Footnotes

Contents - A ‘Federal Commonwealth’

[1] The comparison was made by Melissa Langerman (in Bongiorno et al., 1999: 167), an astute observer of the latter, and perhaps the former as well, who had the good sense not to belabor the comparison, as I shall do here.

[2] After adopting the comparison for the title of this book, I learned that, in 1895, Alfred Deakin had compared the platypus to the Australasian Federal Council, the predecessor of sorts of the Commonwealth, as ‘a perfectly original development compounded from familiar but previously unassociated types.’ (quoted in Irving 1999: 132) Irving extends the comparison to the Constitution.

[3]      In 1970, however, Whitlam had said in debate that ‘We all know that in British parliaments the tradition is that, if a money bill is defeated, as the receipt duties legislation was defeated last June [in the Senate], the government goes to the people to seek endorsement of its policies.’ (Commonwealth Parliamentary Debates (House of Representatives), 1 October 1970: 1971–1972)

[4]  The Constitution was enacted as sec. 9 of the Commonwealth of Australia Constitution Act 1900. Sec. 2 states that ‘The provisions of this Act referring to the Queen shall extend to her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’

[5] Still others, such as Richard Baker, who became the first President of the Senate, held out hope that some other system might evolve once the Federation was born.

[6] Winterton (1983: 72) explains that:

The task of spelling out the details of responsible government had never before been undertaken, and the delegates [to the two constitutional Conventions of 1891 and 1897–1898] decided not to attempt to write down all the practical constitutional understandings, holding that it was unnecessary to do so. Responsible government operated satisfactorily in Canada and the Australian Colonies without explicit constitutional entrenchment, so it was considered unnecessary, and even bad form, to spell out all the details. Even so, the Commonwealth Constitution was more explicit in establishing responsible government than any other contemporary colonial constitution; to have gone further and specifically enacted all its conventions, practices and understandings would undoubtedly have made the operation of responsible government in the Commonwealth unduly rigid and inflexible.

[7] Four Senators, two each from the ACT and the Northern Territory, are elected for the same term as Members of the House of Representatives.

[8] The contrasting positions that the House and Senate Clerks have taken regarding sec. 53 are reflected in papers published in Papers on Parliament No. 19, May 1993, under the title ‘Constitution, Section 53.’

[9] ‘Legislation which requires appropriations or the imposition of taxation for its operation may be introduced in the Senate with an indication that the necessary appropriation or imposition of taxation is to be inserted into the legislation in the House of Representatives ... ’ (Odgers’ Australian Senate Practice 2001: 293). Odgers’ Australian Senate Practice and House of Representatives Practice are written and published respectively by the Department of the Senate, under the direction of the Clerk of the Senate, and by the Department of the House of Representatives, under the direction of the Clerk of the House. Each is generally accepted to be an authoritative statement of Senate or House procedure and practice. However, neither house acts formally to approve the text of its book, so it should not be assumed that every Senator or Member concurs in every assertion and judgment to be found in either of them.

[10] In Odgers’ Australian Senate Practice (2001: 298), it is pointed out that secs 53 and 54 refer to proposed laws whereas sec. 55 refers to laws. Therefore, it is argued, the first two sections are not justiciable but the third one is.

[11] Sometimes the Senate returns a bill to the House with both amendments and requests, when some of the amendments the Senate wants to make would violate sec. 53. In that case, the two houses first must reach agreement regarding the requests; then the Senate reads the bill for a third time and returns it to the House. Only after these actions have been completed can the House formally act on the amendments that the Senate made to the bill.

[12] There are other reasons why the constraints on the Senate’s legislative powers regarding money bills are not as severe as they might seem, as Pearce (1977: 123) illustrates: ‘Where it is desired to include a standing appropriation in a bill rather than in separate legislation, it is possible to introduce the bill into the Senate without an appropriation clause. The requisite clause can then be inserted in the bill by way of amendment by the House of Representatives.’

[13] ‘The practical implication of the Senate’s power of rejection of a bill coupled with its power to make a request is that the government in the House of Representatives is compelled to pay as much heed to a request as it has to an amendment. If the request is refused and the bill rejected by the Senate there is very little difference in result between the House of Representatives refusing to consent to amendments and the Senate thereupon rejecting the bill. The bill is lost in either case. If a government wishes its legislation to be passed, it may have to modify it to meet Senate demands no matter in what form they are expressed.’ (Pearce 1977: 126)

[14] This is a simplified summary of the Senate and House actions, as given by Gavin Souter (1988: 71).

[15] Nor did it take long to demonstrate the limitations of sec. 57 (discussed in the next chapter) and the joint sittings for which it provides. With the new Commonwealth’s revenue depending on prompt enactment of tariff legislation, going through all the time-consuming stages that must precede a joint sitting, including a double dissolution and a new election, was not a realistic option.

[16] The other side of the sec. 53 coin are the protections in sec. 55 of the Constitution that are designed to protect the Senate against the House abusing its constitutional authority to pass certain bills that the Senate cannot amend. In 1943, the Senate successfully resisted what Souter (1988: 352–353) identifies as the first alleged instance of ‘tacking’. The House had included in an income tax bill a provision establishing a National Welfare Fund. The Senate requested that the House omit the provision, having concluded that including it constituted tacking in violation of sec. 55, which states that ‘Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.’ The House disagreed but the Senate was adamant, so the House ultimately deleted the provision while insisting that, in doing so, it was not accepting the Senate’s interpretation of sec. 55. The Senate, of course, responded by reiterating that its action had been ‘in compliance with the undoubted constitutional position and rights of the Senate.’

[17] On the House position generally, see House of Representatives Practice 2001: 433–438. The ritual in which the House engages brings to mind the similar practical arrangement that the US House of Representatives and Senate have made with regard to the House’s insistence that the Constitution requires all appropriations bills to originate in the House. The Senate never has accepted this interpretation of the ‘Origination Clause’ which states that ‘All bills for raising revenue shall originate in the House of Representatives’ (Art. I, sec. 7, cl. 1). Nonetheless, the Senate has acquiesced in practice, recognizing the House’s determination to insist on its position.

[18] Similarly: ‘A different opinion, expressed in the Senate by Sir Josiah Symon, that the Constitution gave the Senate substantially the power to amend, though in the form of a request meant that the Constitution, in declaring that the Senate might not amend but might request amendments, was contradicting itself, cancelling in the fourth paragraph of section 53 what it had enacted in the second. In respect of this view the opinion tabled in the House stated that the Constitution did intend a substantial difference; it was thought clear that the Constitution did not intend to stultify itself by giving back in one clause what it had taken away in another.’ (House of Representatives Practice 2001: 435)

[19] To the end of 2002, the Senate had requested amendments on 163 occasions and pressed requests 21 times (Odgers’ Australian Senate Practice 2001, and December 2002 supplement)

[20] Convention Debates refers to the records of the debates of the Australian Constitutional Conventions of 1891 and 1897–98. The debates of the National Australasian Convention, held in Sydney in 1891, were published in one volume in 1891; and four volumes of the debates of the Australasian Federal Convention, held in three sessions in Adelaide, Sydney and Melbourne during 1897 and 1898, were published 1897–98. These debates are available online.

[21] The three-month interval is measured not from the date on which the House first passes the bill, but from the date on which deadlock is reached. According to the High Court in Victoria v Commonwealth (1975 7 ALR 1, quoted in Odgers’ Australian Senate Practice 2001: 81), the time interval is ‘measured not from the first passage of a proposed law by the House of Representatives, but from the Senate’s rejection or failure to pass it. This interpretation follows both from the language of section 57 and its purpose which is to provide time for the reconciliation of the differences between the Houses; the time therefore does not begin to run until the deadlock occurs.’ While this certainly is a reasonable interpretation, it does require a determination to be made as to exactly when the deadlock has occurred, which in turn can depend on when the Senate can be said to have failed to pass the bill in question or on when a stalemate has been reached over the disposition of the Senate’s amendments to the bill. If, for instance, the Senate has passed a bill with amendments, the government and its majority in the House of Representatives can control the time at which the House considers those amendments and, therefore, the time at which it can be said that the Senate had passed the bill with amendments that were unacceptable to the House. As the events leading to the double dissolution in 1951 revealed, such determinations may not be as obvious as they might seem at first blush.

[22] However, sec. 57 bars a double dissolution from taking place within six months of the end of the three-year elected term of the House.

[23] Moore (1910: 156–157) attributes the use of joint sittings to ‘the Norwegian system, according to which the two Chambers (or rather the two parts into which the House is divided) meet as one for the purpose of composing their differences.’ He also notes that sec. 15 of the Commonwealth Constitution provides for joint sittings of state parliaments to elect Senators to fill casual vacancies and that, in the United States at that time, joint sittings were used ‘by the State Legislatures in case the Chambers have in separate sittings chosen different persons as Senators.’

[24] On the day before the joint sitting in 1974 (discussed in the context of the crisis of that and the following year), the High Court held that the joint sitting could consider more than one bill. It also held that the Governor-General’s proclamation could not, and did not, control what actions the joint sitting might take. However, that ruling did not mean that the joint sitting could do whatever it wished. Instead, the Court meant that the agenda of the joint sitting was controlled by the express terms of sec. 57 of the Constitution, and so could not be expanded or contracted by the Governor-General, by either or both houses acting separately, or by the members of Parliament meeting in the joint sitting. At the joint sitting, the Speaker of the House (who had been elected Chairman) also ruled, and his ruling was upheld on appeal, that it was not in order for the joint sitting to consider (even debate) any matter other than those for which the joint sitting had been convened (House of Representatives Practice 2001: 466).

[25] If the requirements of sec. 57 are satisfied, joint sittings can be convened to resolve differences over legislation, but not over proposed constitutional amendments. Sec. 128 of the Constitution requires a proposed amendment to be approved by an absolute majority in each house; then it is submitted to a national referendum. However, sec. 128 continues:

if either House passes any such proposed law by an absolute majority, and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives.

Moore (1910: 157) comments that ‘the provisions of sec. 128 for avoiding the obstacle of disagreement between the Houses are less cumbrous than those applicable to ordinary legislation. The reason is that the alteration of the Constitution is treated as pre-eminently a matter to be determined by direct vote of the electors.’

[26] Note that sec. 57 concerns double dissolutions to resolve legislative differences on bills that originated in the House. It does not apply to bills originating in the Senate. So the Constitution seems to assume that legislation (or at least important legislation) will originate in the House, suggesting a subordinate or reactive legislative role for the Senate. See Moore (1910: 155)

[27] ‘Double Dissolution’, House of Representatives Infosheet No. 18, April 2002, p. 2 [http://www.aph.gov.au/house/info/infosheets/is18.pdf].

[28] Joint sittings also were held, in 1981 and 1988, to fill vacant Senate seats for the Australian Capital Territory (ACT) before it was granted self-government in 1989. Additional joint sittings for such purposes are unlikely, the electoral law now providing for a joint sitting only to fill a Senate vacancy for a territory other than the ACT or the Northern Territory, in the unlikely event that some other territory receives representation in the Senate. See House of Representatives Practice 2001: 851, footnote

[29] ‘The circle had come as complete as it ever would, Fraser’s appointee [as Governor-General] now put the prime minister and his followers on public notice that the constitution provided an avenue for requests, not demands, for double dissolutions.’ (Uhr 1992: 94–95)

[30] These and other aspects of the relations between the two houses are discussed in later chapters.

