Senate lateral thinking

George Williams attempts to broaden the debate about constitutional reform in an opinion piece in today’s SMH. He opposes, as I do, John Howard’s proposal effectively to remove the Senate’s power to block legislation by providing that there could be a joint sitting of both Houses after a government Bill was blocked in the Senate twice, and without the need to face the people either at a double dissolution or ordinary half-Senate election. As Williams succinctly explains:

The Senate plays a vital role under both Coalition and Labor in improving the quality of law making and in checking sometimes overhasty governments. Without a Bill of Rights, the Senate is often our last protection against draconian laws. …

This proposal is flawed in that it undermines the role of the Senate. It does so because there would be far less of an incentive for a government to negotiate with the Senate when it could have its legislation passed at a joint sitting without the need to hold a new election.

However, Williams contributes his own wish list for constitutional reform of the relationship between the two Houses. He suggests:

  • a requirement for simultaneous elections for the Senate and Reps;
  • Howard’s proposal for a joint sitting without the need for an election, but only applying to budget/money Bills;
  • four year fixed terms for both Houses, but with a 6 month window of flexibility;
  • and all Senators facing the people at every election i.e. every 4 years.

I agree with all Williams’ proposals except the last, at least in its present form.

As Williams concedes in passing, its effect would be to greatly reduce the quota for election to the Senate, and hence increase the probability of election of minor party and independent Senators. In fact, although Williams avoids highlighting the fact, the effect of his proposal would be to make every election a double dissolution, with obvious flow-ons in terms of greater potential for Senate legislative gridlock. I actually think the current balance, between the Senate’s effectiveness as a house of review and the incumbent government’s ability to implement its legislative program, is pretty close to ideal. Despite Coalition squealing, many of the Bills currently or about to become double dissolution triggers are highly controversial and divisive, and not ones where it could claim a mandate on any reasonable meaning of the term. With the exception of some of the so-called “third generation” IR reform Bills, where Howard does arguably have a mandate, the Senate is simply fulfilling its proper role as a house of review.

Amateur psephologists please note that I concede that the odds of election of more minor party and independent Senators being elected are not necessarily improved in a full Senate dissolution election mode. However, there will certainly be an enhanced probability at some elections, because of the greatly reduced quota for election.

However, it seems to me that there is a reasonably straightforward way of avoiding that outcome while still making all Senators face election every 4 years (I agree that 8 year Senate terms would be excessively long). That is, Senators (and candidates) for each State would be divided for electoral purposes into 2 separate pools of equal size, with votes within each pool group being counted and distributed separately. The quota for election of a Senator in such a system would be exactly the same as currently applies in an ordinary half-Senate election. The pools could be created arbitrarily by lot conducted by the AEC (with all electors in each State voting in both pool groups), or alternatively each State could be divided into two equal geographical regions instead of Senators representing an entire State (e.g. Sydney or the bush in NSW; north and south Queensland etc).

The first method would represent the more minimal practical change from the current system, while the second would arguably more faithfully reflect the fact that the needs, interests and perspectives of city and country/regional Australians are frequently quite different. Perhaps the failure of the current system to reflect that reality might be one reason why the Senate has never fulfilled its intended role as a “States House” in any meaningful sense.

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

A good idea Ken. The two pools should be men and women. That way, we get equal numbers of men and women in the Senate, which is desirable in itself, but which will not happen under the current party power structures. (Except with the Democrats, who are on their way out anyway.)

And before anybody says this scheme is just mad Lefty Joan Kirner-ism, it was first advocated many years ago by the arch Liberal economic rationalist dry , Jim Carlton. (What a pity he didn’t stick around long enough to become a Minister in the Howard Government. But that is another story.)

Jim
Jim
2022 years ago

Ken,
Surely the final protection against bad laws is the ballot box?If any government makes bad laws then it will presumably be thrown out at the next election. The problem is obvious – if either major party wants to frustrate a reform agenda (even accepting John Quiggin’s definition of reform) then they only have to join with a few independents and they can block any legislation regardless of the size of the House of Reps majority.
If the Senate acted as a house of review and respected the pre-election agenda at least of the government then the problem wouldn’t exist.
I’m not sure what the solution is but the problem is undeniable – and both major parties have been guilty of creating it.

