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1
Introduction
On my first full day in Australia, I visited the Sydney Aquarium where my encounter with an energetic
platypus reminded me of a comparison between the platypus and the Parliament of
the Commonwealth of Australia.[1]
In his essay, ‘To Be a Platypus,’ in Bully for
Brontosaurus (1991), Stephen Jay Gould judges that the platypus ‘surely
wins first prize in anybody’s contest to identify the most curious mammal’
because of ‘its enigmatic mélange of reptilian (or birdlike), with obviously
mammalian characters.’ (Gould 1991: 270) Not surprisingly, there had been a
debate among Nineteenth Century scientists about how best to classify the
platypus:
During the half-century between its discovery and Darwin’s Origin
of Species, the platypus endured endless attempts to deny or mitigate its
true mélange of characters associated with different groups of vertebrates.
Nature needed clean categories established by divine wisdom. An animal could
not both lay eggs and feed its young with milk from mammary glands. (Gould
1991: 275)
Gould sympathizes with those who rejected attempts to force
the platypus to fit into the then-prevailing taxonomic structure, arguing that ‘Taxonomies
are guides to action, not passive devices for ordering.’ (Gould 1991: 274) He
also disposes of the argument that, because of its mélange of characters, the
platypus must be primitive, inefficient, or defective. Quite the contrary, he
argues. The platypus is ‘a bundle of adaptations’ that make it ‘a superbly
engineered creature for a particular, and unusual, mode of life.’ It is ‘an
elegant solution for mammalian life in streams—not a primitive relic of a
bygone world.’ (Gould 1991: 276-277)
It requires no great astuteness, especially on the part
of any Australian readers, to understand the relevance of the platypus to this
study of the Commonwealth Parliament and especially the Senate of Australia.
Both the platypus and the Parliament are uniquely Australian creations. Both
display characteristics of two categories of things normally thought to be
alternatives to each other: reptiles and mammals in the case of the platypus;
parliamentary and strong bicameral regimes in the case of the Parliament. For
this reason, both have been criticized as defective or logically incoherent.
Yet a more persuasive argument can be made that the Parliament, like the
platypus, also is ‘a bundle of adaptations’ that make it ‘an elegant solution’
to the challenges posed by the context of democratic governance in Australia.
So when I link the Commonwealth Parliament with the
platypus, I do so with no intent to disparage one or the other.[2] (Many Australians
are no more fond of their Parliament and its members than many Americans are of
their Congress and its members, so I might be thought to be insulting the
platypus, not the Parliament.) Instead, I choose this characterization, first,
to emphasize the combination of elements that makes the Parliament a
distinctive institution, and, second, to point to the most interesting question
about it: how well have these seemingly inconsistent and even incompatible
elements been joined together to make a political system that works?
These elements are the combination of responsible government and federalism, with the latter reflected in what Arend Lijphart calls ‘strong bicameralism’. In fact, Australia is one of five
contemporary regimes (the others being Colombia, Germany, Switzerland, and the United States) that he categorizes under the heading of ‘strong
bicameralism’ because its two houses are symmetrical and incongruent. ‘Symmetrical
chambers are those with equal or only moderately unequal constitutional powers
and democratic legitimacy.’ ‘Incongruent chambers’ are ‘elected by different
methods or [are] designed so as to over-represent certain minorities.’
(Lijphart 1999a: 206–207) If the two houses of an assembly are more or less
symmetrical in their powers, neither has the constitutional authority to
dominate the other. If they also are incongruent in their mode of election,
they are likely to differ in their partisan composition. In a strong bicameral
system, therefore, there is the prospect of conflict between the two houses,
neither of which easily can impose its will on the other.
Such is the situation today in the Commonwealth
Parliament of Australia, which has had symmetrical chambers since the beginning
of the Federation in 1901 and incongruent chambers since the introduction in
1949 of proportional representation (PR) for electing Senators. Here is
Lijphart on strong bicameralism in Canberra:
The House of Representatives and the Senate in Australia do
not have equal power, but by comparative standards the Senate is a very
powerful body, and the relationship between the two houses can therefore be
classified as only moderately asymmetrical; moreover, both houses are popularly
elected. The two houses are also clearly incongruent in their composition. They
already qualify for the label of strong bicameralism in this regard as a result
of the equal representation of the states in the Senate in spite of the states’
highly unequal populations—a feature of many federal systems. The difference in
the methods of election—the majoritarian alternative-vote system for the House
of Representatives and PR for the Senate—makes the two houses even more different
in composition and reinforces their incongruence. STV [the single transferable
vote] therefore has the effect of strengthening bicameralism and also the
federalist character of Australian democracy on the second dimension. (Lijphart
1999b: 57–58)
An informed observer opened his generally sympathetic portrait of the Australian Parliament by writing of Prime Minister Gough Whitlam’s 1972–1975
Labor Government that:
At no stage did the Labor government have control of the
Senate, so its legislative program was constantly under threat. In those three
years the senate [sic] rejected more legislation than it had in its previous
71-year history. The government could never be certain that any particular bill
would be passed, or even when it would be considered, by the upper house. This
led to political as well as legislative problems for the government whose term
could be threatened (and was eventually ended) by actions of the Senate. The
timing of elections was largely dictated by questions of parliamentary
tactics and by the government’s opponents. (Solomon 1978: 9)
As this quotation suggests and as we shall explore in
Chapter 4, the Whitlam Government was as unusual as was the manner of its
demise. Nonetheless, this description is certainly not what we would expect to
read about any government and parliament in the Westminster tradition. And in
fact, what makes the Australian political system so interesting is precisely how
it combines, by constitutional arrangement and statutory choice, some of the
essential features of a parliamentary regime with other features that can put
at risk a core relationship of such a regime—the responsibility of government
to the house of Parliament which selects that government and invests it with
its powers. Paradoxically enough, as I shall argue, the very features that
jeopardize the responsibility of government to parliament are precisely those
that hold out the possibility of ensuring the accountability of government to parliament.
