Time to Clip the Senate’s Wings

It might surprise a good number of Australians, and perhaps even the odd Australian legal academic, that by far the biggest influence in drafting the 1901 Australian Constitution was the US Constitution. We copied and mimicked big chunks from the Americans. Indeed, I’d say that ours is the most American constitution in the democratic world, with the possible exception of the Philippines. So ours is certainly therefore the most successful exercise in plagiarising the US Constitution, and let’s be clear that when it comes to drafting a constitution there is nothing wrong with plagiarism. Only a fool would not look around to see what already works.

The framers of our Constitution—and by the way, ours is one of the world’s oldest written constitutions, which is a sure sign that it is a good one—were extremely well acquainted with the American model. Albeit in the context of the inherited British Westminster parliamentary model, they opted for a US-style elected Upper House, rather than the Canadian or UK options which in practice are basically unicameral—though I should note that at the time of federation the US’s Senate was indirectly elected, its members being chosen by state legislatures, which explains bits of sections 7 and 24 of our Constitution (the sections so egregiously misused by the High Court majorities in Roach and Rowe).

The framers also copied the American model of federalism rather than the Canadian one, basically opting for “one list of the centre’s powers, all else to the states” rather than Canada’s “two lists of powers”, on the assumption that any fair interpreter would take that to mean that a lot was being left to the states, as opposed to relentlessly gutting state powers on behalf of the centre. And the framers left the choosing of the top state court judges to the states, as in the US, not to the centre, as in Canada. Australia even copied the US in opting to create a national capital city not part of any state.

As far as important matters go, the Australian founders only rejected the US model when it came, first, to the constitutional amending provision—Australia opting for a Swiss-inspired direct-democracy section 128 which requires amendments to be passed in at least one house of the national parliament and then to win a two-pronged referendum needing a majority of voters nationally and a majority of voters in a majority of the states—and second, they rejected the US model when it came to having a Bill of Rights.

There have been forty-four constitutional referenda in Australia and thirty-eight have failed. All but five of those failures lost on the first prong of not garnering a majority of voters nationwide, meaning the majority rejected change.

But it does not follow that our Constitution is a procedurally difficult one to change. I differ with Professors Anne Twomey, George Williams and a few others on this point. A system like ours that asks you to get one person over half the voters to agree, with a nod towards a federalist component of also asking for half the voters in over half the states, is not a comparatively difficult constitutional procedural hurdle. Just look at what you need in the US or Canada if you want to see tough procedural hurdles to constitutional change, and ones that never, ever ask the regular voters but only ask the political class.

And notice that the constitutional amending requirement in Canada sometimes, on some issues, requires unanimity of all ten provinces’ legislatures plus the national legislature in Ottawa—including on the issue of changing the monarchy. Ever wonder why no one talks about republicanism in Canada? It’s because it cannot happen given the Constitution’s amending formula. That post-1982 Canadian Constitution is a procedurally hard one to change or alter, a few orders of magnitude harder than ours.

So claims that Australia’s Constitution is hard to amend are factually wrong as well as elitist and undemocratic, in that they imply that the majority of Australia’s voters in the thirty-eight failed constitutional referenda were somehow wrong, uninformed, stupidly misguided and not as enlightened as some self-styled constitutional experts.

You can explain the low hit-rate for constitutional change in this country simply by assuming that voters like our Constitution and think it does not need much changing. I agree with that position and I almost always agree with the voters’ past choices in all forty-four constitutional referenda. Moreover, I am prepared to bet right now that the indigenous recognition proposal will also fail. It will fail because it is a bad idea—which admittedly makes me almost (not quite, but almost) unique amongst constitutional law teachers in this country.

Let me go back to what we copied from the American constitutional model and focus on the Senate. Yes, we also copied federalism but that is a separate topic, one that my colleague Nick Aroney and I wrote about at length in a Sydney Law Review article and one which I will here only say a few things about in passing.

In the bluntest of terms my view is that federalism in this country has been ruined by the High Court virtually always siding with Canberra even when that requires bizarrely far-fetched approaches to constitutional interpretation (think WorkChoices, think the Tasmanian Dam case, the list goes on and on). The High Court has gutted competitive federalism, the only kind that clearly works (see Canada, see Switzerland, see Germany, see the US, and note that federal democracies are wealthier and have fewer public servants per capita than unitary states) and has left us with the democratic federalist world’s only states with no income tax power, the world’s worst vertical fiscal imbalance, mendicant states, an idiotic GST distribution formula (this one is not the fault of the top judges) and woolly talk of “co-operative federalism” when the engine that makes federalism work is competition.