Ken Parish
Ken Parish
2022 years ago

Jim,

One of the benefits of Williams’ group of ideas (with my addition) is that it effectively implements Michael Lavarch’s proposal of a joint sitting after an ordinary election when bills have been twice blocked. Deadlocks with the Senate would be resolved automatically, because any re-elected government could convene a joint sitting to deal with any twice-blocked Bills, without needing to make the invidous choice between breaking the legislative logjam or avoiding creating an unworkable Senate.

Thus this package WOULD effect a measurable reduction in the ability of the Senate to block legislation, without a wholesale dismantling of its critical review function. It’s important to remember that our constitutional system doesn’t have several of the critical democratic checks and balances: most notably a bill of rights and complete separation of powers. That arguably doesn’t matter as long as the Senate retains an effective role as a house of review. Howard’s proposal is just a power grab that would effectively destroy the Senate and create excessive government power. My position is anything but a “leftie” one. Classical liberal philosophy holds that individual freedom is best guaranteed by ensuring that governments cannot exercise excessive power.

Niall
2022 years ago

I would have to agree with Williams, and yourself in your analysis of Williams options, in all bar #4 and the 6 month flexibility aspect of 4 year fixed terms. The real state of Government would surely be tested if an incumbent party had no options but to go when the rules of the game said to go.

Dan
Dan
2022 years ago

“Surely the final protection against bad laws is the ballot box?”

Yes, and likewise the final protection against Senate obstructionism. If a Senate was habitually blocking Government bills just for the hell of it, surely they would face electoral consequences too?

As for me, I’d be happy enough to see the Senate go altogether if we could have proportional representation in the lower house to break the two-party dictatorship. I know, dream on …

Jim
Jim
2022 years ago

Ken,

This position goes beyond right or left. I agree that excessive government power – by any party- is to be avoided in a healthy democracy. However, I don’t know that it is necessarily “excessive” to deny a democratically elected majority government the right to implement its political/economic/social agenda.

One of the problems with the current system is that the electorate doesn’t really get to sample the contrasting taste of major parties’ reform platforms because many of the most dramatic reforms are usually halted in the Senate. If governments were able to implement their policies more easily the electorate would be able to make better informed distinctions and decisions at elections and parties would have to be self moderating in order to remain in power.

Notwithstanding, I agree fully that the proposal for a joint sitting after an ordinary election is an improvement on the existing system. It’s also of course important to have a system where non-mainstream parties are able to gain representation and be heard.

What’s the bet that Howard eventually offers Labor the four-year partially fixed term compromise in order to get their support for a referendum?

Murph
2022 years ago

Howard is being short sighted here. Removing the Senate’s blocking power because it stands in the way of some legislation is like removing double jeopardy from criminal law. It might alleviate some immediate problems but will cause far greater problems in the future. I’m not a fan of the ratbags who hold the balance of power in the senate but think of what ot would be like to have those ratbags controlling the lower house, which may happen one day, and no house of review to pull the rug from under their hair brained schemes.

craig
craig
2022 years ago

Instead of whinging about the senate the government might like to go to the next election on the strength of these great blocked bills.

Tysen
Tysen
2022 years ago

Williams says “[w]ithout a Bill of Rights, the Senate is often our last protection against draconian laws”.

I find it difficult to accept that based on the limited reasoning he presents. Although they will sometimes prevent harm by blocking or modifying legislation, they possess nothing that prevents them causing harm at the same rate by blocking or modifying other legislation.

You accurately state that “[c]lassical liberal philosophy holds that individual freedom is best guaranteed by ensuring that governments cannot exercise excessive power”. But if we replaced the Senate with a coin-flipping old man who would pass or reject bills based on the flip of a coin, we would still satisfy that requirement. It would be a restraint on government power but one that was so arbitrary that it would negate the representative character of the executive government. Obviously the nature of the restraint, not its mere existence, is significant.

Take as an example the governments IR legislation. I assume it replaces or amends existing law. How is the Senate better equipped to determine whether the right to work is less important than the right to job security? Simply rejecting legislation won’t return us to an unregulated environment – it will simply continue a previous government’s policy as enshrined in legislation, which, in the current circumstances may in fact be ‘harmful’.

Even if the Senate was composed of experts in their field, totally free of political influence, it’s still difficult to accept that they could legitimately amend or reject legislation of the kind that the Senate frequently does.

What I would like to hear is an explanation as to why the Senate in its current form causes more ‘good’ than ‘harm’.

