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The tyranny of the majority. Speech to the Australia Institute, Canberra.



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The Tyranny of the Majority

Speech by Senator Chris Evans Leader of the Opposition in the Senate

To The Australia Institute Old Parliament House - Canberra November 10 2005 5.30pm

Unlimited power is in itself a bad and dangerous thing; human beings are not competent to exercise it with discretion…. When I see that the right and the means of absolute command are conferred on a people or upon a king, upon an aristocracy or a democracy, a monarchy or a republic, I recognize the germ of tyranny…i

Alexis de Tocqueville, 1835

I'd like to thank Meredith Edwards, Chair, and The Australia Institute, for

inviting me along to this forum tonight, for what I hope will be a lively

conversation about the Senate.

Americans can all remember where they were when they heard that Kennedy

had been assassinated. For Australians of my generation and political

persuasion the seminal event is where you were on November 11th 1975

when Whitlam was dismissed. For me, a visit to my then girlfriend's place to

find her and her mother celebrating with champagne confirmed the end of the

Whitlam Government and the end of that particular relationship. I quickly

headed to join the protest in the Perth city centre.

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I am not here tonight to argue the rights and wrongs of what Kerr, Whitlam

and Fraser did in the spring of 1975. Many others have done that at

extraordinary length. It is enough for me to say that November 1975 saw an

unprecedented use of the Senate's powers. Like most people of my political

orientation, I saw it as an abuse of power - the tyranny of a corruptly achieved

Senate majority.

Out of the turmoil of the Whitlam dismissal Fraser was elected to government

in his own right and won a Senate majority, which he held until 1981. With

Senate control, he was able to dismantle Medibank and implement significant,

though thankfully short-lived, industrial relations changes. In the Senate

chamber itself, the Fraser Government was willing to use its Senate majority

to the Coalition's tactical advantage. In the 31st Parliament, between 1977

and 1980 the Coalition used closure motions, the gag, to shut down debate on

at least 60 occasions. That is many times as it was used in the nine

subsequent Parliaments over the next 24 years.

Since the election of Bob Hawke's Labor administration in 1983 Australia has

had two long term governments which did not enjoy Senate majorities. But

both the Hawke / Keating and Howard Governments were able to govern

effectively and to implement major reforms. Both were constrained by a

Senate that was a strong check on their power.

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For the 24 years from 1981 until July this year no one party or coalition had a

majority in the Senate. Non-government parties and independents held the

balance of power in various combinations. Non-government senators of

vastly different political views shared a common motivation to use their

influence to hold governments accountable. In combination they had the

power to act as a check on executive excess, amend legislation and expand

their capability to hold governments to account for their actions. The political

tension between the government in the House of Representatives and a non-

government controlled Senate saw the Senate grow in influence in a much

more constructive way than during the events of 1975.

The Senate developed two further key functions during this period. Firstly, it

acted as a true house of review, scrutinising and amending government

legislation. Secondly, it refined and enhanced procedures and mechanisms

that allowed it to hold government accountable for its exercise of executive

power. The Senate came to provide the check and balance to increasing

Federal executive power in a way that the founding fathers could not have

envisaged, but I suspect would have approved.

The Senate's increased role came to be accepted as an important

development in the maturing of Australian political culture. The modern

Senate provided robust legislative review, an alternative source of

parliamentary power, a strong accountability mechanism and an investigative

capability that shone a light into the dark recesses of government activity and

decision making.

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The mechanisms the Senate developed allowed it to successfully pursue its

enhanced role. The legislation committee system allowed it to examine

legislation in detail, to test government claims and to bring in affected interest

groups to argue the merits of the provisions of government bills. The media

access and coverage of issues broadened the debate to include the general

public. The process of consideration of legislation was more robust,

interactive and transparent.

The references committee system, controlled by non-government senators,

facilitated the Senate's capacity to enquire into matters of public interest that

would otherwise not be countenanced by government. This investigative role

allowed the Australian community to learn the truth about the Children

Overboard affair, to understand the political abuse of the Regional

Partnerships Program and to appreciate the failings of the military justice

system.

Estimates committees have allowed Australians to see what their taxes have

paid for and to hold government accountable for that expenditure. They have

proved invaluable as an accountability measure for the Government and

public service. In my own experience Estimates has revealed Australian

involvement in Abu Ghraib, the financial mismanagement of defence projects

like the Seasprite helicopter and the scandal of DIMIA's knowledge and

failures over the deportation of Australian citizen, Ms Vivian Alvarez. Of

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course we have also learned the cost of the Prime Minister's accommodation

at Claridges on his cricketing sojourns!

