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Chapter 1 - The
Senate and its constitutional role
The Senate,
bicameralism and federalism
When the Australian Constitution was drawn up in the 1890s, two
principles were accepted by the framers of the Constitution as its foundations.
These principles were not varied during the long process of amendment of the
draft Constitution.
The first was that Australia would be a federal nation, formed by the union of the
self-governing states, in which the people of each state would elect their
state parliaments to exercise state responsibilities, and the people of the
whole nation would elect a national parliament to exercise specified national
responsibilities.
The second principle was that the national legislature, the Parliament
of the Commonwealth, would consist of two houses, one representing the people
as a whole and one representing the people voting by their states, and that the
consent of both houses would be necessary for the passing of laws.
These principles were repeatedly stated during the debates on the draft
Constitution:
....it is accepted as a fundamental
rule of the Federation that the law shall not be altered without the consent of
the majority of the people, and also of a majority of the States, both speaking
by their representatives ... (Samuel Griffith, quoted by Richard Baker,
Australasian Federal Convention, 23 March 1897, p. 28)
....the great principle which is an
essential, I think, to Federation — that the two Houses should represent the people truly,
and should have co-ordinate powers. They should represent the people in two
groups. One should represent the people grouped as a whole, and the other
should represent them as grouped in the states. Of course majorities must rule,
for there would be no possible good government without majorities ruling, but I
do not think the majority in South
Australia should be governed by the
majority in Victoria, or in New
South Wales. .... If we wish to defend
and perpetuate the doctrine of the rule of majorities, we must guard against
the possibility of this occurring. (John Cockburn, Australasian Federal
Convention, 30 March 1897, p. 340)
Senators were to
represent the people of the states, not state governments. Suggestions
that are occasionally made that senators should be appointed by state governments
are therefore misconceived. Nor was it intended that senators vote in state
groups or according only to their assessment of state interests; the function
of ensuring that the legislative majority is geographically distributed does
not require such behaviour.
The choice by the framers of the Constitution of a federal system also
involved the national government consisting of three branches, the legislature
(the law-making body), the executive (the body which administers the laws), and
the judiciary (the body which interprets the laws, including the Constitution,
and applies them to particular cases). The Australian Constitution therefore
establishes as the legislature the Parliament of the Commonwealth of Australia,
as the executive the monarch, represented in Australia by the Governor-General, and as the judiciary the High
Court of Australia, with other federal courts established by the Parliament.
Unlike the framers of the United States constitution, however, the Australian founders did not
confer the effective executive and legislative powers on separate bodies.
Instead, they adopted the British system of responsible or cabinet government,
in which the executive power, nominally held by the monarch represented by the
Governor-General, is actually exercised by ministers who are
also members of Parliament. It was envisaged, though not specified in the
Constitution, that these ministers would hold office only so long as they had
the support of a majority of the House of Representatives. This system, which
had emerged in Britain only in the 50 years or so before the Australian Constitution was
drawn up, had operated in each of the Australian states, and the founders
wished to adopt it largely because of its familiarity.
A significant minority of delegates at the constitutional conventions
wished to abandon this system of cabinet or
responsible government at the national level and to confer the executive power
on a separately elected body. One of their reasons for proposing this was that
they contended that the federal system would be incompatible with the British
system of cabinet or responsible government, because the federal system
required equality of powers between the two houses of the legislature. Their
apprehensions were subsequently realised, to the extent that, with the rise of
highly disciplined political parties, the House of Representatives came to be completely
controlled by the ministry with a party majority in the House.
In Australia’s Commonwealth Parliament bicameralism is therefore a
product of constitutional intent and design, not of evolutionary process. The
Senate and the House of Representatives are creations of the same process of
constitutional design. The design of the Senate followed the United States Senate
in several aspects: equality of state representation; six year terms; and
election of senators by rotation. It was, however, an innovatory design so far
as the Senate was concerned. The Senate from the beginning was directly elected
by the people, unlike its United States counterpart, which was indirectly elected until 1913.
The name “Senate” was carefully chosen. In the 1897 draft it was called
the “States Assembly”, for the reason that it was to be the house representing
the states as distinct entities and the house which had the custody of the
states’ interests. At the Adelaide convention of 1897 the name “States Assembly” was
struck out and the name “Senate” inserted (13 April 1897, pp 481-2). This
restored the proposal of the 1891 draft. The name “Senate” is appropriate
because, as was said in the debate on the amendment, its responsibilities
affect the nation as a whole as well as of the constituent states. It has the
further advantage of according its members the distinctive title of “senator”.
A major effect of federalism is that the Parliament of the
Commonwealth, like the United States Congress, is not even nominally a sovereign
parliament: its powers are limited by the Constitution. The British and New
Zealand Parliaments, on the other hand, are nominally sovereign in that, in
theory, their power to legislate on any matter is unrestricted in the absence
of limiting constitutions.
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