As for the majority of legislation being passed, most of it is amended, sometimes radically. How much of the passed legislation was strongly campaigned on at an election then subsequently passed in unamended form?

mark
2022 years ago

That’s a great idea, craig. That way we may finally see the Coals tossed out on their ear!

Ken Parish
Ken Parish
2022 years ago

Tysen,

The most prominent way in which the Senate helps to make up for the lack of a formal bill of rights is through the operations of the Scrutiny of Bills Committee. It consists of 3 government and 3 non-government members (i.e. it mostly operates in a bipartisan manner), and its brief includes:

to report, in respect of the clauses of bills introduced into the Senate, and in respect of Acts of the Parliament, whether such bills or Acts, by express words or otherwise:

trespass unduly on personal rights and liberties;
make rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers;
make rights, liberties or obligations unduly dependent upon non-reviewable decisions;
inappropriately delegate legislative powers; or
insufficiently subject the exercise of legislative power to parliamentary scrutiny.

The Committee played a prominent role, for instance, in persuading the Howard government to remove most of the more anti-freedom/human rights aspects of its anti-terrorism legislation package. Government and Opposition members delivered joint reports criticising numerous aspects of the package. The Committee is broadly regarded both in Australia and internationally as a great success, making Australia’s Senate one of the most effective deliberative houses of review in the democratic world.

Your suggestion that the Senate habitually opposes government bills arbtrarily or merely to be obstructive in a partisan manner isn’t borne out by examination of the Senate’s actual legislative record. The vast majority of Bills coming before the Senate are paased (albeit sometimes with amendment). Only a few have been twice rejected (6 at last count out of the many hundreds of pieces of legislation coming before the Senate), and of those only a couple (the third generation IR bills) are ones where the Howard government can claim any form of mandate. The Coalition attempt to paint the Senate as obstructive/ defying the will of the people is based on a deliberate misrepresentation of the real situation, as you could discover for yourself if you looked at the facts instead of automatically adopting the Howard propaganda line.

os
os
2022 years ago

I also don’t think the Senate should all retire every term. One of the benefits of having half stay on is it produces a bit of lag and therefore less opportunity for a House to be carried away by a passing fad.

For me the 3 year term is too short. One year to settle in, one year to get serious, one year to fret about the next election does not a good government make.

But going to 4 year terms and having half the Senate retire each term produces another problem. The Senator’s term goes out to 8 years. The majors are nervous about this, because they fear that a goodly number of Senators might think “8 years, that’s about enough for me”, the pre-selection is a long long way off, and so they go feral. Party discipline erodes, the Whip sleeps uneasily.

But that would be OK for me. At least these feral Senators would come from a reasonably mainstream background and on balance I’d rather have a feral mainstreamer than the loopies we currently get via the Green and Democrat Parties.

os
os
2022 years ago

I also don’t think the Senate should all retire every term. One of the benefits of having half stay on is it produces a bit of lag and therefore less opportunity for a House to be carried away by a passing fad.

For me the 3 year term is too short. One year to settle in, one year to get serious, one year to fret about the next election does not a good government make.

But going to 4 year terms and having half the Senate retire each term produces another problem. The Senator’s term goes out to 8 years. The majors are nervous about this, because they fear that a goodly number of Senators might think “8 years, that’s about enough for me”, the pre-selection is a long long way off, and so they go feral. Party discipline erodes, the Whip sleeps uneasily.

But that would be OK for me. At least these feral Senators would come from a reasonably mainstream background and on balance I’d rather have a feral mainstreamer than the loopies we currently get via the Green and Democrat Parties.

Michael Jennings
2022 years ago

I’m actually opposed to all of these proposals – gee, how one gets conservative on constitutional matters as one gets older – and I have reasons for all of them, but I don’t have time to go into them now, except for one, which is the four year term of parliament. This is a bad idea. The three year term of parliament is actually one of the best things about the Australian system of government. This is because it speeds up the political cycle, and the government and the opposition are constantly looking at the next election. Politicians are being judged by the voters regularly. I didn’t realise how important this was until I came to Britain. In Britain, everything moves glacially slowly. An opposition leader is elected, and we then have to wait for five years before the judgement of the voters. If it is the wrong choice, then the wrong choice may stay in the position for a long time just the same. Politicians get arrogant and their sense of entitlement becomes far worse, because facing the voters is a long way in the distance. If, for some reason the voters feel that they made a mistake, they have to wait a long, long time to rectify it. (Major was re-elected in 1992. By the end of 1992, it was obvious to everyone that the voters wanted him out, but they had to wait until 1997 to actually remove him, and we got five years of listless and incompetent government). Politicians don’t like the short electoral cycle, but more than anything it keeps them on their toes. And this is good.

woodsy
woodsy
2022 years ago

I see your point Michael but there should be a minimum period for a parliament so that a PM can’t call an election every six months. And I agree with only half the senate being re-elected at once – it provides continuity, a ‘parliamentary memory’ so that new senators don’t have to go through such a steep learning curve.

