Reform of the Senate John Faulkner - Leader of the Opposition in the Senate, Shadow Special Minister of State , Shadow Minister for Home Affairs

Speech

Transcript - Sydney Mechanics’ School of Arts - 16 August 2003

In 1987 then Opposition leader John Howard said this about the Senate: "One of the most democratically elected chambers in the world – a body which at present more faithfully represents the popular will of the total Australian people at the last election than does the House of Representatives".[1]

In 1993 the same John Howard, by then Manager of Opposition Business in the House of Representatives said:

"The Senate has a perfect right to determine the way in which it will process legislation… If those opposite had behaved with a little more respect towards the rights of minorities in this parliament over the years, then perhaps they would not be facing the attitude that is now being taken by the Senate. If they had not insulted the Senate, if they had not sought to undermine the Senate, if they had not described the Senate as `unrepresentative swill', if members of the Labor Party did not contain within its ranks people who still want to destroy the Senate, they would not be faced with this situation".[2]

Even a few months after becoming Prime Minister, Mr Howard was telling Alan Jones that the reality of his job was to cooperate and work with the minor parties in the Senate. To talk and listen to them and inevitably, at times, disagree with them, in order to try and get his programme through.[3]

But in more recent times we find Mr Howard has become a trenchant Senate critic, just like his predecessor Paul Keating who famously described the Senate as "unrepresentative swill".

These days Mr Howard is on the record as claiming that the Senate is no longer a house of review but "a house of obstruction".[4] He even makes the preposterous claim that the Senate has only become a "house of obstruction" since the Liberal Party came to Government. There is little doubt that once the Liberals go back into Opposition they will revert to extolling the virtues of the Senate. Consistency is not the long suit of the Liberal Party.

Well first of all, is the Senate unrepresentative swill?

It is certainly "unrepresentative": whether it is swill is in the eye of the beholder.

It is unrepresentative because of the constitutional compact at Federation. All six states, regardless of their population size, have equal representation in the Senate. This means for example 4,228,053 voters in NSW have identical representation in the Senate to the 331,659 voters in Tasmania. So much for one vote one value. This is unrepresentative in anybody's language. But on the positive side, the Senate's current proportional representation voting system does ensure that the voting strengths of parties are accurately reflected within state and territory boundaries.

The introduction of proportional representation in 1948 has enhanced the status of the Senate (as Dr Evatt predicted it would), and it has given the Senate a popular legitimacy it previously lacked. Indeed, while polls in 1950, 1953 and 1958 found that more Australians wanted to abolish the Senate than to keep it, by 1979, 62% supported retaining the Senate as a house of review and a check on executive power.[5]

Proportional representation has made it more difficult for governments to gain a majority in the Senate, and has led to more conflicts between the executive and the Senate. In 1984 when State representation in the Senate was increased from 10 Senators to 12 Senators, the chance of a government achieving a Senate majority became even more remote because of the even number of Senators, six, to be elected at a half Senate election.

Governments of all political persuasions have become frustrated with Senates they do not control. But you have to ask yourself, how obstructionist is the current Senate? Since the change of government in March 1996, the Senate has rejected a total of 24 Government bills.[6] Compare that to the record of the Coalition controlled Senate during the years of the Whitlam Government.

Let me quote Gough Whitlam in his book The Whitlam Government:

"It is true that, throughout our three years, the Opposition in the Senate used first its inherited and then its accidental majority to obstruct, delay and reject legislation in a way never experienced before or since".[7]

The Senate was a "house of obstruction" during the Whitlam Government years, from 1972 to 1975. In that time the Opposition rejected a record 93 Government bills, 25 more than the total number of rejections in the first 71 years of the Senate's history.[8]

But it gets worse. The then Liberal Party Opposition voted against the Supply bills in the Senate in April 1974. Whitlam sought a double dissolution and was returned to Government. The Liberal Party still in Opposition in October 1975 again refused to pass Supply in the Senate "until the Government agree[d] to submit itself to the judgment of the people". The Liberal controlled Senate plunged Australia into a constitutional crisis.

In Gough Whitlam's time the Liberals, with their usual "born to rule" ruthlessness, manipulated the make-up of the Senate. Fred Chaney who was the Liberal Opposition whip in 1975 wrote a few years ago that he "saw at close quarters the ultimate exercise of Senate authority when it denied the Whitlam Government supply. It did this on the basis of a fiddled majority produced by the shenanigans of the State Governments in NSW and Queensland. Nevertheless this did not deter the conservative forces from the view that the Senate had a right not only to amend government legislation but to bring a government down".[9]

As recently as 1993 it was the same Liberal Party in Opposition, with support of the Greens and Democrats, who decided to gut the Dawkins Budget by refusing to pass six Budget Bills.