More controversially, the Senate has taken its responsibility and power to

amend or reject legislation very seriously. The sometimes acrimonious

contest between the legislative objectives of the government and the majority

views of a combination of non-government senators has been one of the key

political dynamics of the time. The Howard Government was forced to

compromise on the GST and Native Title, while until now it was rebuffed on

Telstra and industrial relations.

Both the Hawke / Keating and Howard Governments have been forced to

argue, negotiate and compromise with the Senate. I would argue that the

debate and contest of ideas in the public arena has been good for Australian

democracy - far better than the unfettered exercise of executive power.

While Labor hasn't always supported the outcome, the process has been

beneficial and both the process and outcomes have been largely accepted by

the Australian people.

Two other factors are critical to an understanding of the development of the

Senate over the last 24 years: the acceptance of party discipline as the norm

and the recognition that the Senate is a party house, not a states' house.

The framers of the Constitution envisaged the Senate as a states' house,

protecting the smaller states against the tyranny of the majority of the

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population as expressed in the representation in the House of

Representatives. The Senate soon succumbed to the development of political

parties and became a party house - representing the political success of the

government of the day. The 1949 introduction of proportional representation

for the Senate by the Chifley Government fundamentally changed the

dynamic and facilitated the representation of minor parties and independents.

Party politics certainly drove the decisions of conservative premiers to break

convention and to opportunistically fill with conservative sympathisers the

casual vacancies caused by the resignation and passing of Labor senators.

The decision to block supply in 1975 was a politically partisan act by the

Coalition parties. This was a victory for the Coalition parties' unity, despite

predictions that Liberal senators would fold and not support Fraser's actions.

The party discipline reflected in the decision to block supply was surprising

given the Liberal tradition and the experiences of 1975 to 1981. Coalition

members and senators crossed the floor against their government in 6% of all

divisions under Fraser. Under Howard, until August 2004, that figure was just

0.3% of divisions.ii Despite the often scathing Liberal critique of Labor's

Caucus system, its discipline has effectively been adopted by all our modern

political parties. The Coalition fixation and anger towards Senator Barnaby

Joyce and his minor displays of independence is illustrative of how far the

Coalition parties have come in adopting strict party discipline. Senator Hill's

early floor crossings are a long forgotten memory.

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The Democrats and the Greens largely display the same collective action in

their voting in the Senate. Today the Senate vote is almost always driven by

the decision making process of the parties represented and the tight collective

discipline each exerts over its senators. You only need to look at the Northern

Territory's Country Liberal Party Senator Scullion's declaration to support the

Government's decision to locate a nuclear dump in the Northern Territory,

despite scientific advice and strong community opposition, for confirmation of

the acceptance of party discipline.

Many political and media commentators have welcomed the development of

Senate accountability and review mechanisms as a positive enhancement of

Australian democracy. They have worked and worked well in promoting

review, accountability, transparency and a check on executive power. Most

assumed that the Senate processes, the legislation committees, the

references committees, the estimates committees, the detailed parliamentary

examinations of legislation and the returns to order would continue as before

and further develop. They assumed that the processes and mechanisms that

had become institutionalised since 1981 were now permanent features of our

parliamentary democracy. Not so.

The retention and effectiveness of those mechanisms of the Senate was, it is

clear now, solely based on the non-government majority in the Senate. Each

measure was reliant on a combined non-government majority vote for it to be

effective. The loss of a non-government majority has severely restricted the

Senate's effective power. From 1981 to June 2005 the non-government

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majority, the coalition of diverse non-government forces, shared a common

interest in holding the Government accountable. It was in their political

interests to test and probe the actions of the executive of which they were not

members. So the Greens and Brian Harradine could find common ground in

supporting the accountability of both Labor and Coalition Governments. The

potency and power of the Senate was almost totally reliant upon the political

dynamic provided by a non-government majority. That power, that dynamic

gave force and legitimacy to the Senate processes and functions that matured

between 1981 and July 2005.

That all ended on July 1st 2005. The Senate, elected effective July 1st this

year, is a totally different beast. The Prime Minister's assurance, that the

Government would not abuse its power, didn't survive as a core promise

beyond the first Question Time of the new parliament on August 9th 2005.

