Australians may well ask themselves what their Senate is really for or what they can do with it. Originally, it was meant to be a "states house" but by 1910 it had in fact become a "parties house" and has remained that ever since. It was not until 1967, after proportional representation had been introduced in 1949, that the Senate began to play a significant review role. However, if it is just a Rubberstamp Senate, as it is has been for the last three years, Australians may wish to abolish it. The expense of continuing with it would be ludicrous because it would be more than ever just another major party house.
However, if voters think that its purpose now is to critically review legislation passed by the Lower House or, better still, to bring about long overdue reforms, they would want to make sure that it is not a Rubberstamp Senate ever again. Understandably, the preference of the both major parties is for a Rubberstamp Senate so that they can pursue their legislative program, and even any action that is not mandated, without serious questioning or outright denial. Major party Senators would of course always toe the line – or be expelled. One can refer back to PM Holt’s plan to "break the nexus", Keating’s taunt at "the unrepresentative swill" and Howard’s attempt to hold a joint sitting to stop blockages in 2003 as efforts to curb the power of the Senate. All in vain though. Voters at least insist on avoiding a Rubberstamp Senate. But could they aim for more? If yes, how can this be achieved?
The Senate was given substantial legislative powers in Section 53 of the Constitution. Neither of the major parties has shown any inclination to seriously look at systemic reform in Australia of any kind. In the current election system change has been avoided entirely, in spite of the massive dissatisfaction in the many areas of federal-state relations. Not surprisingly this was the topic of a recent ABC TV Difference of Opinion program in which I participated and put the case for abolishing state governments. There are several other areas, related to such a change, that come to mind; for example, the reform of the amending clause of the Constitution, Section 128, which has been such a major obstacle to updating the Constitution.
Voters could make use of their precious right to vote in Senate candidates who are NOT members of the major political parties. Indeed I would go as far as to say that it would be sensible not to vote for any major party Senate candidates. The proportional representation of the Senate certainly does provide that opportunity.
If they did that, then the choice is very wide indeed. They would be in a position to elect a chamber that directly represents the people and more or less in proportion to the votes cast for the different minor parties and Independents. However, in recent elections at least 95 per cent of those who vote for a major party in the House of Representatives also vote for that same party in the Senate. WHY one may well ask? Instructed by the major parties themselves? Habit? Fear of instability of government? Voters unwittingly destroy thereby the essential functions of the Senate as well as its undoubted potential for reform. In the absence of a serious opposition party the Senate could take on that role quite comfortably.
The opportunity of the electorate to vote in a Senate which does not represent either of the major parties (primarily or not at all) is immense, really unlimited if voters can overcome the force of habit. Given that we now have a political system that is dominated by two look-alikes, or almost alike parties, the urgency of popular action to change direction is obvious.
In 1999 Marian Sawer and Sarah Miskin edited a volume of papers, Representation and Institutional Change, presented to celebrate 50 years of proportional representation (PR) in the Senate.
Essentially the combined papers, written by a variety of nineteen experts concluded that the introduction of PR had been a positive move making it possible for better and more diverse representation. It was also demonstrated that the Senate, especially after 1967, had become a particularly useful chamber where much more intensive debate about legislation took place.
It allowed the emergence of minor parties and independents to establish themselves. They became sometimes an irritant for the government of the day, both for the Coalition and Labour, who argued that they "had a mandate to govern". The Senate, often more representative of society than the House of Representatives, allowed the minors to function as a bloc having the balance of power. Rather than being a spoiler this role actually improved the Parliament. I would say that the Senate has been the redeeming branch of otherwise very mediocre Parliaments.
We need to reflect on what has actually made the political system and Constitution so inflexible that it can only be described now as frozen. Many would answer that it is the inflexibility created by Section 128 of the Constitution, which requires that referendums for amending the constitution need an overall majority of voters as well as a majority in a majority of states. Certainly this has been a huge barrier but it is by no means the only one. Regrettably, initiatives to launch a referendum can only come from the politicians. Australia does not have the popular initiative so that, in practice, only referendum proposals are put that do not disadvantage politicians. The third barrier is that these politicians are, in practice, always major party politicians, because if they do not agree amongst themselves, the proposal has Buckley’s chance of getting through. The most recent attempt at this was in 1988 when four such referendum proposals again failed to gain popular approval.
So why do we have this two party tyranny, since that is what it amounts to? The principal cause is Australia’s electoral system. Our dominant electoral system is the single-member district system, which yields one member per constituency (which have names meaningful only to the initiated). Nowadays in most of these districts the eventual winner of an election rarely receives more than 45 per cent of the vote and that means that some 55 per cent of the electors don’t get their first preference elected. This limited form of democracy is further distorted by the fact that governments can win a majority of seats without having a majority of votes. Leaving that aside diversity is not very well served by this system and, particularly, it produces a two-party domination. That would not be so bad if the two parties were genuinely alternatives, but they no longer are, and that has much to do with the changes in society which has become, for want of a better term, middle class. What that means is that unless the Senate provides a real alternative, there is none. That aspect of the Westminster system has simply disappeared.
Is it enough to say, as defenders of this combination of systems often do, that the Senate provides the diversity and more democratic representation as a kind of counter balance? There was some truth in this until 2004 when the Howard Government was presented with a Rubberstamp Senate that came into effect in July 2005 – as a result of dubious preference deals in Victoria. The reality is in fact quite different because the major party tyranny extends well into the Senate. A guaranteed five of the six Senate seats, in each half-Senate election, go to the major parties. The major parties gather the lion's share of all donations as well as the Government's electoral funding payments.
Nevertheless, the Senate is elected on the basis of proportional representation and if voters could eliminate the influence of the major parties simply by not voting for their candidates a valuable popular counter-balance to the House of representative could well be the result, one could say a peoples' house as against a major party house.