Those features that put parliamentary responsibility at
risk centre on the constitutional powers of the Senate, which in turn reflect
the federal character of the Commonwealth that was established in 1901 by
separate colonies sharing the same continent. Just as the ‘grand compromise’ of the American Constitution created a bicameral legislature in which the two houses enjoy almost the same powers, the authors of the Australian Constitution
agreed to much the same arrangement (though the nature and extent of the Senate’s
powers have been and remain a source of contention). And just as one house of
the US Congress has two members elected from each state, regardless of
population, so too do the Australian states enjoy equal representation in its
Senate even though they also differ dramatically in population. And just as the
US Senate differs from the House of Representatives in other ways, especially
the length of terms, that can contribute to inter-cameral tensions and
legislative disagreements, so too are there potential sources of tension and
conflict between the Senate and House of Representatives in Canberra, deriving
not only from different lengths of terms but from different methods of
election.
Within a decade after 1949, when Australia began
electing its Senators by proportional representation, the government and its
dependable majority in the House began confronting a Senate that usually has
had a non-government majority. Yet all legislation, including all those
measures nearest and dearest to the hearts of each prime minister and cabinet,
must be approved in both houses. (A double dissolution is a device to
circumvent the requirement for Senate approval but, as we shall see, it is a
cumbersome one that has been invoked only once in a century.) In short, the government
is responsible to the House but its ability to secure passage of its
legislative program, even its budget, is at the mercy of both the House and the
Senate.
One of the major themes in recent analyses of the US national political system has been the frequency and consequences of divided
government—when a President of one political party confronts one or both houses
of Congress controlled by the other party. In a classic parliamentary system, such divided government is impossible by definition: a government
remains in office only so long as it enjoys the support, or at least the
acquiescence, of a majority in Parliament or in the only house of Parliament
that matters. But in Australia, with its strong bicameralism, both houses
matter. So when the government lacks a secure majority in the Senate, that too
is a form of divided government.
Richard Broome describes the climactic stage of
enactment by Australia’s Parliament of the Native Title Act 1993, a landmark law affecting Aboriginal land rights:
Because the Opposition [Liberal and National parties]
opposed the entire Mabo bill its fate rested with two ‘Green’ Party senators, Christabel Chamarette and Dee Margetts who held the balance of power in the Senate.
This effectively made the Bill more pro-Aboriginal as the ‘Greens’ pushed for amendments
that had Aboriginal approval. As the nation watched, there were six days of
emotion-charged scenes in Parliament as the Opposition filibusted [sic], the ‘Greens’
were pressured by radical and pragmatic Aboriginal opinion and horse-traded
with the Government over 200 amendments, and the Keating [Labor Party]
government threatened to sit till Christmas to pass the bill before 1994. On 21
December the Native Title Act was passed at 11:58 pm to ringing applause from Government, Green and Democrat members and the packed public gallery, after
the longest debate in the Senate’s history. (Broome 2002: 240)
Two Senators holding the balance of power? Six days of emotional debate? Filibustering in the Senate? Horse-trading with the government over 200
amendments? Threats to remain in session until Christmas? All this reads much
more like a report from Capitol Hill in Washington than from a capital city that
enjoys the efficiency of responsible parliamentary government.
As Solomon (1978: 9–10) observed, the parliamentary
situation prevailing twenty years earlier, in 1972–1975, encouraged observers
to conclude that ‘a government must have a majority in the Senate if its very
existence were not to be at risk.’ The government is responsible to the House
in that only the House can dismiss it through a vote of no confidence. As a
matter of constitutional principle, the Senate cannot require the government to
resign. However, as we shall see, the Senate demonstrated in 1975 that it
could, if it had the will to do so, try to compel the government to resign or
propel the nation into a political crisis. ‘Thus only the House of
Representatives can give a government life, but both houses can administer the
death penalty, although the Senate may take a long time to put its wishes in to
effect.’
This situation raises several questions: How has
Australia managed to create and maintain a stable and effective democratic
structure when it appears to have been designed by two different architects,
one from London and the other from Washington, who appear not to have spoken
with each other? Why was the structure designed as it was? And why did Australia exacerbate the problem embedded in its Constitution by amending its electoral
laws in 1949 in ways that increased, and may have been expected to increase,
the likelihood of there being different balances of partisan forces in the two
houses?