The Government moved to reduce the number of questions asked each

Question Time by non-government Senators. They immediately reduced their

accountability because they could. Yesterday the Opposition in the Senate

only had 4 questions during Question Time. By contrast, in the House of

Representatives they allowed the Opposition 10 questions. Instead in the

Senate we are treated to an increased number of Dorothy Dixers that allow

the Minister to explain the press release issued the day before.

But the Government's arrogance and determination to exercise its new found

power did not end at avoiding scrutiny in Question Time. It quickly moved to

use the tyranny of its majority to overturn or deny every practice, procedure

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and mechanism that had defined the Senate's modern role. Even I was

surprised at the speed at which the Government moved. Arrogance and the

corruption of absolute power developed at lightning speed. Its new power

meant the Government could defeat any amendment, resolution or enquiry

that non-government Senators sought.

Labor knew that and was not unprepared. But we did wrongly, as it

transpired, expect that the most fundamental of Senate scrutiny measures

would be retained. After all, Senator Hill had crossed the floor years earlier to

ensure that some of the current mechanisms were established. We expected

support from Queensland senators like Senators Brandis and Mason, who

were from a strong Queensland Liberal tradition of respect for the Senate and

parliamentary institutions.

The handling of the Telstra Bill soon put paid to any belief that Senate

practice would survive the tyranny of the coalition majority. Every Senate

procedure and mechanism to ensure proper scrutiny and debate was

bludgeoned by a Government committed to getting its own way. The Senate

cut off - which ensured time for Senators to read the Bill - was overturned.

Senators were required to debate the Bills immediately despite their

complexity and the importance of legislation dealing with taxpayers' assets of

approximately $30 billion. The Government, under the pressure of

unfavourable publicity, conceded a one day Senate inquiry two days after the

Telstra Bills were introduced. The inquiry proceeded despite submissions not

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being able to be compiled and received in time for the Senate committee to

consider them. No proper examination of the legislation was possible.

The Senate debate was a farce. The Bill was guillotined to limit debate and

the gag was moved on three occasions. In a desperate act to avoid Senator

Joyce being prevented from speaking because of the Government's own

guillotine, the Government usurped the agreed speakers list to provide him 10

minutes speaking time. Senator Fielding, the only Family First Senator, was

denied the right to speak. No Government Senator expressed any opposition

let alone voted against the abuse of power that this process represented.

But Telstra was no special case. This same arrogance and disregard for the

Senate and democracy is being repeated with the handling of the

Government's terrorism laws, industrial legislation, welfare-to-work changes,

voluntary student unionism legislation and the Northern Territory nuclear

waste dump proposals. The Senate is expected to scrutinise and consider all

this legislation and more in two weeks of Senate sitting. All normal Senate

processes have been smashed in order to ram through the ideological agenda

of the Howard Government. This is truly the tyranny of the majority.

Under pressure from the media and public concern the Government has

conceded limited Senate committee inquiries into some of these Bills. But

these inquiries are for the purposes of window dressing alone. The

Government majority has ensured limited terms of reference, limited times for

inquiry, Canberra-centric hearings and reporting dates that prevent effective

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scrutiny, community participation and proper analysis and reporting. They are

a fig leaf for a power drunk and arrogant Government.

Labor will pass the terrorism legislation before Christmas because we believe

it is warranted. Proper Senate process would ensure it is better legislation

with the appropriate balance between increased capacity to combat terrorism

and the protection of individual liberty and legal rights. Public exposure by

Jon Stanhope of the draft legislation has already seen the terrorism legislation

vastly improved in response to the reaction by Labor, the Premiers, Liberal

backbenchers, the media and interested parties. Proper Senate scrutiny

would further enhance our chances of getting it right.

The value of the Senate's and Labor's role in the earlier ASIO legislation was

eventually conceded even by the Prime Minister. But the Senate is expected

to consider and review in two parliamentary weeks the terrorism package, the

Industrial Relations legislation (all 1200 pages), the welfare reform package,

the voluntary student unionism legislation, the Northern Territory nuclear

waster dump; and Lord knows how many other pieces of legislation.

The Senate will be reduced to a sausage factory - endorsing without scrutiny

critical legislation that goes to the heart of the Australian way of life. It is a

fundamental abuse of Australian parliamentary democracy. Certainly the

Government's arrogance and haste has unsettled the Australian community.

Concern abounds about its agenda, despite the enormous expenditure of

taxpayers' money in political advertising campaigns.

