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Tuesday, 25 November 2003
Page: 22851


Miss JACKIE KELLY (Parliamentary Secretary to the Prime Minister) (7:45 PM) —Section 57 of the Australian Constitution provides for the resolution of disagreements between the House of Representatives and the Senate. That there should be conflict between the two houses is a reflection of the inherent tension between the competing traditions of responsible government and federalism. The founding fathers were well aware of this tension and, despite the reservations of some, it was seen as desirable. The framers of the Constitution saw the Senate as a bastion of states rights and, more importantly, as a bulwark against any democratic excesses from the executive in lower houses. The protection of states rights was crucial in convincing the colonies, with their own constitutions and parliaments, to hand over power to a new level of government.

Shrewd observers at the time recognised that the protection of states rights would be less of an issue. Indeed, the battleground for states rights was never in the Senate but rather in the High Court. The advent of national disciplined parties meant that the Senate would never be a states house. Crucially, the framers also saw the Senate as an important check on power. The colonial legislatures had upper houses with in-built conservative majorities, usually through electoral systems with property qualifications or later weighted to regional areas. The intent was to dilute any excesses from social democratic governments in the lower house. Liberals and conservatives alike feared de Tocqueville's tyranny of the majority. The argument followed that power should be divided—an idea reflected both by accident and design in the US Senate and the House of Lords. Suspicious of power, the Australian liberal and conservative parties defended upper houses and state rights, seeing them as a check on political power. Power divided is power diluted.

The ALP took a different view. The tradition in social democratic parties, like the ALP and the British Labour Party, was towards unitary systems with unicameral parliaments. The argument was that the people would elect the lower house, which would house the executive which, in turn, would make the laws. Such a system was often described as an elected dictatorship; power was to be centralised. The most pure form of this was found in New Zealand—a unitary state with a unicameral parliament. This system lasted some 70 years, before a backlash prompted the introduction of proportional representation.

After 50 years of Federation, there was some tempering of philosophical positions. Ben Chifley, aware that he would lose government in 1949, advocated a change to the electoral system for the Senate to proportional representation—a system first mooted in 1901. Chifley supported PR because it would prevent the Liberal Party gaining control of the upper house. Chifley wanted a check on the lower house. Having had power, Chifley was clearly reluctant for the ALP to relinquish too much. In any event, Menzies called a double dissolution election in 1951 and Chifley's plans came to nought—but PR was here to stay.

The introduction of proportional representation sparked dramatic changes in the function of the Australian parliament. As Professor Campbell Sharman, one of Australia's foremost experts on bicameralism, has argued, changes to electoral systems often have profound and lasting impacts far beyond and often completely different to the intent of the instigators of change. Chifley, for example, could not have envisaged the rise of minor parties.

There can be no doubt that minor parties are a beneficial component of Australian democracy, ensuring a healthy pluralism. But there are some caveats: I note the first Greens member in the House today. Originally, the intent of minor parties, like Don Chipp's Australian Democrats, was to `keep the bastards honest'—that is, to hold governments to electoral promises. It would be difficult to argue that minor parties keep governments to their promises; instead, they hope to see them break them. This is, naturally, a source of tension between the executive and minor parties; each claims a mandate. Senator Brown, whose Greens won 13.79 per cent of the vote in Tasmania, claims a mandate; and the Australian government, winning 51.03 per cent of the vote right across Australia also claims a mandate. It is not hard to see frustration develop.

Senator Brown has stated that since 1973 the Senate has passed 97 per cent of the 5,400 government bills. Senator Faulkner, in his speech to the Sydney Institute, stated that the Senate has passed 1,269 bills, negatived 29 bills and laid aside 11. Proponents of the current model are quick to point out that the overwhelming majority of legislation passes without controversy. This is true; the majority of government business does just that. However, this ignores the importance of the bills that were rejected. Those negatived or laid aside bills may actually define the agenda of a government and define its vision for Australia. They may also represent the fulfilment of election promises. Elected governments can claim some measure of a mandate. People vote for a particular party with a view to seeing various policies enacted. The extent to which the Senate can block various pieces of legislation may thwart a government's mandate. There is also the potential economic cost and unnecessary delay of urgently needed legislation. The situation facing the Howard government is worsened by the obstructionist nature of some of the minor parties.

There are currently six double dissolution triggers. They are the Family and Community Services Legislation Amendment (Disability Reform) Bill (No. 2) 2002 [No. 2], which would give effect to welfare reform initiatives announced in the 200203 budget; the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 [No. 2], which would expand the definition of `excised offshore place' to include additional territory; the National Health Amendment (Pharmaceutical Benefits—Budget Measures) Bill 2002 [No. 2], which would effect savings in the PBS by increasing general and concessional copayments and safety nets; the Trade Practices Amendment (Small Business Protection) Bill 2002 [No. 2], which would allow the ACCC to take representative actions and intervene in restrictive trade practices proceedings; the Workplace Relations Amendment (Fair Dismissal) Bill 2002 [No. 2], which would exempt small business from federal unfair dismissal provisions; and the Workplace Relations Amendment (Secret Ballots for Protected Action) Bill 2002 [No. 2], which would require industrial action to be endorsed by employees through a secret ballot before it could become protected action under the act.

There are a further two bills which have been blocked by the Senate a first time and which may become double dissolution triggers. These are the Broadcasting Services Amendment (Media Ownership) Bill 2002 [No. 2], which would change foreign ownership and some cross-media ownership limits, and the Workplace Relations Amendment (Termination of Employment) Bill 2002 [No. 2], which would expand the scope of federal unfair dismissal laws and exclude state unfair dismissal laws and reliance on the corporations power in the Constitution. These bills constitute significant elements of the government's electoral agenda. The blocking of these bills has gone beyond constructive finetuning of legislation and is closer to undermining the mandate of the government.

Discussion over section 57 of the Constitution has occurred in some form since 1901. The constitutional crisis in 1975, which I notice the member for Barton mentioned, provoked a great deal of debate over resolving the deadlock between the two houses; it has periodically reappeared since then, especially when the Senate appears intransigent. The Prime Minister's discussion paper considers two additional models for resolving deadlocks between the two houses. The first model would allow the Governor-General to convene a joint sitting of both houses without requiring a double dissolution election; the second model allows for the Governor-General to convene a joint sitting of both houses following an ordinary House of Representatives election. The two models would augment, not remove, the existing double dissolution provision. Significantly, the models require Senate rejection, the passing of unacceptable amendments or failing to pass a bill twice over a period of more than three months—and only if the House of Representatives is not due to be dissolved within six months. I strongly encourage debate and discussion over these two models. There can be no doubt that some level of conflict and tension between the two houses is both healthy and desirable. However, that tension must not be allowed to unnecessarily obstruct key platforms in a government's agenda. The proposed models have the potential to remove the obstructionist elements of the existing system while retaining the productive friction between the two houses.