Word count: 2,500 (Not including question reproduction, citations and bibliography)

Question 4
Professor Brian Galligan has commented that: “By strengthening the deliberative capacity of the processes of governance, the Senate and its committees can be seen to enhance the democratic and federal qualities required of legislators in a federal democracy.” Do you agree? In what ways has (or arguably has) the Senate done so? Should the constitutional position of the Senate be reformed? If so, how?

Introduction

The Senate is the keystone of Australia’s federal compact. Originally conceived to protect State interests against central encroachment and to act as a democratic counterweight to the Lower House, it sits at the intersection between the federal and democratic separations of power under the Constitution. It is endowed with a remarkable ability to check executive power and provoke public debate as part of its legislative role, and these democratic functions are a key component in Australia’s institutional equilibrium. In a federal sense too, the Senate’s looms large as a States’ House. This responsibility has been largely frustrated by the development of party politics during the last century, but the state-based electoral system that determines the Senate’s makeup has ensured that a diversity of opinion and interests are represented effectively in the chamber. Indeed, the Senate is at the heart of governance and political debate in Australia today, and its role must be protected and developed if it is to continue to thrive as the centre of multilateral representation and deliberation in the federal constitutional system.

The Senate As A Federal Institution: Theory And Practice

The Senate’s place in Australia’s constitution is a reflection and consequence of the state-centric political sensibilities of the 1890s. Designed as a ‘States’ House’, its intended function was to “protect the States from [Commonwealth] aggression,”  especially the smaller ones that feared that their interests would be beholden to a tyrannical majority of New South Welshmen and Victorians in the House of Representatives.  To placate these concerns, the founders made the Senate “a House of greater power than any ordinary second chamber.”  Virtually equal in strength to the Lower House,  it was thought that its capability to amend legislation  would reconcile the claims and perceived susceptibilities of the federating colonies with the need to create a robust national government.

In keeping with this federal objective, the Constitution ensures that “the doing of all things necessary for giving [a] State its representation in the Senate is entrusted to the State.”  But the Senate’s theoretical role as a States’ House has been frustrated since 1910 by its development as a party-political chamber.  In practice, Senators are elected on party tickets and vote according to their party lines, with the effect that their state-based mandates appear redundant to their representative responsibilities.  The Senate is composed of an equal number of representatives from each State, and this disproportionate reflection of the national population is justified by the Constitution on the grounds of State equality.  But the inevitable result of the polarisation of the Senate into partisan groups is the non-existence of state-based voting blocs and the increasing questionability of the democratic validity of its representative logic.  Moreover, as the Senate hardly appears to satisfy its ostensibly federal responsibilities at all, the question begs as to whether its federally based powers are relevant or indeed justifiable in Australia’s national 21st Century polity.

Nonetheless, the essential characteristic of a federal polity is not the influence of the states in the national Upper House, but the distribution of distinctive powers between separate levels of government.  The Senate should therefore not be restricted to a notion of representing or protecting State rights or interests, for it’s role is a national one akin to that of the House of Representatives.”  It is a democratically elected body, where Senators represent the interests of “the people of the state, voting … as one electorate”,  such that the partisan composition of each state ‘delegation’ is a valid reflection of each constituency’s popular will.  The Senate’s great irony is that its federal composition is its most obvious democratic weakness, for it does not reflect the notion of ‘one vote, one value’ that is quite crucial to modern electoral legitimacy.  But one vote having one value is not the sole defining feature of a democratic system or its representative quality. The states are essential components of the Australian federation,  and their use as electorates for supplementary forms of partisan representation is appropriate given the dual political identities of citizens in a federal country.  Indeed, the framers “intended that proposed laws could be considered by the Senate from a point of view different from that which the House of Representatives may take,”  and the issues of importance to electors on a state level are conceivably quite distinct to those influencing the election of local MPs. Political parties and population imbalances therefore do not render the Senate’s federal or democratic qualities void, they merely give them a character unanticipated by the majority of the founders during the 1890s.

