Features Australia

The Senate is dysfunctional

16 September 2017

9:00 AM

16 September 2017

9:00 AM

Look across the entire democratic world and you will notice that some countries have only one legislative chamber. New Zealand is the obvious example of that sort of jurisdiction. If the budget deficit is thought to be getting out of hand across the Tasman then a political party wins an election and does whatever it thinks best to try to fix matters. At the next election, the voters pass judgment on the attempted remedies. NZ prime ministers do not ever have to bargain with upper house Jacquie Lambies or guys who like cars or former disc jockeys. All the decision-making and bargaining takes place in the House of Reps.

Other countries do have upper houses but they have very limited powers indeed. Canada and the United Kingdom both are formally bicameral set-ups, meaning they have two legislative chambers. But in both those countries the upper house is not elected. Let me say that again. In the year 2017, in two of the world’s oldest and most successful democracies, the upper house is not elected. It’s wholly appointed in Canada. In the UK, it’s mostly appointed with a few hereditary peers still kicking around.

You know what that means? That the Senate in Canada and the House of Lords in Britain are emasculated. Can you imagine how difficult it is in today’s world for an undemocratic chamber to block anything that a democractically elected chamber wishes to pursue?

So in form these countries have bicameralism. But in substance it’s a lot more like New Zealand. Moreover, on budget matters, money bills, the upper houses can only delay, not block, proposed law changes. So here too political parties that win majority governments can overwhelmingly just get on with things.

Let me say this again. That a weak or non-existent upper house model is the norm in the democratic world. And we in Australia are outside that normal set-up. The drafters of our constitution basically copied the US set-up, grafting it onto a Westminster foundation. Our federalism is American, not Canadian (though over the last 90 years it is a federalism that our High Court has more or less destroyed, shamefully so in my view). Likewise, our bicameralism is American; the plagiarism of the US set-up is so obvious and thorough-going it would get a uni student into big trouble.

So here in Australia, we have one of the democratic world’s two or three most powerful upper houses. It’s us, the US and Italy with the über-powerful upper houses – and many Italians want to emasculate theirs but the recent referendum to do so got caught up in pro-EU debates and was lost.


Anyway, all you readers who want to defend the extraordinary powers of our Senate first need to admit how comparatively undemocratic it is. In the Reps, you basically divide up Australia into equal-size districts, which means that everyone’s vote is worth pretty much the same. That’s democratically fair. But in the Senate, there is nothing like that sort of votes-count-the-same underpinning.

Each of the states (again, copying the US model) gets to have the same number of senators, presently 12. But the population of NSW is about 15 times bigger than that of Tasmania. Accordingly, your vote for the Senate in Tasmania is worth 15 times as much as it is in NSW. That’s a massively lopsided difference. Even in South Australia, your Senate vote is about five times more valuable than in NSW.

Why should a legislative chamber with that sort of undemocratic bias, or built-in inequality of voters’ worth, have so much power to block any sort of budget repair? Or to block repeal of 18C? Or to make reduction of our impoverishing Renewable Energy Target basically impossible?

Well, the original reason for the Senate, the one the people who wrote our Constitution had in mind, was that the upper house would be a states’ house. It would help the little states hold their own against the big states, should the biggies try to ram through laws that hurt the littlies. But as I said, the strong US-style competitive federalism aspects of our Constitution have been so enervated (no, emasculated) by the most pro-centre federalist court in the democratic world, namely our High Court of Australia, that this defence basically no longer exists.

And yet we are still left with this über-powerful and comparatively undemocratic upper house that can bring down governments, block money bills, make budget repair via spending reductions near-on impossible and thwart governments that run explicit election campaigns on important issues (think ‘we want to repeal 18C’) and go on to win a big majority but still can’t do what some 10 million voters wanted.

This is bonkers, to use the scientific term for such craziness. Why should a prime minister who has a clear mandate have to go on and bargain with some Tasmanian senator who got a few thousand votes or some ex-disc jockey who got even fewer? The bargaining that should count is the bargaining the winning political party did with the voters.

Yet the Australian media makes it seem as though it is incumbent on the PM to grovel and bargain with a few Greens or a handful of X-men or a ragbag of independents. That was never the intent of our Senate, nor is it in any way desirable.

Here are four alternatives to make things better. 1) Hold a s.128 constitutional referendum to allow joint sittings without double dissolution elections. 2) Hold a s.128 referendum to stop the Senate from blocking money bills. They could delay but not veto. 3) Change the voting system for picking the Senate and go back to the majoritarian one we used in this country up to 1949. At least then the voters would know who to hold responsible for Senate recalcitrance. It would be the other big party. 4) If you haven’t got the stomach for any of those, then try using the s.57 double dissolution strategically – put 40 or 50 important Bills to the Senate and once stymied have a double dissolution election that really, really matters, with all of them in play.

Tony Abbott is suggesting option 1) above. That’s a pretty good idea in my view. But we all know the odds of the current PM taking up any suggestion of Tony’s. Maybe the other alternatives might get a more sympathetic ear. Who knows? The point is that our Senate is broken.

We need to do something to fix our US-style bicameralism. Soon.

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