[31] See Comans (1985) for a discussion of (1) whether two or more bills that qualify for consideration at a joint sitting must be considered at the same joint sitting, and (2) whether a bill provides grounds for a double dissolution, or could be considered at a joint sitting, if the law that the bill would amend was changed between the several times the bill was passed.

[32] There is another consideration that a government must take into account as it calculates whether it should request a double dissolution in the hope that the ensuing election will produce majorities for it in both houses of the Parliament. As we shall discover in the next chapter, when all of a state’s Senate seats are contested at the same election, the quota of votes that a minor party or independent candidate needs to win one of those seats is much less than it is at a normal half-Senate election. So even if a government thinks that its popularity is high, it still must ask itself whether it is the minor parties that could be most likely to gain seats in the Senate and find themselves in a stronger position when the new Parliament convenes.

[33] What actually is compulsory is that the voter go to his or her polling place and cast a ballot; there is no way the government can compel a voter to cast a valid ballot (called in Australia a formal vote).

[34] Only one House served its full three year term and then expired by effluxion of time, and that was in 1910.

[35] Actually, the first parliamentary elections, held in 1901, were conducted under state laws, sec. 31 of the Constitution providing that, until Parliament provided otherwise, ‘the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.’ Parliament did provide otherwise with enactment of the Commonwealth Electoral Act 1902, which was followed by the Commonwealth Electoral Act 1918.

[36] Over time, there has been an increase in the average number of candidates in each House electorate, with the greatest increases occurring during the past three decades.

[37] Before the 1951 election, there had been only two occasions on which all Senators were elected at the same time: at the first election in 1901and at the election following the double dissolution of 1914.

[38] In later chapters we will explore how often in recent years it has been accurate to say that minor party and Independent Senators really have exercised a balance of power.

[39] Evans (1997a: 4) also has argued, rather ingeniously, that the shift to PR for Senate elections also has strengthened the hand of each state in the legislative process: ‘While thereby producing what might be called an ideological distribution of the legislative majority, proportional representation, paradoxically, has also bolstered the Senate’s function of requiring a geographically distributed majority. Because the party numbers are always so close in the Senate, the parties are further discouraged from ignoring the less populous states. Because every Senate seat is vital, every state is also vital.’ (emphasis added) Of course this is true only because Labor and the Coalition enjoy similar levels of popular support and neither enjoys majority support nationwide.

[40] In political science, there are generalizations, not laws. Souter (1988: 470) cites two exceptions to the general proposition that party and not State interests have dominated Senate decision-making. ‘Only rarely did senators vote along State rather than party lines, as the federal Conventions had intended they should. In 1952, for example, all ten Senators from Tasmania (five Liberals and five Labor) voted with the Opposition to pass an amendment concerning land tax assessment. In 1958 all South Australian senators voted together for an amendment to the Snowy Mountains Hydro-Electric Power Bill, safeguarding their State’s share of the River Murray’s water.’

[41] This situation makes references somewhat awkward. I generally refer to the two opposing forces in Parliament as Labor (or the ALP) and the Coalition (of the Liberal and National parties). References to ‘the Opposition’ should be understood to be references to one or the other of these two forces, as appropriate. By contrast, references to the ‘non-government’ members of the Senate should be taken to refer to members of the Opposition plus Independent Senators and Senators representing other parties such as the Democratic Labor Party or the Australian Democrats.

[42] Lucy (1985: 357–359) contests this characterization, pointing to ‘101 instances of Liberals crossing the floor of the house in a division’ when Fraser was Prime Minister in 1975–1983, and arguing that the dissidents were not penalized by being denied their party’s reselection for the next election. Such defections no longer occur.

[43] These votes are uncommon and tend to be on matters, such as euthanasia and stem cell research, that many members view as raising moral issues. That is why they sometimes are called ‘conscience’ votes. However, members sometimes are allowed to vote as they choose on other kinds of questions, so ‘free’ votes is the more inclusive term.

[44] A companion volume published in 1956 provides a comparable analysis of the first eleven parliaments.

[45] It should not be assumed, however, that Australian Representatives and Senators routinely seethe with frustration at having to support party positions that they have carefully weighed and found wanting. McKeown and Lundie (2002: 5) observe that ‘The party system is so strong that even when a free vote is granted on complex or major issues the outcome of the vote may not change.’ They also quote Fred Chaney, who served in both houses, as having concluded that ‘the failure of many members to have a view that they were prepared to articulate and argue for within the party forum [that is, behind the closed doors of the party room] was far more of a problem than excessive party discipline.’

[46] For this reason, parties, especially those in government, may be somewhat more willing to accept occasional defections in the Senate than in the House; the fate of the government does not rest on the outcome of Senate divisions. The result, according to Reid and Forrest (1989: 41), is that party has dominated proceedings in the Senate, ‘but not with the same relentless emphasis on government and Opposition that has been the hallmark of the history of the House of Representatives.’

[47] Concerning the Liberal Party, Jaensch (1992: 266) found it ‘notable that while no uniform pattern has developed across the party, every state has rejected plebiscite preselection, except South Australia. At the time of the reformation of the Liberal Party in 1944, Menzies argued strongly against such rank-and-file preselection, and South Australia abandoned it in the mid-1970s. Menzies had a sound reason: plebiscite preselection encourages parochialism; the candidate who has built up strong local support may not be the ‘best’ person to represent the party at state or national level.’ Of course, as Jaensch recognized, this begs the question as to what qualifies someone as the ‘best’ person.

[48] ‘Parties may submit a preferred order of voting to the AEC [Australian Electoral Commission], so that an above-the-line vote will be dealt with by polling officials as if the voter had voted in that order.’ (Bennett 1996: 26)

[49] It was necessary to elect seven Senators per state at the 1949 election in order to bring the Senate up to its new, larger size.

[50] ‘[T]he increase in the number of Senators in 1984 from ten to twelve per State, six elected every three years, and the reduction of the required quota from 16.66 per cent to 14.28 per cent made it virtually impossible for a government to win four quotas or 57.12 per cent of the vote in any State.’ (Coonan 1999b: 13–14)

[51] One effect should have been to create safe Senate seats for party loyalists because at each election party selectors are likely to rank them first or second among the party’s Senate candidates. Senators, on the other hand, who have shown more inclination to rock the party’s boat, such as Bonner, may be moved down to a place on the list that makes their re-election doubtful or effectively impossible. If so, we confront the ironic implication that the Senators most likely to gain the parliamentary experience and knowledge of government affairs that comes with extended tenure are more likely to be those who accept the guidance of their party leaders and restrict any doubts they may have about party policy to discussions behind the closed doors of the party room. However, Australian Senators do not measure their tenure in decades as many American Senators such as Strom Thurmond and Robert Byrd have done. When one looks down from the gallery of the Senate in Canberra, one sees few heads of grey hair. The ‘father of the Senate’ today—who has served longer than any of his colleagues and who, interestingly, is an Independent—has been there only since 1975.

[52] Also in 1948, as Fusaro mentions, the membership of the House and, therefore, the Senate also had been increased. As discussed in the preceding chapter, this development has implications of its own for the prospects for minor party representation in the Senate. ‘Especially notable is the direct relationship between the rise in the number of senators per state (from six at Federation to ten at 1949 to twelve at 1984) and the steady decrease in the number of votes required to obtain a successful quota.’ (Uhr (1998: 114) Then and later, increasing the size of the Senate also increases the likelihood of minor parties securing Senate seats.

[53] Commonwealth Parliamentary Debates, 21 April 1948: 1002.

[54] John Uhr, ‘Why we chose proportional representation’, version at http://www.aph.gov.au/Senate/pubs/pops/pop34/c02.htm.

[55] Exactly why a variety of modes of election is necessary to achieve adequate representation, and precisely why no systems of representation can produce a truly representative assembly, are not explained.

[56] On the difficulties this caused the Labor Government, see Souter 1988: 280–285.

[57] Solomon (1978: 88) reports that, ‘Until 1954 only one independent had ever been elected to the Senate (in 1904).’

[58] ‘[T]he DLP, by persuading a body of traditional Labor voters to give their second preferences to non-Labor parties, helped to keep the anti-Labor, Liberal-led coalition in power until 1972.’ (Knightley 2000: 248)

[59] Bean and Wattenberg (1996) offer two reasons why Australian voters may be more likely than American voters to vote for a House candidate of one party and, at the same election, give their first preference votes to Senate candidates of a different party. First, ticket-splitting in the United States requires a voter to vote for candidates of two major parties that are clearly in opposition to each other—to vote at the same time for both a Democrat and a Republican—whereas Australian voters can vote for a major party in the House election (to determine which party will form the government) and then for a minor party (instead of the other major party) to determine which party will control the Senate. It should be easier to convince oneself to vote for an ALP House candidate and Australian Democrat Senate candidates, they argue with plausibility, than to vote at the same election for the Labor House candidate and also for Liberal or National Party Senate candidates. Second, observant Australian voters have reason to believe that the minor parties for which they vote actually might achieve Senate representation—that those who vote for minor parties in Senate elections are not throwing away their votes, which is the most powerful argument against voting for third parties in US national elections.

[60] For contemporaneous accounts, see Kelly (1976) and Oakes (1976); for the recollections and self-justifications of key participants, see Whitlam (1979), Kerr (1978), and Barwick (1983); for a retrospective account, see Kelly (1995). How the events of 1975 could have unfolded as they did has continued to intrigue political observers and scholars alike. In an otherwise captivating book on Australia in the Twentieth Century, for example, Philip Knightley (2000: 269–282) concludes that the CIA was complicit, and perhaps even instrumental, in a conspiracy that led to Whitlam’s ouster. But then Kelly (1976: 1) reports that Whitlam himself had raised the spectre of CIA involvement.

[61] In 1991, more than 15 years after the events discussed here, a national survey of voters were asked whether the Governor-General had been right or wrong to dismiss the Whitlam Government. Forty-three per cent responded that he had been right; 33.6 per cent that he had been wrong. But those figures are far less interesting than is the fact that less than one-quarter of those interviewed failed to respond or answered that they did not know. Not only did more than 75 per cent of the respondents remember a political event that had occurred years earlier, they were prepared to offer a judgment about it. For the poll, visit http://ssda.anu.edu.au/polls/D0737.html.

[62] ‘Strictly speaking, supply was the money granted by the Parliament in the supply bills which, before the change in the budget cycle in 1994, were usually passed in April–May of each year, and which appropriated funds for the period between the end of the financial year on 30 June and the passage of the main appropriation bills. The latter appropriate funds for the whole financial year, were formerly passed in October–November and are now passed in June.’ (Odgers’ Australian Senate Practice 2001: 295) Now the annual budget usually is presented in May, allowing time for appropriations to be enacted before the new financial year begins on 1 July and rendering supply bills unnecessary—unless a general election disrupts the normal schedule, in which case supply may be required.

[63] Historically, Labor had been no friend of the Senate, even though it was the ALP that instituted PR for Senate elections and, it is safe to say, led to the institution’s revitalization (vitalization might be a more apt description). It also was Labor that promoted a stronger Senate committee system. But for many years, the ALP had advocated that the Senate be abolished. It was only at the party’s 1979 national conference that it repealed this plank in its platform.

