Chapter 1 - The
Senate and its constitutional role
Functions of the Senate
The functions of the Australian Senate
may be summarised as follows:
(1) As an
essential of federalism, to ensure adequate representation of the people of all
the states, the main elements being:
(a) equal
representation of the people of the Original States;
(b) equal
legislative powers: except for the financial initiative, powers which, in
effect, are equal to those of the House of Representatives: the Senate cannot
be compelled to pass any proposed legislation; except for certain financial
bills it has unrestricted right of amendment; in respect of those money bills
which it cannot amend, the Senate has the right to make, and to insist on,
requests to the House of Representatives for amendments.
(2) To
balance domination of the House of Representatives by members from the more
populous states whereby, of 150 members, 115 represent the three eastern states
of New
South Wales, Victoria and Queensland.
(3) To
provide representation of
significant groups of electors not able to secure the election of members to
the House of Representatives.
(4) To
review legislative and other proposals initiated in the House of
Representatives, and to ensure proper consideration of all legislation.
(5) To
ensure that legislative measures are exposed to the considered views of the
community and to provide opportunity for contentious legislation to be subject
to electoral scrutiny. The Senate’s committee system has established a formal
channel of communication
between the Senate and interested organisations and individuals, especially
through developing procedures for reference of bills to committees.
(6) To provide
protection against a government, with a disciplined majority in the House of
Representatives, introducing extreme measures for which it does not have broad
community support.
(7) To
provide adequate scrutiny of financial measures, especially by committees
considering estimates.
(8) To
initiate non‑financial legislation. The Senate’s capacity to initiate
proposed legislation effectively means that the Parliament is not confined in
its opportunities for considering public issues in a legislative context to
those matters covered by bills brought forward by the executive government.
(9) To probe and check the
administration of the laws, to keep itself and the public informed, and to
insist on ministerial accountability for the government’s administration. The
informing function is well expressed in the following statement by Woodrow Wilson, President of the
United States, 1913-21:
It is the proper duty of a representative body to look
diligently into every affair of government and to talk much about what it sees.
It is meant to be the eyes and the voice, and to embody the wisdom and will of
its constituents. Unless Congress have and use every means of acquainting
itself with the acts and the disposition of the administrative agents of the
government, the country must be helpless to learn how it is being served; and
unless Congress both scrutinise these things and sift them by every form of
discussion, the country must remain in embarrassing, crippling ignorance of the
very affairs which it is most important that it should understand and direct.
The informing function of Congress should be preferred even to its legislative
function. (Congressional Government, 1885, Meridian, 1956, p. 193.)
(10) To
exercise surveillance over
the executive’s regulation-making power. In the exercise of
this function, either House may disallow a regulation made by the executive
government, and the concurrence of the other House in the vote of disallowance is
not necessary. This gives the Senate a special character not, in practice,
enjoyed by the House of Representatives, where, because it is dominated by a
disciplined majority supporting the government, the carrying of a disallowance
motion is rare. It has been mainly in the Senate that the executive
government’s use of its regulation‑making power has been effectively
scrutinised.
(11) To protect personal rights and
liberties which might be endangered if there were a concentration of
unrestrained power in the House of Representatives. The protection of the
rights and liberties of citizens is a feature of the Senate’s consideration of
proposed legislation, the executive’s regulation‑making power, and
administrative decisions. Major avenues for meeting these responsibilities of
the Senate are the Standing Committees
for Scrutiny of Bills and Regulations and
Ordinances.
(12) Because the Senate is
rarely dominated by either of two major sides of Australian politics, to
provide effective scrutiny of governments, and enable adequate expression of
debate about policy and government programs. The significance of the Senate’s
role in these functions is that it is an elected and parliamentary forum. Other
outlets for such debates in the community, for example, public conferences or
press, radio and television, are not inherent institutions of democracy, though
vital to it. As a parliamentary forum, moreover, the Senate is one place where
a government can be, of right, questioned and obliged to answer. As such the
Senate has been rightly seen as the safeguard of the Commonwealth.
Armed as it is by
the Constitution with
extensive powers, it is in the judgment of the Senate of the day to decide
whether or not to insist on any of its legislative amendments disagreed to by
the House of Representatives, or in certain cases to refuse to pass a bill at
all.
As such power should be used circumspectly and wisely, factors which
the Senate may take into account in reaching such decisions include:
(1) A
recognition of the fact that the House of Representatives represents in its
entirety, however imperfectly, the most recent choice of the people whereas,
because of the system of rotation of senators and except in the case of
simultaneous dissolution of the two Houses, one‑half of the Senate
reflects an earlier poll.
(2) The
principle that in a bicameral parliament one house shall be a check upon the
power of the other.
(3) Whether
the matter in dispute is a question of principle for which the government may
claim electoral approval. The Senate is
unlikely to resist legislation in respect of which a government can truly claim
explicit electoral endorsement, but the test is always likely to be the public
interest.
(4) The
right of the Senate to examine all measures of public policy.
Significant
occasions of the exercise by the Senate of its functions are recorded in the
relevant chapters of this work and in appendix 10, Chronology of the Senate,
1901-2008.
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