With around 20 Bills currently stalled or about to be stalled in the Senate and double dissolution triggers piling up in the third Howard Government, it is not surprising that the question of Senate reform is now firmly back on the political agenda.
The Prime Minister has announced that next month he will release a paper for discussion that canvasses at least two options for changing the Senate to improve the prospects of getting deadlocked legislation passed without the uncertainty, inconvenience, expense and delay of a double dissolution election.
The Labor Party who, from 1919 to 1979, had a policy to abolish the Senate has said they will look carefully at the reform proposals. One of the reform proposals has in fact been attributed to a former Labor Attorney-General, Michael Lavarch.
Suddenly there is a real prospect that this time there may be a soundly based proposal for Senate reform that will receive bi-partisan support for a referendum.
There are very few topics that induce a more excited reaction than the suggestion that the Senate needs reform. The Prime Minister's paper will no doubt revive the debate about whether and why the Senate needs reform.
Australia Becoming Ungovernable
Let there be no mistake. An efficient and hard working Senate, scrutinising, criticising and examining legislation and keeping the government accountable, is a great institutional safeguard for all Australians. When the Senate carries out this constitutional role no thinking Australia would be disposed to change it.
But when the Senate crosses the line and acts as an obstructional competitor to the democratically elected government of the day, frustrating or substantially delaying urgently required responses to national problems or insisting on its own policy, it is no longer a House of review but a House of obstruction.
Critics of Senate reform will point to the fact that statistically most legislation gets through in the end. This obscures the importance of bills that are obstructed or delayed. Invariably they have included the structural reforms that are necessary to keep Australia one of the fastest growing economies in the OECD.
The modernisation of Australia's industrial relations system and tax reforms, that have allowed Australia to be competitive, have been strenuously opposed by the Labor Party. The reforms that have been implemented have only been achieved with the support of minor parties or independents. This provides minor parties, who command only narrow electoral support with the opportunity to exploit the balance of power and to renovate the legislation to better reflect their own policy preferences.
In fact minority parties and independents are an essential part of a democracy where power is well distributed throughout the institutions of government. It is a legitimate means of ensuring that diverse views receive a proper hearing and consideration. This is to be expected in a robust democracy.
Where it becomes untenable however, is when no compromise can be reached, other than complete capitulation by the government. Taken to its logical conclusion, it allows the major defeated party in the Senate to join with a minor party to form a minority government in the Senate.
It is not in Australia's interests to have what we have now, two competing governments with almost equal and opposite mandates to govern. If it continues, Australia will become progressively, ungovernable.
Institutional Design
In fact these problems were recognised at Federation. It was indicative of the controversial role the Senate was to play in the development of Federal democracy in Australia that:
The single most contentious issue for the Australian founders and the one that took up most space in the convention debates ... was the design of the Senate and its accommodation with responsible government. 1
The framers' deliberations resulted in what has been described as essentially a "hybrid combination" of an American-style federation with traditional British parliamentary responsible government.2
Speaking at the Australasian Federal Convention on the 30 March, 1897, Dr John Cockburn described it thus:
... the great principle which is an essential, I think, to Federation - that the two houses should represent the people truly and should have co-ordinate powers. They should represent the people in two groups. One should represent the people grouped as a whole, and the other should represent them grouped in the states. Of course majorities must rule, for there would be no possible good government without majorities ruling, but I do not think the majority in South Australia should be governed by the majority in Victoria, or in New South Wales ... If we wish to defend and perpetuate the doctrine of the rule of majorities, we must guard against the possibility of this occurring.3
What Federation required in achieving a union between the existing colonial states (the Original States) was a geographical distribution of votes in the Senate as a balance to the greater numerical representation in the House of Representatives of the most populous states.4
A States' House?
Whatever the founders may have intended, it is clear that the Senate does not function as a states' House in the sense that issues are decided by Senators on the basis of interests identifiable with their particular states.
Any expectation that Senators would vote in a block according to the state they represent is unsupportable, not the least because of the emergence of rigid party discipline which presently controls all but four independent Senators and also because in a Federal democracy the Senate does not represent states' rights but rather represents electors voting by their states.
While the Federal structure protects the states by requiring (except following a double dissolution) a double majority for the passage of laws that will ensure the majority of votes is geographically distributed and not from a minority of states, the initial fears of domination by the more populous states has been well and truly overtaken by national parties and party discipline.5
Indeed the constitutional entitlement to equal representation of Senators irrespective of population has led to entrenched inequality between voters. New South Wales, with 34 per cent of the population is confined to the same representation in the Senate as the smallest state, Tasmania, with only 2.6 percent of the population. Although undoubtedly part of the federal design and entrenched in the Constitution, can it be defended as a democratic outcome for a Tasmanian's vote to be worth thirteen times that of New South Wales voter, or a South Australian's vote to be worth four times that of New South Wales voters in the Senate?