[64] The Prime Minister also argued that the Senate had taken other steps to interfere with enactment of the government’s legislative program, ‘stating that 21 out of the 254 bills put before Parliament in the first session had been rejected, stood aside or deferred by the Senate.’ However, the Governor-General did not rest his decision to grant the double dissolution on this contention. He stated that, ‘As it is clear to me that grounds for granting a double dissolution are provided by the Parliamentary history of the six Bills ... it is not necessary for me to reach any judgment on the wider case you have presented that the policies of the Government have been obstructed by the Senate. It seems to me that this is a matter for judgment by the electors.’ (House of Representatives Practice 2001: 453)

[65] Souter (1988: 516) contends that the government deliberately sought to have these other bills satisfy the requirements of sec. 57 ‘as a warning to Opposition senators that they too could all be made to face election if they dared to block supply. And that kind of warning was itself a license to break convention [i.e., that the Senate should not block supply bills]. If the Senate was no longer a coward’s castle, and senators could be made to share the fate which they had the power to force upon the lower house, then the blocking of supply might not be such a dishonourable action after all.’

[66] In case there was any doubt, sec. 23 of the Constitution provides that ‘Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.’ (emphasis added)

[67] Less than a week before the joint sitting, the two houses exercised their authority under sec. 50 of the Constitution and agreed to a set of 18 ‘Rules for Joint Sittings’ (reprinted in House of Representatives Practice 2001: 849-851). These joint rules were not adopted in the joint sitting itself. Instead, they were adopted in advance by the two houses acting separately. With regard to the procedures to be followed during the joint session, the rules provided for the standing orders of the Senate to be followed on all questions that the joint rules did not explicitly address. In this context, Odgers’ Australian Senate Practice (2001: 116) points to ‘the parliamentary convention that the procedure of a joint committee of the two Houses follows the procedure of committees of the Senate when such procedure differs from that of the House whether the chair is a member of the House or not.’ So it would seem that the two houses agreed to follow the same general principle with respect to the rules they adopted for the joint sitting: that the default authority would be the Senate’s standing orders. Parliament also amended the Parliamentary Papers Act and the Evidence Act to bring the joint sitting under the same provisions that applied to sittings of the House and Senate concerning such matters as immunity and admissibility in court of documents presented at the joint sitting. Also, the Parliamentary Proceedings Broadcasting Act was amended to permit the joint sitting to be televised (Zines 1977: 233–235; House of Representatives Practice 2001: 465).

[68] The High Court later invalidated one of the bills on the ground that the required three-month interval had not elapsed between the first two attempts to pass the bill by conventional means. The government’s position was that the clock began to run when the House passed the bill for the first time. The Court rejected this contention and found (as discussed earlier) that the three-month interval begins only when the Senate rejects the bill or has demonstrated conclusively its intent not to pass it. The challenge to the bill had been submitted to the High Court before the joint sitting began, but the Court ruled that the question would not become ripe for adjudication until after the bill’s enactment (see Zines 1977: 224–227, and Odgers’ Australian Senate Practice 2001: 81).

[69] However, this had not been the uniform practice before 1948. ‘In filling a Senate vacancy in April 1931, the South Australian parliament violated a hitherto respected convention that casual vacancies should be filled by nominees from the same party as the deceased. A Labor Senator, Henry Kneebone, replaced a Country Party senator, but the difference he made to the imbalance of power was infinitesimal ... ’ (Souter 1988: 280)

[70] By contrast, when George W. Bush was elected President in 2000 and the US Senate was equally divided between Democrats and Republicans, the President-elect was effectively barred from choosing Republican Senators to fill senior positions in his Administration if those Senators were from states with Democratic governors. The newly-elected President understood that state governors appoint replacements for Senators who have left office for whatever reason, and that they routinely appoint Senators of their own party. Because of the equal party division in the Senate, Bush could not afford to cause even one Republican Senator to resign if that Senator would be replaced by a Democrat. Any contention that a Democratic governor was somehow honor-bound to replace a Republican Senator with another Republican would have been greeted with derision.

[71] It was marginally easier for the Opposition to secure Senate majorities for deferring further action on the bills than it would have been to reject what was portrayed as (and what in fact was) essential legislation. Deferral also kept the bills before the Senate so that when circumstances changed, the Senate could revive and pass them quickly. That is precisely what ultimately happened.

[72] That may explain why, when Whitlam gathered his parliamentary lieutenants around him immediately after being dismissed from office, he neglected to include his own Senate leaders (See Kelly 1995: 266).

[73] Commonwealth Parliamentary Debates (House of Representatives), 25 August 1970: 463.

[74] Souter (1988: 489) reports that Murphy listed ‘168 financial measures which Labor had opposed in the Senate since 1950.’ Souter (1988: 472) also quotes Murphy as having used much the same formulation in May 1967 when the Senate defeated a Post and Telegraph Rates Bill. Note that in both instances, what was at stake was a tax bill, not a spending bill. However important those tax bills may have been for the government’s program, the Senate’s failure to pass them did not jeopardize government operations in the same way that its failure to vote supply could—and did in 1975.

[75] Kerr’s decision to seek the advice of Chief Justice Barwick and Barwick’s decision to provide the advice sought both were controversial decisions in their own right. Kerr thought he needed to make it clear that he already had decided what to do before he consulted the Chief Justice. See Kerr 1975: 542.

[76] Kelly (1995: 271–274) and others have asserted that Kerr deliberately delayed receiving the Speaker until he could argue that it was too late to accede to the House’s request because both houses already had been dissolved.

[77] As evidence that the possibility of the Senate acting as it did in 1975 would not have come as a surprise to the Constitution’s authors, W.H. Moore wrote in his 1910 study The Constitution of the Commonwealth of Australia (p. 144): ‘a check upon the Ministry and the Lower House lies in the fact that the Upper House might in an extreme case refuse to pass the Appropriation Bill, and thereby force a dissolution or a change of Ministry. These are the conditions recognised by the Constitution.’ See the discussion in the chapter that follows on the constitutional debates relating to the powers of the Senate.

[78] The issue in fact was canvassed when the first casual vacancy occurred after the 1949 election; see Sawer 1977: 130–133, 199–202.

[79] For a strong, even extreme, statement of this position, see Archer and Maddox (1976).

[80] This argument would be weaker if Senators were elected by plurality vote. Then one could contend that the voters in a state had elected each individual Senator on his or her own merits, and not necessarily as the representative of a political party. If so, the state parliament should not be obliged to look to party affiliation as a controlling qualification in selecting someone to fill a Senate vacancy. Instead, the election of Senators by proportional representation lends strength to the argument that the voters had chosen a party to represent them in the Senate, more than the specific individuals whom the victorious party had nominated. In filling a Senate vacancy, therefore, the state parliament should be required to respect that choice of party.

[81] On the day following the double dissolution, the Speaker wrote to the Queen that ‘the failure of the Governor-General to withdraw Mr. Fraser’s commission and his decision to delay seeing me as Speaker of the House of Representatives until after the dissolution of the Parliament had been proclaimed were acts contrary to the proper exercise of the Royal prerogative and constituted an act of contempt for the House of Representatives. It is improper that your representative should continue to impose a Prime Minister on Australia in whom the House of Representatives has expressed its lack of confidence and who has not on any substantial resolution been able to command a majority of votes on the floor of the House of Representatives.’ The Speaker asked the Queen to restore Whitlam to office. The reply on behalf of the Queen noted that, while she was following events ‘with close interest and attention,’ it was not for her to intervene (quoted in House of Representatives Practice 2001: 458).

[82] Reid (1977: 243–245) went much further than most other commentators in dismissing constitutional conventions as ‘a chimera’—‘simply political rhetoric’. Underlying this conclusion is his criticism of what he saw as a tendency to ‘inanely chant “convention” at every threatened or proposed change of course’, when ‘Every alleged convention in Australian government (that is, every established practice or method) is explicable in terms other than convention; that is, if we take the trouble to reason “why”.’

[83] The idea for this amendment pre-dated the events of 1974–1975. It had been included as a recommendation in the 1959 final report of a parliamentary joint select committee appointed in 1956 (House of Representatives Practice 2001: 31).

[84] Paul (1996: 121–122) notes that the British House of Lords had rejected the Asquith Government’s budget in 1909.

[85] Ironically, and certainly unintentionally, the Liberal Party came to the same conclusion. In a leaflet defending its position to the public, the Party (1975: 539) asked ‘Is there a crisis? What is it all about?’ The Party’s response? ‘It is about whether we should have an election. An election of the House of Representatives will decide whether the Whitlam Government should continue—or whether we should have a Liberal/National Country Party Government headed by Mr. Fraser.’

[86] The responsibility does not rest entirely on Fraser personally, though it is doubtful that the Coalition would have refused to pass the appropriation bills in 1975 without his determined leadership. It will be recalled that the Coalition, under different leadership, that of B.M. Snedden, had refused to vote supply in 1974, and Snedden evidently was contemplating doing it again in 1975 before Fraser replaced him (see Kelly 1976: 102).

[87] At the time of the 1975 dispute, Gareth Evans acknowledged (1975: 11), referring to the Senate’s refusal in the previous year to vote supply, that ‘Mr Whitlam did capitulate in similar circumstances in 1974, but only because he judged that he had a good chance of taking the electorate with him—a judgment which subsequent events vindicated.’

[88] November 11 became a prominent date because it was just about the last date on which it was possible to set the wheels in motion for an election before Christmas. ‘Supply would be passed the day Whitlam was dismissed or Fraser cracked or a compromise was struck. The only difference between a solution in mid-November and one in late November is that the former would produce an election before Christmas and the latter an election in the New Year. ... In his determination to secure a pre-Christmas election Kerr was dismissing a government that was still able to meet all its financial obligations.’ (Kelly 1995: 233)

[89] When a potential deadlock over essential spending legislation appears on the horizon, satisfying the constitutional requirements for a double dissolution on those bills requires an interval of at least three months. One consequence, then, is that any government confronting a Senate that it does not control has an incentive to ensure that it is in a position to request a double dissolution not only if and when it wants to but also if and when it needs to. To do so, the government must welcome, or even seek to create, legislative deadlocks with the Senate on non-money bills so those bills can serve as double dissolution ‘triggers’, having satisfied the requirements of sec. 57 of the Constitution before the crisis blossoms.

