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John Uhr
This article describes the Australian Model of
a Senate and looks at what lessons it might have for discussion of Second
Chamber reform in Canada.
Canada and Australia deserve the close comparison they
receive. Both were British colonies attracted to the promise of responsible
parliamentary government around the mid-19th century. Both are federations. Both
are members of the Commonwealth. Both are constitutional monarchies. And both
have had to struggle for many of the rights of self-government.
Canada as the older British colony was something of an
inspiration to 19th century Australian colonists: ‘Canada Bay’ in Sydney is
named in honour of the Canadian colonists who took temporary refuge in Sydney
after the initial failure of the Upper Canada struggles for self-government.
Both countries have a long history of stable parliamentary government at both
national and provincial/state levels, including early reliance of second
chambers at provincial/state level.
But the historical developments diverged at some point, with
the Australian colonies/states showing greater interest in modernizing and
democratizing their second chambers. By contrast, Canadian provincial second
chambers were discarded: a process that only one Australian state (Queensland)
has followed.
Over recent decades, many of the Australian state second
chambers have been further reformed to resemble ‘the Australian Model’ pioneered
by the Australian Senate. Thus the Australian Senate should be understood as
part of a larger package of bicameral arrangements in the Australian federation.
Australian political parties have learnt to use bicameralism for their own
purposes: the existence of second chambers is accepted a part of the
institutional environment of parliamentary politics and is presumably welcomed
by parties, particularly as it increases opportunities for paid public office
open to political activists.
A Few Qualifications
A number of qualifications should be mentioned at the outset.
‘The Australian Model’ is an Australian response to Australian problems, with
possible lessons for other countries but probably very few easy or
non-controversial applications to non-Australian circumstances. Put simply: ‘the
Australian Model’ is not designed along the lines of any other model, and it is
unlikely to perform well as a model for other countries, even so-called
Westminster countries, to try to replicate.
Australian parliamentary commentators have increasingly
rejected the terms and categories of ‘the Westminster system’ because Australian
political practices do not really resemble those of classic Westminster. The
presence of an elected Senate in a constitutionally-entrenched federal
parliament is far from classic ‘Westminster’. True enough, many governments of
the day appeal to Westminster norms when trying to justify the prevailing power
of the political executive in what is loosely called a regime of ‘responsible
government’. Also true is that opposition parties often appeal to ‘Westminster’
norms to justify an increased share of parliamentary power by non-government
parties. The fact that Australian governments so rarely share significant
parliamentary power with opposition parties suggests the limits of the
‘Westminster’ analogy for Australian politics.
The current characteristics ‘the Australian Model’ have
developed or grown up in the 107 years since Australian Federation in 1901,
reflecting the work of many generations of parliamentary actors. These actors
built on the constitutional foundations spelt out in the 1901 Constitution for
the Commonwealth of Australia but often in ways not necessarily anticipated by
the constitutional framers. Although the black-letter provisions of the
Australian Constitution might not have changed all that much since 1901, the
practical operations of the Australian Senate most certainly have. These
institutional changes have been driven partly by changes in parliamentary law on
such core operational issues as electoral mechanisms and driven partly by
changes in the parliamentary ambition of the political parties competing for
place and power in Australian politics.
History certainly matters; but accidents of history probably
also matter. It is possible that elements of ‘the Australian Model’ rest on
accidental developments or, more likely, unintended consequences of almost
forgotten developments. Even the Australian embrace of proportional
representation is something of a happy accident, with its Labor initiators in
the late 1940s unaware of many of its potential effects. The practical
implication of this historical blend of intention and accident is that the
current version of ‘the Australian Model’ is such an amalgam of law and politics
that observers are uncertain how particular elements of the model (eg, Senate
Estimates hearings) might operate as stand-alone features taken out of their
historical context.
The Constitutional and Political
Context
Before trying to unpack ‘the Australian Model’, it might be
useful to briefly outline the formal constitutional provisions and also to
convey something of the the ‘feel’ and ‘presence’ of the Australian Senate in
the current political context.