Tysen
Tysen
2022 years ago

“Your suggestion that the Senate habitually opposes government bills arbtrarily or merely to be obstructive in a partisan manner isn’t borne out by examination of the Senate’s actual legislative record.”

I don’t recall saying that. My point was that the quantity is irrelevant. One piece of legislation can be more important than all the others that come before parliament that year.

You shouldn’t assume that just because I disagree with you that I am therefore ignorant or simply repeating a political line. I came to my view on my own and it just happens to mirror the views of many others, including distinguished lawyers, politicians on both sides of politics as well as many others.

craig
craig
2022 years ago

Tysen

Would it better for the government of the day to be able to pass any legislation it wanted to no matter how damaging?

That is the situation you will get.

Jim Birch
Jim Birch
2022 years ago

I’m also against all these changes. I feel the arguments about senate obstruction – pro and con – are somewhat fluffy because a hypothetical fully mandated government could do what it was elected to do. The existing situation actually reflects the fact that real world mandates are vague, created by a differential of of the total vote, typically a couple of percent, plus or minus. And, in fact, the major parties are commonly held in various levels contempt so the alleged mandates are arguably even more unauthentic.

To me, the crisis for democratic system is not in procedural aspects like length of terms and conditions for double sittings. We suffer from a loss of faith in the system that four year terms (etc) has zero chance of overcoming.

At one time, we could rely on the various arms of the public service to handle the myriad issues of government in a thought-out and responsible way. But the politicisation (and self-interest) of the public service coupled with a hyperactive media obsessed with conflict has bought a lot of these ongoing business-of-government problems into the sphere of evaluation for the poor overwrought oft-clueless voter. That is why, for example, Fels was so hugely popular: he was seen to be genuinely going in to bat for Joe Public (unlike virtually everyone else in the game) while armed with, but not corrupted by, an understanding of the way things actually work which the average punter has not the time, inclination, or capacity to develop. Trust was possible.

As I see it, the problem is the centralization of power in the hands of partisan politicians and the manifested complexity of the process of government that is the real crisis of democracy, (here and elsewhere,) not the inability of the governments to press their latest dogma into law. If anyone wants to suggest some constitutional changes to take the implementation of the law away from an all conquering politicians and into the charge of apolitical commissions with clear open missions whose performance can be genuinely evaluated then I’ll race you to the booth. Excuse the tangent.

mark
2022 years ago

Well put, Jim

Patrick
2022 years ago

I can’t see the voters wanting to decrease the power of the senate. It doesn’t matter whether you are left or right, you still know that 50% of the time the other side would be in power, and I for one am far more worried about stupid laws getting passed than great laws not.

I’ve yet to see ANY justification for not having fixed terms.

And what is Labor’s fixation about the senate blocking supply? Is this some reaction to the Whitlam dismissal or what?

William Bowe
William Bowe
2022 years ago

Couldn’t most of the problems from a low quota be solved by requiring a minimum primary vote for representation, and isn’t this what NSW has moved to recently to deal with its problem of micro-parties in the Legislative Council? And won’t any fixed term system need to be flexible to the extent necessary to allow dissolution in the event of no-confidence motions or blocking of supply? If so, how is blocking of supply to be defined, and the government prevented from using any old bill that appropriates money for whatever reason as a trigger for dissolution? If it’s fixed terms we’re after, surely the solution is to replace our parliamentary system with a US-style presidential executive – and isn’t such a conclusion consistent with Ken’s statement that it is only “arguably” true that a house of review compensates for our lack of such “critical checks and balances”?

