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Tuesday, 25 November 2003
Page: 22848


Mr McCLELLAND (7:31 PM) —In addressing this report, I would like to outline and speak to the report tabled on behalf of the Australian Labor Party titled Constitutional reform and the resolution of parliamentary deadlock. It is a submission, dated October 2003, by the Hon. Simon Crean. I had the honour of participating in the authorship of that document.

Essentially, the position of the Australian Labor Party is that we are prepared to look at reform of the powers of the Senate. We recognise that the position which was assumed by our constitutional founders—and they were fathers; there were no women among them—was that the Senate would be a house of review that would operate according to the interests of the separate states. That is why, to get the federal compact up, there are equal numbers of senators in each state. But we recognise that the reality is that the Senate has practised as a chamber that is essentially divided along party political lines, although certainly since 1949, which saw the introduction of proportional representation, there has unquestionably been greater opportunity for minor parties to be represented. Because of the participation and influence of the minor parties, the party with the majority in the House of Representatives has on very few occasions had the corresponding majority in the Senate.

I think it can be assumed in Australia's political system that for the foreseeable future minority parties will have the balance of power in the Senate. This is not necessarily a bad thing. Those in the majority parties are inclined to say that the minority parties can perhaps run interference, but the reality is that the existence of minority parties can compel both major parties to negotiate through proposed legislation and consider various checks and balances with a view to satisfying those interests represented by the minority parties. There has been a range of legislation—for instance, the security legislation in respect of ASIO powers—on which an excellent outcome has been achieved through that process.

On the other hand, there is an argument that, if you want efficient government as opposed to, perhaps, democratically pure government, then you need to ensure a mechanism for the will of the House of Representatives, which unquestionably is a far more democratically elected House. I say that because each electorate in the House of Representatives represents 83,000-odd voters, whereas in the Senate, Tasmania, for instance, which is marginally greater in size than the Australian Capital Territory, has much more substantial representation than the ACT. This inequality of representation has been commented upon by a number of people, in particular the former Prime Minister, Paul Keating. He referred to the Senate as `unrepresentative swill', perhaps overly harshly in the context of the constructive role they can play in the negotiating process.

I suppose that is the balance. At what point do you sacrifice democracy for efficiency? This is essentially the subject matter of the current debate. We say there are dangers in giving unrestrained power to the House of Representatives, and there do need to be appropriate checks in place. The Prime Minister has said that a way of achieving a balance is by having the capacity for a joint sitting—a sitting of both the House of Representatives and the Senate—to occur after a bill has been rejected on two occasions. That is one proposition. The second proposition is that which is referred to as the Lavarch model, whereby such a joint sitting can occur after an ordinary general election which was obviously held in circumstances where the subject matter of the anticipated joint sitting would have been canvassed during the course of the election campaign debates and considered by the Australian people when they cast their vote.

The trouble with that model is that, although it would obtain a contemporaneous expression of the will of the electorate, it is limited as only half the Senate goes to a ballot at any time. While there are sixyear terms for senators, only half of the Senate retires at each general election, so it would be the House of Representatives and half of the Senate that would reflect the will of the electorate, but not the other half of the Senate. That is one point that I note at this point in time before I discuss the issue of concurrent elections. The Lavarch model—a joint sitting after a contemporaneous expression of the will of the electorate—is a model which we are prepared to consider. That is a legitimate issue to put up.

But we then say: are you not only partially addressing the issue of the power of the Senate, bearing in mind that it is unlikely in this day and age that the government of the day—that is, the party with the majority in the House of Representatives—will also control the Senate? In the foreseeable future the opposition parties will, through the combination of their numbers, most probably control the balance of power in the Senate. Therefore, if you are consistent in your concern about the abuse of Senate powers, to what extent should you permit the Senate to exercise its ultimate sanction of denying supply to the government of the day? By so denying supply, because of our constitutional restrictions, the government literally would not be able to fund the Public Service for the ordinary purposes of government—public service, schools, contributions to medical services, the defence forces and telecommunications. It would deprive the government of oxygen, forcing an election to occur.