The Senate with 76 elected members is one of two houses. The
other elected house is the 150 member House of Representatives. The Constitution
establishes the Commonwealth of Australia as a federation of six States, with
the Senate composed of an equal number of senators from each State. Each State
forms one multi-member constituency, with senators serving for fixed six year
terms. House members represent single-member seats distributed nationally
according to population, and serve three year terms, subject to early
dissolution by the prime minister.
The two houses share ‘legislative power’, with the Senate
having virtually equal legislative powers with the House of Representatives.
Although there are restrictions on what types of laws the Senate may introduce (eg,
appropriation or taxation bills) or amend (eg, appropriation for the ‘ordinary
annual services’ of government), there are no restrictions on the power of the
Senate to reject bills. The Constitution contains deadlock-resolving provisions
involving a ‘double dissolution’ (ie, a dissolution of all members of both
houses) with the prospect of a subsequent ‘joint sitting’ of all members to
determine the fate of disputed measures. By convention, the House of
Representatives is often referred to as ‘the house of government’ and the Senate
as the ‘the house of review’.
The current Rudd Labor Government was elected in November
2007 when it defeated the conservative Howard Government, which had won a rare
double majority in both parliamentary houses at the previous 2004 election.
Apart from the Howard Government in its fourth and last term in office, no
Australian government in the last 30 years has enjoyed a Senate majority. The
distinctive Senate electoral system of proportional representation has the
effect of denying either of the two major party blocs (Australian Labor Party;
the Liberal-National coalition parties) a Senate majority. Typically,
governments do not have a majority of Senate seats to guarantee passage of their
own initiatives; equally, the official opposition does not have a majority of
votes to get its own way. With neither of the two major party blocs enjoying
majority power, the ‘balance of power’ typically falls to the third parties: the
so-called ‘cross benches’ comprising the minor parties and independents who
manage to win Senate seats through the remarkable fairness of proportional
representation which allocates seats proportional to the share of votes.
The 2007 election of the Rudd Government restored the Senate
to its usual non-government majority. Remember that this situation rarely if
ever means a Senate majority for the official opposition. The 76-member Senate
currently comprises: 32 government senators; 37 opposition senators; and 7
cross-bench senators (5 Greens; two independents). Unlike the lower house
Speaker, the Senate President (by convention, a government senator) has no
casting vote, consistent with the strict reading of federalism as meaning equal
voting power of each state. Half of the total Senate 76 votes (ie, 38 votes) is
sufficient to block a measure. Any party wanting to secure passage of its
initiatives requires one more than half of the Senate votes: 39 votes.
To wield a bare winning majority of 39 votes, the current
Rudd Government needs all seven cross-bench votes. The current opposition can
block government initiatives by gaining one additional vote (38 votes) but it
needs yet another vote to get a majority of 39 votes for passage of its own
initiatives. The situation of dispersed power is equally demanding for the minor
parties. The Greens are the largest of the cross-bench forces and they need two
more votes than the ‘green-friendly’ government can provide in order to get a
Senate majority in favour of Greens’ initiatives. The Greens could secure a
majority with the support of the official opposition, but this would involve an
unusual blending of right and left political orientations: not impossible but
not what either orientation would initially favour. And then there are the two
independents: either of the two independents can join forces with the opposition
to secure 38 votes to block government initiatives; both can join forces and
provide the official opposition with the required 39 votes for Senate passage of
opposition initiatives.
Senate’s Impact on Australian National Politics
The Senate’s response to the Rudd Government’s first budget
tells a larger tale about the Senate’s impact on government law and policy.
The parliamentary side of the budget process begins with the
Treasurer’s budget speech in early May, in anticipation that Parliament will
pass the budget as soon as possible in the new financial year which begins on
1st of July. Passage through the House of Representatives is generally smooth
because the government of the day holds office by virtue of its House majority,
which Australian governments are not shy to use. The trick is getting the budget
smoothly through the Senate, which under the Constitution has no time limit
within which to pass legislation. Governments have learnt to tolerate a fair
degree of delay in the Senate, because they know that both major party blocs use
their time in opposition to use the budget process as their primary opportunity
to hold the party in government to account.
