Senate reform counter-proposal

George Williams proposes a reform measure for the Senate that strikes me as vastly preferable to John Howard’s cynical proposal. Williams’ idea involves fixed 4 year terms for Federal Parliament, along with a somewhat liberalised joint sitting mechanism for twice-rejected bills:

This model would retain the power of the Senate to review, and to block, legislation for the life of one parliament. However, if re-elected, a government could have legislation blocked over the previous four years enacted at a joint sitting. This would be achieved by a transparent process whereby the bills in issue would be made clear to the voters at election time.

Williams’ proposal has merit. It would address concerns about Senate obstructionism, while preserving the Senate’s role as an effective democratic counterbalance to excessive government power.

Of course, the joint sitting aspect of Williams’ idea doesn’t actually depend on implementation of 4 year terms. It could be proposed as a stand-alone reform. I think I would support it, while on the other hand I have mixed feelings about 4 year terms. I think they would be fine for the House of Reps, but under the present constitutional structure it would mean 8 year terms for senators, which strikes me as rather too long.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Dave Ricardo
Dave Ricardo
2022 years ago

Ken, I agree that 8 year terms for Senators would be too long. But a solution is at hand. Make reps terms 4 years, preferably fixed, and keep senate terms at 6 years. ( I know, I know, you’d have to change the constitution … )

This would mean that House and Senate elections would become out of sync, so we’d get separate senate elections (except every 12 years, if we had fixed terms for both.)

But so what? We used to have separate senate elections, albeit the last one was in 1970. Governments don’t like separate senate elections because the voters treat them as by-elections and give the government a kicking. Nothing wrong with that, IMO.

Williams’ joint sitting proposal is a good one but one that would swing the checks and balances towards the government of the day. The balance could be redressed by holding separate senate elections.

And while we’re doing a bit of constitutional renovation, ther’s nothing sacred about having half as many senators as reps. Let’s give that one some thought too.

Ken Parish
Ken Parish
2022 years ago

Tysen and Bright Cold Matt have been happily carrying on a discussion in the comment box to my earlier post on Howard’s constitutional “reform” proposal. I thought it might be worthwhile to migrate the discussion to today’s post in the interests of accessibility. hence I’m posting here my reply to Tysen’s most recent post.

Tysen,

Matt has explained well what I meant by “elective dictatorship”. If our system restricted our participation to voting once every 3 years or so, and the government we elected could do pretty much whatever it wants in between without any substantial checks and balances, that’s an elective dictatorship.

Your mention of “self-interest” brings to mind a further important point. What I am talking about here is the basic philosophy of liberal democratic constitutionalism: democratic checks and balances. If you’re a left or right wing authoritarian who thinks that strong government is far more important than preservation of democratic freedoms, then you won’t be impressed by this analysis. If, however, like me, you think that governments are necessary evils whose powers need to be kept in check to prevent them acting in an oppressive way that removes our rights and freedoms under whatever pretext, then you’ll regard maintenance of constitutional checks and balances as absolutely crucial.

Australia already has a deficiency of liberal democratic checks and balances, because we don’t have a bill of rights or separation of the executive and legislative arms of government. Consequently our system already involves a serious danger of excessively powerful executive government. The Senate has evolved as a very significant check on excessive executive power, partly remedying these initial structural deficiencies.

The genius of liberal democratic constitutionalism, especially as developed by Jefferson, Madison and the other Founders of the American Constitution, is that it doesn’t depend on the political actors behaving in a selfless or wise manner. In fact it assumes that political actors WILL usually act in a self-interested way, and then builds in structural checks and balances to ensure that none of those actors is able to exercise too much power, and that the power of each arm of government is counterbalanced against all the others.

Thus, in the Senate example we’re discussing, liberal democratic philosophy assumes that it’s a good thing for governments to have to negotiate a consensus of disparate (and selfish) interests in order for their legislative program to pass through Parliament. If the government can’t win majority support, it’s better for the law not to be passed at all.

Of course, you also don’t want the elected government to able to be held hostage completely and indefinitely to self-centred minority interests which refuse to acknoweldge that the elected government DOES have some form of mandate to implement a legislative program. Hence the current deadlock provisions in Constitution section 57. As I suggested in this morning’s post, I think George Williams’ reform proposal outlined in this morning’s SMH has considerable merit. It enhances the government’s ability to enact its legislative program despite the obstruction of minority intrests, but without completely destroying the Senate’s role as a democratic check and balance. Constitutional design nvolves a careful balancing of awide range of competing imperatives, of which democratic checks and balances on the one hand, and effective government on the other, are just two.

Tysen
Tysen
2022 years ago

Thanks for taking the time to write such a long reply Ken. I always appreciate your responses.

I think maybe you have misunderstood my position. The Senate will undoubtedly prevent our rights being undermined (although realistically the Government would never act in the extreme way that some suggest – they do after all have the full force of the Australian Army at their command but I don’t recall any “Kent State”-like incidents) but it is just as certain, at least to me, that it will deny the community crucial benefits. Every decision is a risk and by minimizing risk we undoubtedly minimize gain.

My own interpretation of liberal democratic theory is that the only safe power is dilute power. The Senate is certainly an obstacle to government excess. But given the extreme disparity in which power is distributed, those with a disproportionate share of power are, consistent with liberal democratic theory, likely to abuse it. It appears to me to be an extremely arbitrary restraint on a democratically elected government.

In my view the government is best kept in check by its back bench. They may always vote along party lines but that is because the party line is by design there to keep them happy. Intra-party compromise is a great protection against government excess.