Executive Accountability And The Senate As A House Of Review

The Constitution’s explicit treatment of the Senate  stands in stark contrast to its scant provision for Responsible Government.  Under the conventions of that system, the executive branch of government is drawn from the House of Representatives and has its tenure dependent on the confidence of that House and its support for certain finance legislation.  In turn, the House is expected to supervise and restrain executive power on behalf of the people and force the executive to account to the chamber for its prosecution of government.  Yet Australian bicameralism has developed in such a way that effective parliamentary review of the executive action is not carried out in the Lower House.  Strong party discipline means that the Ministry and its party effectively control the House of Representatives rather than vice-versa.  Using its dependable partisan majority, the executive is able to use the House as little more than a rubber stamp,  making it an insufficient forum for any sort of meaningful public discourse. This ultimately comes at the cost of unimproved legislation, unscrutinised ministers and subordination of the goals of local representation to those of maintaining or achieving a commission to form government.

Executive Responsible to Both Houses

It is precisely for this reason that the Senate’s powers to frustrate the will of the Lower House remain significant today. Certainly, the Senate is not the maker of governments, but the rationale for a strong Upper House in any bicameral parliament is to protect against the uncontrolled exercise of power by a predominant Lower House.  With its typically non-government majority, the Senate is the only chamber practically capable of performing the types of democratic checks and balances that are demanded of the Parliament by the Constitution.  It does so legitimately, for in addition to its role of serving as a counterweight to the House of Representatives, the Senate is empowered by a suggestion in the Constitution that the executive may be in some way accountable to the Upper House in a direct sense. The presence of ministers in the Senate  and its technical right to block supply  suggest a broader doctrine of executive responsibility to the Parliament as a whole, one that Sir John Kerr famously employed to dismiss the Whitlam government.  Kerr’s actions may have been extreme and controversial, but the potential for executive frustration due to a deadlock between the Houses was certainly foreseen by the authors of the Constitution and accepted as a necessary risk to take in order to ensure an ordinary equilibrium of power.  Indeed, the Senate’s power to force deadlock is a powerful deterrent to executive inflexibility, as parties in government rarely gain control of the Senate  and incumbent governments have historically not fared well when s.57 has been invoked.  The Senate’s ultimate accountability mechanism is therefore its ability to withhold support for the government legislation.  This power makes it practically necessary for the executive to seek collaboration in the Senate on a regular basis, and thus to allow legitimate  debate, deliberation and compromise in order to ensure that its proposed legislation will gain passage through the Upper House. More often than not it succeeds, with amended but improved legislation being the end result.

Enabling the Senate to perform these constitutional responsibilities without resort to 1975-style deadlock, minor parties have persisted in the Upper House since the 1950s – surviving because of the proportional representation system governing Senate elections and the willingness of the electorate to support non-major party candidates.  Proportional representation usually prevents government parties from controlling the Senate,  and minor parties and independents have increasingly moderated the legislative initiatives of incumbent parties.  Thus they have used their balance of power quite effectively to hold governments accountable,  and more importantly to stimulate debate.  Minor parties do not control the Senate, for no bill can pass through the chamber without the support of one of the major parties. But absent a government majority, opposition to a bill by the non-government parties in the Senate forces the executive to build coalitions and amend its bills to make them generally palatable.  The alternative is to force the issue through the mechanisms provided by s.57, and with them the risks of a general election.

The Senate also engages in an energetic committee system that is far wider in scope than that of the House of Representatives.  Committees of review and investigation were haphazardly formed before and during the Second World War as an efficiency device, and have since expanded to scrutinise delegated legislation, ‘matters of public concern’, and most importantly of all, prospective legislation.  As foci of legislative oversight and more importantly, media attention, they serve a vitally important, albeit non-constitutional role in enabling the Senate to investigate the activities and powers of the executive branch without consuming the time of the chamber as a whole. This is especially the case when they are chaired by non-government Senators.

Sub-constitutional accountability mechanisms

Strengthening The Senate as a Federal House of Review

The Parliamentary checks and balances established by the Constitution were designed to solve the problems of the relationship between the colonies and the central state.  But the real shift in the balance of power between the Commonwealth and the States in the century since Federation has come at the hands of the High Court, not the decline of the Senate.  But irrespective of the status of its federal responsibilities, the Senate has a vitally important role in providing a parliamentary counterweight to executive excess. Strong Responsible Government will continue as “the central feature of the Australian constitutional system”  for the conceivable future, and so any Senate reform must be carefully targeted at its place in the constitutional processes of creating and maintaining effective yet accountable governments.