Both major party blocs have learned to use this power of
delay in ways that generally fall short of what public opinion might see as
willful and irresponsible obstruction. In the history of the Australian Senate,
the year 1975 stands out as the year constitutionality trumped convention when
the Senate delayed to the point of deadlock, triggering the Governor-General’s
intervention to dismiss the Whitlam Labor government on the basis that it lacked
parliamentary confidence. The opposition took office as caretaker government and
resoundingly won the subsequent election demanded by the Governor General. ‘The
Dismissal’ of 1975 is an atypical example of the Senate’s impact on Australian
politics. Let me give a few examples of the typical forms that Senate impact
takes, drawing on examples from the last few months.
The Senate has recently made repeated amendments to the Rudd
Government’s package of budget bills: not ‘money bills’ or supply as such, but
budget measures introduced as part of the government’s overall budget package.
This tendency towards challenging or even amending budget measures was initially
pursued by opposition senators whose unusual period of Senate mastery did not
come to an end until the newly-elected senators took up office from July 2007.
But the tendency was reinforced by ‘the new Senate’ where the balance of power
was held by the Greens and two independents. With the budget still under
legislative consideration by the Senate, a number of prominent budget measures
suffered at the hands of the non-government forces, often defeated at second
reading: for instance, a national health taxation measure was defeated on 28
August; a package of bills to increase taxation on luxury cars was also defeated
on 4 September (later passed with amendments on 17 September); a medicare levy
surcharge bill was also defeated on 24 September, although later passed on 16
October following cross-party agreement on a compromise package of amendments.
Other budget measures were passed but only after amendment,
including amendments that take the form of ‘requests’ to the House of
Representatives in those cases where the Constitution places limitations on the
Senate’s capacity to amend directly: eg, the government’s budget measure to
remove excise exemptions for a range of fuel condensates. This constitutional
limitation on the Senate’s power to amend taxation bills is contained in s53 of
the Constitution. The cryptic words of the Constitution have provided hours of
enjoyment (and years of employment) for constitutional lawyers. Government
lawyers usually take the strict interpretation that any bill relating to
taxation may not be amended by the Senate, although the Senate is within its
rights to ‘request’ that the House of Representatives amend such bills. And so
the Senate does.
But a more radical challenge to conventional interpretations
of s53, and to the Rudd Government’s budget, came from non-government parties in
the Senate when they engaged in their own budget-making exercise by passing
legislation to increase the age pension. Section 53 states in part that
appropriation or taxation legislation ‘shall not originate in the Senate’. The
Senate passed this non-government pension bill on 22 September 2008, with its
supporters claiming that the bill itself did not appropriate money but simply
increased the rate of age pensions which were formally appropriated under
standing provisions in existing social security legislation. The Rudd Government
argued that the House of Representatives was under no obligation to consider the
Senate bill because it was ‘unconstitutional’. The Speaker of the House of
Representatives tabled advice from the Clerk of the House of Representatives
supporting the government’s contention that the House was under no obligation to
consider the Senate bill because it was ‘not in accordance with the
constitutional provisions’ of s53. The opposition in the House of
Representatives has little if any opportunity to debate the Speaker’s ruling as
the government used its numbers to close debate, which had the effect of
dividing the House on the Speaker’s ruling, to the convenience of the
government.
States House?
One of the major misconceptions relating to the Australian
Senate is the contention that the Senate has somehow failed to live up to
supposedly-original intention of acting as a ‘States’ House’. The claim is that
the primary purpose of the Senate was to inject State-wide blocs of State
representatives into the national Parliament and that these State-wide blocs
would be expected to protect their respective States’ interests by voting en
bloc as State delegates. While it is true that the Senate has never (or very
rarely) voted along State lines, and while it is true that party divisions
quickly arose as the predictable sources of division within the Senate, it does
not necessarily follow that the Senate has ‘failed’ as a States House.