But the topic here is bicameralism and the Senate. Our Senate looks much like the US Senate. The similarities include the fact that here too there are the same number of senators from each state (at the moment twelve from each state in Australia; in the US it has always been two per state); likewise here too senators are elected for an extra-long period of tenure (twice as long as the House of Representatives MPs here and three times as long as House of Representatives Congress people in the US); and here too our Senate has full-blooded powers of review, to the point that it is unmatched in the democratic world outside the US and Italy.

There is one way in which our framers fine-tuned or tweaked the US version of bicameralism. When copying the US Senate our framers foresaw the possibility of gridlock between the Upper and Lower Houses. In the US when this happens there is no constitutional method to resolve the impasse. You just have to wait for politics to run its course. Think about the now fairly regular inability to pass a budget in the US and the concomitant, and not infrequent, threats of closing down government services. This is resolved simply by waiting to see who blinks first under the political pressure that builds up as a result of such threats and their implementation.

But here in Australia we have section 57, a carefully calibrated mechanism for resolving disputes between the two houses of parliament. This is the double-dissolution provision. It ties in to section 24 that requires that the number of MPs in the House “shall be, as nearly as practicable, twice the number of the senators”. That is obviously deliberate and the intention is to favour the House over the Senate if a gridlock-busting section 57 double-dissolution is called—though as Mr Turnbull can attest, if you do badly enough in the election it does not work because you have too small a majority to prevail at the joint sitting that section 57 ultimately allows.

Note yet again just how unusual it is to have a strong Upper House, one that can block money bills and bring down governments. In New Zealand there is no Upper House at all; they’re unicameral (which is why reform, for good or for ill, is so much easier over there). Canada and the UK do have Upper Houses but in both countries they are unelected. There is a small fringe of hereditary peers in the UK but the preponderance of the House of Lords is now appointed for life. In Canada all senators are appointed: a few gold medallist Olympians, a Nobel laureate or two, a television personality, and then the other 90 per cent are political hacks.

As a result of the Canadian and UK Upper Houses having no democratic legitimacy, they almost never veto anything. They have no legitimacy. Sure, they may delay here and there—though never, ever, money bills, which explains why governments can at least attempt budget repair in Canada, the UK and NZ. And every single provincial legislature in Canada is unicameral, like Queensland’s. Many Australians seem to think that having a strong Upper House is normal in a democracy. It is not.

When you compare the Senate to the House of Representatives, the Senate looks democratically deficient. In the House you basically take all the voters in the country and divide them into equally-populated constituencies. So each person’s vote counts for more or less the same as anyone else’s. In the Senate that is emphatically not true, again following along American lines.

Because each of the original states is guaranteed the same number of senators, with New South Wales and Tasmania getting a dozen each, that means that your vote for the Senate in Tasmania is worth about fifteen times more than it is in New South Wales. It’s not strictly a gerrymander, but rather a special weighting for voters in some states. The key point is that the democratic credentials and legitimacy of the Senate are much less than the House of Representatives’. The Senate still has far better democratic credentials than the High Court and the top judges, but the Senate fails when put in the democratic scales with the House.

This was no mistake. It was one of the trade-offs the framers made in creating a strong federal jurisdiction. But while federalism has slowly been strangled to death in this country, we still have an extremely powerful Upper House where some people’s votes are worth fifteen times what others’ are worth.

Bear it in mind next time some prime minister wins a handsome majority with a clear manifesto based on gaining some 9 or 10 million votes and the press then clamours for this prime minister to negotiate with some independent senator from, say, Tasmania who gained a thousand first-preference votes—someone who almost literally could have been voted into the Senate by his or her extended family. Perhaps I am poisoned by my Canadian upbringing, but I cannot understand why a prime minister should have to negotiate and bargain with such democratic minnows as the independents who hold the balance of power in that sort of Senate.

There are really only two plausible justifications for this sort of potent Senate arrangement. One is a sort of counsel of despair, that this is the price we had to pay in order to persuade the small states to join the new federation. This claim is a backward-looking one, that the costs the deal imposed were (and are) outweighed by the benefits of creating this continent-wide country.

The historical and empirically descriptive side to that claim seems correct to me. And as I do not live in Western Australia I think it is easier to say, too, that the cost-benefit analysis component is correct as well, the benefits having outweighed the costs, and by a fair bit. But this is not really a justification for the Senate’s existence in its current form, not in the sense that one is claiming the Senate is a good-in-itself, some sort of wholly legitimate legislative body deserving of the full-blooded powers it presently possesses and somehow deservedly immune from reform. It’s more of a jaundiced, imperfect-world type of justification.

