THE SENATE - Why the PM won't succeed

History is not encouraging for Mr Howard, according to Brian Costar For someone who, in thirty years of public life, showed little interest or expertise in foreign policy or constitutional change, Prime Minister Howard has recently had some spectacular victories in both areas. Having rent asunder and euchered the republicans at the 1999 referendum, the wars on Iraq and Terrorism have, we are assured by his ally, President Bush, made him into another ‘Man of Steel’. This week the prime minister returned to the constitution and issued a sixty-page discussion paper entitled Resolving Deadlocks: A Discussion Paper on Section 57 of The Australian Constitution. While public discussion of constitutional affairs is always to be welcomed, little of enduring value is likely to result from this exercise. First, like other recent attempts to ‘reform’ the Senate, this one’s motives are not of the purest. We are told that the reason for change is that ‘the Senate’s record regarding legislation critical to the government’s reform agenda’ constitutes ‘a pattern of frustration’. In other words the executive is peeved at not been able to bend all of the legislature to its will on every occasion. It is hardly a state secret that many voters regard this as a good thing. Second, the paper asserts that ‘the minority [in the Senate] has assumed a permanent and absolute veto over the majority’. This is a misleading falsehood: at both the 1998 and 2001 Senate elections the government parties received a minority of both votes and seats compared to the non-government parties. Minor party and independent senators can determine the outcome of legislation only when the government and opposition are at loggerheads, and when they do so they are part of a ‘majority’ not a ‘minority’. To this the PM would doubtless respond that the government, in winning a majority of House of Representatives seats in 2001, has acquired a mandate which the Senate should respect. Setting aside the murkiness of the mandate doctrine, it is clear that a cohort of electors differentiate between the upper and lower houses in deciding which party to support. There is no doubt that the majority desired the return of the Howard government in 2001, but a slightly different majority didn’t want it to ‘control’ the Senate. The Prime Minister’s discussion paper is lenghty but most of it is an uncontroversial description of present and past relations between the two parliamentary chambers. It is much less impressive when arguing the case for change. When it does so, it relies on the hitherto long-forgotten 1959 Report from the Joint Committee on Constitutional Review. That report was an admirable document for the times and was a credit to its executive secretary, Jack Richardson, whom Mr Howard has appointed to the reference group to consult on the current proposals. The 1959 report’s quality is not to be judged by the fact that Prime Minister Menzies all but ignored it (or perhaps it is?). But what must be remembered is that the Senate of the late 1950s was a very different creature to that of the twenty-first century. While the government first lost its Senate majority in 1955 and again between 1961 and 1975, the current culture of accountability, which successive governments find so irksome, did not develop until after the reform of the Senate committee system in 1970. Before then Fred Daly’s description of the value of the Senate as ‘incontrovertible proof of life after death’ was not far off the mark. The Prime Minister’s discussion paper offers two alternative solutions to the current perceived ‘problem’: to allow the PM to ask the Governor General to convene a joint sitting of the two houses to vote on any bill rejected twice by the Senate with ‘the required three month interval’; or to allow the same process but only after an election and a third defeat of the bill(s) by the Senate. The first option is clearly an ambit claim. But what might be the outcome if the government, by granting concessions such as fixed terms, could secure Labor Party support for a version of the second - remembering that as the alternative government, the ALP has an interest in curbing Senate power? As the discussion paper notes, changes of this magnitude need to approved by the people at a referendum. To take to a referendum any proposals to increase government control over the Senate, even if supported by the ALP, would be to award a free-kick and a fifty-metre penalty to the Democrats, Greens and independents, all of whom would campaign vigorously for the NO case. But could these minnows prevail over the campaigning might of the major parties? Yes, if history is any guide. It is often forgotten that two referendum questions were put to the people on 27 May 1967 and they treated them very differently: by a record majority, they approved of Commonwealth power being extended to Aborigines; but they refused to amend section 24 of the constitution which would have broken the ‘nexus’ between the allowable sizes of the House of Representatives and the Senate. This occurred, despite bipartisan agreement between the major parties, because the minority Democratic Labor Party and a handful of dissident Liberal Senators (a species now extinct) campaigned against it on the grounds that it would reduce the power of the upper house. Given that the Senate was held in much lower esteem in 1967 than it is now, changes such as those currently proposed by the prime minister would struggle to win the approval of voters at referendum. In its initial response response to the prime minister’s discussion paper, the federal Labor Party is insistent that any changes to Section 57 of the constitution be yoked to the removal of the Senate’s power to reject supply and the introduction of fixed, four year terms for both the House and Senate. That Howard is reluctant to address the supply issue reflects Liberal Party sensitivity that to do so might cast doubts on the legitimacy of Coalition behaviour in the Senate in 1975. Yet cynics might question the reformist credentials of a prime minister who finds Senate amendment and occasional rejection of ordinary legislation extraordinary and reprehensible, but is quite comfortable with the Senate retaining the power to destroy popularly elected governments. There remains unfinished ‘supply business’ from 1975. When the Constitutional Convention meetings reconvened in 1976 the ALP moved that Section 53 of the constitution be amended to deny the Senate the power to block supply. The Coalition countered with a proposal that a failure to pass supply would produce a mandatory double dissolution. Neither side would budge and there the matter rests. At first glance, the Coalition’s position seems bizarre until it is realised that, by blocking supply, a Senate majority can force a House election without any senators having to face the people. This is so because the Senate, unlike the House, has fixed terms and that a supply rejection is not grounds for a double dissolution. Allowing the Senate to retain this power without accountability to the voters is taking bicameralism a little too far. Surprisingly, a tried solution is at hand in the procedures which applied in Victoria between 1984 and 2003. There, the state constitution was amended to provide for maximum four year lower house terms with the first three ‘fixed’ in such a manner that if the upper house blocked supply the Governor could not dissolve the Legislative Assembly. Given that opposition controlled upper houses are only likely to block supply to force a lower house election they are confident of winning, the constitutional ban on the calling of early elections removes the temptation. The Victorian model attracted the favourable attention of the Constitutional Commission which, in its 1988 report, recommended a modified version for the Commonwealth. No attempt has been made to do so and, ominously, John Howard went on the public record opposing the suggestion. Brian Costar of Monash University is currently Visiting Fellow in the Institute for Social Research at Swinburne University. He is the editor of Deadlock or Democracy?The Future of the Senate,published by UNSW Pres