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Our Constitution and the Senate

The system is broken

4 April 2015

9:00 AM

4 April 2015

9:00 AM

Most of the journalists in this country, and pretty much all of the ones who work for the ABC, basically haven’t got a clue when it comes to our Constitution. Here’s the sort of line we’ve been hearing of late: ‘Tony Abbott is to blame for not getting the government’s budget and other matters through the Senate. He should be compromising more. He should be negotiating more. He should be reaching out to all the Independent Senators. The blame for all the blocked budget measures lies with Big Tony.’

Now if that’s a caricature of the general journalistic attitude, it is barely a caricature. On some parts of the ABC it understates the hostility to Abbott and the underlying desire to find a way to blame him for every failing going.

But here’s what you need to realise about our Constitution. Firstly, in the Westminster world that includes Canada, the United Kingdom and New Zealand, Australia is unique in having an Upper House that has any sort of power at all. New Zealand has no upper house whatsoever. And both Canada’s and the UK’s are today, in 2015, not elected legislative bodies. The people that staff them both are wholly appointed in Canada and overwhelmingly appointed in the UK, with a handful there who get their spots on an hereditary basis.

This means two things. First off, unelected Upper Houses have next to no legitimacy in today’s world. To call them a joke is apt. More pertinently, when prime ministers in Canada and the UK win an election (which by definition means they have the confidence of the Lower House) they get any budgetary measures they want passed into law. Always. An unelected Senate blocks virtually nothing. And the same is true in New Zealand where there is no upper house.

On that model Mr Abbott’s government’s university reforms would have sailed through. So would all the budget savings. The Prime Minister would have three years to do what he and the government thought best and then the ultimate arbiters in any democracy – the voters – would have their say. That means that any comparisons of Abbott to any of those other prime ministers is nonsense.

It gets worse. The drafters of our Constitution here in Australia explicitly opted to copy the US Constitution. Indeed, we have the most American of constitutions in the Westminster world. That means they chose to have an elected Upper House. It was meant to be a House for the States, to check and balance.


So notice how inconsistent it is for some ABC hack to criticize the Republican Congress for blocking an Obama legislative initiative and at the same time see our Senate as rightfully being the arbiters of what legislation ought to pass into law.

Secondly, notice too that in democratic terms – in terms of the democratic legitimacy of the two bodies – our Senate is massively less legitimate than our House of Representatives. For the Lower House we basically count everyone in Australia as equal and divide the country into districts of the same size, or as nearly as practicable. Your vote counts the same as mine. That is democratic legitimacy.

For the Senate we give each State the same representation whatever its population, a direct copy from the US. That means voters in Tasmania have votes that are worth about 18 times as much as NSW voters. All the smaller States are massively over-represented. Which was by design. But it was, as I said, a federalism trade-off to protect the States that is now defunct. And the idea was never that the Senate would be more important in making public policy decisions. It was to be a House of second thought, not the predominant decider of public policy.

Things of late, though, have got out of control in this country. With the increased number of Senators per State to 12, and the proportional voting system, we are today in the position that James Madison’s idea of a checks-and-balances Upper House of the sort we copied has descended to the point that people like Jacqui Lambie and Clive Palmer and some Motor Enthusiast (whatever that means) are doing the checking and balancing. Never in his wildest dreams did Madison envisage or desire that.

In addition, the Americans keep their Senate a two party affair. You have the ‘In’ party and the ‘Out’ party. The President’s party will sometimes control the Senate (as was the case for President Obama’s first two years) or it will not. But the voters will always know who to reward or punish for a recalcitrant Senate.

That is far better than the rubbish situation here in Australia where a handful of people who at the last election won some miniscule fraction of the voter support as compared to the Coalition are elevated by journalists into being legitimately on the same plane as the Abbott government. And when they do block Bill after Bill after Bill we voters are not able to punish them. They are not accountable, especially when some fraction of a fraction of the vote can get you back into Parliament.

I would change the Senate voting system to deliver two party dominance. But as that is not an overly popular point of view, let me just say this: journalists should at least be clear that there is nothing obviously desirable in wanting a prime minister who won well over half of all voters last election to have to bargain and compromise and kowtow (on every single Budget provision mooted) to people who won the support of next to no Australians at all.

Think about it. Seven or eight puffed up, pompous Independents decide that they know more about higher education than the government (and 40 of 41 Vice Chancellors), and worse, feel no obligation at all to let a government get its spending measures through so that the voters can have the last word.

Worse again, journalists blame Abbott for this. True, maybe ABC journalists would be less forgiving of the Senate were it a Labor prime minister being stymied. Okay, forget that ‘maybe’. We all know that the ABC would be ruthlessly attacking the Senate if it were stopping a left wing government from enacting – take your pick – same sex marriage or higher taxes or new carbon taxes or whatever.

But the point here is about democracy. Whoever is in government, our Senate has gotten too big for its comparatively undemocratic boots.


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