By contrast, the other plausible justification for our Senate is very much one that defends the Senate as a good-in-itself, rather than as a necessary evil. This second justification is the type that my colleague Nick Aroney at the University of Queensland would offer, Nick being a staunch supporter of strong bicameralism. Let me call this second potential justification the “James Madison defence”. The “checks and balances” defence of bicameralism was very much in the mind of Madison himself, who more than anyone else was responsible for drafting the US Constitution.

The thinking here starts, as with Madison’s own thinking, with a distrust of the majority. We need constraints and counter-balances on the power of the majority lest it turn to tyranny. So the fact that the Senate has noticeably fewer democratic credentials—less legitimacy in the democratic scheme of things—is not such a concern if in return you can temper majoritarianism. With a strong Madisonian Senate, goes this second justification, we are buying the checking and constraining of power. “Better to limit and prevent some good things that might otherwise happen in return for preventing bad things and abuse of power.”

After all, the Senate can only block and veto things. It can never force a bill through the more democratic House. Hence the downside that comes with a US-style Senate is gridlock and the inability to enact what the House wishes to enact; the danger is never that the Senate can have enacted what it wants and what the House does not want. Yes, the less democratic chamber can veto and block and cause gridlock and even chaos, but it cannot push through what the House itself rejects.

So for Madison, and for Nick Aroney, that second sort of justification is persuasive. They want the checks on power and are prepared to pay the costs in a way that does not exist in Britain, in Canada, in New Zealand, and in a lot of other democracies.

My view on Australian-style bicameralism is a gloomy one. Its costs keep rising while at the same time it simply does not deliver the sort of “keep us free” or “keep tyranny in check” benefits that its proponents claim.

If you look at other Anglosphere jurisdictions without strong bicameralism they look every bit as free as Australia. Britain and New Zealand and Canada are no more free and rights-respecting than Australia—but they are no less so either. And if, unlike me, you put that down to an entrenched or “tied to the European Convention” bill of rights, that still doesn’t explain New Zealand, which has a weaker statutory bill of rights even than Victoria. Put differently, the supposed benefits of strong bicameralism look to be massively oversold.

Meanwhile the costs or downsides of our Senate seem to grow by the year. Any cut in spending—I mean an actual cut in government spending, not an increased tax that is dishonestly badged as a cut or implied to be such under the guise of being part of “budget repair”—just cannot get through today’s Senate. Meanwhile our deficit is big and the trajectory of our increasing government debt is frightening.

In 2007 when the Howard government was defeated there was, uniquely in the democratic world, no government debt. Today, a decade later, the net debt is $355 billion, or about 20 per cent of GDP, with no end in sight to the upward trajectory. All attempts to do anything about that on the “restraining government spending” side of the ledger simply cannot get through the Senate.

By contrast, in Canada several decades ago the left-wing Liberal government took a worse debt and deficit and fixed them, partly by some hefty cuts to government spending. It did this by winning an election and just making the cuts. There was no Upper House to block budget repair and no independent senators to negotiate with. Or look at New Zealand over the last decade. This time it is a right-of-centre political party that has fixed an awful deficit-and-debt scenario. Again, once an election is won on the issue the governing party can get on and do what it campaigned on and then at the next election see what the voters think. It affords a government time to do painful things, and hope that its remedy brings better times before it next has to face the electorate.

Compare that to the US, where budget repair has proven to be very, very difficult. Yes, in the US you have not just two legislative chambers to get on side but also the President. But their budget position is bad, and the headline figures do not include all the unfunded liabilities such as social security.

And it is not just budgetary matters, though they are crucial. I am an avid proponent of John Stuart Mill-type free-speech positions. I believe it is an absolute disgrace what happened to the three QUT students, and to the cartoonist Bill Leak. When a political party makes it a central plank in its campaign manifesto significantly to amend section 18C—the so-called hate-speech laws—and then finds it cannot get that core platform policy through the Senate, then it is plain that such an Upper House is no longer a house of review—it is a house of governing.

In good times the costs of a potent “checks and balances” regime might be absorbable. In bad times give me the British, New Zealand and Canadian form of functional unicameralism any day, not the American-inspired gridlock-fest with the inevitable compromises that no voter—and certainly nowhere near a majority of voters—wanted.

It is hard to be optimistic about possible ways forward that any of today’s leading politicians will be able to bring about. But the options are clear and well known.

First, use section 57 properly. By that I mean that once it becomes clear that the Senate will block multiple manifesto pledges just end all negotiations. The government under this scenario proceeds to pass through the House of Representatives all the bills it thinks desirable and to send them to the Senate. Once blocked there the House re-passes them. And once the government has built up thirty or forty or fifty bills it calls a double-dissolution election and puts its policies to the voters.

