The Senate in Liberal Democracy

There was an interesting debate in the Senate on October 16th between Andrew Murray, Chris Evans and Eric Abetz. It pretty much represents all that was good and bad with the Senate. Andrew Murray argued for discrete budgeting, line by line, in parliamentary entitlements which is covered in sections of the Remuneration Tribunal Act. He did so in the interests of greater transparency and ease of auditing.

The fact is that each individual item we are entitled to spend as part of our allocations for doing our jobs is discrete and separate. So this is a principle whereby one which has been traditionally always been separate is to be used in aggregation, if there is a carry-over amount, with another. That is a new principle, and one which I would challenge in this circumstance because, unless we move to the holistic approach of a macro budget, I think it is far preferable to keep things separate.

Chris Evans weighed in with concern for both principle and electoral advantage. Another of the issues is that the aggregation of communications and transport entitlements to House members with districts greater than 10,000 square kilometres is that it was recommended by the independent Remuneration Tribunal. So the recommendation itself wasn’t political in origin, however, independent boards are not immune from making bad decisions and recommendations.

Evans spoke;

This determination also provides for an annual carry-over of this mechanism. So the aggregated entitlement can be carried over to the next year. Of particular interest, of course, is whether or not these entitlements can be carried over into election years to maximise their impact in a year when a member might be looking to focus the electorate’s attention on their desirable qualities, which might lead to their re-election.

and produced figures using the example of the Kalgoorlie district;

I did some calculations. I do not want to pick on Mr Barry Haase but I had a look at Kalgoorlie and at my own seat. Mr Haase’s printing entitlement is now up to $150,000. He can roll over 45 per cent of that. So as a result of the measure the government put through a few months ago his total is a staggering possible $217,500 taxpayer-funded printing allowance in an election year. His communications allowance or postage, based on the number of electors at the last election, is now about $81,000 for two years worth of postage.

He has the capacity to spend $81,000 on postage in an election year, plus under this measure he is allowed to take 100 per cent of the election year’s charter allowance, plus 20 per cent of last year’s charter allowance. So 120 per cent of his charter allowance is able to be used for postage. That is a staggering $95,000 extra made available, potentially, for Mr Haase. He has a total possible communications or postage allowance in an election year of $176,000 and $217,000 worth of printing.

The member for Kalgoorlie has $393,500 at his disposal to spend on his re-election in an election year, if he chooses to do so. This is not money that he has raised by using the new electoral laws that allow him to raise money without telling anyone where he gets the money from; this is $393,000 of taxpayer’s money that the government is allowing him to use to campaign for himself. I pity some poor Independent wanting to run for election in Kalgoorlie.

They would not have the staff, the cars or the offices, and I use the plural word offices, and they certainly would not have the $393,000 of taxpayer’s money before they began. That is a pretty good start for Mr Haase in Kalgoorlie, it is a pretty good start for the other 33 members who are beneficiaries of these changes and it will certainly be a pretty good start for the 36 coalition members who will benefit at the next election. These changes are not good for our democracy, they are not good for encouraging participation and they ought to be opposed.

Bob Brown was next and gave a short highly partisan speech that is not worth reproducing. He then also interrupted Eric Abetz throughout his reply to Murray and Evans. As Abetz noted there are unusual circumstances in the large electorates;

On that basis, the government decided to recommend the extension of the ability to aggregate to all MHRs who had a charter entitlement. Keep in mind that the extent of the charter entitlement is predicated on the size of the electorate and therefore the suggestion that Barry Haase has a large charter entitlement is absolutely correct. In fact I understand he has the largest ¹ electorate not only in Australia but in the world.

The legislation does not extend to the Senate electorates, obviously the Western Australian and Queensland Senators have very large electorates, though with multiple Senators to represent their interests. The tone of the debate devolved further into partisanship;

We were told that this was going to assist coalition members. Out of the 33 members of the House of Representatives who represent rural and regional areas, it happens to be that 26 of them are in fact members of the coalition. Of course, Labor members benefit, as I would assume do certain Independent members in the House of Representatives. The threshold question is not, “Are you a member of the coalition?” and to suggest that is just outrageous. The threshold question is: “Is the member of the House of Representatives entitled to a charter entitlement by virtue of the size of their electorate?” That is the category on which the Remuneration Tribunal has determined this.