[90] This line of argument does have a pedigree. Robert Garran, who later would become co-author of the seminal The Annotated Constitution of the Australian Commonwealth, wrote in 1897: ‘that the parliamentary system for federal purposes may develop special characteristics of its own is not unlikely. Thus the familiar rule that a Ministry must retain the confidence of the representative chamber may, in a federation—where both Chambers are representative—develop into a rule that the confidence of both Chambers is required.’ (quoted in Solomon 1978: 182–183)

[91] After making the point that if the House votes no confidence in the government, it must resign immediately, even if it still has funds to continue essential government operations, he derives from it the conclusion that, contrary to my argument, the Governor-General was justified in dismissing the Whitlam Government even while supply remained available. ‘Thus, in considering what the Prime Minister ought to have done when the Senate clearly indicated its unwillingness to provide supply—and thus indicating that the Parliament no longer approved the retention of the ministry in government—was not affected by the state of the funds in the Treasury which the ministry could lawfully use in government.’ (Barwick 1983: 54) This again indicates the degree to which he considers a Senate vote to deny supply the equivalent of a House vote of no confidence. Sawer, however, disagrees: ‘Denial of supply by a lower House is one of many ways by which loss of confidence in the government may be expressed, and has always been considered in that context. Denial of supply by an upper House, like any other upper House expression of no confidence in a government with a lower House majority, has ever since the Reform Act of 1832 been regarded as irrelevant to the principles governing responsible government.’ (Sawer 1977: 146)

[92] An initial caveat is in order. The records of the meetings of the constitutional Conventions are voluminous. They report the sometimes intense debates over an extended period of time among a group of thoughtful and strong-willed men to whom agreement did not always come quickly or easily. By selective quotation, therefore, it is fairly easy to construct arguments in support of different, even contradictory, understandings of their intent and expectations regarding the more contentious provisions on which they ultimately settled. I have relied largely on the research of others into these records, so much of this chapter is based on my selective use of the material they selected for their own purposes. It also is worth bearing in mind Galligan’s (1986: 94) observation that, ‘If the Federation Debates have not been well understood, it is partly because many of the delegates, particularly from the small States’ side, were not very clear about the issues under discussion.’

[93] These events are well-summarized in Moore 1910: 40–55. The extended narrative history by La Nauze (1972) is essential reading.

[94] ‘The Australian colonies all accepted the Westminster model and the necessity for a bicameral system. New South Wales and Queensland opted for upper houses whose members were nominated by the Governor. The other colonies allowed their upper houses to be elected, but with a restricted franchise based on property ownership.’ (Jaensch 1997: 135)

[95] It was not quite so self-evident to Lord Bryce, writing in 1905, that it was the House, not the Senate, that would dominate under the new Constitution. He (1905: 312) wrote that ‘Australians evidently expect that the usage hitherto prevailing in all the Colonies of letting the Ministry be installed or ejected by the larger House will be followed. Nevertheless the relations of the Commonwealth Houses are so novel and peculiar, that the experience of the new Government in working them out will deserve to be watched with the closest attention by all students of politics.’

[96] Decades later, when constitutions were being written for the soon-to-be-independent British colonies of sub-Saharan Africa, the power of the British example again came into play, though in a different way. This time, the office of a powerful and directly elected president was grafted onto parliamentary government, resulting in a constitutional system that was equally incoherent conceptually. See, for example, my 1994 paper on ‘Parliamentary Reform in Zambia: Constitutional Design and Institutional Capacity,’ presented in Berlin at the XVIth World Congress of the International Political Science Association.

[97] A ‘hereditary preference’, O’Connor called it (Galligan 1980a: 6).

[98] It would be a mistake, however, to view the Senate only as a necessary manifestation of federalism and, therefore, a necessary price of federation. At the time the Commonwealth Constitution was written, four of the colonies had elected upper houses. If a contradiction or incoherence was being built into the new federal charter, it was not a new one. ‘Since 1975 it has been constantly asserted that in the Commonwealth Constitution responsible government and federalism threaten one another. It has become routine to quote the prescient Hackett who warned that one would kill the other. What is rarely said is that responsible government had been threatened much earlier by the creation of strong elected upper houses in four of the colonies which became the Australian states. A strong upper house (with equal representation of the states) may have been a necessary condition for federation but federalism was not necessary for the creation of strong upper houses in Westminster-type parliaments.’ (Rydon 1983: 34)

[99] Sawer and Zappala (2001: 1) remind us that the Australian Senate was the first national upper chamber to have its members chosen by direct popular election. Ratification of the Commonwealth Constitution and the first elections of Senators under the Constitution both predated direct election of US Senators.

[100] According to Aroney (2002: 284), ‘Baker supported an executive responsible to both houses of the legislature as embodying the strengths and avoiding the weaknesses of the American and British systems.’

[101] Or to put it differently, should the Senate have only a veto over each money bill in its entirety, or should it also have a ‘veto in detail,’ reflecting Griffith’s claim for ‘the senate representing the States to exercise the power of veto as to any item of expenditure of which they disapproved’? John Downer proposed unsuccessfully in 1891 that the Senate ‘have the power of rejecting [money bills] in whole or in part.’ This, he argued, amounted to something less than the power to amend because it would not empower the Senate to propose alternatives, such as increases or decreases in spending levels, for provisions that a majority of the states opposed (Galligan and Warden 1986: 96–98).

[102] Although contention over this issue almost caused a rupture in the Adelaide meetings of the second Convention (Galligan and Warden 1986: 94).

[103] Hughes (1980: 45–46) argues that the authors never seriously contemplated the Senate using its power to defeat a supply bill for this purpose. ‘Although the Constitutional Conventions paid considerable attention to the Senate’s power in respect of money bills, speakers perceived the problem in terms of a misuse of a particular financial measure to accomplish some extraordinary end, with the Senate blocking that measure to defend the rights of one or more of the states. Such reference as was made ... to the possible use of the Senate’s power against a ‘corrupt’ lower house was exceptional and not taken further in debate.’

[104] My thanks to Ken Coghill of Monash University and former Speaker of the Victorian Legislative Assembly for calling these events to my attention. See Wright 1992: 74–91. These events involved tacking unrelated provisions on appropriations bills, and may have encouraged the authors of the Constitution to insert secs 54 and 55 that bar tacking in the Commonwealth Parliament.

[105] But I do not rest much weight on that grant of authority because it is something that the Senate surely could have done anyway. Barring an explicit constitutional prohibition, there is no reason why the Senate could not have said to the House, in effect: ‘Before we vote on passing or defeating this money bill that we have been debating, we would like to know if the House would be willing to make certain amendments that would make us much more inclined to pass the bill.’ While such a communication to the House might have been extra-constitutional, I see nothing that would have made it unconstitutional even if there were no express authority for it in the Constitution. The procedure for requesting amendments evidently had its origins in procedures of the South Australian Parliament (Galligan and Warden 1986: 92).

[106] There was no consensus about how much difference it was likely to make in practice that the Senate could not amend money bills directly but could request amendments to them. George Reid said that ‘a strong Senate will compel attention to its suggestions; a weak one would not insist on its amendments.’ (Convention Debates, 7 March 1898: 1998)

[107] ‘The Convention could find no consensus on the appropriate form of referendum. The conservatives argued for a dual or double referendum requiring a majority of votes and a majority of States while the radicals argued for a single mass referendum requiring only a majority of votes.’ (Galligan and Warden 1986: 107)

[108] ‘The Senate is not merely a branch of a bicameral Parliament; it is not merely a second chamber of revision and review representing the sober second thought of the nation, such as the House of Lords is supposed to be; it is that, but something more than that. It is the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented. They are so represented for the purpose of enabling them to maintain and protect their constitutional rights against attempted invasions, and to give them every facility for the advocacy of their peculiar and special interests, as well as for the ventilation and consideration of their grievances.’ (Quick and Garran 1901: 414)

[109] Referring to Canada, Evans (1997a: 4–5) notes ‘the extreme alienation of the outlying provinces, particularly the western provinces, caused by the domination of government by the centres of population. ... Such serious alienation has not occurred in Australia, and a primary reason for this is that the federal structure of the legislature, unlike the non-federal structure of the legislature in Canada, has altered the representational system by forcing majorities to be geographically distributed.’ This was a more persuasive argument before the crystallization of Australia’s party system in 1910. In this context, it probably is fair to observe that the concerns the small states expressed in the Conventions about the prospect of being dominated by the large states was, in most respects, more a fear of domination by the twin population centres of Sydney and Melbourne.

[110] During the Adelaide debates earlier in the year, he had said that, ‘From the first day that the Federation is consummated ... the people will divide themselves into two parties ... . [W]hichever way parties may move, one thing is certain, namely, that their division into the more populous States on the one side, and the less populous States on the other side, is the last possible eventuality of a thousand eventualities which are more likely to occur.’ (Convention Debates, 30 March 1897: 297)

[111] He continues: ‘Disagreement arises, however, on the issue of where these limits are to be set.’

[112] Mulgan complicates the picture even more, and perhaps necessarily so, by linking the imprecision of ‘house of review’ as a concept with the equally fuzzy concept of electoral mandates, which is discussed in Chapter 9.

[113] We need to establish a clear stylistic convention before proceeding any further. The subject of this chapter is coalition-building among parties in the Senate, and two of those parties (the Liberal and National parties) have, for many years, formed a solid coalition that is commonly known as the Coalition. To minimize confusion, I capitalize ‘Coalition’ when, and only when, I am referring to the standing partnership of the Liberal and National parties in both houses of the Parliament.

[114] My focus in this chapter is on the ability of the government (and, in the concluding section, the Opposition) to achieve its affirmative legislative goals. This requires the government to secure approval for its proposals by majority vote—that is, at least 39 of 76 votes, assuming all Senators vote. I appreciate, however, that in the Senate the government also has to play defence by defeating amendments and other proposals made by non-government Senators. For that purpose, a negative or blocking majority requires only 38 votes, because if there is a tie vote in the Senate on a proposition, the proposition is rejected. This analysis assumes that the required majority always is 39 votes. To do otherwise would require examining each proposition that was the subject of a division to ascertain whether the government supported or opposed it in order to determine the majority the government required for that division, which would greatly complicate both the analysis and the presentation of findings. In any event, what ultimately matters is whether the government won or lost on a division, and that information is included with the division lists on which the data presented in this and the next chapter are based.

[115] There is an interesting difference in this respect between American and Australian (at least Australian Senate) practice. When there is a vote on the voices in either house of the US Congress, the member presiding announces the outcome on the basis of what he or she heard—whether there was a louder chorus of ‘ayes’ or ‘noes’—while giving the benefit of the doubt whenever possible to the majority party (of which he or she always is a member). In the Australian Senate, by contrast, ‘The chair would not call the result on the basis of the number of Senators in the chamber on each side at the time, but on the basis of the party numbers those Senators present represented. While the major parties have a chamber duty roster that ensures at least two Senators are present at all times (a Whip and a minister or shadow minister—and sometimes a backbencher as well), the minor party and Independent Senators often are absent altogether. In these cases, the chair might call the result on the basis of what had been said in debate by the now-absent party groups.’ Personal communication to the author from an officer of the Senate.

[116] This is the American, not the Australian phrase, which I use for simplicity of exposition.

[117] All the data presented in this and the next chapter are derived from descriptive lists of Senate divisions that were compiled by the Statistics Unit of the Senate Table Office. These lists are taken to be complete and accurate. I am grateful to Scott Bennett of the Parliamentary Library’s Information and Research Services (IRS) for calling my attention to them, and to Rob Lundie of IRS and Kathleen Griffiths, Statistics Officer in the Senate Table Office, for making them available to me. Senators’ votes on all divisions are published, of course, in the Senate’s Hansard and Journals, but in a form not intended and, therefore, far less convenient for analytical purposes.

[118] This amounts to slightly more than one division per bill on average. However, this average has little meaning because the total of 280 includes all divisions, including those that were not directly linked to specific bills.