The truth is both Budget Bills and non-Budget Bills have been amended or opposed by both side of politics, but only the Liberals have blocked supply. Perhaps Mr Howard has forgotten this, or perhaps we are just dealing with a case of gross hypocrisy.

Since the 1970's, minor parties – then the DLP, now the Australian Democrats and Greens – have exerted leverage over legislation. Much of the law that has been passed by Parliament over the last 30 years has been the result of tortuous negotiation, debate and compromise until the Senate is satisfied. This process is frustrating for governments, but by assiduously pursuing its proper role as a house of review, the Senate can ensure Australians benefit from better and more rigorously tested laws.

The management of the Senate has become much easier since 1996. Extra sitting hours, days and weeks have been granted by the Opposition; exemptions for cut-off resolutions granted readily, along with much more time devoted to Government business. One wonders if the present-day Liberals ever ponder on the intransigence of their predecessors with regard to these issues.

In recent times Senator Helen Coonan proposed changes to the way Senators are elected – making it harder for minor parties to pick up seats. Senator Coonan suggested that we impose "a formal threshold which a candidate must achieve (a specified percentage of a quota of overall primary votes) before qualifying for distribution of preferences" arguing that such a change to the electoral system would offer "a solution to the rule of minorities that has so characterised the Senate in recent years".[10]

Labor opposed Senator Coonan's plan. We do not believe in manipulating or rorting the electoral system to the advantage of the major parties – Labor or non-Labor.

We continue to argue the way to reform the Senate is to address the Senate's powers.

I am pleased Mr Howard has belatedly embraced the same broad approach.

In fact the Prime Minister has been quite scathing about Senator Coonan's proposal. In his address to the Liberal Party National Convention in June this year, Mr Howard indicated that the suggestion of "some people" to alter the voting system for Senators, thereby making it harder for minor parties to win seats in the Senate, was "unfair" and "undemocratic". He went on:

"[T]he innate sense of fair play of most Australians would react to the big boys as they would describe them ganging up on the smaller parties. The truth is that in the less tribal Australian political state in which we now exist people want the option, whether we like it or not in a major party, of voting for smaller parties in the Senate. And if we look as though we are kicking against that choice instead of going on persuading them as to the unwisdom of that choice then I think deservedly we will suffer".[11]

In the same speech Mr Howard announced his intention to circulate a discussion paper on Senate reform. He floated a new constitutional mechanism to deal with deadlocks between the Houses. Essentially, it involves convening, after a period of three months has elapsed, a joint sitting of the two houses to pass disagreed legislation.

This mechanism, if passed at a referendum, would certainly mean a weakening of Senate powers. A weakening of Senate powers is, of itself, not necessarily a bad thing.

But Mr Howard will need to deal with the possibility this mechanism could be abused and potentially destroy the Senate as a genuine house of review.

For example, could we guarantee a conservative government would not reintroduce malapportionment to our electoral system?

Could we guarantee a government would not destroy the powers of the Auditor-General as Jeffrey Kennett did in Victoria?

Could we guarantee a joint sitting would not diminish the scrutiny powers of the Senate?

We could be assured the appallingly drafted and draconian ASIO Bill of last year would have passed in its original, wholly unacceptable form after just a three-month delay.

The Prime Minister indicated last weekend that his discussion paper on Senate reform would also canvass the so called "Lavarch" proposal[12] - where Labor's former Attorney-General Michael Lavarch suggested a constitutional alteration to allow for a joint sitting of parliament after every ordinary election to vote on bills that have been twice blocked by the Senate in the previous term.[13]

Professor George Williams has proposed a similar model and integrated the concept of fixed four-year terms.[14] I believe these models would have more chance of success in a referendum than Mr Howard's proposal and I would agree with Professor Williams that deadlock provisions should not be addressed in isolation.

The issues of fixed four-year terms for both the House and the Senate, and the Senate's power to block Supply must also be addressed.

Currently we have three-year parliamentary terms in name only. According to a Parliamentary Library Paper it is calculated that the average Australian parliament has lasted barely 30 months.[15] We are only 21 months into the current term of parliament and already a double dissolution election is being threatened.

Labor believes that election dates should be fixed. Fixed parliamentary terms would be a genuine reform and would address some of the uncertainties and limitations of our current political system.

They would be good for our democracy and would improve the quality of our government.