Reconciling Federalism and Responsible Government
Moreover, there is no escaping the theoretical difficulties in reconciling federalism and responsible cabinet government in the institutional design, although some commentators conclude that the principles and conventions of responsible government can be reconciled with federalism and a strong Senate.6
So how did the founders see the bicameral hybrid working on a day-to-day basis? As Galligan points out: Since the Australian Founders did not specify the details of responsible government in the Constitution, it is hardly surprising that they did not define precisely how the government would relate to the Senate.7
While responsible government equates to having and retaining the confidence of the House of Representatives, does this also extend to the Senate? This is not the place for a rehash of the events of 1974 and 1975. Suffice to say that there is no definitive answer, at least not one provided by the Constitution.
Despite the dire warnings by some over the Senate's power of veto over supply, and the insertion of the double deadlock provision in Section 57 of the Constitution, it would seem that the founders did not have in contemplation that such a complicated and time consuming provision would be used to break deadlocks over supply for the simple reason that government could not function if supply was denied.8
There was a prevailing belief that conflicts over policy were another matter, not being seen as vital to the survival of a government. There was an expectation that practical politics would prevail to resolve inter cameral conflict between the Senate and the House of Representatives.9
Impact of Proportional Representation and Increased Senate Numbers
If the impact of proportional representation in 1948 was to be a landmark in our electoral history the increase in the number of Senators from 10 to 12 in 1983 and the resultant reduction in the quota from 16.66% to 14.28%, has been described as a "watershed".10
These two changes have ensured that neither of the major parties will have a working majority in the Senate for the foreseeable future. At the very best that means that government will be by compromise. Sometimes that can have a satisfactory outcome.
On other occasions legislation can be profoundly altered from its original intent, such as the removal of the GST on food, with ongoing consequences for inefficient state taxes that were slated for abolition but have now been retained.
A government can live with compromise and expects to be accountable. What makes it difficult for government is when urgently needed reforms in the national interest are opposed outright.
Should you not think this matters, let me mention the nature, scope and policy rationale of just one of the deadlocked measures currently banked up in the Senate. (Attachment A contains a more fulsome list)
An Ageing Population and Vital Policy Reforms
An `Intergenerational Report' produced as part of the 2002-03 Budget Papers looked at Australia's long term outlook and identified emerging issues associated with an ageing population. Various scenarios presented in this report showed population ageing would slow growth, reduce labour force participation and cause productivity growth to fall.
If Australia continued on its current course taxes would need to increase by around 5 per cent of GDP to pay for the same government services in 2040 and raise an additional $87 billion to keep the budget from moving into deficit.
Currently over half of Commonwealth Government spending is directed to health and aged care. This means that the Government has to make some long term, structural policy choices now so that we can enjoy the same living standards in 2040.
Legislation in relation to the Pharmaceutical Benefits Scheme or PBS aims at putting it on a more sustainable basis so it can continue to deliver access to medicines at affordable prices in the longer term. The cost of the Pharmaceutical Benefits Scheme or PBS is growing rapidly as medical science improves and we have a greater ability to treat more conditions.
Since 1991 the cost of the PBS has nearly quadrupled from $1.2 billion to $4.2 billion and is expected to cost $6.4 billion by 2006. This is a significant area of pressure in the health budget.
Under the Government's proposal co-payments for concession cardholders, such as pensioners and seniors health cardholders will rise by $1 to $4.60 and co-payments for others will rise by $6.20.
While a concession cardholder will pay only $4.60 this is only part of the cost of the many PBS medicines, for example, Humulin NPH used for the treatment of insulin dependent diabetes costs $229 per prescription; and Enbrel used for the treatment of adult patients with severe rheumatoid arthritis costs $25,000 per patient and around $100 million per year.
The Government's reforms will ensure that the PBS is sustainable into the future and that new, highly effective but expensive medicines can continue to be listed under the scheme.
They are opposed by Labor and the minor parties in the Senate and the bill to effect the changes is a double dissolution trigger in the current term of government.
Towards Reform
In my view the inescapable conclusion is that the Senate routinely opposes the Howard Government reform agenda. The nation needs these reforms to remain competitive and productive and to provide capacity to meet the needs of its greying population.
There have been many proposals for reform of the Senate. While perhaps the most discussion has centred on removal of the Senate's power to block supply and a referendum to break the nexus between the House of Representatives and the Senate which was defeated in 1967, other proposals have canvassed reducing the numbers, introducing a provincial electoral system, the use of thresholds along the lines of the German system and proposals to enable joint sittings to pass deadlocked legislation without taking the extraordinary step of a double dissolution election.11
The two proposals that have gained recent currency recognise that there needs to be a more efficient and practical way to resolve deadlocks than having legislation twice rejected, then dissolving both Houses of Parliament and sending the country to an election before convening a joint sitting of both Houses to consider the rejected bills. Such a cumbersome process is hardly suited to the needs of a modern economy.