[119] Throughout this chapter and the next, the Liberal and National parties are treated as if they were one party, not two parties in permanent coalition with each other. In light of the behavior of the two parties, this is a perfectly sensible thing to do. Yet there have been instances in which the two Coalition partners have marched off in different directions. Solomon (1978: 74) identifies one such case when the Liberals and Nationals were in Opposition:

[A]t the end of 1973 the [Liberal-Country] opposition was steadfastly refusing to pass the Whitlam government’s legislation to establish an Australian Schools Commission which would make grants to government and private schools throughout Australia. Eventually the Country Party opened negotiations with the acting Minister for Education, Lionel Bowen, for some concessions, having decided that it could not afford to reject the legislation outright given the electoral popularity of the measure. The Liberal Party remained opposed to it, despite the Country Party action, but Labor needed only Country Party support to ensure passage of the legislation through the Senate.

[120] ‘The Western Australian Greens had worked very constructively with the (Labor) Government from mid-1993 till Labor lost office (effectively the end of the 1995 sitting year) allowing the formation of a minimum winning coalition with Labor (29), the Australian Democrats (7) and in 1995 an ALP Senator turned Independent (Devereux). ... My impression is that, between mid-1996 and mid-1999, the same level of legislative results was not apparent from the Margetts/Brown partnership, given that, on the numbers alone (forgetting ideology), they could have provided the new Liberal-National Government with the two votes necessary to support the government’s measures.’ Personal communication to the author from an officer of the Senate.

[121] I offer a reminder that, for this analysis, Senator Harris of Pauline Hanson’s One Nation party is treated here as if he were an Independent.

[122] A division is completed only if there are at least two Senators voting on each side, which precludes any division from producing a unanimous vote on one side or the other.

[123] An important caveat is that the Australian Democrats sometimes have demanded divisions, knowing that the government and Opposition would vote together, in order to differentiate their position from those of the major parties. Personal communication to the author from an officer of the Senate.

[124] In what apparently is a reference to the House, not the Senate, Jaensch (1986: 83) claims that, ‘even when the opposition states that it does not oppose a certain Bill, the list of [Opposition] speakers is no less long, and the criticisms of the government party no less vehement.’

[125] Bear in mind, however, that we only have the vantage point that divisions give us. It may well be that the government did not bother calling divisions when it knew that it would be defeated by an Opposition-led winning coalition.

[126] Some observers have commented that one or more Independents sometimes have voted against the government when it already was clear that their votes would not be decisive.

[127] Some prominent Democrats have conceived of their party’s role in the Senate in essentially reactive terms: ‘strictly “keeping the bastards honest”, that is to make government true to its election promises and accountable to the parliament’, whereas others have been more prepared ‘to use the party’s strategic position in the Senate so that their values and policies could be incorporated into legislation by amending or rejecting it.’ (Sugita 1997: 161–162) Under the first conception but not the second, we would not expect Democrat Senators to offer many amendments intended to change bills to bring them closer to the Democrats’ own vision of optimal public policy.

[128] The Democrats claim to have imposed another constraint on themselves in the form of what Kernot (1997: 33) described as ‘a self-imposed etiquette based around three principles: (1) agreeing not to block supply (i.e. refusing to take the whole process of government hostage in order to achieve an outcome); (2) refusing to cross-trade on issues (i.e. refusing to trade-off a good outcome in one area for a bad outcome in another completely unrelated area); and (3) transparency in policy making (i.e. ensuring public reasons are given for all decisions, with the process as open as practicable).’ The first and third of these principles are unexceptionable; the second seems to me to be based on a misguided concept of political purity.

[129] Goot (1999a) has summarized the available data—for example, on public attitudes toward non-government majorities in the Senate and the frequency with which voters have voted for one party in the House and another in the Senate (as many as 17 per cent)—and Bean (1988: 51–52) has reported that a slim majority in a national survey wanted the Senate retained as is and only 11 per cent wanted it abolished. These findings are informative, but they tell us much less than we should want to know about Australians’ understanding of what the Senate does and what it should do.

[130] An Australian expert on the subject has observed that, in the Old and New Parliament Houses, seats facing the Speaker or President were not installed in order to approximate the semi-circular patterns found in Washington and elsewhere. Instead, once a decision was made that the Australian chambers should be able to accommodate all members (which is not the case in London), it also was decided that having some seats facing the Speaker or President was preferable to the alternative of extending the government and Opposition benches to the point that the chambers would become too long and narrow to be practical. Personal communication to the author.

[131] The sentiment has been attributed to Disraeli, but several compendia of political quotations credit Edward Stanley, the 14th Earl of Derby and sometime Prime Minister during the 1850s and 1860s. Of course, any Opposition leader is much more likely to echo the public sentiments of George Reid, the first Leader of the Opposition in the Commonwealth Parliament in 1901:

Our object should be, when Bills framed on sound principles are introduced, to help the Government as far as we can to make them as perfect as they can be made, and to reserve our opposition for matters of a serious character. I hope that this Opposition and those who succeed them will always avoid one serious evil in the working of our parliamentary institutions; and that is an attitude of obstructing measures, the principles of which are not objectionable. (Commonwealth Parliamentary Debates, 21 May 1901: 105)

[132] As already noted, a bill can survive even if a motion for its second reading is defeated. ‘The motion for the second reading is that this bill be now read a second time. The rejection of that motion is an indication that the Senate does not wish the bill to proceed at that particular time. Procedurally, therefore, the rejection of that motion is not an absolute rejection of the bill and does not prevent the Senate being asked subsequently to grant the bill a second reading. ... In practice, [however,] the Senate often indicates its disagreement with a bill by rejecting the motion for the second reading, and that action is taken to be an absolute rejection of the bill.’ (Odgers’ Australian Senate Practice 2001: 259; emphasis in original)

[133] Unless there were instances in which the government chose not to try to prevent one or more of its own bills from being defeated, at least at that moment, by declining to require a division when a second or third reading motion, taken on the voices, was decided against it.

[134] As before, the one Senator representing One Nation is treated here as if he were an Independent.

[135] We will explore the matter of mandates in Chapter 9.

[136] As the Republicans in the US House of Representatives were labelled the ‘permanent minority’ after losing control of the House in the 1954 election and not regaining it until the 1994 election.

[137] There is at least one other opportunity that can be used to offer amendments affecting a bill. After the Senate completes its consideration of a bill in committee of the whole, an amendment can be offered to the motion that the report of the committee be adopted. When offered, such amendments often propose that bills be referred to committee, but not that they be prevented from proceeding further through the remaining stages of the legislative process.

[138] In 1996, Senator Brown of the Australian Greens offered such an amendment to the third reading motion for the Euthanasia Laws Bill 1996; and Senator Harris of Pauline Hanson’s One Nation moved the same kind of amendment to the Defence Legislation Amendment (Aid to the Civilian Authorities) Bill 2000.

[139] It also is possible, though much less common, for a second reading amendment in the first form to have procedural consequences. My thanks to Cleaver Elliott, Clerk Assistant for the Senate Procedure Office, and Rosemary Laing, Clerk Assistant for the Senate Table Office, for alerting me to these possibilities, and to Kerry West of the Procedure Office for her assistance in identifying the kinds of second reading amendments discussed here.

[140] On 26 February 1985, an amendment was made to replace the text of a motion for second reading. When considering such an amendment, the Senate first voted on whether to leave out the words already in the motion. Then, when that question was resolved in the affirmative, the Senate next voted on whether to insert the words that had been proposed to replace the words it had just voted to omit. In this case, the Senate agreed to leave out the words of the motion but then rejected two versions of the words proposed in their place. The Journals reports that ‘The President drew attention to the fact that all that was left of Senator Chipp’s motion was the word ‘That’ which, by itself, was not acceptable as a motion.’ (Journals of the Senate, 26 February 1985: 57) The standing orders have since been amended to preclude this absurdity.

[141] This discussion treats amendments and Senate requests for amendments as if they were the same, and references in the text to amendments should be understood to encompass requests as well. Constitutionally, amendments and requests are not the same, as advocates of the primacy of the House would be quick to point out. My reasons for taking them together are threefold. First, amendments and requests for amendments are not alternatives; depending on the nature of the bill being considered, each is the only means available to the Senate if it wants to change the text of that bill. Second, advocates of the Senate’s powers argue that the difference between amendments and requests is essentially one of form and procedure, not a difference of kind. If the Senate is determined to have the text of a money bill changed, the House must take account of the Senate’s request for that change just as it must take account of a Senate amendment to some other bill, because a money bill cannot be enacted so long as the Senate request remains unresolved. And third, not irrelevantly, taking amendments and requests together greatly simplifies both the analysis and the presentation.

[142] Previous inquiries into this subject have been few and far between. Helpful exceptions are O’Keeffe (1996) and Elliott (1997), both officials of the Senate, and Lovell (1994) and Uhr (1997, 1998). Annual reports of the Department of the Senate include statistics.

[143] This analysis is unable to take account of motions to amend bills simply by striking provisions from them. When such a motion is made, the Senate does not vote on whether to remove the provision in question from the bill. Instead, the Senate votes on whether the provision should ‘stand as printed.’ Therefore, a majority of at least 39 votes is required to preserve the provision. If the outcome is a tie vote instead, the provision has failed to receive majority support and so it is stricken from the bill.

[144] These numbers exclude amendments to amendments and amendments that were withdrawn.

[145] Few things in parliaments are as simple as they may seem. A helpful reader kindly pointed out in a personal communication that the telecommunications bill had been examined in detail by one of the Senate’s legislative committees. ‘The majority report [of the committee] made 64 broad recommendations for amendments. Non-government senators also made additional recommendations in minority reports but, given the shortcomings found by the committee (which had a government majority), the government would have been foolish to ignore them. All the government amendments are attributable to the committee’s report.’ (emphasis added)

[146] Some amendments are circulated and offered jointly, as the notes accompanying some of the tables in this chapter indicate.

[147]  Legislation Handbook, Department of the Prime Minister and Cabinet, 2000: 53. [http://www.dpmc.gov.au/guidelines/docs/legislation_handbook.pdf]

[148] Personal communication to the author from an officer of the Senate.

[149] It also should be noted that these data are subject to sudden jolts that do not recur. Note particularly the 165 amendments that Senator Harris of the One Nation party moved in 2000 (108 of them to the Gene Technology Bill 2000), compared with seven in the preceding year and 19 in the following year.

[150] In addition to needing resources to develop the policies expressed in amendments, non-government parties also need to have their amendments drafted. The government has its Office of Parliamentary Counsel; the Department of the Senate provides a drafting service for non-government Senators.

[151] In some cases, the reason for calling a division may have had nothing to do with the importance of the question to be decided. For example, the losers on the voices may refrain from calling a division, even though the question being decided is an important one. The losers may prefer not to document the composition of the winning coalition that defeated them, or they may want to save time and demonstrate a cooperative attitude. In other instances, a non-government party may call a division, which consumes valuable government time, when it wants to send a message to the government that it is angry or frustrated about something else that the government has or has not done.