Ken Parish
Ken Parish
2022 years ago

William,

Providing a minimum quota for election would be another way of overcoming the “unamanageable/fragmented Senate problem”. I’d be quite relaxed about such a solution, although I prefer the poool system I suggested (for reasons I explained). You’re right to an extent that there would need to be an exeption clause allowing for an election in the event of Supply being blocked. However, George Williams’ proposal minimises the probability of this occurring by allowing a government to go to a joint sitting without an election if a money bill is twice blocked. Thus a premature election would only be necessary if the government was stupid enough to organise its business so badly as not to present money bill to the Senate twice before supply ran out.

Lastly, I’m in two minds as to whether we’d be better off with a system much closer to the US one. Whatever your view, the chances of such a radical change ever getting through a referendum process are zero. On the other hand, I reckon my proposal (i.e. Williams’ one plus some system to preserve the Senate quota at roughly the current level) might have some chance of getting bipartisan support and therefore a reasonable chance of being passed. It’s a fairly moderate, incremental set of reforms that really shouldn’t frighten the horses.

Turning to Michael Jennings’ argument on 4 year terms, there’s some force in what he’s saying, but on balance I disagree. I think 5 year terms are too long, but 3 years is too short. In the Australian federal system, a government really only has a 12-18 month window to introduce tough, responsible reform measures likely to be unpopular in the short term. After that they’re forced back into election mode where they’re afraid to do anything that might lose them electoral support. Michael characterises the absence of those immediate electoral survival pressures in negative terms, as facilitating politicians’ arrogance and unaccountability. I see it predominantly in positive terms, as founding liberal democratic constitutionalists like Jefferson and Maddison did. They too argued that governments need the breathing space to be able to introduce responsible and necessary measures that might be unpopular in the short term. That’s one of the reasons why they favoured a representative rather than participatory democratic model. The Swiss experience tells you what happens with excessively participatory models: profound conservatism and an almost complete absence of reform. Our system isn’t as inimical to reform as the Swiss one, because politicians have that 18 month wondow to implement hard reform measures. But I reckon an extra year would be an improvement on balance.

Tysen
Tysen
2022 years ago

Craig I feel that some of the advantages the Senate deprives us of are as harmful or worse than many of the disadvantages it prevents.

An example is terrorism. It’s quite possible that the Governments’ concern is exaggerated and that the measures they put forward went to far. A six-member committee of non-expert politicians acting on evidence that in many cases is ambiguous isn’t always going to resolve the matter satisfactorily. Who is going to take blame if one of the amended sections would have prevented a disaster if it had been passed? Doesn’t risk assessment involve many subjective components and what makes one superior to another? There is no consensus on the extent to which modern terrorism threatens us. Is it reasonable to then conclude that the amendments will definitely cause more good than harm?

As for Jim’s comment, if we are talking hypothetical then what if the smaller states, Tasmania, Queensland, SA, WA and the territories (52 out of 76 senate seats or 68% of senate votes but 41% of Australia’s population) vote one way but the larger ones vote the other? Victoria and NSW have a maximum of 113 (37 + 12 + 52 + 12) in a joint sitting but the others could have the exact same amount creating a deadlock. Its not likely but if we are talking hypothetical…

craig
craig
2022 years ago

I think your wrong Tysen. My objection has nothing to do with the terrorism bill, but it is a good example. After all it has now been passed.

The best way to stuff our system up is to either nobble the senate or have a publically elected head of state.

If John Howard is so sure these bills are
critical enough to warrant a major change in our constitution then the bills should be important enough to be a major battleground of the next election campaign.

Herbert Thornton
Herbert Thornton
2022 years ago

Australia is fortunate to have an elected senate.

Neither Britain nor Canada has such an institution. Britain’s House of Lords is in some sort of transition from being composed of hereditary peers to peers appointed by the Prime Minister. Canada’s Senate appointed entirely by Prime Ministers. Neither body has any significant power.

I am, though, concerned that George Williams wrote – “Without a Bill of Rights, the Senate is often our last protection against draconian laws. …”. He seems to be implying that a Bill of Rights would be more effective than an elected Senate.

The experience in Canada has been that the Canadian Charter of Rights & Freedoms has subjected Parliament’s enactments not to scrutiny by an elected body, but to scrutiny by unelected judges appointed by Canadian Prime Ministers. Furthermore, the Canadian Charter of Rights has allowed the judges to be not merely scrutineers of Parliamentary legislation but, more and more, to exercise what are, in effect, legislative powers.

Australia is, I repeat, fortunate to have the Senate. It is far better than having a Bill of Rights.