Our Constitution was designed to favour the House over the Senate in all such double-dissolution elections as section 24 mandates that the numbers of MPs in the House be “as nearly as practicable, twice the number of the senators”. It was designed to favour the more democratic chamber in any joint sitting that might follow one of these elections. Usually when a government wins a double-dissolution election it will have the numbers to prevail in any joint sitting.

Only if you squeak back in with the narrowest of wins would this not be true, as Mr Turnbull demonstrated last year. But the sort of insipid double-dissolution election Mr Turnbull ran, on a relatively obscure piece of labour relations law that he then essentially did not mention during the entire election campaign, was a terrible use of section 57. Instead, if you use it at all, use it to try to drive through an entire big package of the key bills you had promised in the preceding election.

Of course this still makes life harder than in Canada or New Zealand or Britain because a government here has to put its policies to the voters twice, not once. It gives those opposed extra time to build an alliance of the disaffected. But in my view it can work, and might at least be attempted.

A second option is to change the voting system used to elect the Senate. I do not mean the piddling peripheral changes made recently, I mean getting rid of proportional voting altogether in the Upper House.

I have written before on why I dislike proportional voting systems. They force all decision-making and compromising to happen after elections, in the coalition-building and negotiating stages, not before elections, putting policies to the electorate. So the voters are taken out of the picture much more than they are in majoritarian voting systems such as the preferential system used in our House of Representatives or the first-past-the-post system used in the UK, the US and Canada. Likewise, with proportional voting systems little parties, or wacky independents, become too powerful. And it becomes impossible for voters to know who to punish for bad legislation.

In that sense our bicameralism is even worse than the version it copied, the American model. In the US they have a first-past-the-post voting system that delivers majoritarian outcomes. In the US Senate this means you will have two parties and occasionally maybe one independent (out of 100). And that means that when a bill is favoured by the President and passed in the House, but then blocked in the Senate, that all voters know that it was done by the other big party. If the Republicans want it, then it was the Democrats and only the Democrats that blocked it. And vice versa. So the voters can decide whose side to be on and if they are unhappy with such Senate obstructionism it is plain who they should punish.

But here in Australia we use an STV (or Irish-style) voting system in the Senate. It is strongly proportional. And so, as a voter, if I am unhappy with Senate obstructionism who do I hold accountable? Team Xenophon do not exist in Queensland. Jacqui Lambie and Derryn Hinch are immune to any voter frustration I might have. These people are not part of a political team I can punish or hold accountable. They are immune to my and indeed to most other Australian voters’ frustration. Accordingly, and in the context of an American constitutional set-up with an uber-powerful Senate, the voting system here makes things even worse than in the US.

I would move back to the pre-1949 voting system we used in this country. Yes, it would leave us with mostly two-party representation, and yes, it would lead to big swings in party representation in the Senate (though that would be partly off-set by the senators’ double-length terms of office). But those costs would be outweighed by the benefits of the change back to the pre-1949 voting system under which voters would be able to hold obstructionism in the Upper House accountable. And this change can be done without the agreement of the Senate itself, assuming the government took it to the voters in a double-dissolution election.

Here is my last suggestion (other than despair). This involves resorting to section 128 and constitutional amendment. Here you take a proposed constitutional amendment (which would not ultimately need Senate approval) to the voters and ask for a change to the Constitution.

In my view there is next to no chance Australian voters would agree to the elimination of the Senate and a move to unicameralism. But there is a chance you might get through a proposal to remove the Senate’s veto over money bills, say. Change things so that the Senate could delay but not veto any money bills, which has been the British position since before 1911 and the Canadian one for almost as long. Alternatively, you might ask the voters to consent to some tinkering with section 57 to make it easier to make use of joint sittings.

Either of those ideas has a good deal of appeal to me. Indeed the second one could simply adopt one of the two proposals of the 2003 Department of Prime Minister and Cabinet Discussion Paper on “Resolving Deadlocks”. That paper mooted two options that might be put to the people in a referendum, namely: (i) the prime minister can ask the governor-general for a joint sitting after a bill has been blocked twice by the Senate during the life of the parliament, with the required three-month interval (this one dispenses with the need for a double-dissolution election and indeed any new election at all); or (ii) the prime minister can ask the governor-general for a joint sitting after a bill has been blocked twice in the previous parliament by the Senate, there’s a regular election, and the same bill is blocked again in the new parliament (this one requires another election, but not a double-dissolution election).

That’s my take on strong bicameralism in Australia. I think our Senate is now a big problem; it’s become too big for its democratically deficient boots.