First, the Senate does provide for equal representation of
each State and this constitutional equality strengthens the political
representation of the smaller and hence more vulnerable States. These smaller
States receive a greater number of parliamentary representatives than they would
deserve solely on the basis of representation by population. Second, each of the
major parties of government draws into its federal party caucus a greater number
of representatives from the smaller States than they otherwise would without a
Senate. Thus the Senate broadens the State representation of the major political
parties. Third, the standard misconception gets the original intention wrong.
The original intention was to have the Senate promote States interests not
through uniformity of voting but through diversity of views represented within
each State body of senators. The Constitution was written by serving politicians
who fully appreciated the rising power of party and of the normality of party
competition in a emerging system of party government. But they also appreciated
the facts of political geography and knew that the national Parliament needed to
know the diversity of views within each State if the Parliament was to
contribute to the new federal Commonwealth. Fourth, the very idea of a Senate
was favoured by many early federalists on the assumption that proportional
representation would make the second chamber a distinctive house of minorities.
Just as the equal representation of each State in the Senate would protect the
minor States, so too proportional representation would protect minorities within
each State body of senators. This frequently-forgotten version of the Senate as
a States house is in many ways the basis of its greatest enduring public
legitimacy.
Arguments over the Senate as a States House eventually come
face to face with the fact that the Senate has developed very much as a party
house, and more particularly as a State party house. That is, State party
officials tend to dominate who gets elected to the Senate. They exercise this
power through their selection of who gets nominated on the State party list.
Current electoral arrangements allow, indeed encourage, voters to elect senators
by endorsing the party-ticket of their preferred party, right down to that
party’s often-undisclosed order of ‘preferences’ as required under the
Australian system of preferential voting. Voters have the option of ranking
their candidates according to whatever merit ranking the voter favours. But the
political parties do all that they can to encourage voters to limit their
involvement to authorizing their favoured party’s internal rank order of
candidates.
One important consequence of this party-list development is
that the Senate can be seen from the perspective of political parties as
something of a nominee house: voters get to authorise those on their favoured
party list, even though they might never hear of many beyond those near the very
top if the ticket. Of course, similar observations could be made about House of
Representatives elections, to the extent that voters tend to vote for party
labels rather than known candidates and so simply authorize choices made by
party officials. But in lower house elections, voters tend to see more of the
small number of candidates competing in their riding (or ‘division’ in
Australian language) and are better placed to form their own view of the who is
the one candidate best qualified to be their representative. Such calculations
are considerably more difficult to do on the basis of reliable knowledge in
Senate elections when voters are typically electing not a single representative
but six representatives. Thus it is easier for many voters simply to take on
trust the rank ordering determined by their preferred party, which illustrates
the considerable power of the State party officials who determine who gets to
stand for Senate election.
Ministers in the Senate
The current Rudd Government is typical in drawing a third of
its cabinet ministers from the Senate. These are not junior ministries but
include (using their short titles) the cabinet secretary, the minister for
climate change, the minister for immigration, the minister for communications,
the minister for industry, and the minister for human services.
Of course, the House can claim that it has twice as many
cabinet ministers as the Senate. Interestingly, this relationship of two to one
reflects the constitutional ‘nexus’ provision which holds that the House of
Representatives should have twice the membership of the Senate. But senators can
put this in more positive terms by stating that the Senate contains half the
number of ministers as the House.
The figures for the Opposition are almost identical. In
addition, one-sixth of the government’s parliamentary sectaries (junior
ministers) come from the Senate. Figures for the Opposition are even starker,
with two-thirds of their parliamentary secretaries coming from the Senate. Put
differently, slightly less than one third of the government’s 32 senators hold
executive office (9 of 32). Once again, figures for the Opposition are even more
revealing, with slightly less than half of the their Senate membership holding a
position in the shadow executive (16 of 36). To drive home my point, I note that
almost exactly one-third of senators serve in executive offices, defined as
membership of either the political executive of the governing party or the
shadow executive of ‘the alternative government’.
