Power of the Australian Senate

“The Senate has assumed a position of power and importance in the Australian Parliament System far beyond what was envisaged by the founding fathers in 1901”

The Senate is one of the two houses of the Australian Federal Parliament. It consists of 76 Senators, twelve from each of the six states and two from each of the mainland territories. It has virtually equal power to make laws with the other House of Parliament, the House of Representatives. Senators are elected by proportional representation, so that the Senate’s composition closely reflects the voting pattern of the electors. The Senate specifically protects the States and the People from abuse. Each State has equal representation, no matter what its population.

Time after time PM after PM has attempted to undermine the Power of the Senate and get control of it, and time after time the Constitution has foiled them. High Court after High Court has been raining down hammer blows on the States, favouring the Federal Government against the States, but the Courts have not broken the Federation. These activities are clearly acting against the intent of the Constitution, as well as the Will of the People, who have consistently voted in referenda against increasing Federal Power since Federation.

The Constitution was written with the idea of having an absent Sovereign, and for the express purpose of protecting the People and the States from the central government. The instruments the Founding Fathers chose to provide maximum protection for the People and the States were the Crown, the Senate, the High Court (with an Appeal to the Privy Council), and the Constitution.

The Senate that the Founding Fathers created was a stroke of genius, and is the strongest Upper House in the world. The Constitution created two Houses of Parliament that are equal in power but with significant differences. They have different electorates and electoral systems. The Upper House, the Senate, is half the size of the Lower House of Representatives. The Lower House was given no taxing powers at Federation but was expected to perform its functions on 1/4 of tariff collections!

When the Lower House was granted taxing powers the Senate was given the power to refuse taxation measures, thus preserving the equality of power between the two Houses. Capricious use of this power by the Senate immediately forces the Government to the People, who then decide in a free and fair election to determine whether or not the Senate has acted properly. What could be more democratic?

In most republics such activity would cause a revolution.

In Britain the role of the upper house, admittedly hereditary rather than elected, was the subject of profound controversy. After an extended dispute over the passage of the budget, the Lords were forced to accept restrictions on their power. This was the curtailment of a previously existing power, not the creation of a new role; the Lords was not converted to a house of review. Thus, in a sense, the model of a national parliament to which Australia was most likely to turn was one in which the lower house had finally asserted its authority over an over-mighty and undemocratic second chamber.

The oldest and, in electoral terms, single largest party in Australia was also actively hostile to developing a constructive role for the Senate. The Australian Labor Party had a policy of abolishing upper houses (abandoned in 1979), which it viewed as bastions of privilege, and conservative, propertied interests. It succeeded only in Queensland in 1921, although came very close to success in New South Wales in the 1920's.

It may also be that the major parties were happy to retain the 'government and opposition' approach rather than seek to develop the potential of the Senate to act effectively as a house of review. Since the major parties both viewed themselves as parties of government they had little incentive to develop an upper house that would limit their powers when in government. It can be argued that the major periods of Senate reform have been at those times when oppositions have come to see themselves as permanent oppositions and have sought reform in order to give themselves greater powers of scrutiny as a substitute for governing.

There have been many changes that generally have the effect of reducing the control of the governing party in the Senate. In the conduct of that anachronistic ritual question time, for example, time limits have been imposed on answers from ministers, supplementary questions are allowed, a greater share of questions has been allocated to non-government senators, and an additional half hour added for senators to 'take note' of answers. This has not necessarily improved the generally low standard of question time, but it has, however, given non-government senators much greater capacity to place the government under pressure.

These and other visible changes such as the re-structuring of the committee system including the appointment of non-government chairs, the referral of bills to committees, the sensible introduction of revised sitting hours, the greater use of the Senate's powers to demand the production of documents, and many others are parallelled by a whole range of practices behind the scenes. The meetings of ministers, whips and parliamentary staff to organise the programming of business in the chamber have grown over the years to accommodate the independents and minor parties. Contentious pieces of legislation such as the recent Industrial Relations Bill also demand extensive informal negotiation, sometimes involving ministers from the House of Representatives, before they appear in the chamber.

Three important facts are often overlooked in the over-dramatic claims made by governments about the threat posed by hostile senates. First, it should be understood that the need to retain a reviewing function in a second chamber is a product of the failure of the House of Representatives to exercise a proper parliamentary role in holding the government of the day to account. Its 'electoral college' nature makes this impossible. Secondly, the Senate is not a monolithic voting block systematically thwarting the wishes of government. To achieve a blocking vote in the Senate demands the building of coalitions. These coalitions are never easy to build and each issue demands a different coalition. Thirdly, voting patterns in successive elections have demonstrated that people are aware of the different voting systems in the two Houses and are prepared to vote for minor parties and independents when they have a realistic chance of getting elected.

The 'power of the Senate' argument is seldom analysed. It is simply taken as read. Yet, leaving aside the dismissal of the Whitlam government in 1975, there has not been any significant detailed research in the last twenty years which demonstrates that the Senate has exercised its powers in ways which, on balance, have harmed the country, denied the government of the day the opportunity to govern, or introduced measures which have been capricious or seriously prejudicial to the national interest. Certainly legislation, including appropriations, have been amended, delayed and very occasionally defeated. Treasurers and foreign ministers have been driven to distraction. But this does not add up to a major problem.

The Senate, elected under a system of proportional representation, provides the opportunity for non-mainstream opinion to find a voice in the legislature with the capacity to scrutinise the activities of government but with limited power to block these activities. If we accept the importance of the review function of the Senate, some reforms are necessary. When talking of governments' exaggerated view of the power of the Senate one must be careful to exclude the events of the dismissal of the Whitlam government in 1975. Without re-visiting a complex issue that incites strong opinions from both sides, it should be thought that the Senate should not possess the power to block the ordinary annual services of government supply. This power, which is enjoyed by few other upper houses effectively, gives minority groups, in certain circumstances, the power to overthrow popularly elected government. It is a power that is contrary to the review function that the founding fathers designed it as, and if we are in favour of enhancing this function, then this power must go.