Image by Webdiary artist Martin Davies. www.daviesart.com

Howard’s Senate ‘reform’ paper is a shocker, as expected. Howard’s way would demolish the Senate as an effective House of Review by abolishing its veto power. It would leave Australians virtually defenceless to protect our precarious rights and freedoms against a dominant Prime Minister converging his short term interests with the public interest and prepared to dump a commitment to truth and ethics to get his way.

Think the extremist ASIO and anti-terrorism bills, for example, where the veto power of the Senate allowed appalled Liberal Senators and MPs to flex their muscles against Howard’s demand to create a police state. On the ASIO bill, see ASIO: Right beats might, again!. On the anti-terrorism bill, see Liberalism fights back on terror laws, where I wrote, in May last year:

Apart from the triumph of Liberalism in the (Senate) report – however short term – the report proves once again that the Senate is vital to protecting Australia’s democracy and ensuring good, considered law is passed by the Federal Parliament. Paul Keating called Senators “swill” and John Howard wants to gut its powers, but it is only through the Senate and its committees that Australians have a chance to discuss proposed laws, and where there is some possibility of arguments being assessed on the merits.

By gutting the power of the parliamentary chamber able to consider legislation on the merits, hear the views of Australians in legislation committees and to insist on maintaining our democratic rights and freedoms unless very good arguments are made to the contrary – because the numbers aren’t in the PM’s pocket – Howard’s fanatical proposals would crush our democracy. Which is what he wants, of course – see Howard’s roads to absolute power.

And yet just two days ago, with a straight face, Howard repeated his standard cliche about our democracy in a speech at the centenary sitting of the High Court in Melbourne. It might have been believable when he first mouthed it a long, long time ago, but after 8 years of his government, and particularly in the light of his Senate wishlist, it’s nothing short of mendacious:

As part of the ongoing political debate about our institutions there is frequent debate as to whether or not this nation should endeavour in some way to entrench formally in its law a bill of rights. I belong to that group of Australians who is resolutely opposed to such a course of action. It is my view that this nation has three great pillars of its democratic life. A vigorous parliamentary system, robustly Australian, responsible for the making of laws; a strong independent and incorruptible judiciary; and a free and sceptical media, free and sceptical often to the discomfort of us but nonetheless an important and integral part of our society.

You’ll get an idea of Howard’s drive to crush “a free and skeptical media” from How virtual democracies are primed for profit and war, published tonight, and my piece just after the Senate rejected Howard’s cross media laws for the first time in June, Governing for the big two: Can people power stop them?

We’re well aware of Howard’s “respect” for the judiciary, most recently shown by his appointment of Philip Ruddock – under investigation in the cash-for-visa and official people smuggling scandals, perpetrator of serial contempt of the Federal and Family Courts on immigration cases and proud trasher of our international human rights obligations – as Australia’s first law officer. And who could forget his condoning of Senator Bill Heffernan’s gutless slander of High Court Justice Michael Kirby. Howard sent Heffernan to the sin bin for a moment after his allegations were shown to based on a fraudulent document, then reappointed him as the PM’s representative on the NSW Liberal Executive.

But the real killer is the Senate thing. Despite wanting to gut our “vigorous”, “robustly Australian” parliamentary system, he still won’t countenance a bill of rights. Bet on it. My take on Howard’s transformation from Senate conservative to Senate revolutionary is at Howard’s Senate strip: All power to him. The view of the crazy brave Clerk of the Senate, Harry Evans, is at Howard’s rubber-stamp democracy. Details of how to participate in the Senate debate are at constitutionalchange.

Tonight, a history of the Senate’s role in our system by John Nethercote. John is a Canberra-based commentator on Australian Government, the parliament and public administration. He edited Parliament & Bureaucracy (1982), The House on Capital Hill (with Julian Disney, 1995) and Liberalism and the Australian Federation (2001). He oversaw publication of Australian Senate Practice (6th ed., 1991) and currently editsAustralasian Parliamentary Review. His first Webdiary contribution – on the death of the public service as a check and balance on untramelled executive power – is at What servants are for.

I’ve done an interview with former Labor Attorney-General Michael Lavarch on why he’s joined the committee overseeing the Senate discussion paper process. He said some interesting stuff about what you’d recommend if you really wanted to improve our system of government, not wreck it, which I’ll report to you tomorrow.

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Governments and the Senate

by John Nethercote

John Howard’s discussion paper on the Senate will be the newest instalment in one of the longest running controversies in Australian parliamentary politics.

The Constitution-makers provided a parliamentary scheme which would in due course impose a strong bicameral flavour on the conventional party battle. The Parliament they fashioned was remarkable not only for its democratic and elective foundations but for the fact that those foundations extended, for the first time, to the upper house (the Senate) as well as the so-called popular chamber, the House of Representatives.

The Senate’s powers, for the period, were, in a formal sense, marginally circumscribed in the limitations placed on its role in initiation and amendment of financial legislation. But these circumscriptions did not alter its basic powers – no bill could become law without the Senate’s consent.