In practice, the Senate will never actively behave as a ‘States House’, and so any suggestion that that aspect of its constitutional role should or could be resuscitated is defunct. But in spite of claims to the contrary,  it is essential that the federal composition of the Senate be retained. The Upper House is the institutional embodiment of Australia’s federal constitution,  and a radical departure from the status quo such as removing the egalitarian electoral link between the States and the Senate would surely fail to attract the support of the Australian public in a referendum.  Moreover, it would eradicate a practical vestige of federalism from the Australian Constitution, for regardless of partisan allegiances, small states and their interests enjoy more party room leverage through their Senators than would be the case if party caucuses were completely majoritarian like the House of Representatives.

Instead, reform should focus on the relationship between the Senate and the executive, and the means by which the former can hold the latter accountable through debate and public scrutiny. The Senate’s strongest weapon is its ability to effect legislative deadlock, but its weakest aspects are its democratic credentials. Famously described by a former Prime Minister as “unrepresentative swill,”  the Senate must attain a higher degree of electoral legitimacy – equal to that of the Lower House – if it is to ever employ its powers to their maximum potential. Under the current constitutional arrangements, the complete Senate can only be deemed to be an accurate reflection of the popular will when it is reconstituted immediately following a double dissolution election.  It therefore follows that the dissolution of both Houses of Parliament at every general election would have the effect of achieving a consistent level of legitimacy for the Senate, and an improved mandate for the non-government parties to oppose unpopular prospective legislation.

In order to maintain a sense of accumulated wisdom and continuity in the Upper House,  the Constitution currently provides for the staggered replacement of half of the Senate in July every three years such that each Senator serves a six-year term.  However, given that the Senate is dominated by the short-term exigencies of disciplined party politics, the rationale behind maintaining such continuity is largely invalid. Half-Senate elections may insulate the Upper House from the fickleness of public opinion, but where they are held several months in advance of the actual rotation of Senators,  the democratic mandate of the Senate against a freshly elected government during the intervening period is uncertain at best. The effect of regular double dissolutions would be to remove this intervening period, and reconstitute the entire Senate immediately on a fresh mandate.

Double dissolutions may or may not be more favourable to minor parties and independents. In order to win a single seat in the Senate at a half election under the current system of proportional representation, a candidate must attract 14.28% of the vote. But at a full Senate election, the same candidate need only receive 7.7%, a threshold that makes the task a great deal easier and the result more reflective of the overall popular will. Outdated statistics show that there is little difference in the party balance in the Senate regardless of whether a half or full Senate election is held,  though support for minor parties is increasing in the electorate and a lower threshold quota may in time prove a barrier to the flow of preferences to the major parties.

By reforming in these ways, the Senate would gain the legislative legitimacy that it currently lacks whilst retaining its current partisan composition. But in spite of any changes, the deadlock provision in the Constitution, s.57, should not be altered. Section 57 was included in the Constitution as a counterbalance to the power of a hostile state-based Senate to obstruct a popular government’s legislative program,  and it should remain available to a government outside the regular intervals of an electoral cycle. The anathema of unnecessary electoral scrutiny should encourage the type of compromise in the parliament that s.57 was designed to achieve,  and provide the continued deterrent of legislative deadlock that has moderated executive power in Australia for several decades.

Conclusion
The Senate was designed as a powerful institution to protect the people of the states from a strong national government. In many ways, it continues to fulfil this role, as its powers of executive scrutiny, its political representation of states electorates, and its proneness to multi-party debate have significantly enhanced the democratic qualifications and deliberative processes of the Commonwealth Parliament. Indeed, it remains at the fulcrum of the balance of federal and institutional power in Australia, and though it may no longer be a State-centric institution in practice, its federal design remains the key to its relevance today.

 
BIBLIOGRAPHY
CONSTITUTION
ss. 4, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 53, 57, 61, 64, 71

CASES
- Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129
- Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1
- Attorney-General (Vic) (Ex Rel Black) v Commonwealth (The DOGS Case) (1981) 146 CLR 559
- Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
- Buchanan v Commonwealth (1913) 16 CLR 315 at 327
- Commonwealth v Tasmania (1983) 158 CLR 1
- Egan v Willis (1998) 195 CLR 424
- Ha v NSW (1997) 189 CLR 465
- Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
- McGinty v Western Australia (1996) 186 CLR 140
- Mulholland v Australian Electoral Commission (2004) 220 CLR 181
- New South Wales v Commonwealth (Seas and Submerged Lands Case) (1975) 135 CLR 337
- Osborne v. The Commonwealth (1911) 12 CLR 321
- Queensland v Commonwealth (the Second Territory Representation Case) (1977) 139 CLR 585
- R v Duncan; Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535
- R v Governor of South Australia (1907) 4 CLR 1497
- R v Kirby; Ex Parte Boilermakers’ Society of Australia (1956) 94 CLR 254
- Re Wakim; Ex parte McNally (1999) 198 CLR 511
- South Australia v Commonwealth (First Uniform Tax Case) (1942) 65 CLR 373
- Victoria v Commonwealth & Connor (PMA Case) (1975) 134 CLR 81
- Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575
- Western Australia v Commonwealth (the First Territory Representation Case) (1975) 134 CLR 201

