Among the many self-inflicted wounds Malcolm Turnbull has sustained since the knifing of Tony Abbott, his biggest problem remains an unworkable and unpredictable Senate. The election result has raised once again a perennial question in Australian politics – how best to define the powers and proper role of the upper house. With sophisticated preference deals and refined techniques of voter manipulation now the norm, the Senate has become a minefield , not only for Turnbull but for both sides of politics – a rabble of conflicting interests and an obstruction to effective government. Can anything be done to reform it?
It used to be Labor that had cause to complain. Not since 1951 – remarkable as it seems – has the ALP enjoyed a workable Senate majority. Abolition of the Senate was for years Labor policy – only to be scrapped in 1979 when Lionel Murphy was making life difficult for the Fraser government with adroit use of the Senate’s investigative powers. Labor sentiment swung the other way in the 1980s when Bob Hawke found himself without a Senate majority and Paul Keating memorably dismissed the upper house as “unrepresentative swill.” Thanks largely to Turnbull’s opportunistic changes to the method of voting, the swill is now arguably more unrepresentative than ever before.
So now it’s the Coalition’s turn to complain. With Turnbull forced to rely on an unpredictable cross-bench to pass legislation, Labor sees the upper house as their best bet for forcing an early election. And they may yet succeed. If a couple of votes has gone the other way in those knife-edge divisions a few week ago , Turnbull would now be facing the unwelcome task of appointing a royal commission into the banks instead of swanning around on the international stage.
It wasn’t always like this – and it shouldn’t be. In the early years of Federation the Senate was chosen by a first-past-the-post voting system which ensured that an elected government almost always had a Senate majority. Sometimes that majority was disproportionately huge: in 1917, when W.M. Hughes led the conservatives to victory, he won 35 of the 36 Senate seats! Curtin’s landslide win in 1943 gave Labor a Senate majority, allowing Chifley’s government to introduce its great social welfare reforms. It was Chifley who introduced the present system of proportional representation for Senate elections in 1948 – a reform that Labor has sometimes had cause to regret. It enabled Menzies to govern comfortably during his long years in power and Fraser to enjoy a Senate majority for most of his term. John Howard had a Senate majority from 2005 until his defeat in 2007.
There is probably no way the Senate can be abolished altogether, much as politicians on both sides might wish otherwise. Australian voters are notoriously reluctant to amend the Constitution, and seem partial to the idea of upper houses with their much-vaunted checks and balances. A 1961 referendum called by the then Labor premier Robert Heffron to abolish the NSW Legislative Council was convincingly defeated. No one seemed to care that the Council was flagrantly undemocratic – its members chosen by other politicians – until Neville Wran reformed the place in his first term. That New Zealand and even Queensland have struggled on without the benefit of upper houses cuts no ice with mainstream public opinion. One impediment to reform was the defeat of the 1967 referendum designed to break the “nexus” between the number of senators and the number of members of the House of Representatives. I’m not sure how many voters knew what a nexus was. The only dissenting voice in that campaign came from the DLP, who ran a specious line that breaking the nexus would result in more politicians.
But if abolition isn’t possible, what can be done to make the Senate more useful and productive? There is a strong case, I believe, for reform along the lines of the British House of Lords. I’m hardly one to advocate an Australian peerage – a bunyip aristocracy, in Daniel Denieh’s famous phrase – but Britain’s upper house may well be the best model. With its mix of hereditary peers and government-appointed members, many of them men and women of acknowledged distinction in their fields, the Lords serves a valuable purpose. It can debate, it can investigate, its can delay, it can propose amendments – but in the last resort it cannot block the will of an elected government. In the great reforms of 1911 it was stripped of its power over money bills and had its power to block legislation severely curtailed. Today, no bill passed in the House of Commons can be delayed for more than a year in the Lords. The dismissal of the Whitlam government, made possible by the Opposition’s manipulation of Senate numbers, could not have happened in Britain. It’s strange that in adopting the Westminster system of government, we overlooked one of that system’s most important features.
In the present political climate, major party agreement on the shape of a reformed Senate may not be too difficult to achieve – at least in principle. Changes to the voting procedures of the Senate can be legislated without the need for a referendum. Section 9 of the Constitution allows the Parliament to make laws prescribing the method of choosing senators. I envisage a body like the present honours secretariat which would nominate in each State a quota of senators – people renowned in, say, the sciences, the arts, literature, the law and public service – from whom a number would be “directly chosen by the people” (s. 7). L
Limiting the Senate’s powers would require a referendum, and it may well take years of advocacy to mobilise public opinion in support of change. But the rewards would be great. With budget repair and other pressures likely to demand bold and probably unpopular government action, we can do without Senate obstruction. The alternative is to be saddled forever with an increasingly unworkable parliamentary system. Do we really need an upper house in which Tasmania has 12, or 15, or 18 senators – the same number as New South Wales? Some of my best friends are Tasmanians, but do we really need more Jacqui Lambies? Or more Pauline Hansons? Or another Sam Dastyari?
Evan Williams is a former newspaper editor and Walkley Award-winning journalist, who worked for 18 years for the Sydney Morning Herald. He wrote speeches for Gough Whitlam, Neville Wran, Bob Carr and other Labor leaders and was head of the New South Wales Government’s cultural sector from 1977 to 2001. He wrote film reviews for the The Australian for 33 years. He is a Member of the Order of Australia and lives in Sydney.