The removal of the power of the Senate to block supply is also integral to any reform of the Senate.

I believe there is a fundamental problem with the Senate having the power to deny financial sustenance to a government.

In a very real sense, the Senate's power to block supply and the delineation of this power in the Constitution are unfinished business. The Labor Party remains resolutely committed to constitutional reform to prevent the Senate from rejecting, deferring or blocking appropriation bills.

If we are to have a Senate – and the Labor Party has accepted that reality for almost a quarter of a century – then the Senate should be an effective house of review. We should remember that it was Labor's Senator Lionel Murphy who drove the extension of the Senate's activities in scrutinising Bills and examining Government spending. In no small part due to his efforts, the Senate now boasts a comprehensive committee system. These committees provide the most effective accountability mechanism in the Australian Parliament.

Murphy undertook his work to increase the relevance of the Senate at a time when the Australian Labor Party's Platform still contained a commitment to abolish the Senate. Labor's historical antipathy to the Senate was not born of the events of 1975 as many think. Abolition of the Senate was introduced into the Platform in 1919, after the first Senate election held by the method of preferential voting. The ALP got 42% of the vote in that election but only returned one member to the Senate. The Nationalists got 45% of the vote – and 17 of the 18 seats. It's hardly surprising that members of the ALP felt the system was fundamentally flawed.

From 1919 until 1979 when the abolition plank was finally removed from Labor's Platform, no Labor Government moved to abolish the Senate. It was accepted abolition was unachievable.

Even the events of 1975 could not stem the tide of opinion within the ALP that the Senate, properly reformed, could be a powerful tool for Australian democracy.

Since 1996 we have been careful not to abuse the Senate's powers. We have used the Senate – I believe more effectively than the Government did when it was in Opposition – to hold the Government accountable.

During the period of John Howard's Prime Ministership, 1243 Bills in the Government's legislative programme have passed the Senate, with or without amendment. Twenty-four have been negatived in the Senate (7 negatived twice) and 11 have been laid aside by the Government (4 laid aside twice).[16]

All parties, including the Liberal Party, take the opportunity in the Senate to move, accept or reject amendments, and many successful amendments are Government amendments. Take for example the ASIO bill, recently passed by the Senate. Fifty-seven amendments were agreed to, 18 proposed by the Government, 38 by Labor and 1 by the Democrats.

In fact, the ASIO Bill showed the Senate and its Committee system at its best – surely what Australians want and expect from the Senate.

The Labor Party has made clear it will look closely and seriously at the proposals contained in Mr Howard's discussion paper on the Senate. While a minimum requirement for constitutional change will be agreement on any referendum question by both the Government and the Opposition, I am only too aware that any such agreement is no guarantee of success.

Although it appears the focus of the Government's discussion paper will be the issue of deadlocked legislation, a package of reforms including fixed simultaneous four-year terms for both the Senate and the House of Representatives and removal of the Senate powers to block supply would be attractive to many in our community.

We must balance the need for a government to be able to deliver on the key aspects of its electoral program whilst entrenching the oversight role of the Senate to ensure that executive government is scrutinised for honesty.

[1] House of Representatives Hansard, 8 October 1987

[2] John Howard, House of Representatives Hansard, 19 August 1993

[3] John Howard interview with Alan Jones, 2UE, 14 August 1996

[4] John Howard, Closing Address to 2003 Liberal Party National Convention, Adelaide, 8 June 2003

[5] The Bulletin, 15 January 1980

[6] From the Statistics Unit – Senate Table Office, 8 August 2003

[7] Gough Whitlam, The Whitlam Government; 1972-1975, 1985, p. 737

[8] Ibid

[9] The Australian, 29 December 1998

[10] Helen Coonan, "Safeguard or Handbrake on Democracy", Brian Coster (ed), Deadlock or Democracy?; The Future of the Senate, UNSW Press, 2000, p.24-26

[11] John Howard, Closing Address to 2003 Liberal Party National Convention, Adelaide, 8 June 2003

[12] Prime Minister John Howard – interview with Laurie Oakes, Sunday, 10 August 2003

[13] Radio National Breakfast Program, 10 June 2003 and ABC Radio, PM Program, 17 June 2003

[14] George Williams, "Fixed terms hold the key to breaking the Senate's legislative deadlock", Sydney Morning Herald, 11 June 2003

[15] Scott Bennett, Four-year Terms for the House of Representatives, Department of the Parliamentary Library, Research Paper 4, 2000-01

[16] From the Statistics Unit – Senate Table Office, 8 August 2003