Chapter 1 - The
Senate and its constitutional role
The nexus
The Constitution
provides that the number of members of the House of Representatives “shall be,
as nearly as practicable, twice the number of the senators” (s. 24). This not
only ensures an appropriate balance between the Houses in terms of their
representational roles; it also places limits on the extent to which the House
of Representatives can prevail over the Senate in the event of a joint sitting
following a simultaneous dissolution: essentially, a proposed law must be
supported by something more than a bare majority in the House if it is to have
a prospect of securing a majority in a joint sitting.
A proposal to alter the Constitution to remove this so-called nexus
between the Senate and the House was rejected by the electors at referendum in
1967. The purpose of that proposal was to allow expansion of the size of the
House without increasing the size of the Senate.
The Constitutional
Commission of 1986-88, however, revived the proposal. The Commission’s approach
recognised that the nexus plays two roles: one in regulating (but not limiting)
the size of the Parliament; the other in the procedures governing a
disagreement between the Houses. Other methods were proposed for containing the
size of the Parliament; these would place limits on the size of the Senate
without any comparable limits on the size of the House of Representatives. To
address the situation arising in the case of joint sittings the Commission
proposed a special majority to take account of the effect which ending the
nexus would have on voting in that context.
The Commission’s
analysis, however, did not include any consideration of the representational
significance of the Senate, particularly its role in enabling opinion virtually
excluded from the House of Representatives by the single member electorate
system to be represented in Parliament. The Commission’s approach was hostile
to democracy in that it showed little concern for a role in Parliament for
parties or individuals enjoying significant electoral support but unable to
gain representation in of the House of Representatives.
Maintaining the Senate’s capacity as a chamber broadly representative
of both majority and minority electoral opinion in Australia is critical to its
continuing legitimacy as a House with powers essentially equal to those of the
House of Representatives, and to the role accorded to it in a joint sitting.
Another link between the two Houses is that, apart from provisions in
the Constitution, electoral legislation for each House requires the support of
both Houses. Thus, while in internal matters each House governs itself,
elections for each House are governed by legislation. This is appropriate in a
constitutional democracy.
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