And because it was a house elected on the same franchise as the House of Representatives, it could exercise its powers with an increasing legitimacy denied to other upper houses, not least the House of Lords. Even in the 1890s, other upper houses, despite their nominal powers, were seen, as Sir Samuel Griffith expressed it in 1891, as “checking and . . . useful revising” bodies.

From the start the Senate asserted its equality with the House of Representatives on matters great and small. This may be explained only partly by its constitutional role and elective foundations.

It also derived from the fact that more than half the original Senators were experienced in lower house politics and thus well accustomed to robust debate. They eschewed the politenesses typical of conventional upper houses aspiring to bring the sober second thought to the business of legislation.

The Senate came into its own with the undisputed emergence of two-party politics.

The elections of 1913 brought a Liberal Government to office, with the slimmest of majorities in the House. The Labor Opposition in the Senate, however, had a very comfortable majority which it proceeded without inhibition to exploit; the practice of using the Senate as a weapon of opposition in the party battle was firmly established in this period.

The prime minister of the time, Joseph Cook, lost little time in establishing grounds for a double dissolution on the basis that Labor’s caucus practices ruled out inter-house negotiation as a means of resolving differences; he was well-placed to know as he had left Labor more than 20 years earlier over adoption of the caucus rule.

There was much reluctance about activating the double dissolution provisions. The Governor-General, Sir Ronald Munro-Ferguson, a veteran of the People versus the Peers battles in the United Kingdom, was most reluctant. In an early case of what might be called the Munro-Ferguson heresy, he sought a resolution on lines of British practice in these matters.

The desire to reshape the Australian Parliament on British lines, with a greatly weakened second chamber, remains strong to this day, despite its inappropriateness. Australia does not need an upper house with powers more like those of the House of Lords; what it needs, in the first instance, is a revitalised House of Representatives for which even the contemporary House of Commons could provide something of a model.

The 1914 conflict was resolved by the people who gave Labor majorities in both houses. But for the next thirty five years the Senate largely slumbered.

There was some sign of life in the turmoil following the conscription split in the Labor Party, when the Senate thwarted Prime Minister Hughes’s attempt to delay elections by means of an Act of the Imperial Parliament. More than a decade later, the Scullin Labor Government was unrelentingly hassled by the Opposition in the Senate but took no steps even to lay the grounds for a double dissolution.

The big criticism of the Senate at this time was the method of election which usually gave huge majorities to the Government; in 1947-49 Labor had 33 of the 36 seats.

The modern era of adversarial bicameralism owes its origins to introduction of proportional representation in 1948, when Attorney-General Dr Evatt gave effect to an idea he had first advocated in 1915. The only reservations about the new system came from Opposition Leader Menzies who perceived that it would be difficult to secure majorities in the Senate under the new method of voting; and that, moreover, this difficulty would be all the greater in elections following double dissolutions.

Thus, under proportional elections for the Senate, deadlocks with the House would be more likely, but their resolution, except by means of a joint sitting, more difficult. Such has been the history since 1974.

Although the Menzies Governments were from time to time troubled by the Senate, it was mainly under his successors that the problems he had foreseen became increasingly manifest.

In late 1967 the Senate had a signal victory when it forced the Holt Government to table documents on the use of the RAAF’s VIP squadron. Its new potency was capped a few months later by Senator John Gorton’s accession to the prime ministership.

For the next eight years the Senate’s role continued to strengthen, not least by means of a comprehensive committee system; perhaps the leading figure in this course of events was Senator Lionel Murphy, Labor leader from 1967 until early 1975.

The revived Senate reached its zenith when it refused to pass budget legislation in 1975, forcing dismissal of the Whitlam Government as well as a double dissolution election.

In the past 35 years, all governments have been troubled by the Senate. This is evident in the number of double dissolutions – though the futility of these has meant that after having had four between 1974 and 1987, there have not been any since.

It has also been evident in the number of referendums about the Senate in the period – it is by far the most likely subject for a referendum. Failed proposals have included abandoning the nexus and adoption of so-called simultaneous elections for the Senate and the House.

One change which did succeed is the doubtfully beneficial provision that Senate vacancies shall be filled by new senators from the same party; as a consequence, resignations from the Senate come at a rate four times that of resignations from the House of Representatatives.

The reason that the double dissolution figures so largely in options for resolving deadlocks between the Houses is the same reason that Cook activated the double dissolution provision back in 1914 – the great difficulty negotiating legislation through a Senate in which party discipline is so strong.

The real inflexibility in Australian parliamentary politics is not the bicameral scheme in the Constitution but the Prussian rigidity of discipline in the major parties, in Parliament itself and as enforced by the party machines outside.

The double dissolution provision – the innovatory provision in the 1890s – is not without problems or deficiencies, but these should not be allowed to cloud the fact that it is party practice rather than constitutional procedure which most needs reform.