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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 1 - The Senate and its constitutional role

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Functions of the Senate

The functions of the Australian Senate may be summarised as follows:

  1. As an essential feature of federalism, to ensure adequate representation of the people of all the states, the main elements being:
  1. equal representation of the people of the Original States;
  2. equal legislative powers: except for the financial initiative, powers which, in effect, are equal to those of the House of Representatives: the Senate cannot be compelled to pass any proposed legislation; except for certain financial bills it has unrestricted right of amendment; in respect of those money bills which it cannot amend, the Senate has the right to make, and to insist on, requests to the House of Representatives for amendments.
  1. To balance domination of the House of Representatives by members from the more populous states whereby, of 150 members, 115 represent the three eastern states of New South Wales, Victoria and Queensland.
  2. To provide representation of significant groups of electors not able to secure the election of members to the House of Representatives.
  3. To review legislative and other proposals initiated in the House of Representatives, and to ensure proper consideration of all legislation.
  4. To ensure that legislative measures are exposed to the considered views of the community and to provide opportunity for contentious legislation to be subject to electoral scrutiny. The Senate’s committee system has established a formal channel of communication between the Senate and interested organisations and individuals, especially through developing procedures for reference of bills to committees.
  5. To provide protection against a government, with a disciplined majority in the House of Representatives, introducing extreme measures for which it does not have broad community support.
  6. To provide adequate scrutiny of financial measures, especially by committees considering estimates.
  7. To initiate nonfinancial legislation. The Senate’s capacity to initiate proposed legislation effectively means that the Parliament is not confined in its opportunities for considering public issues in a legislative context to those matters covered by bills brought forward by the executive government.
  8. To probe and check the administration of the laws, to keep itself and the public informed, and to insist on ministerial accountability for the government’s administration. The informing function is well expressed in the following statement by Woodrow Wilson, President of the United States, 1913-21:

It is the proper duty of a representative body to look diligently into every affair of government and to talk much about what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinise these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function.[19]

  1. To exercise surveillance over the executive’s regulation-making power. In the exercise of this function, either House may disallow a regulation made by the executive government, and the concurrence of the other House in the vote of disallowance is not necessary. This gives the Senate a special character not, in practice, enjoyed by the House of Representatives, where, because it is dominated by a disciplined majority supporting the government, the carrying of a disallowance motion is rare. It has been mainly in the Senate that the executive government’s use of its regulation-making power has been effectively scrutinised.
  2. To protect personal rights and liberties which might be endangered if there were a concentration of unrestrained power in the House of Representatives. The protection of the rights and liberties of citizens is a feature of the Senate’s consideration of proposed legislation, the executive’s regulation-making power, and administrative decisions. Major avenues for meeting these responsibilities of the Senate are the Standing Committees for Scrutiny of Bills and Regulations and Ordinances.
  3. Because the Senate is rarely dominated by either of two major sides of Australian politics, to provide effective scrutiny of governments, and enable adequate expression of debate about policy and government programs. The significance of the Senate’s role in these functions is that it is an elected and parliamentary forum. Other outlets for such debates in the community, for example, public conferences or press, radio and television, are not inherent institutions of democracy, though vital to it. As a parliamentary forum, moreover, the Senate is one place where a government can be, of right, questioned and obliged to answer. As such the Senate has been rightly seen as the safeguard of the Commonwealth.

Armed as it is by the Constitution with extensive powers, it is in the judgment of the Senate of the day to decide whether or not to insist on any of its legislative amendments disagreed to by the House of Representatives, or in certain cases to refuse to pass a bill at all.

As such power should be used circumspectly and wisely, factors which the Senate may take into account in reaching such decisions include:

  1. A recognition of the fact that the House of Representatives represents in its entirety, however imperfectly, the most recent choice of the people whereas, because of the system of rotation of senators and except in the case of simultaneous dissolution of the two Houses, onehalf of the Senate reflects an earlier poll.
  2. The principle that in a bicameral parliament one house shall be a check upon the power of the other.
  3. Whether the matter in dispute is a question of principle for which the government may claim electoral approval. The Senate is unlikely to resist legislation in respect of which a government can truly claim explicit electoral endorsement, but the test is always likely to be the public interest.
  4. The right of the Senate to examine all measures of public policy.

Significant occasions of the exercise by the Senate of its functions are recorded in the relevant chapters of this work and in appendix 10, Chronology of the Senate, 1901-2011.

19. Congressional Government, 1885, reprinted Meridian Books, 1956, p. 193.