[152] Elliott (1997: 43) quotes a government Senator responsible for moving a tax bill through the committee of the whole in 1990 as observing that, because the legislative process is ‘an uncertain and time consuming process ... the government has decided in the interests of getting legislation passed that will achieve its primary purpose, but not all of its purposes, and will not be in its preferred form but will be in a workable form, it will accept the amendments moved.’ Perhaps if the government had been willing to invest the time and effort, it could have defeated the amendments or amended them to make them more acceptable, but perhaps it would have had to resort to divisions to do either. Sometimes, when time is short and much work remains to be done, a legislative half-loaf is satisfying enough.

[153] As before, the One Nation Senator is grouped here with the Independents because he also accounts for a single vote in the chamber.

[154] The number of votes required to win also depends on the number of votes actually cast. When Senators are absent from a division without being paired (to prevent their absence from affecting the outcome), the number of votes required to win that division changes accordingly.

[155]  However, a caveat from the previous chapter needs to be reiterated here. The minor parties sometimes have called divisions, knowing that both the government and the Opposition were going to oppose them, precisely in order to differentiate themselves from the major parties.

[156] To every generalization there is an exception. To anticipate a later section of this chapter, the House’s standing orders (specifically, SO 248) provide that, if the House of Representatives disagrees to a Senate amendment, it is to return the amendment to the Senate with a statement of the reasons for the House’s decision. The Clerk of the Senate, Harry Evans, recalls instances in which these statements indicated why ‘the government’ disagreed to an amendment, not the House. He took this to mean that the decision to disagree had been made in a ministry office, that the statement had been written by ministry officials, and that, through an oversight, it had not been revised to attribute the statement to the House.

[157] An illustrative critique of the House is offered by David Hamer (1996), who served in the House for eight years and in the Senate for twelve more.

[158]  Not surprisingly in sports-crazed Australia, Anne Lynch, the Deputy Clerk of the Senate, has spoken of ‘the tendency, in the House, to play politics like a rugby game, with two hard-playing front rows lined up against one another, forever trying to score.’ (Evening Post (Wellington, NZ), 4 July 1994: 7)

[159] On the role of the Labor Party caucus during Whitlam’s ministry, see Kelly (1976: 203–216).

[160] What goes on inside the party room takes place behind closed doors and is revealed only in rumors and unattributed reports, so we cannot know for certain how often the government’s backbenchers persuade their leaders to make changes in legislation, nor can we know how significant those changes are. For the same reason, these internal party debates do not contribute to the public understanding of government policies that is essential for preserving public support for democratic institutions. Furthermore, debates within the parliamentary parties are not activities of the Parliament as such; these internal party discussions could take place at party headquarters or in a hotel meeting room if it were not simply more convenient to hold them at Parliament House (Jaensch 1986: 43–44).

[161] Ward (2000a: 69–70) quotes Blewett as having written in 1993, for example, that ‘It may be ... that instead of paying attention to reform of the House of Representatives we should accept that chamber as essentially a debating forum between two party teams, and particularly their leaders, designed to clarify choices for a mass electorate, and concentrate on perfecting the Senate as a House of legislative review and as the body for effective scrutiny of the Executive.’

[162] Though the Constitution is silent on the matter, traditionally the prime minister is a member of the House of Representatives.

[163] In the Senate, for example, a minister has only four minutes in which to reply to a question. In the House, a minister can respond at length. So the effect of the Senate’s standing orders is to provide time for more questions to be asked. In neither house, however, is the minister’s reply required to directly address the question that was asked.

[164] Commonwealth Parliamentary Debates (House of Representatives), 4 November 1992: 2540. Keating continued ‘There will be no House of Representatives Minister appearing before a Senate committee of any kind while ever I am Prime Minister ... ’

[165] Each house has an informative website that provides online access to its records and to information about its members, procedures, activities, and history. Each house also has its own publications program (and many of those publications also are accessible online). The House of Representatives recently has been concentrating on communications with the general public through a glossy magazine, a collection of easily digestible factsheets, and a series of other publications written at different levels of detail and sophistication. The Senate has its own factsheets and brochures, but the Senate has been putting more emphasis on communicating with a more elite audience through seminars for public servants, a program of public lectures, and published essays of scholarly tone. The cornerstone publication about the Senate, though not officially endorsed by it, is Odgers’ Australian Senate Practice, which has been cited and quoted frequently in these pages and which is now in its tenth edition. I understand that the decision by the House of Representatives to produce House of Representatives Practice, now in its fourth edition and often quoted here, was provoked in no small part by the evident value and visibility of the Senate’s volume. (See the bibliography for information on some of these publications.)

[166] Grattan also opined that ‘The minor players are accustomed to relying on publicity as part of their limited political tool box. Open government is actually something that governments almost never really believe in. This is not to say that minor party and independent senators who hold the balance of power are more virtuous or more public spirited than other senators, but just that they have different interests.’

[167] Executive branch officials in Washington are constitutionally barred from also serving in the Congress, but there is nothing that would prevent one or both houses from allowing Cabinet secretaries from appearing in the House or Senate chamber to defend Administration policies and actions. Proposals have been made to institute a question time in Washington, but they have not received serious consideration.

[168] Not surprisingly, therefore, the House’s Standing Committee on Procedure advocated in 1986 that all ministers should be members of the House and that, ‘as far as the accountability of Ministers at question time was concerned, Ministers who were Members of the House should be responsible to the Parliament and the people through the House of Representatives only.’ (House of Representatives Practice 2001: 115)

[169] There is a clear difference in the tone of these two statements. Furthermore, Odgers’ Australian Senate Practice (2001: 476) goes on to offer the judgment that ‘ministers are held accountable in the Senate but not in the House of Representatives to which the ministry is supposed to be responsible.’ The fact that a publication so closely associated with the Senate would comment critically on the House is, in itself, indicative of the strains that persist between the two houses.

[170] In modern practice, Parliament has three sitting periods each year, each of which is, in the case of the Senate, defined as ‘a period during which the Senate adjourns for not more than 20 days.’ (Odgers’ Australian Senate Practice 2001: 255)

[171] The reaction of the House deserves to be shared in full. On 19 August 1993, the House sent to the Senate a message asserting that:

(a) the Senate order is a completely unwarranted interference by the Senate in the business of this House; (b) the Senate is a house of review and has no place dictating to this House, the house of government, on the conduct of its business; (c) the order of the Senate is a gross discourtesy by the Senate to the people of Australia in that the order demonstrates a presumptuous desire not to allow the house of the people to have its proper control over the management of its business; and (d) the public interest is not served by the effect of the Senate order, which is to curtail proper debate on legislation in this House by forcing the Government to progress legislation rapidly through the House in order to meet a Senate imposed deadline ... ’ (Votes and Proceedings of the House of Representatives, 19 August 1993: 174)

[172] For a discussion of how the houses of the US Congress have coped with a problem in their bicameral relations, see my 1982 article on ‘Germaneness Rules and Bicameral Relations in the US Congress,’ in Legislative Studies Quarterly, v. 7, n. 3.

[173] Constitutional amendments, however, can be proposed by either house acting alone. Whereas a bill requires only a simple majority vote for passage (that is, a majority of those present and voting, assuming they constitute a quorum), a constitutional amendment requires the support of an absolute majority (that is, a majority of all those eligible to vote). But whereas a bill must be passed by both houses, subject to the double dissolution and joint sitting procedures of sec. 57 of the Constitution, sec. 128 provides that if the two houses deadlock twice over a proposed constitutional amendment (just as they must do over legislation in order for that bill to trigger a double dissolution), the Governor-General may submit the amendment for ratification by popular referendum in the form it was passed by the house that first proposed it, ‘with or without any amendments subsequently agreed to by both Houses ...’ even though both houses have not passed it in the same form. Note that the Governor-General may submit the amendment to a referendum; he is not required to do so. In the normal course of events, therefore, we would expect him to take this action only at the behest of the government of the day. Consequently, he is very unlikely to submit an amendment that the Senate passed twice and the House rejected on both occasions.

[174] ‘[T]hese requests are effectively the same as amendments, particularly as the Senate usually makes sure that it does not give the third reading to a Bill to which it is requesting changes, until it has had a positive response to its request.’ (Solomon 1986: 103)

[175] As in Congress, the two houses communicate formally with each other through exchanges of written messages by which, for example, the House transmits its bills to the Senate for its concurrence and the Senate returns House bills to that body with amendments that the Senate has adopted. There is no requirement in the Senate’s standing orders that it must consider messages from the House, even messages conveying government legislation. In practice, however, the Senate does so, even when the Senate has a non-government majority.

[176] The procedures summarized here are discussed in ample detail in chapters 12 and 13 of House of Representatives Practice (2001: 423–468) and in chapters 3, 12, and 13 of Odgers’ Australian Senate Practice (2001: 75–80, 273–279, 320–328). Any reader who thinks the abbreviated explanation presented here is unnecessarily complicated is invited to consult these chapters and the related House and Senate standing orders.

[177] Actually more; for example: ‘A Senate amendment may be agreed to with or without amendment, agreed to with a consequential amendment, agreed to in part with a consequential amendment, agreed to with a modification, agreed to with a modification and a consequential amendment, disagreed to, or disagreed to but an amendment made in its place.’ (House of Representatives Practice 2001: 425)

[178] ‘When the House disagrees to any amendments of the Senate to a bill, the Member who moved the motion—That the amendment(s) be disagreed to—shall present to the House written reasons for the House not agreeing to the amendments proposed by the Senate. A message returning the bill to the Senate shall contain any such reasons.’ (House SO 248)

[179] Of course, the House may take different actions with respect to different Senate amendments.

[180] ‘The reasons shall be drawn up by a committee appointed for that purpose when the Senate adopts the report of the committee of the whole disagreeing to the amendments, or may be adopted by motion at that time.’ (Senate SO 133)

[181] According to Jaensch (1997: 107), ‘This process will continue until either a consensus (or compromise) has been achieved, or until the government decides it is unable to proceed because of intransigence in the Senate, at which point the latter either rejects the Bill, or it lapses.’ This comment suggests that the process rarely continues through all the stages for which the standing orders provide. Furthermore, the House has been known to suspend SO 250 so that the process could continue beyond what the standing orders allow.

[182] However, Senate SO 127 and House SO 250 permit amendments between the two houses that go one step beyond the congressional principle that each house has one opportunity to amend the amendments of the other house (in addition to the initial right of one house to amend the bill itself that originated in the other house).

[183] Odgers’ Australian Senate Practice (2001: 274) points out that ‘Amendments made by the House to Senate bills usually have the effect of reversing amendments which the Senate has made to government bills in the Senate and to which the government has disagreed.’ In other words, if the government is unsuccessful in opposing a Senate amendment to one of its bills that it introduced in the Senate, it can try to reverse that outcome through a later House amendment to the Senate bill. On House amendments to Senate bills generally, see Odgers’ Australian Senate Practice (2001: 274–277) and House of Representatives Practice (2001: 440–441).

[184] This information is taken from the 2002 edition of Business of the Senate.

[185] Sometimes the Senate acts on a bill by making some amendments and requesting others. In such a case, ‘The message forwarding the requests ... also sets out the amendments which the Senate has made to the bill. The rationale of this procedure is that the House should know of all the amendments required by the Senate before it deals with the Senate’s requests. The House cannot actually deal with the Senate’s amendments, however, until the requests have been disposed of and the Senate has passed the bill.’ (Odgers’ Australian Senate Practice 2001: 321; see also House of Representatives Practice 2001: 427–428)

[186] Notice that the House does not amend a Senate request in the same way it would amend a Senate amendment to an amendable bill; instead, the House agrees to a modification of the Senate’s request. However, the House may decide to amend a bill directly rather than agreeing to a Senate request for an amendment to the bill. If the House chooses to agree to a Senate request for an appropriation amendment, it may first have to receive a message from the Governor-General recommending the appropriation. In practice, however, this is a formality.

