Chapter 1 - The Senate and its constitutional role

The Senate, bicameralism and federalism

When the Australian Constitution was drawn up in the 1890s, two principles were accepted by the framers of the Constitution as its foundations. These principles were not varied during the long process of amendment of the draft Constitution.

The first was that Australia would be a federal nation, formed by the union of the self-governing states, in which the people of each state would elect their state parliaments to exercise state responsibilities, and the people of the whole nation would elect a national parliament to exercise specified national responsibilities.

The second principle was that the national legislature, the Parliament of the Commonwealth, would consist of two houses, one representing the people as a whole and one representing the people voting by their states, and that the consent of both houses would be necessary for the passing of laws.

These principles were repeatedly stated during the debates on the draft Constitution: is accepted as a fundamental rule of the Federation that the law shall not be altered without the consent of the majority of the people, and also of a majority of the States, both speaking by their representatives ... (Samuel Griffith, quoted by Richard Baker, Australasian Federal Convention, 23 March 1897, p. 28)

....the great principle which is an essential, I think, to Federation — that the two Houses should represent the people truly, and should have co-ordinate powers. They should represent the people in two groups. One should represent the people grouped as a whole, and the other should represent them as grouped in the states. Of course majorities must rule, for there would be no possible good government without majorities ruling, but I do not think the majority in South Australia should be governed by the majority in Victoria, or in New South Wales. .... If we wish to defend and perpetuate the doctrine of the rule of majorities, we must guard against the possibility of this occurring. (John Cockburn, Australasian Federal Convention, 30 March 1897, p. 340)

Senators were to represent the people of the states, not state governments. Suggestions that are occasionally made that senators should be appointed by state governments are therefore misconceived. Nor was it intended that senators vote in state groups or according only to their assessment of state interests; the function of ensuring that the legislative majority is geographically distributed does not require such behaviour.

The choice by the framers of the Constitution of a federal system also involved the national government consisting of three branches, the legislature (the law-making body), the executive (the body which administers the laws), and the judiciary (the body which interprets the laws, including the Constitution, and applies them to particular cases). The Australian Constitution therefore establishes as the legislature the Parliament of the Commonwealth of Australia, as the executive the monarch, represented in Australia by the Governor-General, and as the judiciary the High Court of Australia, with other federal courts established by the Parliament.

Unlike the framers of the United States constitution, however, the Australian founders did not confer the effective executive and legislative powers on separate bodies. Instead, they adopted the British system of responsible or cabinet government, in which the executive power, nominally held by the monarch represented by the Governor-General, is actually exercised by ministers who are also members of Parliament. It was envisaged, though not specified in the Constitution, that these ministers would hold office only so long as they had the support of a majority of the House of Representatives. This system, which had emerged in Britain only in the 50 years or so before the Australian Constitution was drawn up, had operated in each of the Australian states, and the founders wished to adopt it largely because of its familiarity.

A significant minority of delegates at the constitutional conventions wished to abandon this system of cabinet or responsible government at the national level and to confer the executive power on a separately elected body. One of their reasons for proposing this was that they contended that the federal system would be incompatible with the British system of cabinet or responsible government, because the federal system required equality of powers between the two houses of the legislature. Their apprehensions were subsequently realised, to the extent that, with the rise of highly disciplined political parties, the House of Representatives came to be completely controlled by the ministry with a party majority in the House.

In Australia’s Commonwealth Parliament bicameralism is therefore a product of constitutional intent and design, not of evolutionary process. The Senate and the House of Representatives are creations of the same process of constitutional design. The design of the Senate followed the United States Senate in several aspects: equality of state representation; six year terms; and election of senators by rotation. It was, however, an innovatory design so far as the Senate was concerned. The Senate from the beginning was directly elected by the people, unlike its United States counterpart, which was indirectly elected until 1913.

The name “Senate” was carefully chosen. In the 1897 draft it was called the “States Assembly”, for the reason that it was to be the house representing the states as distinct entities and the house which had the custody of the states’ interests. At the Adelaide convention of 1897 the name “States Assembly” was struck out and the name “Senate” inserted (13 April 1897, pp 481-2). This restored the proposal of the 1891 draft. The name “Senate” is appropriate because, as was said in the debate on the amendment, its responsibilities affect the nation as a whole as well as of the constituent states. It has the further advantage of according its members the distinctive title of “senator”.

A major effect of federalism is that the Parliament of the Commonwealth, like the United States Congress, is not even nominally a sovereign parliament: its powers are limited by the Constitution. The British and New Zealand Parliaments, on the other hand, are nominally sovereign in that, in theory, their power to legislate on any matter is unrestricted in the absence of limiting constitutions.

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