There is no denying, however, in the current environment it would advantage the Liberal Party if this recommendation does increase incumbency. Long term changes to try and entrench encumbency or electoral advantage have a habit of back-firing though. The best example of this when Chifley changed the Senate to a proportional system from the party-based first past the post ² – Labor has not had a Senate majority since.

Andrew Murray wrapped up by returning to his original opposition to the recommendation;

I do not go to motive but I do go to effect, and I say that the effect is reprehensible. Frankly, I think the policy is just wrong. I am not a supporter of macro budgets; I am a supporter of itemised budgets by discrete areas. I think that as soon as you cross over and cross-subsidise one allowance with another you are getting into trouble. I just do not agree with the policy. I accept that other senators do, and that is their right. But I do not think a charter allowance should be used for communications or vice versa. … We ³ think its effect is reprehensible, we think the policy is wrong and we think that the principle has not been motivated by Remuneration Tribunal reasons or justifications. That is why I move that the disapproval stand.

It should also be noted that the Australian Democrats have no sitting members in the House of Representatives which this recommendation affects. The voting on the disallowance was standard Australian-style block voting. No Liberal Senators disagreed and no Labor Senators agreed.

I agree with Andrew Murray. He was right to bring the issue up and put forward a motion of disallowance which should have gone through.

I have to say I find the Senate Hansards a more informative read than the House Hansard. I recognize that the media often requires a combative basis for any story to hit the papers or television; and an issue of party differentiation has to be couched in those terms to get any mass-media play; but I don’t like it.

It seems the likes of John Howard and Julia Gilliard enjoy that gladitorial style of House theatrics. They are good at it. I am not denying that, but I question its utility toward governance. That style of debate, squeezing a political opponent in parliament, is good for party advantage but it is hard to discern the philosophical underpinnings of a representative’s view of governance in that environment.

I have been enjoying the adjournment speeches in the Senate. Several Senators have got up and made wonderful speeches of principle and understanding where they explain their own internal debates of conscience over an issue. George Brandis’ recent speech on sedition laws being incompatible with liberal democracy was an absolute cracker. Andrew Murray’s speech calling for oversight of executive appointments to the judicial was another. I have also enjoyed watching Andrew Bartlett tackle the difficult issue of Israel and Palestine, Barnaby Joyce on the media laws and Mitchell Fifield’s speech on liberalism. All good stuff.

But I have to temper all this with the knowledge that party discipline is so strong in the Australian system that they will, in nearly all cases, block vote as their national executive or executive cabinet demands.

Order of Representation

The Australian Democrats and Greens 4 both have in their party constitution that they can put their conscience and electorate before their party. Any representative doing so has to explain why to the party’s executive. The Liberal Party constitution 4 does not mention the responsibilities of its representatives nor does the Labor Party’s 4.

The Labor party has the pledge which ensures block voting with the National Executive’s policies. This has been an Australian political innovation which is not a good one. After the failure of the Shearer’s Strike in Queensland the strike organisers decided that industrial action was a dead end and chose to pursue political action instead.

Labor party candidates were quickly successful leading to the world’s first Labor government in Queensland. In the NSW elections of 1891 Labor won thirty-five seats and held the balance of power. The Labor Parliamentarians were politically naive and were quickly out-manouvred and wedged by the protectionists, free-traders and conservatives. Labor’s representatives were quickly reduced to seventeen.

The Labor party’s response was to seek political strength through block voting; the pledge to the National Executive was the result. Several Labor members including Joseph Cook refused to sign it and split with the Labor party over the issue. Cook was to join with Deakin as the Fusion Party in what would become the labor-antilabor political pattern for the next century.