[187] In Article I, clause 1 of section 7 states that ‘All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills.’

[188] In this complex process, these do not exhaust the House’s options. For example, it always has the problematic option of laying the bill aside and letting it die.

[189] The Parliament may create conferences, but it does not create conference committees.

[190] For example, both sets of standing orders require that there be an equal number of members from each house on a conference. House standing orders contain an interesting provision that the Senate standing orders do not. House SO 383 imposes this duty on its managers: ‘It shall be the endeavour of the managers for the House to obtain either a withdrawal, by the managers of the Senate, of the point in dispute between the Houses, or a settlement of the same by way of modification or further amendment; but, in the case of bills, no amendment (not being a consequential amendment) shall be suggested by them to any words of a bill to which both Houses have so far agreed, unless these be immediately affected by the disagreement in question.’ This prohibition against proposing to amend something to which both houses already have agreed has its counterpart in US congressional rules and precedents.

[191] See House of Representatives Practice 2001: 444–445.

[192] This is consistent with the congressional practice that the house which agrees to the request from the other house to establish a conference committee normally acts first on the committee’s report.

[193] House of Representatives Practice (2001: 445) records that, on one occasion in 1921, three members of each house met informally to discuss an amendment that the Senate had requested to an appropriation bill. The Prime Minister reported the recommendation that these members had reached and both houses endorsed it. Consequently, the Senate did not press its request for the amendment.

[194] In 1930 and again in 1931, the House waived this standing order (House of Representatives Practice 2001: 444). At least in 1931, the Senate did not (Odgers’ Australian Senate Practice 2001: 78).

[195] In a somewhat broader context, another American observed that negotiation is not exactly at the heart of the Australian legislative process: ‘What seems odd to me ... is that after fifty years of proportional representation in the Senate and the states, Australian governments have still not internalised the art of negotiation. ... Negotiation is dragged out of governments here like pulling teeth. The experience of parliaments in Europe is that a proportional representation election generally precedes a period of negotiation. It is not a prelude to a slanging match between people who need each other, which is the Australian way because political relationships are dominated by the customary confrontational behaviour of government and opposition in the lower house.’ (Ward 2000a: 14)

[196] There is another consideration. If a bill dies in Washington because the House, the Senate, and the President cannot agree on the final version of its text, months (and as much as two years) of effort largely go to waste because the entire legislative process must begin again, and usually not until the next Congress convenes with somewhat different political divisions and a somewhat different cast of characters. In Canberra, there can be advantages to the government if it cannot reach agreement with the Senate on a bill. As we saw in Chapter 3, the House can pass the bill again and if the same deadlock occurs, the government gains the trigger it needs to secure a double dissolution.

[197] John Howard. ‘Closing Address to the Liberal Party National Convention—Adelaide SA’, 8 June 2003. Available electronically at http://www.pm.gov.au/news/speeches/2003/speech2331.htm

[198] John Faulkner. ‘Reform of the Senate’, 16 August 2003. ALP News Statement. Available electronically at http://www.alp.org.au/media/0803/20005358.html.

[199] The best discussion of this issue, certainly in the Australian context, is Goot (1999a).

[200] There are more nuanced conceptions of mandates; see, for example, Emy (1996, 1997). Our interest, however, is with how the concept is used in political discourse, not in what political theorists think it should mean or how they think it should be used.

[201] This paper was presented as an address to the Sydney Institute on 3 February 1999. The quotes that follow are taken from the web version, available through [http://www.onlineopinion.com.au/May/hand.htm].

[202] However, Coonan’s own analysis showed that the imposition of even a relatively high five per cent threshold would not have prevented election of any of the 16 minor party or Independent Senators who were elected in 1993, 1996, or 1998.

[203] Not all Members and Senators agree, at least not all the time. Senator Amanda Vanstone, a fellow Liberal Party Senator and minister, offered a different view of what democratic politics, and the Senate, are all about: ‘In politics I don’t get what I desire most of the time, but you don’t want a system where people get everything they want. People who go into politics have a degree of megalomania. You’re there, Jack, you can do whatever you like. That’s why the Senate is there, that’s why the states are there. It’s frustrating, but the citizen should be grateful for this.’ (quoted in Terrill 2000: 287)

[204] The New York Evening Mail, 15 November 1917.

[205] As we recently have observed, such a ‘constitutional’ reform can be achieved in the UK by ordinary legislation.

[206] This was not just a post hoc formulation. Nethercote (1999: 13) quotes a lecture that Whitlam gave in August 1975, several months before his dismissal, in which he asked rhetorically whether his government’s mandate in 1972 and again in 1974 had been ‘a grant of permission to preside or a command to perform’. Not surprisingly, he concluded that it was the latter.

[207] After the Republican Party took control of the US House of Representatives in 1995 for the first time in 40 years, its leaders immediately claimed a powerful mandate to enact immediately a specific catalogue of bills, known as the ‘Contract with America,’ that many of its candidates had supported during the campaign. Survey research subsequently revealed that relatively few voters knew about this ‘Contract’ or paid much attention to it or could identify its elements. Could it fairly be said, then, that the Republicans really had a mandate to enact their treasured agenda after 40 years as the seemingly permanent minority party?

[208] Emy (1997: 74) has proposed that ‘It would be desirable for the parties to agree to make a clearer distinction between core promises, on which each was seeking specific electoral endorsement, and non-core promises which would have the status rather of good intentions.’ This strikes me as impractical. No party would want to lose the flexibility that an explicit distinction between core and non-core promises would compel it to forsake. And no group of Australians would be happy to learn that the promise a party has made to meet the group’s needs or advance its interests was really just a non-core promise, a statement of good intentions. The pressure on parties to move almost all its promises into the ‘core’ would become intense and irresistible.

[209] ‘In declaring their opposition to the privatisation of Telstra as a major part of their election policy, the Democrats claimed that they had secured a mandate to oppose the sale of Telstra in the Senate. The incoming coalition government, on the other hand, argued that only governments could have mandates and that the Senate should respect its mandate to sell.’ (Mulgan 1996: 197)

[210] This is a distinction for which Goot (1999a) has considerably less sympathy than Mulgan (1996).

[211] However, Mulgan later argued, with cause, that what is important is not the empirical or logical underpinning of mandate claims, but what claims politicians make and with what effect. From this perspective, ‘The mandate is understood as a convention which allows a government after winning an election to proceed with a policy it has clearly announced during the preceding election campaign.’ (Mulgan 2000: 319)

[212] Uhr (1997: 74) speaks of mandates as magic. ‘Mandate is a magic word in the sense that it is used just as magicians use special words to conjure up extraordinary effects to reinforce their spellbinding authority.’ Both the concept and the consonance are the same.

[213] What that election victory may do, however, is enable one team of players to change the rules of the game, if it is willing and able to do so. A theme to which we shall return in the next chapter is that the continuing non-government control of the Senate, which has been critical to the contemporary revitalization of the Senate, depends on continuing to elect Senators in much the same way they are elected now. This makes the Senate vulnerable to an agreement between the government and the Opposition to change the rules of the game. There are several ways in which this might be done without appearing to change the electoral system in a fundamental way. As Senator Coonan suggested, for example, there could be a threshold imposed of some percentage of first preference votes that a minor party would have to win before it would be eligible to have any of its candidates elected to the Senate with the benefit of voters’ second and later preferences. Or states could be divided into a number of districts in each of which only one or two Senators would be chosen at each half-Senate election, which would make it far harder for any minor party or Independent candidate to secure election.

[214] The same argument can just as well be made about American presidential campaigns. The danger, of course, is that the voters of either nation may punish a candidate (or party) who resists telling them what they want to hear.

[215] ‘If a general election is fought on a single issue, in such a way as the whole election seems to turn on the question of whether or not a particular policy ought to be adopted, the victorious party can meaningfully claim to have a mandate to follow its known policy in that particular matter.’ (P.A. Bromhead, quoted in Goot 1999a: 330)

[216] In 1981, a Labor-supported bill in the Senate would have established a fixed term of four years for both houses, prevented the Senate from blocking supply in the future, and barred the Governor-General from again dismissing a government—all obviously in reaction to the events of 1975 (Souter 1988: 580–581). Faced with opposition from the Fraser Government, only the first of the three provisions survived the Senate’s deliberations. But even this truncated bill died in the House.

[217] An approach to this difficulty might be to amend the Senate’s standing orders to require it to vote on approving covered legislation within a specified period of time. But this requirement would be effective only if it could not be suspended, amended, or repealed by majority vote.

[218] As of the mid-1980s, according to Reid and Forrest (1989: 350–352), roughly two-thirds of annual expenditures from the Consolidated Revenue Fund and Loan Fund were authorized by permanent appropriations, leading them to conclude that ‘Nowadays the greater bulk of public expenditure escapes annual approval by Parliament.’ According to Odgers’ Australian Senate Practice (2001: 310) the proportion had increased to 78 per cent in 2001.

[219] Some accommodation might be necessary during the first year of a government’s life, when the budget for the prior year was not its own.

[220] If this proposal would require a constitutional amendment, it probably would be doomed unless it had strong bipartisan support. It is too easy to imagine the amendment being criticized on the grounds that it would allow the government to continue spending the people’s money, year after year after year, without anyone taking responsibility by voting for appropriation bills.

[221] However, that concern did not dissuade the House Standing Committee on Procedure from expressing the opinion in 1986 that all ministers should be Members of and responsible to the House of Representatives. (House of Representatives Practice 2001: 58–59)

[222] Another version would divide each state into three regions. During each normal half-Senate election, each region would select two Senators—almost inevitably one from Labor and one from the Coalition. The consequences for minor parties and Independents would be the same.

[223] McAllister (2001: 256) reports survey results showing that ‘combining those who wanted a directly elected President with those favouring appointment by the Parliament—a large majority of the electorate were actually in favour of the introduction of a new system of government. Indeed, according to the survey, just 24% of those interviewed favoured the retention of the current system.’

[224] As I read the Constitution Alteration (Establishment of Republic) 1999 Bill, as passed by both houses (but then rejected by the voters), the prime minister could remove a President at any time and for any reason (proposed sec. 62). However, that bill provided for Parliament to select the President. If the President were directly elected instead, the Constitution surely would not permit any President to be removed from office without cause and without a formal proceeding that leads to a vote in Parliament. But assume for the moment that the proposed sec. 62 was in force. Then once the prime minister removed our hypothetical President, the longest-serving state governor, regardless of party, would act as President until the Parliament approved his successor or unless the Parliament had made some different arrangement to fill presidential vacancies (proposed sec. 63). It is quite possible, therefore, that invoking these provisions would not solve our prime minister’s legal problems, and certainly not his political ones. He could find himself faced with an acting President who also opposes his government’s policies. He also would have to go through the procedures of the proposed sec. 60 before a new President could take office. These procedures involve receiving the report of a nominating committee and then convening a joint sitting of both houses of the Parliament, all of which could become time-consuming. Moreover, the choice of any President would require the concurrence of the Leader of the Opposition in the House, who could withhold his approval, arguing that the voters need to resolve the policy conflict by electing a new government and that the new prime minister should be the one to nominate the new President (subject, of course, to the approval of the new Leader of the Opposition, who might well be the former prime minister).