Impact on Legislation
Instead of providing comprehensive data on the Senate’s
record of impact on proposed legislation, I simply want to contrast two recent
years to highlight the general story of Senate legislative activism. We can
compare 2006 with 2003, the last non-election year before the arrival of the
rare Howard double majority. The two-year contrast is instructive.
The starting point is that in most years the Senate passes
around two-thirds of government bills without amendment. The Senate’s impact on
these non-controversial bills might well be considerable, causing governments to
anticipate non-government interests and to modify their own initial drafting.
That is, the very fact that Senate consent is required for legislation is itself
sufficient for governments not to introduce bills or provisions in bills that
have no prospect of ‘getting through the Senate’. Approximately one-third of
government bills that do attract amendments are changed more often as a result
of government rather than non-government amendments. Again, many government
amendments take up issues originally raised by non-government interests and are
to that extent involuntary or enforced actions by governing parties. But the
starting point is that most of what governments want, governments get; which is
not deny that much of importance to non-government parties is also secured
through that very process of government adoption of non-government interests.
Most of the formal time available to the Senate is spent in
what is classified as ‘government business’: primarily the passage of government
legislation. In the years since 2001, around 52% of the Senate’s timetable has
been devoted to ‘government business’. This figure nicely illustrates one of the
fundamental functions of the Senate, which is to process whatever the government
wants processed, although not necessarily in ways or with results favoured by
governments. The Senate has passed on average 165 bills each year, almost all
being government bills. On average, 67 bills each year are referred to a Senate
committee for inquiry and report. These are inevitably the bills that go on to
attract amendments, often although not always as initial recommendations from
the relevant committee.
The contrast between two sample years clarifies the
situation. Sure enough, the 2006 record shows no success in relation to any of
the 39 second reading or ‘policy’ amendments moved, mainly by the then-Labor
opposition. But when we look at the subsequent ‘committee of the whole’ stage of
the legislative process dealing with the details of proposed legislation, we
find a different story with evidence of Senate capacity and will to amend many
government bills. In 2006, the Senate dealt with 218 bills, 163 of which were
government bills, 39 of which were introduced by the government in the Senate.
100 bills were referred by the Senate to one of the eight standing or
subject-matter committees for inquiry. Around 172 bills passed both houses, two
of which were non-government bills originating in the Senate. The Senate debated
committee stage amendments in respect of 72 bills, and agreed to amendments in
the case of 25 bills. Many legislative amendments originated as government
proposals: 360 out of 390 successful amendments: non-government senators moved
30 of the 390 committee stage amendments. Another 480 proposed amendments were
defeated. Remarkably, few government amendments get defeated: by the time
governments get round to proposing amendments, they have prepared the ground and
taken on board many demands from non-government parties. It is surprising how
rarely the Senate is required to conduct formal divisions with a recorded voting
list.
In 2003 the pace of legislative work was about the same, with
215 bills passing both houses compared to the 218 figure in 2006. But there are
some interesting contrasts. For example, whereas 2006 had only one bill caught
in fundamental disagreement between the two houses, in 2003 there were 25 such
disagreed bills. And instead of there being 25 successfully amended bills, in
2003 there were 62 amended bills. And most interesting of all, the committee
stage evidence shows a higher proportion of successful to unsuccessful
amendments, with 808 successful amendments out of 1484 proposed amendments. The
contrast is highlighted when we notice that 2003 included 17 successful Senate
‘requests’ to those bills which the Constitution says the Senate may not amend.
There were no requests, successful or unsuccessful, in 2006.
Of course, most Senate amendments are moved by the
government, even though the government rarely enjoys a majority in the Senate.
This tells us that governments can read the writing on the wall and do what they
can to direct and steer the legislative momentum.
