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Wednesday, 29 June 1994
Page: 2284

Senator HERRON (1.25 p.m.) —`Potestas in populo, authoritas in Senatu': power in the lower House, and authority in the Senate. When Cicero coined this expression over 2000 years ago, he was referring to an anomaly that is present in bicameral democracies—the anomaly of the upper house holding greater authority than the popularly elected lower house. Centuries later the debate still continues. Cicero's statement is as appropriate today as it was then. It is interesting that Cicero was a senator and that he was proscribed, that is, he was assassinated, on the order of Emperor Octavian. Today, Emperor Keating is advocating proscribing the Senate.

  Bicameralism is the division of a legislature into two parallel but separate political bodies which must act in agreement for legislation to be enacted into law. In supporting a bicameral system of national legislature, the overriding argument in favour of such a system is the role of the upper house in providing a check and balance on the operations of the lower house and the political executive. No less a person than Winston Churchill said:

. . . this idea that a group of super planners making the masses of the people do what they think is good for them, without any check or correction, is a violation of democracy.

In supporting bicameralism, the overriding argument in favour of such a system is the role of the upper house in providing a check and a balance on the operations of the lower house and the political executive.

  The Australian upper house, the Senate, has the power to review and ultimately reject any legislation presented to it from the House of Representatives, making it one of the most powerful upper houses in the world. This power to review and block legislation is shared by many upper houses around the world and, although constitutional powers

differ in each, the review process is a dominant function in nearly every one. These powers are important, particularly given the increasing influence of the executive over the lower house. I remind the Senate of the decision of the Prime Minister (Mr Keating) to absent himself from appearing in the House of Representatives whenever he wishes—a clear demonstration of the power of the executive over the lower house.

  The executive in many cases has a monopoly on drafting legislation and policies and has almost a guaranteed passage in the lower house. The second chamber is not only a safeguard against the hasty actions of the lower house; its accessibility to minority party and independent or non-aligned members allows for dissenting voices in the assembly. This capacity for dissent encourages genuine debate on legislation and, through committee review, permits time for the legislation to be digested by the public.

  The government, too, has benefited from the considered and detailed examination of legislation which the Senate, through its mechanisms such as the committee of the whole, selection of bills processes and the activities of the scrutiny committees, is able to provide. The scrutiny committee often picks up embarrassing oversights or errors, while the detailed legislative mechanisms enable the government to improve its own legislation in a considered way. Contrary to popular opinion, the majority of successful amendments in the Senate are actually moved by the government. Indeed, the extra time taken by the detailed consideration often enables the government to accommodate differing perspectives with which it agrees but which would have been omitted through hasty legislative activity.

  The composition of members in the upper houses, by virtue of the electoral process in place, means that it is possible for the ruling government of the day to have a minority in the upper house, as we have at present. Although this has been attacked as undermining the stability of government, it emphasises the point that members of the upper house may not feel pressured or duty bound to follow party lines but vote according to the merit of the legislation. I am delighted to be a member of the Liberal Party because I personally experienced this power shortly after entering this chamber, when I crossed the floor. I was able to exercise this power I have as a member of the Liberal Party. Certain political parties, of course, do not allow that. Although party politics is certainly evident in the upper house, the potential for party manipulation is greatly lessened.

  The revisory power of the upper house is a prime argument supporting bicameralism. With the political executive becoming increasing dominant in legislative decision making, judicial appointments and vice-regal selections, as it is in many Commonwealth nations, the upper house is perhaps the only forum for true debate and scrutiny over legislation. Because of a lack of government control of the institution, the institution has been able to develop many structures and mechanisms which serve to improve the scrutiny of legislation, such as the various committee processes I have already mentioned. Once these mechanisms have been established, senators from all political parties frequently work in a non-partisan way at solving the legislative or policy proposals with which they are presented. This is not to deny that there are exceptions where strong political views are taken. It is, after all, a political institution.

  Some argue that the Australian Senate, the states house, was established as the price of federation. However, in an era of new federalism, where the states are gaining greater autonomy, the need for a forum for state issues may be seen as even more important, particularly in light of the declining control individual states have in premiers conferences and the Loan Council. Thus, in a federal system, the upper house's role may be seen as far more effective than in unitary systems. Under conditions where members of the upper house are democratically elected, the presence of such a chamber is just as important to the democratic process of government as the lower house. In the extreme, one commentator even suggests that if unicameralism is to be considered in Australia, the lower house should be the one that is abolished!

  The proponents of unicameralism point to Scandinavia and Pacific nations as models of cameral reform. Unicameral legislatures are operating in Denmark, Sweden, Papua New Guinea and New Zealand. In the Scandinavian case, both countries embraced constitutional reforms in order to remove control from the monarchy and place it with the democratically elected legislature. The inherently conservative and unrepresentative upper houses were abolished by drafting new constitutions. In the New Zealand example, the Legislative Council—that is, the upper house—was abolished in 1950, not out of contempt for the house, but because of its failure as a revisory chamber. It was abolished in order to establish a more functional second chamber.

  These examples of functioning unicameral legislatures do not justify adopting unicameralism in federal systems as their relatively small size does not require strong regionally representative houses such as the Australian and American senates. It should be pointed out that the New Zealand legislature has recognised its failure as a revisory chamber and established a referral of bills system, quite some years before us, and no doubt the New Zealand experience has influenced us. Why did New Zealand establish such a system? It was because the government majority recognised that its control of the legislative process did not necessarily make for sound and considered law. Furthermore, through its haste, it is unable to take into account constituency concerns which frequently escape the policy and drafting processes—a true case of `marrying in haste and repenting at leisure'.

  Achieving unicameralism—that is, the creation of just one legislative assembly—will require massive constitutional change. History has proved the difficulty of amending the Australian constitution, only six amendments having been passed in over 90 years. While this alone does not stand as a convincing argument for bicameralism, it does suggest that alternatives to abolishing the upper house need to be considered. A review of the bicameral process is far more desirable than the rejection of the upper house. Reform and review can establish controls on both houses and still allow them to maintain their independence. The Australian Senate is, therefore, not just a relic of Westminster or its other antecedents, but an honourable institution of this great nation, which has now generated its own momentum and credibility—a functioning legislature in its own right.

  Many come to marvel at our building but, increasingly, people come to watch and listen to the way we do our work. Who would have thought that Westminster would send a member of the House of Lords Select Committee on the Committee Work of the House, Lord Thurlow, to learn from the Senate's scrutiny of bills process? Thus in Australia, with its narrowly defined constitution and a federal government fixated with overriding local conventions with international treaties, the Australian Senate remains perhaps the last bastion in protecting the rights of the citizens and the states that make up our federation.

  Although there are definite problems within the bicameral system of legislature, the long-term need for bicameralism far exceeds the often temporary obstacles it may create. The fact remains, however, that in most federal bicameral legislatures the powers invested in the upper house are there by design. They are deliberate and calculated measures to ensure that the legislative process has checks and balances on the often dangerous and easily exploited system that is democracy.