Defenders of the constitution have our work cut out for us. It seems that every day brings a new, novel, bad idea to change the constitution. Whether it’s a referendum to allow foreign citizens to serve in the Australian parliament, a bizarre two-step plebiscite and referendum process to become a republic, radical proposals to recognise indigenous Australians in the constitution, or a change to fixed four-year terms for federal parliament.
It’s gotten so bad that an ABC journalist recently wrote an article seriously suggesting that there are lessons for Australia in the French approach to constitutional reform. Presumably without the military coups and bloodshed, although with the ABC you can never be certain.
But the latest proposal comes from an unexpected source: former Prime Minister and constitutional conservative, Tony Abbott. Mr Abbott has adopted a proposal briefly considered by the Howard government in 2003 to substantially water down the powers of the Senate. The proposal would allow a government to hold a joint sitting of the parliament without going to a double dissolution election. If the Senate rejected a bill twice in three months, the government could use its generally superior numbers in the House of Representatives to force it through – effectively reducing the Senate to a house of delay, rather than a house of review.
At least Mr Abbott is well-motivated. The Senate has irresponsibly blocked far too many savings measures since the Coalition came to power. The economic and moral problems this leads to are profound. It means that, unless something changes, future generations will be burdened by a debt level that is far too high.
But not even this is sufficient grounds to uproot our bicameral parliamentary system, which has enabled us to create one of the world’s most prosperous and free societies. As frustrating as Liberals may find the upper chamber today, there will be times we will cherish it in the future when we are not in power.
This reform would make it easier for good governments to do good things, but it would also make it easier for bad governments to do bad things.
We don’t need to speculate about hypothetical future examples. Just think about what the Rudd-Gillard era would have looked like without the Senate as an obstacle. The Senate’s defeat of the Rudd Government’s ETS in 2009 was not just essential to our eventual return to government in 2013; the delay it caused also ensured we were able to easily repeal the carbon tax upon returning to government.
Had it been legislated in 2009, Kevin Rudd might still be prime minister today. And even if he weren’t, his scheme, or Julia Gillard’s revised version, would have proceeded to the tradeable property rights stage that some experts argued would have required a massive compensation bill under the just terms clause of the constitution. This would have made repealing it much less straightforward.
One of the iron laws of politics is never give a power to yourself that you wouldn’t give to your political opponents. All else being equal, they will be in government about as often as you will. And they’ll use that power for their own ends at least as effectively as you will for yours.
Of course, in an ideal world we’d have a system that allowed good governments to do good things but prevented bad governments from doing bad things. But since Australians disagree about the direction of our country, that isn’t possible. We therefore have to accept either a system which paves the way for both good and bad governments to do as they wish, or one that places some limitations on their ability to govern. Frustrating as it may be, limited government is preferable.
Advocates of reform are also basing their calls for change on too narrow a snapshot of Senate history. Our bicameral Westminster system has served us remarkably well for the vast majority of its 116 years. Governments, even in recent history, have found ways to grapple with and accommodate the concerns of the Senate. And there’s no reason to assume the current frustrations are a new normal or permanent fixture.
Even with the current Senate, the government has managed to pass significant legislation. Against all predictions, the government negotiated the restoration of the ABCC, and the establishment of the Registered Organisations Commission and a number of other measures. To be sure, this does not represent the government’s entire agenda. But it does represent a substantial part of it, and no one could suggest it has been uncontentious.
If we were to implement Abbott’s reform, we would lose more than just the Senate’s ability to block legislation. The vital review mechanisms in the Senate, including the committee process, only have weight because every government knows ignoring them could cause their legislative agenda to be derailed. While these may still be offered, they would likely be increasingly ignored by governments if the consequences were removed.
However, there are some changes that could be made to improve the function of the Senate without weakening its constitutional power. One has already been made, and we are yet to see the full benefits of it: the Senate voting reforms that the government introduced before the last election will, over time, result in a more genuinely representative senate. It won’t eliminate minor parties or the crossbench entirely, but it will ensure that those who are elected have a genuine community mandate to be there.
Assuming the next election is a normal half-Senate one, the Senate crossbench will likely shrink considerably. The quota for election will rise from 7.7 per cent to 14.3 per cent, which substantially raises the bar for minor parties and independents. The next election will see 7 of the 12 crossbenchers, and 6 of the 9 Greens, facing re-election. If the results of the last election are replicated, only 3 of the crossbenchers will be returned. The Greens would also lose two Senators, with another highly vulnerable. We need to wait a few election cycles to see the full effects of these reforms before we prematurely declare the Senate unworkable
The framers of the constitution designed the Senate as it is for a reason. From the debates at federation, it is clear they looked to the US Senate for inspiration, in the knowledge that it had often frustrated administrations. In the words of Edmund Barton, ‘The Constitution designed the Senate to be a House of greater power than any ordinary second chamber.’ They were right to do so.
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