly over a number of budget positions: American-style pork-barrelling with independents won support for the privatisation of Telstra; American-style negotiations won support for the GST.
[53] To reiterate, despite similarities
between the Australian and US systems, there remains a profound difference. The
Australian
process gives considerable leverage on specific issues; in the US,
all legislation, in particular the entire budget, is open to negotiation,
and
the American executive has to build coalitions on every issue.
[55] That the Senate would act as a house of review, a brake on
the popular house, was foreseen by some of the federation fathers.
For example,
in the debate in 1897 over whether or not to give the government the power to
ask for the dissolution of both Houses
in the event of the Senate refusing to
pass desired
legislation,[20] the Hon
J Henry, from Tasmania, argued:
The senate which we propose under this bill, as we know, will occupy the dual position of a state house, and also a house which, at the same time will perform the ordinary functions of a second chamber in general legislation. I start with this, and I know it is admitted by all reasonable democrats that a brake on democracy to prevent undue haste is absolutely necessary. [21]
[57] In Australia, by contrast,
government is limited by the existence of a powerful Constitution and the
all-important power of judicial review by the courts. Moreover, the Constitution divides
powers among branches of government, the most important aspect of which –
given the dominance of the Lower House by
party majoritarianism – is
through the constitutional embedding of a Senate, which today holds ministers
answerable, reviews
legislation and challenges sections of the budget when
necessary. These developments seem to be part of a slow process of reform
in
which the Senate watches and monitors the government’s exercise of its
executive and legislative powers. That these reviews
take place within a context
of adversarial political parties does not detract from the Senate’s role
in limiting government
per se. It should be recalled that as early as 1848,
Disraeli had recognised that ‘you cannot choose between party government
and parliamentary government. I say, you can have no parliamentary government if
you have no party
government’.[23]
[59] The Constitution itself places limits on the sovereignty of the central government and, from time to time, the High Court checks the exercise of executive powers in important ways. And for the past 50 years, the Senate, drawing on its legitimacy as an elected, representative second chamber, with its powers embedded in constitutional grants of power, has expanded its role as a house of review. On occasion, it has called governments to account; questioned ministers on their executive decisions, and indeed forced ministers to resign; and reviewed legislation – in some instances forcing amendments on the executive, and in other instances, vetoing proposed government policy. In all these ways, the Australian system incorporates notions of limited government within a system of strong, responsible adversarial party government.
[60] The role that the Senate has carved out for itself is given legitimacy through its constitutionally embedded powers and through the constitutionally embedded requirement that it is elected. However the Senate’s role ultimately depends on the continued existence of proportional representation and on the Australian voters continuing their propensity to deny to either major party a majority in the Senate, and place the balance of power in the hands of minor party senators. Were the government of the day to be given a majority in the Senate, the Senate would again become the puppet of that government. Were the opposition to be given a majority in the Senate, there would be, in all likelihood, a direct clash between the two dominant political parties, each controlling one House. Those circumstances would tend to cripple effective government and lead, sooner or later, to a clash of sufficient importance to end in an earlier election, most likely a double dissolution.
[61] Were the Australian system to evolve in those directions
on a more or less permanent basis, the Senate would have moved beyond
its role
as a second chamber, to a role which threatened to undermine the essence of
responsible government. The system then might
be one of limited government
– but the results would hardly be responsible, good or stable
government.
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URL: http://www.austlii.edu.au/au/journals/UNSWLawJl/2001/53.html