What happens to Senate amendments when they return to the
House of Representatives? In nearly 80% of the cases, the House accepts the
Senate amendments.
But what happens in the other 20% of cases when governments
refuse to accept Senate amendments? Stanley Bach is the latest authority on this
topic whose recent research put the Senate’s power into fresh perspective.
Reviewing the last decade or so of Senate amendments to government legislation,
Bach contrasts the high rate of Senate amendments with the interesting pattern
that emerges from the way the Senate reacts when the House (ie, the government)
refuses to accept Senate amendments. In many such cases, governments simply
stick to their guns and do not counter-propose alternative amendments; and in
most such cases, the Senate yields. In other cases, where the government
counter-proposes with alternative amendments, the Senate also typically yields.
Generally, the Senate either does not contest government overrides or does not
insist on its own amendments in over 90% of the time.
Looked at from a parliamentary perspective, one has to admire
a second chamber that can secure the first chamber’s support for 80% of its
amendments. But looked at from a Washington perspective, as Dr Stanley Bach
brings to the Australian scene, one wonders why the Senate does not hold its
nerve for the other 20% of the time. He finds evidence of regrettable
institutional reticence.
Conclusion
When Prime Minister Harper spoke to a joint meeting of
Australian parliamentarians in September 2007, he confessed that he was one of
those Canadians who suffer from ‘Senate envy’ when considering the Australian
Senate.
Mr. Harper told his audience that; ‘Australia’s Senate shows
how a reformed upper house can function in our parliamentary system’. I have
reason to think that his praise of the Australian Senate was not shared by the
Australian prime minister John Howard, who was then enjoying his remarkable
double victory with a rare majority in both parliamentary houses. But the Howard
Government went on to lose their power at the November 2007 election: they lost
their Senate majority; more importantly, they lost government; more personally,
John Howard lost his own parliamentary seat. Commentators believe that one
reason for the Howard Government’s defeat was, paradoxically, their remarkable
double victory at the previous election in 2004.
First elected to government in 1996, the Howard Government
suffered its own form of ‘Senate envy’ associated with their inability to
steamroll legislation through the Senate. Many of the Howard Government’s most
prized policy initiatives, particularly workplace relations, were frustrated in
the Senate. When the double victory did arrive, the Howard Government knew that
such commanding parliamentary power would not come again and so they pushed
through with more daring legislative proposals than would have been possible
earlier. Opposition critics claimed that the government had no mandate for some
of the more far-reaching proposals which has never been openly declared at
election time. The community watched as the government seemed to be overplaying
its hand with a legislative program reshaped along more fundamentalist lines
than earlier programs. It is plausible that voters punished the Howard
Government for, among other perceived mistakes, misusing its Senate power to
ignore or at least marginalize the rights of non-government parties to be
treated with due parliamentary process.
The new Rudd Government has just announced its own Senate
reform proposals. Senator John Faulkner, cabinet secretary and special minister
of state, revealed the new vision at a conference on bicameralism on October 9,
2008. Faulkner admitted that the current legitimacy of the Senate reflects not
so much the merits of the original Constitution as the period of Senate reform
in the late 1940s that introduced proportional representation.
Reporting the views of former Labor prime minister Paul
Keating about senators as ‘unrepresentative swill’, senator Faulkner contrasted
his open admiration for ‘democratic principles’ with his unhidden dislike of the
Senate’s power to frustrate democratically-elected governments, with the 1975
events front and centre in his picture of the Senate’s ‘constitutional
restrictions’. What are the reform options? First, curbing the Senate’s power to
block supply, as happened in 1975. Second, substituting fixed four-year terms
for both houses to ‘make the Senate more reflective of the will of the
electorate at the most recent election’, in place of the current mixture of
three years for the House and six years for the Senate.
In his view, ‘The Senate does not reflect that fundamental, democratic,
Chartist principle of one vote, one value’. Australian practices can and do
change and although it may come as a surprise to Canadians, Senate reform is a
perennial topic in Australia.
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