In fact, the situation is even more intriguing. In the passage quoted above, we are told that the Senate rejected more legislation
during the three-year tenure of the Whitlam Government ‘than it had in its previous
71-year history.’
Many governments had survived in the face of hostile
Senates. Their legislative programs might have been (and often were) subject to
harrassment [sic], but most proposed laws were passed. While the Senate was
aware that it probably had the power to force a government to the polls, this
power was rarely discussed and the threat of its use never made.[3] (Solomon 1976: 10)
Why did relations between the Labor Government and the
Opposition-controlled Senate lead in 1974–1975 to what is almost
ritualistically described as a constitutional crisis? And why does that
conflict stand in dramatic contrast to the far more pacific relations
(notwithstanding rhetoric to the contrary) that, both before and after, have
characterized the cohabitation of the House and Senate under the roof of
Parliament House?
These are among the questions that I shall address, if
not answer to everyone’s satisfaction. I begin, naturally enough, with a
description of the constitutional context, which is particularly important in
Australia because much of what is most significant about the Commonwealth
Constitution of 1901 lies in what it does not say. I turn next to a discussion
of double dissolutions and joint sittings, which are the constitutional devices
for resolving bicameral deadlocks. I then examine how Australia’s party system
has developed and how its procedures for electing Representatives and Senators
have changed. Virtually every student of the Australian political system seems
to agree that the emergence of disciplined parliamentary parties and the
introduction of proportional representation for Senate elections have combined
to transform parliamentary government in Canberra.
With this context in mind, I review the sequence of
events that brought down the Whitlam Government in 1975. The events of that
year and the one preceding it undoubtedly stand as the most dramatic (and the
most chronicled) events in the century-long political and constitutional
history of the Commonwealth—events that demonstrate how much practical power
the Senate can exercise, but power that it had never used before and has not
used since. To understand how the 1975 crisis could occur, I look back to the
constitutional debates of the 1890s and the parliamentary debates of 1948 to
understand the thinking and expectations of the Constitution’s authors, and the
motives and expectations of the Labor Government that instigated PR for Senate
elections beginning in 1949.
Next I explore some of the practical consequences and
strategic possibilities that flow from the failure of successive governments to
command a majority in the Senate. For the government, its core problem is the
need to assemble majority coalitions by finding some votes from among non-government
Senators. For the Opposition (or other parties represented in the Senate), it
has the opportunity to assemble its own winning coalitions to defeat or amend government
legislation. I look at the voting patterns in the Senate during recent years
for evidence of the government’s record of successes and failures, as well as
the strategies and track record of the Opposition and other parties. For
instance, which parties have joined together most often in winning coalitions?
How often have non-government parties attempted to amend or defeat government
legislation in the Senate, and how successful have these efforts been? Data on
Senate divisions offer some purchase on these and related questions. Chapters 6
and 7, in which this analysis is presented, may be too detailed for the
interests of some readers who may prefer just to skim them.
I then examine the Parliament’s procedures for
resolving whatever legislative differences arise between the House of
Representatives and the Senate. This is only one dimension, though a critically
important one, of a pattern of bicameral relations that I attempt to sketch.
Finally, I address the question of electoral mandates and how it relates to the
Senate, and then assess some of the proposals that have been made to ‘reform’
the Parliament, and especially the Senate, reflecting their proponents’
conceptions of what the Senate is and should be. I conclude with some of my own
thoughts about the political logic and health of the Commonwealth system of
government, and whether Australians should view it with concern, satisfaction,
or both.
The coverage of what follows is admittedly selective
and incomplete; indeed, it is unapologetically idiosyncratic. One of the
advantages of writing any book about such a big subject is that it cannot
possibly be comprehensive in its coverage. Selectivity is unavoidable (as, of
necessity, is an inability to plumb every subject to the depth it may deserve),
so I have allowed myself to make a virtue of that necessity, devoting more
attention to some subjects than to others because they strike me as
particularly interesting or having particularly important implications for
understanding the Australian political system.
The other side of selectivity, of course, is that there
are important elements missing in what follows. For example, I devote little
attention to the Senate in its first half-century because these were what Reid
and Forrest (1989: 477) call its ‘years of dependence’ that ‘did little to
enhance its reputation for providing an effective scrutiny of proposed laws, or
of the activities of the Executive Government.’ More important is the absence
here of a careful examination of the powers, activities, contributions, and
both strengths and weaknesses of the Senate’s committees. The Senate takes
considerable pride in its committee system and with good reason, especially
when it compares its committees with those of the House or of any true
parliament. The current state and the future of the committee system, and whether
it should be seen as a glass half-full or a glass half-empty, is a complex and
multi-faceted subject that merits extended treatment in its own right. Among
the other important subjects not addressed here are the Senate’s leadership and
especially its presiding officers, and the internal organization and activities
of its parliamentary parties. These subjects also are worthy of much more
study, and they combine to illustrate just how much more there is to be learned
and conveyed to the interested public about not only the Senate but the
Commonwealth Parliament as a whole.
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