[225] Irving (2000: 114) has made a similar suggestion with regard to the office of Governor-General. ‘It would be quite possible constitutionally to have a parliamentary choice, even a direct popular election, for the Governor-General, leaving the Constitution itself undisturbed, with the name of the chosen candidate going forth as the Prime Minister’s nominee to the Queen ... ’

[226] There is an alternative, he acknowledges, but not an appealing one. ‘[T]he combination of low legitimacy and high powers has the bad effect of making tension between the head of state and the head of government a matter which has the potential to raise serious constitutional disputes. The question of a remedy to this situation can be approached by either increasing the legitimacy of the office or reducing its powers. ... Increasing the legitimacy by having the head of state directly elected, while leaving the powers of the governor-general/president as they are, would create the monster of a United States presidency coupled with a parliamentary executive ... ’ (Sharman 2001: 176–177)

[227] The discussion that follows draws heavily and freely on my paper, ‘A Delicate Balance: the Accidental Genius of Australian Politics,’ presented at Parliament House, Canberra, on 28 February 2003, as part of the Australian Senate Occasional Lecture Series. http:www.aph.gov.au/Senate/pubs/occa_lect/transcripts/280203.pdf.

[228] The concept of checks and balances is distinguishable from beliefs about the appropriate range and scale of governmental activity. Some authors of the Constitution certainly preferred the most limited government, and especially the most limited central government, that was practical. However, I believe that Sawer (1977: 139) was partly mistaken in asserting that ‘“checks and balances” is an eighteenth-century American notion based on a suspicion of all government, and a desire to ensure that governments performed the minimum of functions.’ (emphasis added) The challenge to modern democratic life, as Sawer recognized, is the product of the widespread belief that Twenty-first Century governments need to be much more powerful, and have a far broader reach, than Eighteenth Century governments. This does not mean, however, that checks and balances have become outmoded. To the contrary, they are more essential than ever before. Sawer (1977: 140) argued that a modern democratic government ‘committed to economic management and a multitude of welfare services ... is not possible if the initiatives of a government based on a House of Representatives majority are to be constantly “checked” by a hostile majority in the Senate, as the American Founders expected their two Houses of Congress and President, elected separately and at different intervals, to “check” each other so that laws would be few and administrative activity negligible.’ (emphasis added) It is true that checks and balances sometimes can slow the wheels of government and certainly can require governments to make compromises that are distasteful to them, and it also is true that the reach of the Australian central government may be greater than that of the American. Still, I doubt that any observer of American society would contend that the checks and balances built into the US Constitution prevented an extraordinary expansion of federal powers and activities during the Twentieth Century.

[229] In addition to the other rationales for bicameralism that it offers, Odgers’ Australian Senate Practice (2001: 4) holds that ‘Bicameralism is also an assurance that the law-making power is not exercised in an arbitrary manner. Such an assurance is of considerable practical significance in parliaments where the house upon which the ministry relies for its survival is liable to domination by rigidly regimented party majorities.’ (emphasis added)

[230] In similar fashion, a New Zealand government publication even listed, as the first of the major elements of the Westminster model, that ‘important parts of the constitution remain unwritten.’ New Zealand Electoral Commission (1996), Voting Under MMP. GP Publications.

[231] I am hardly reassured by de Smith’s observations (quoted by Hughes 1980: 41) that ‘Some conventions are clear-cut; some are flexible; some are so elusive that one is left wondering whether the “convention” is an ethereal will-o’-the-wisp. It is often particularly hard to say whether a political practice has crystallized into a constitutional convention and, if so, what is its scope.’

[232] Ward (2000b: 121) argues that some of the Australian attempts to codify conventions foundered because too many practices of government were included on the lists of conventions that required codification. He reports, for example, that one such effort included among the conventions to be codified the practices that ‘the Governor-General [is] to appoint a Prime Minister he judges to have the support of a majority in the lower house,’ and that he is ‘to consult the outgoing Prime Minister about a successor.’ Surely such common-sense practices do not require or deserve constitutional standing. All that matters ultimately is whether a new prime minister and government enjoy the confidence of a majority in the House of Representatives. The process of forming that new government is expedited and simplified, of course, if the Governor-General has the good sense to consult with those who best understand the mind of the House and if he then selects the obvious candidate, but it hardly is necessary to transform such obvious practices into constitutional requirements. If the Governor-General should fail, for whatever reason, to appoint the House’s choice for a new prime minister, a majority in the House would have little difficulty in securing the House’s consideration and adoption of a resolution expressing its will to the Governor-General. That is just what the House did in the first hours after Whitlam’s dismissal in 1975 when the House voted, too late as it turned out, to express its lack of confidence in the caretaker Fraser Government and called upon the Governor-General to ask Whitlam to form a new government.

[233] My admiration also extends to the many fine men and women whom I have come to know and who have dedicated their professional lives to the service of the Senate and the House of Representatives, sometimes under rather trying conditions, such as the evening sessions which must strain the family lives of those who actually make Canberra their home, not a place they visit for a few weeks of some months. I especially want to make it clear that I would not want my qualms about the House of Representatives to reflect in any way on the skills and dedication of the people who serve it.

[234] I acknowledge, but from a safe distance, the disagreements about the meaning of ‘responsible government’. On this, see the essays by Archer, Parker, and Thompson in Weller and Jaensch (1980).

[235] This argument is compatible with Harry Evans’ advocacy of ‘distributed majorities’. ‘If institutions require, for the making of major political decisions, the support of majorities distributed across different groups in society and different regions, factious government and the growth of alienated and disaffected minorities are discouraged, and government is made more acceptable and stable.’ At first, the equal representation of states in the Senate created the need for majorities that were distributed geographically. Later, the adoption of PR came to require ‘an ideologically distributed majority for the passage of legislation through the Senate, a majority distributed over the political parties which receive a significant share of votes.’ (Evans 1994: 28–29) Actually, what creates the kind of distributed majority to which Evans refers is the fact that different majorities control the two houses. So legislative decisions must take account of the preferences of more parties than those constituting the majority in the House. The basis of Senate representation or the mode of Senate elections is less important than that the two houses are constituted sufficiently differently so as to produce, as a matter of course, different majorities in each. Consider Brennan’s (1999: 1) thesis that, ‘If one believes ... that good government is, like the amateur golfer’s swing, a mass of compensating errors, then a good case might be made for the use of PR in the Senate without requiring one to decide on whether PR is, in a global sense, a better electoral system than the single-member electoral district system that characterises the House of Representatives. One might take the view that there is something to be said for both multiple-member (PR) and single-member districts, and conjecture that the Australian bicameral system serves to exploit the advantages of each.’

[236] This was not necessarily assumed at the time. Epstein (1976: 27), for example, wrote that, ‘in the immediate aftermath of the 1975 election, there is good reason to accept the widespread assumption that the Senate has established its power to force a general election. ... [I]n political practice, the 1975 election result provides sufficient indication of popular acquiescence to serve as a precedent for subsequent blockage of supply by the Senate.’

[237] I have been told that many Australians admire the US Constitution more than they appreciate their own, and that they may be better able to identify the drafters who met in Philadelphia than those who divided their time among Adelaide, Melbourne, and Sydney. It is undoubtedly true that, for many Americans, their constitution has been elevated to the status of a sacred though secular text, but one that very few have read since their early school days. In the midst of the 1975 crisis, Gareth Evans wrote in The Australian (29 October 1975: 11) that ‘The Australian Constitution is not a blood-stirring document. Unlike its United States counterpart, it has never been much recited in schoolrooms or bar-rooms.’ I suppose he was mistaking the Constitution for the Declaration of Independence (the preamble of which I did have to recite as a schoolboy), but even in that case, I would be truly amazed—and equally disappointed—to learn that such bar-rooms actually exist.

[238] I think it is useful to maintain a distinction between the two. Otherwise, meanings and arguments can lose their clarity. In Odgers’ Australian Senate Practice (2001: 10), it is argued, for example, that ‘The representative character of the Senate has enabled it to uphold the responsibility of governments to Parliament. ... [Because of the unusually strong party discipline in Australia,] the need for alternative parliamentary avenues for holding a government to account is pronounced, and this need in Australia is supplied by its elected Senate. ... The Senate when functioning as a repository of and forum for responsibility is thus more than a mere venue for a clash between government and Opposition working on the basis of pre-determined numbers. Governments have therefore been held to account in the Senate more effectively than in a house where they are always supported by a party majority.’ (emphasis added)

[239] To students of the US Congress, this is an unconventional notion of accountability. The study of Congress often—too often, actually—tries to separate the legislative work of Congress from its oversight activities.

[240] I do not mean to suggest that he was not aware that his prescription closely tracked the Commonwealth Constitution. He was. It also should be noted that his constitution also would incorporate an entrenched Bill of Rights.

[241] The scrutiny activities of Senate committees have become well enough entrenched to have entered popular culture. A recent novel centering around Aussie Rules football opens with the hero/narrator speculating on espionage in sports and imagining himself ‘giving evidence before a senate committee, how approaches were made, cash dangled under my nose ... ’ (Wearne 1997: 1) This may not qualify as scientific proof, but it is a telling example of what have been called ‘unobtrusive measures’ of social phenomena.

[242] Bennett (1996: 82) has pointed out that, in recent decades, PR has been introduced for upper house elections in New South Wales, South Australia, and Western Australia (and proposed in Victoria). ‘It is now close to an Australian norm,’ he argues, ‘that preferential voting is used for lower houses and PR for upper houses, and a government that attempted to alter this pattern might find many voters antagonized by what would be portrayed as a government attempting to distort the electoral system for its own ends.’ As the proposal for multi-member Senate districts or regions indicates, however, there are ways to reshape electoral outcomes while arguing that PR is not being abandoned, and that only the form of PR is being changed.

[243] I put aside as unknowable how the High Court might rule on the boundaries of Senate power, and if, when, and why it might invoke conventions as the basis for limiting that power.

[244] This certainly is not an original argument; see Uhr (2002a), among others.

[245] Jackson (1995: 46) cites a newspaper report of Prime Minister Keating saying in 1994 to Senator Kernot, Leader of the Australian Democrats, that ‘We can get rid of you lot, that little tin pot show you run over there.’

[246] Note to American readers: it would take another book to explain this comparison adequately; suffice it to say that what I envision would not be a pretty sight.

[247] Sec. 128 of the Constitution allows the Governor-General to submit a proposed constitutional amendment to a national referendum if the proposal is passed twice by either house, even if the other house rejects it on both occasions. In these matters the Governor-General would be expected to act on the advice of the government. Thus it is highly unlikely that a proposal passed by a hostile Senate and rejected by the House of Representatives would be put to a referendum.

[248] Though I ask readers familiar with German politics to forgive the simplifications in what follows.

Back to top


Facebook LinkedIn Twitter Add | Email Print
Back to top