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John Howard’s preferred option for Senate reform would destroy the Senate as an effect check on abuse of power by Government and his fall-back option still delivers too much power to the Prime Minister and Cabinet at the expense of Parliament, writes Michael Lavarch. Michael, a member of Howard’s advisory committee on Senate reform, is the Secretary-General of the Law Council of Australia and was Attorney-General in the Hawke/Keating Government.

For many Australians of my generation, the Senate only became front of mind during the life of the Whitlam Government. Prior to this the Senate seemed little more than a retirement home for predominantly faded men. The three years of the Whitlam Government from 1972 – 1975 shattered this sleepy illusion.

The Whitlam Government, like no government before it or any government since, was subjected to Senate obstructionism. Bill after Bill implementing the famous “program” developed over many years in opposition by Whitlam and his colleagues, were rejected. Initially, this led in 1974 to the holding of a double dissolution election to resolve the impasse. This election was then followed by the only joint sitting of the House of Representatives and the Senate to witness the passage of previously rejected Bills.

Then in 1975 the Senate exercised its power to deny the Whitlam Government money to continue the operation of government. The subsequent political and constitutional crisis ended in the dismissal of Whitlam and the subsequent overwhelming election of the Liberal Government led by Malcolm Fraser.

In the nearly 30 years that have passed since the dismissal of the Whitlam Government, the Senate has played a prominent – even dominant – role in the shaping of the Australian political and legal agenda. Few better examples of the positive influence of the Senate can be found than its recent role in considering, amending and then finally passing the Government’s proposal to increase the powers of ASIO.

Firstly a Senate Committee, and then the Senate itself, forced compromise on the Government which was seeking to empower ASIO to detain and question citizens – including children – not even suspected of committing any criminal offence. As originally proposed, this power would have seen people detained for long periods without any contact with family, friends or a lawyer. It is to the great credit of the Senate that this serious infringement of the principles of the rule of law was so dramatically improved.

Both the experience of the Whitlam Government and the recent activities of the Senate demonstrate a number of things about its operation. Firstly, its powers are effectively equal to that of the House of Representatives, where the Executive Government is formed. Secondly, these powers, depending on your own subjective political view, can be used for good or bad.

Clearly, from my world view, the experience of the Whitlam Government demonstrated an extraordinary abuse of power vested not in a truly representative body, but a body which reflects the compromise needed for Australian Colonies to agree to federation at the end of the 19th century.

In contrast, the ASIO Bill experience also clearly indicates that the Senate is a vital, if not the most vital, check on the power of the Executive Government. Our entire system of government is based on the defusion of power between the various instrumentalities of government. Any tampering with the power balances between these instrumentalities should be viewed with caution.

Against this backdrop, how should the ‘Resolving Deadlocks’ proposals put forward by the Prime Minister to reform the Senate be judged? The proposals go to Section 57, which provides the limited circumstances when the House of Representatives and the Senate can sit together to vote on legislation.

His first option would permit the holding of a joint sitting of both Houses during the life of a given parliament. This means if a Bill was rejected twice by the Senate the deadlock between the two Houses could be resolved at the discretion of the Prime Minister seeking the joint sitting. Such a measure would be a radical departure from the current political negotiation process which witnesses most, but not all, Bills passed by the Senate.

His second option allows for a joint sitting of the Houses following a normal general election. This would allow Bills which had not passed through both Houses in the previous parliament to once again be put forward to the newly elected parliament. If the deadlock continued, then a joint sitting could be convened. This proposal does not dramatically change the balance of power between the Executive Government and the Senate, but would certainly facilitate the passage of government measures which had experienced rejection in at least two parliaments.

In responding to the Prime Minister’s Discussion Paper, it is important to bear a number of things in mind. Firstly, Australia has not enjoyed a particularly constructive public debate when it comes to constitutional reform. Very few measures have been successful, and invariably what should be a debate about the long term is hijacked by short term party political considerations. This has been particularly the experience of referendum proposals advanced by Labor governments, which in recent decades have been opposed by conservatives irrespective of the merits of the proposals.

