 |
Chapter 1 - The
Senate and its constitutional role
Rationale of
bicameralism
The principle of bicameralism has a long history. As well as being
practised by many states since ancient times, it has also been expounded by the
leading philosophers and practising politicians in the course of the
development of modern nations.
Bicameralism is in practice necessary to achieve a parliament truly
representative of the people. Bicameralism helps to improve and enhance the
representative quality of a parliament and to ensure that it is representative
in a way in practice not achievable in a unicameral parliament. Modern
societies are complex and diverse; no systems of representation are, of
themselves, capable of providing a truly representative assembly. Adequate
representation of a modern society, with its geographic, social and economic
variety, can be realised only by a variety of modes of election. This is best
achieved by a bicameral parliament in which each house is constituted by distinctive
electoral process. A properly structured bicameral parliament ensures that
representation goes beyond winning a simple majority of votes in one election,
and encompasses the state of electoral opinion in different phases of
development.
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.
The rationale of bicameralism is expounded in clearest
terms in The Federalist, the famous essays
written in 1787-88 by Alexander Hamilton, James Madison and John Jay to explain the Constitution of the United States. This work, which
was referred to by the Australian framers, warned that those administering
government “may forget their obligations to their constituents, and prove
unfaithful to their important trust ... a second branch of the legislative
assembly, distinct from, and dividing the power with, a first, must be in all
cases a salutary check on the government. It doubles the security to the
people, by requiring the concurrence of two distinct bodies in schemes of
usurpation or perfidy, where the ambition or corruption of one, would otherwise
be sufficient” (No. 62, Everyman ed., p. 317).
In so arguing The Federalist adopted the French philosopher Montesquieu’s proposition
that: “The legislative body being composed of two parts, they check one another
by the mutual privilege of rejecting” (The Spirit of the Laws, 1748,
Hafner Press, 1949, p. 160). Montesquieu was aware of the implications of a
single representative body liable to domination by the executive power, a condition
observable in many assemblies of the British or Westminster type in which
legislative and executive power are combined. He warned that “When the
legislative and executive powers are united ... there can be no liberty” (ibid.,
p. 151).
The Federalist also drew attention to the value of a second,
reflective expression of representative opinion. Pointing to “the propensity of
all single and numerous assemblies ... to yield to the impulse of sudden and
violent passions, and to be seduced by factious leaders, into intemperate and
pernicious resolutions”, The Federalist urged the contribution of a
second body, less numerous and able “to hold its authority by a tenure of
considerable duration” (ibid.). Such a second body responds to “the
necessity of some stable institution in the government”.
The Federalist, in urging the utility of the second opinion, invoked
not only arguments drawn from political prudence but also others deriving from
the “whole system of human affairs, private as well as public”:
We see it particularly displayed in all
the subordinate distributions of power; where the constant aim is to divide and
arrange the several offices in such a manner as that each may be a check on the
other; that the private interest of every individual, may be a sentinel over
the public rights. These inventions of prudence cannot be less requisite in the
distribution of the supreme powers of the state. (The Federalist, No.
51, pp 264-5)
A philosopher who gave close attention to the question of bicameralism
was John Stuart Mill in his great
treatise, Representative Government (1861). Mill was acutely
conscious of the limitations which a house elected on the basis of single
member constituencies posed for representation. Mill, writing in a period prior
to the rise of the organised political party and party discipline in
Parliament, attached little weight to a number of the arguments for
bicameralism of the type found in The Federalist. But the principal
reason he offered for supporting a Parliament with two Houses is pertinent to
any contemporary consideration of this issue:
The consideration which tells most, in
my judgment, in favour of two Chambers (and this I do regard as of some moment)
is the evil effect produced upon the mind of any holder of power, whether an
individual or an assembly, by the consciousness of having only themselves to
consult. It is important that no set of persons should, in great affairs, be
able, even temporarily, to make their sic volo prevail without asking
any one else for his consent. A majority in a single assembly, when it has
assumed a permanent character — when composed of the same persons habitually acting
together, and always assured of victory in their own House — easily becomes
despotic and overweening, if released from the necessity of considering whether
its acts will be concurred in by another constituted authority. The same reason
which induced the Romans to have two consuls makes it desirable there should be
two Chambers: that neither of them may be exposed to the corrupting influence
of undivided power, even for the space of a single year. One of the most
indispensable requisites in the practical conduct of politics, especially in
the management of free institutions, is conciliation: a readiness to
compromise; a willingness to concede something to opponents, and to shape good
measures so as to be as little offensive as possible to persons of opposite
views; and of this salutary habit, the mutual give and take (as it has been
called) between two Houses is a perpetual school; useful as such even now, and
its utility would probably be even more felt in a more democratic constitution
of the Legislature. (Everyman edition, pp 325-6)
Mill thus shared the views of Montesquieu and The Federalist in identifying the virtue of
the two Houses as a check on each other.
Bicameralism was addressed from a similar perspective by Walter Bagehot in another classic
of political literature, The English Constitution (1867). While not an
admirer of the principle of division of power exemplified by the American
Constitution, Bagehot recognised the virtue of a second house not easily captured by a
disciplined majority:
A formidable sinister interest may
always obtain the complete command of a dominant assembly by some chance and
for a moment, and it is therefore of great use to have a second chamber of an
opposite sort, differently composed, in which that interest in all likelihood
will not rule.
The most dangerous of all sinister
interests is that of the executive government, because it is the most powerful.
It is perfectly possible — it has happened, and will happen again — that the
cabinet, being very powerful in the Commons, may inflict minor measures on the
nation which the nation did not like, but which it did not understand enough to
forbid. If, therefore, a tribunal of revision can be found in which the
executive, though powerful, is less powerful, the government will be the
better; the retarding chamber will impede minor instances of parliamentary
tyranny, though it will not prevent or much impede revolution. (The English
Constitution, in Norman St John-Stevas (ed), The Collected Works of
Walter Bagehot, London, The Economist, vol. 5, pp 273-4)
The framers of the Australian Constitution inherited this collective
wisdom. When they combined it with their decision that Australia should be a
federal nation, they found the case for a strong second chamber irresistible:
There are two essentials — equal
representation in the Senate and for that body practically co-ordinate power
with the House of Representatives. All those who recognise what are the
essentials to a true union will admit these essentials. (John Gordon, Australasian
Federal Convention, 30 March 1897, p. 326)
We are not here to discuss abstract
principles, we are not here to discuss the meaning of words; but I venture to
think that no one will dispute the fact that in a federation, properly so
called, the federal senate must be a powerful house .... We are to have two
houses of parliament each chosen by the same electors .... We are to have,
instead of a highly centralised government such
as they have in Great Britain, a division of powers.... (Richard Baker, Australasian
Federal Convention, 17 September 1897, pp 784, 789)
The Constitution
reflected their conclusion that, in order to perform the representative role
assigned to it, the Senate, like its United States counterpart, must have the power to veto and to suggest
changes to any proposed law. It could not be merely a debating and delaying
chamber.
Previous Page | Contents | Next Page
Website feedback: web.senate@aph.gov.au
Last reviewed 2 February 2010 by the Senate Web Administrator
© Commonwealth of Australia
Parliament of Australia Web Site Privacy Statement
Images courtesy of AUSPIC
|
 |