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Why has the Government sought with such urgency to trash every check and

balance on executive power that previously existed? Is it to ensure the

Howard legacy prior to retirement? Is it to ensure that the outrage and abuse

are forgotten by voters by the time of the 2007 election? Is it because the

Government is fearful that Senators not preselected in winnable spots for the

next election may begin to express more independent views? Or is it simply

that power corrupts and absolute power corrupts absolutely?

Whatever the reason we do know that the Government has denied the proper

scrutiny of its legislation and actions - scrutiny that until July 1st we took for

granted. And we know that Senate Clerk Harry Evans, no relation, has

described the parliamentary system as 'degenerated' and the Prime Minister's

approach as 'monarchical'.iii We also know that there is no turning back for

the Government. Having trashed every Senate check and balance in the first

few weeks of their new majority, we know that those protections will not be

revived until the Government loses its majority in the Senate.

I am extremely confident that the Australian people will not again allow the

Coalition a majority in the Senate. They smell the arrogance and they don't

like it! The Coalition must return 3 Senators from each State at the 2007

election to maintain a majority post July 2008. Despite the continued decline

of the Democrats' political fortunes, I don't believe the Australian people will

countenance a continuation of this government's abuse of its power.

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Many Australians were shocked when they woke on October 10th last year to

learn that the Government had probably gained a majority in the Senate.

Labor accepts without reservation the election result as a legitimate

expression of the Australian peoples' vote. Labor must accept the

responsibility for our failure. We also know that the Australian public

overwhelmingly supports the role of the Senate as a house of review and as a

check on the executive. They are disturbed at this government's ruthless

exploitation of their Senate majority. They will redress the balance!

Labor Governments, like Coalition Governments, haven't enjoyed the

experience of a strong non-government Senate. Keating called us

unrepresentative swill - well - he was right about the unrepresentative bit!

Howard referred to the Senate as a house of obstruction, but the numbers

don't back up his claim. 97% of his Bills passed the Senate. Just as the

Senate has changed so has the Labor Party's view of its role. Until 1979 the

ALP maintained a policy of abolition of the Senate - although I doubt our

Senators would have voted for the policy. In recent years in government and

opposition we have supported the development of the Senate mechanisms

that drive its accountability function. Modern Labor has come to terms with

the role the Senate has established for itself and recognised its value to our

democracy.

In 2003 John Howard used his claims of Senate obstructionism as an

argument to canvas Senate reform. The Prime Minister's preferred option

from his paper Resolving Deadlocks would have seen joint sittings to

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overcome any Senate legislative blockage of a Government's agenda.

Labor's response was to offer up a package of parliamentary reforms which

included ending the Senate's power to block supply. Howard rejected our

offer and has continued to defend the 1975 blocking of supply. His

commitment to maintain the right of the Senate to block supply had Gough

Whitlam this week warning of a post 2007 Beazley Labor Government again

facing this prospect.

Let me be brutally frank. Future Labor Governments with a Senate majority

would face the same temptations that this Government has faced and

grabbed with both hands. Our history means we don't come to the debate

with completely clean hands. Cynics would suggest that the political reality of

our prospects of Senate control is at the heart of the modern Labor view of the

Senate. No doubt it’s a factor. As someone who has spent the vast majority

of his political career in the Senate in opposition, perhaps I am more

sympathetic to the Senate's role than I should be. But Labor is fully

committed to supporting the Senate's review and accountability functions in

government and opposition. Labor believes the Senate's functions that have

developed over the last 24 years are worth defending and preserving.

In conclusion, let me make it clear that Labor supports the processes,

mechanisms and culture that developed in the Senate between 1981 and

2005. It was good for Australian democracy and gave the Senate an

important and constructive role in our parliamentary system. The check and

balance that this provided can only be maintained by a non-government

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majority or a government truly committed to those processes. Since July

2005 clearly neither condition has applied.

Secret negotiations between Government ministers and backbenchers or

powerful interest groups are no substitute for the open and transparent review

processes of the Senate. Australians are quickly learning that the loss of the

Senate's powers as a check on the executive will come at a great cost. It falls

to Labor to hold the Government accountable with whatever opportunities are

left to us and to ensure that the Government majority in the Senate is short-

lived.

Thank you

i Democracy in America, Henry Reeve translation, 1961, Oxford University Press, London. ii 'Crossing the Floor in the Federal Parliament 1950 - August 2004', Parliamentary Library Research Note, 10 October 2005. iii

'Be wary, public warned' Sunday Canberra Times 6 November 2005 p.6.

ENDS

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