It would be fair to say that the Labor Party has been more willing to constructively engage in constitutional debate even when proposals have been advanced by conservative governments. Mature debate is necessary and this involves separating out the short term political advantage from the long term structural effect which the measure would implement.

The Discussion Paper recognises that a range of strong arguments can be made against the first option. Obviously, the proposal would lead to the effective neutering of the Senate and even if certain safeguards as proposed in the paper are inserted, this unassailable fact remains.

The second option is more attractive in that it allows the Senate a full opportunity to amend or reject legislation during the life of any given parliament without the threat of the Prime Minister being able to convene a joint sitting of both Houses. It provides, however, that at the commencement of a new parliament, measures which were blocked in the previous parliament may be placed before a joint sitting if they are again blocked by the newly formed Senate. The principal attraction of this proposal is that the contentious Bills will have been identified and specifically placed before the Australian people at a general election before further consideration by the new parliament.

In my view, the proposal in the Discussion Paper, while attractive, still tilts the field too much in favour of the Executive Government and against the check on Executive power which is properly exercised by the Senate. Accordingly, there needs to be other measures taken in order to ensure that the appropriate balance is maintained while giving the Executive Government the legitimate capacity to have a program endorsed by the people passed by the parliament.

In my view, this proper balance can be maintained by extending the term of the House of Representatives to four years while reducing the term of a Senator from six to four years. Each Federal election should be of the full Senate and the House of Representatives. By taking this step a number of benefits are achieved.

Firstly, the Senate will have been elected at the same time as the government. In that sense, both the Senators and the Members of the House of Representatives have a equal legitimacy and currency in terms of reflecting contemporary public opinion.

Secondly, an election of the full Senate reduces the quota required for the election of a Senator to 7.69 per cent as opposed to 14.29 per cent at a half Senate election. The result would mean that the Senate would consist of more Senators representing minority views and be more representative of the diversity of opinion in the Australian electorate.

Thirdly, three year terms for national governments are clearly too short. This promotes too great an emphasis on a short term agenda. All states except Queensland now have four year terms and it is time that the Federal parliament followed suit.

The real test of the options for reform of the Senate is whether the measure achieves the right weighting between the political and constitutional mechanisms to resolve conflicts between the two Houses or Parliament. Currently, all the weight is on the political process of negotiation and compromise. As the Discussion Paper identifies, in practical terms the correct constitutional mechanism in Section 57 plays no role beyond the threat that it might be used.

It is appropriate that the political mechanism do the bulk of the work in resolving conflicts between the Executive and the Parliament. That’s why the Prime Minister’s first option fails the test. It would reduce enormously the incentive of the Executive to cut a deal to have a Bill pass the Senate, as a relatively short delay can trigger the joint sitting.

The second option maintains most weight on the political mechanism but gives some real meaning to the constitutional mechanism. It means that a government which wants to govern will need to negotiate to get its legislation adopted. Allowing a standoff to go to the people for resolution in the following parliament has real risks for both the government and the opposition parties in the Senate.

The government might not be re-elected. The Bill might be electorally unpopular, like selling the balance of Telstra, and not the kind of measure the government wants running as a de-facto referendum during an election campaign. The opposition parties face equal pressures of risking electoral setbacks by staring down Bills.

But there will be ‘icon’ type issues which the political mechanism will never resolve. Labor will not accept the sale of Telstra, or the unfair dismissal laws which limit workers job security. On these issues, the government can legitimately claim to have a mandate, while the Senate opposition parties equally claim a mandate to reject them.

Conflicting political mandates over icon issues need a constitutional mechanism to come into play. The second option in the Discussion Paper has the core of the solution, but it needs the four year term component to get the balance right.

The release of the Discussion Paper is the beginning of a public debate. History indicates that this debate will not ultimately see any change to the constitution, nor is it particularly likely that a referendum on the issue will ever be held. But a debate is worthwhile as government in Australia can be improved if we are mature enough to talk about it honestly and without rancour.