To what extent can the Prime Minister or government speak of Senate reform without addressing that crucial issue of the power of the Senate—the opposition parties combining—to bring down a democratically elected government? This frequently resorts to a historical consideration of 1975. But I am saying: move beyond the merits of the party political arguments as to a Labor government being dismissed and look at the issue. If you look at it in terms of that ultimate power being left with opposition parties to bring down a democratically elected government, I think you will see that it is a far more extensive and dramatic power than simply the Senate obstructing the passage of a single bill or, indeed, several bills. Clearly, if we are talking about Senate reform, it is an issue that needs to be addressed.

If you look at the 1975 crisis, you will see that it was not section 57 that resolved the deadlock. Section 57, which deals with joint sittings occurring after a double dissolution to resolve deadlocks in the passage of legislation, had no relevance to the denial of supply because it was not a double dissolution trigger. It was simply that, in 1974, the opposition in the lower house indicated an intention to reject supply. On that basis the Prime Minister of the day, Gough Whitlam, said, `Having announced that, we are therefore going to go to the people,' and relied on a series of bills that had been backlogged for the purpose of calling a double dissolution. But it was the coincidence of a backlog of bills that enabled the Prime Minister of the day to do that.

Equally with respect to 1975, there was never a rejection of supply by the Senate; there was a refusal to pass supply. Hence, there had never been a single rejection of the supply bill, let alone the three-month gap and then a second submitting of the supply bill. In other words, section 57 was quite irrelevant to that. The crisis of the deadlock with supply not being delivered to the government and hence the potential to freeze those essential services resulted in unquestionably a constitutional crisis. But the irony was that the power was withdrawn from the Prime Minister and given to the Leader of the Opposition on the basis of an undertaking by Mr Fraser that he would call a double dissolution, ironically with respect to a significant number of bills that had been opposed by the opposition. The opposition was installed as the caretaker government, but again because of the coincidence of these backlogged bills.

In summary, section 57 is not capable of resolving deadlocks in the Senate in respect of the issue of supply. We say that, if you are fair dinkum about reforming the powers of the Senate, the issue of the Senate's ability to block bills is of significance but, equally, you cannot sensibly address that unless you address the power of supply. So you say, `All right. The Senate should not have the power to reject supply.' Why? Because it is the opposition determining when the government of the day goes to the election. Equally, if you are consistent, you have to say that the government of the day should not be able to arbitrarily or propitiously for their own political advantage call an election simply because of their majority in the House of Representatives.

If you accept that the Australian people are entitled to certainty, if you accept for the reasons of political stability that the Australian people are entitled to certainty, you move into the territory of the need for fixed terms. In terms of what an appropriate quantum of that fixed term should be, going back to 1929—as we refer to in our paper—there has been discussion of the appropriateness of four-year terms. That comes back to the very first proposition that I made in terms of the so-called Lavarch model about the appropriateness of the joint sitting occurring after a general election.

If you are talking about fixed terms, they should be both for the House of Representatives and the Senate. That would result in a synchronisation of the houses, with all members and all senators facing the people were there to be a contemporaneous expression of the will of the people. Essentially that is our reasoning. What are the prospects of these or even the government's propositions getting up? I have to say my hope and Buckley's. Why do I say that? If you look at the 44 referendum propositions in Australia, only eight have been successful. In only one of those eight was there success in the face of a no case. That was a 1946 proposition in respect of social security. For the rest there was no no case conducted.

Clearly, the prospect of success is very remote when there is opposition in the form of a no case being conducted. As we have said in our paper, it would be far more constructive for the government to look at propositions that would secure some institutional reform, such as facilitating cooperative arrangements between federal and state governments. If that were done, we think it would be far more likely for all political parties to come to a unanimity of opinion that it is good for federal and state governments to break down the barriers created by our federal system. Essentially we say that we are prepared to discuss, but we think there are other priorities for constitutional reform.