BOOKS
- Bach, Stanley, Platypus and Parliament: The Australian Senate in Theory and Practice, Department of the Senate, Canberra, 2003
- Blackshield and Williams, Australian Constitutional Law and Theory: Commentary and Materials, 4th ed, Federation Press, Sydney, 2006
- Department of Prime Minister and Cabinet (DPMC), Resolving Deadlocks: A Discussion Paper on Section 57 of the Australian Constitution, Department of Prime Minister and Cabinet, Canberra, 2003
- Galligan, Brian, A Federal Republic: Australia’s Constitutional System of Government, Cambridge University Press, Cambridge, 1995
- Joseph, Sarah, and Castan, Melissa, Federal Constitutional Law: A Contemporary View, 2nd ed, Lawbook Co Sydney, 2006
- Lane, P.H., Lane’s Commentary on the Australian Constitution, 2nd ed, LBC Information Services, Sydney, 1997
- McGrath, Frank, The Framers of the Australian Constitution: Their Intentions, Frank McGrath, Sydney, 2003
- Quick and Garran, Annotated Constitution of the Australian Commonwealth, Legal Books, Sydney, 1976 [1901]
- Singleton, Gwynneth et al., Australian Political Institutions 6th ed., Longman, Canberra, 1996
- Uhr, John, ‘The Senate and Proportional Representation: Public Policy Justifications of Minority Representation’ (ANU Public Policy Program Discussion Paper 69), ANU Press, 1999
- Zines, Leslie, The High Court and the Constitution, 4th ed, Butterworths, Sydney, 1999

CHAPTERS IN BOOKS
- Coonan, Helen, ‘Safeguard or handbrake on democracy?’ Bathwater’ in Costar (ed) Deadlock or Democracy?: The Future of the Senate, UNSW Press, 2000
- Costar, Brian, ‘Introduction’ in Costar (ed) Deadlock or Democracy?: The Future of the Senate, UNSW Press, 2000
- Evans, Harry, ‘Accountability versus Government Control: The Effect of Proportional Representation’ in Costar (ed), Deadlock or Democracy?: The Future of the Senate, UNSW Press, 2000
- Faulkner, John, ‘A Labor Perspective on Senate Reform’ in Costar (ed) Deadlock or Democracy?: The Future of the Senate, UNSW Press, 2000
- Lees, Meg ‘Parliamentary Reform: The Baby and the Bathwater’ in Costar (ed) Deadlock or Democracy?: The Future of the Senate, UNSW Press, 2000

JOURNAL ARTICLES
- Bach, Stanley, ‘A Delicate Balance: The Accidental Genius of Australian Politics’ Papers on Parliament, no. 40, 2002-2003
- Bannon, John, ‘Towards Federation: The Role of the Smaller Colonies’ Papers on Parliament, no. 30, November 1997
- Bartlett, Andrew, ‘A Squeeze on the Balance of Power: Using Senate ‘Reform’ to Dilute Democracy’ Papers on Parliament, no. 34, August 1999
- Beahan, Michael, ‘Majorities and Minorities: Evolutionary Trends in the Australian Senate’ Papers on Parliament, no. 27, 1996
- Coonan, Helen, ‘Survival of the Fittest: Future Directions of the Senate’ Papers on Parliament, no. 34, August 1999
- Galligan, Brian, ‘The Kerr-Whitlam Debate and the Principles of the Australian Constitution’ Journal of Commonwealth and Comparative Politics, vol 18 no 3 (1980)
- Meaney, Neville, ‘The Commonwealth and the Republic: An Historical Perspective’ Papers on Parliament, no. 26, 1996
- Sharman, Campbell, ‘The Senate and good government’ Papers on Parliament, no. 33, May 1999
- Thompson, Elaine, ‘The Senate and Representative Democracy’ Papers on Parliament, no. 34, August 1999