Australia is the only country in the world that has double dissolution provisions to resolve legislative deadlocks. Canada, Germany, Ireland and the United Kingdom do not have the potential for legislative gridlock, yet it can hardly be said that those countries enjoy a less robust democracy than does Australia. The United States Senate has a power to veto but also a well understood conference committee system comprising members of both Houses to resolve disagreements (Attachment B provides a comparative summary).
Arguments about a mandate to govern do not produce an outcome. What is needed is a rethink about Senate powers - how to retain it as an important check on the government of the day without bringing the reform agenda to a standstill.
The reform model initially proposed by the Prime Minister is based on the recommendations of a Joint Parliamentary Committee on Constitutional Reform as long ago as 1959. Once the Senate has twice rejected legislation it could be put to a joint sitting of both Houses without the requirement for a double dissolution.
The second model (the Lavarch model) in essence suggests that after a general election if the Government is returned, bills twice rejected in the previous Parliament would be put to a joint sitting.
Variations on this model canvass mechanisms to alert voters to what bills could be put to a joint sitting in particular that the government would nominate the deadlocked bills in advance of the election.
It is difficult to argue against this model. It has the advantage that if returned the government's mandate to have those bills passed is unequivocal. The policies, indeed the precise legislation, will be on display for all to see and discuss during the election. If the nation do not approve it is their democratic right to toss the government out. But if the government is returned there is no justification for obstructing or further delaying the passage of those bills.
What are the downsides of this model? It merely substitutes an ordinary election for a double dissolution election. It allows the defeated legislation to be tested at the polls before a joint sitting. It removes the temptation of the government to pass controversial bills mid-term and it retains in the case of an emergency (eg. delaying supply) the system for a double dissolution.
Of course the Democrats who do depend on an alliance of convenience in order to advance their policy agenda are concerned that the government will not negotiate contested bills. This, with respect, fails to understand the need for Governments to implement election promises, to respond to emerging policy imperatives, to work for an acceptable outcome in the current electoral cycle.
And what can the Labor Party object to about the modified Lavarch model? So far what we have heard is that they favour four year, fixed terms for both Houses and that the Senate's power to block supply be removed.
These proposals may well have merit, but miss the point. Senate obstruction is not about supply. It is about political opposition to economic reform. In Australia the opponents of political reform are firmly entrenched as Labor Senators.
Consensus for Reform
We all know that the prospect of Senate reform involving a referendum are bleak, unless there is a genuine commitment by the major parties to making the Senate work as the Founders intended. I call on the Labor Party to negotiate in good faith with the Coalition on reform of the Senate.
Arguably we have the best opportunity in 100 years to make changes to the Senate design that should have been incorporated at Federation. After 100 years and the evolution of a permanently hostile Senate the imperfections in the original design are glaringly obvious.
Where obstruction has become the norm, the Senate is not functioning as the founders intended. History will judge harshly those of us who fail to meet the challenge now to make the Senate work better for the benefit of all Australians.
- Brian Galligan, A Federal Republic: Chapter 3, The Senate and Responsible Government, p 75.
- Galling and Uhr: Australian Federal Democracy and the Senate, Public Law Review, Vol 1 (4) Dec 1990: 309-328, pg 325.
- Dr John Cockburn, Australasian Federal Convention, 30th March 1897, pg 340.
- Odgers’ Australian Senate Practice, Eighth Edition, (for description of different bases of the two Houses).
- Galling and Uhr: Australian Federal Democracy and the Senate, Public Law Review, Vol 1 (4) Dec 1990: 309-328, pg 326 (see discussion in).
- ibid, p326 (see discussion in), (also see discussion in) Brian Galligan, a Federal Republic: The Senate and Responsible Government, 1995, (and also) Richard Mulgan The Australian Senate: A House of Review, The Australian Journal of Political Sciences, Vol. 31, No.2.
- Brian Galligan, A Federal Republic: The Senate and Responsible Government, 1995, pg 87.
- ibid. p 85.
- ibid. p 85.
- G.S. Reid and Martyn Forest, Australia’s Commonwealth Parliament 1901-1988: Ten Perspectives, 1989, pg 125.
- H. Coonan, The Senate – Safeguard or Handbrake
on Democracy, The Sydney Papers, Summer 1999, pg 119-121 (see discussion
in).
Attachment B - International Comparison of Resolving Senate Gridlock