Labor may have been politically inexperienced in 1891 but no sane person would accuse them of that in 2006. The pledge’s usefulness was outlived once the Fusion party co-alesced to oppose labor and the Fisher gained government at the federal level in 1910. The Liberal Party since the dissolution of the UAP has shown that near-absolute party discipline can be obtained without the need for a formal pledge.

Parties can actively campaign against liberty under the crush of executive and legislative over-reach. Too often party discipline aids the destruction and intrusion into liberties that previously remained the moral and ethical choice of the individual.

Madison argued in Federalist No.10 that the removal of parties (he called them factions) to stop the encroachment on individual liberty would not work as it would require the removal of the liberty for people to assemble and advocate in common-cause. The cure is worse than the disease in that instance. Instead he argued for separation of powers and checks of balances to keep the violence of faction in check.

I personally cannot see how a representative system could operate without some form of factionalism. Prior to the labor-antilabor pattern forming in the early 1900s the groups in the state parliaments maintained factions that were sufficient for majority and minority governance.

The Federal Structure of the Senate

The first responsibility of any representative, House or Senate, is to the constitution. Australia structured its houses in the American federal manner with the House representing a national point of view, and the Senate representing a federalist integrity. The Senate is divided by the constitute members of the federation – the states and the writs for Senate elections are provided by State Governors.

The legislative powers given by the Senate in the constitution are for the purposes of acting as a check and balance on the House’s legislative production as shown by the equal power section;

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

The exceptions for the Senate are that it cannot create money bills. These must come from the house. Due to the parliamentary system’s crappy separation of powers and the consequent lack of executive veto, the Senate is the dominant check and balance on the House and Executive Cabinet. Which points to another issue; Senators can be in the Executive Cabinet which weakens what little separation of powers there is between Executive and Legislative in the Australian Westminster mutation.

Senate Legislative Independence

I am firmly of the belief that liberal democracy in the federal government would be improved and strengthened if the Senate was legislatively independent of the House. This means excluding Senators from serving in the Executive, it also means Senators breaking with party discipline and voting within the boundaries of the constitution, their conscience, their electorate and the party – in that order.

Conventions in the Westminster system usually require codification of they are broken or not adhered too. The lack of separation of powers between Legislative and Executive in the Senate will require a constitutional amendment. I expect it would pass without too much fuss. Australian referendums which advocate increasing centralism have a nearly 100% failure rate. Those that focus on improving democratic functions have a 50% pass rate. It is achievable.

The simplest amendment would probably be to section 62;

There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen from the House of Representatives and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

But any focus on that section will probably give the wider population fits as it mentions the Governor-General rather than Governor-General in Council. The latter has to take advice from the Federal Executive Council (Executive Cabinet) where the former does not. Nice constitutional bug left in there by the bearded men.

A less contentious amendment, which avoids pointing out the gaping holes in our constitution that the Australian navy could sail through, might be section 8;

The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

a. Senators are disqualified from serving on the Federal Executive Council.

Second, party discipline will have to be broken. This is largely an internal matter for how the party’s handle their own affairs, but a Senate that is unable to mix with the Executive will hopefully give Senators a greater willingness to act independently. If Labor is unwilling to dump the pledge entirely, then it should do so for its Senators and Councillors in the State Parliaments. The Liberal representatives are going to have to appeal to their parties platform of advancing Liberalism and vote their conscience which may not align with the Executive’s wishes.

The Senate Hansard speeches that I linked to above give me hope that an independent Senate will happen. The speeches show thoughtful and reflective Senators who are committed to liberal democracy. Yet when I see voting on issues it is all block voting. I am willing to give Senators the benefit of the doubt and believe that their speeches denote a keener want for an upper house that is more independent. A large number of the Committees give that impression to.

It is probably good to end with a quote from Barnaby Joyce on the absurdity of party discipline and block voting;

Some of the commentary that surrounded the conscience vote on RU486 shows how far we have fallen. The fact that Senators said, with a straight face, that they had to think about their decision because it was a free vote makes you wonder what they do every other time.

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