December 17, 2014
Power of the few over the many
By Associate Professor Gregory Melleuish
The government is having severe problems getting its legislation through the Senate. Part of the reason lies in the original design of the upper house.
The Federation fathers knew they were entering uncharted territory when they set out to design the upper house.
By the 1890s, the British House of Lords was losing much of its power as the British political system became increasingly democratic.
The situation in Australia was increasingly to limit the power of the colonial upper houses, as they were nominated or elected on a limited franchise.
The mood of the day was democratic, yet the Australian Constitution brought into being a Senate that appeared to run against this trend, giving equal representation to each foundation state and making the powers of the Senate equal to the House of Representatives, except in the case of money bills.
Why did it do this? In the 1890s, Australia was composed of two large colonies, NSW and Victoria, and four smaller ones.
The smaller colonies were frightened that the two giants would dominate them.
The solution was to create a states’ house that had equal representation from the various states and considerable power.
This involved considerable concessions by the two larger states. Yes, they had many more representatives in the House of Representatives, but those representatives could have their will blocked by a recalcitrant Senate.
There was considerable opposition in NSW, not least because it was the only colony adhering to the principles of free trade. Indeed, the City of Sydney did not vote in favour of Federation.
A powerful Senate was the price paid for Federation, and it is remarkable the colonies actually managed to come to agreement.
The power of the Senate was for a long time a sleeper issue in Australian politics. For one thing, the electoral system did not favour smaller parties until 1948 when proportional representation was introduced.
At this time, the number of senators also increased as the House of Representatives grew in size.
The Australian Senate was modelled on the US Senate, where each state has two senators. In the American case, there is little room for senators who are not Republicans or Democrats.
However, the combination of proportional representation and an increase in the number of senators opened the doors for minority representation.
If Australia were composed of 12 states instead of six, each returning six senators (three at each election) we would have a Senate that would be quite different in composition.
Instead we have a very powerful Senate that, by accident rather than design, allows for the representation of a significant number of minority parties and individuals.
Given the Senate was created in the knowledge that it did not embody the principles of democratic majoritarianism means it has considerable capacity to thwart the will of the majority.
Moreover, given its particular make-up at present, it delivers power to a relatively small number of individuals who need to be aware of the awesome responsibility of such power.
The Federation fathers did not envisage the sort of Senate we have. In fact, given men such as Henry Parkes and Alfred Deakin held very high ideals regarding how politicians should wield power for the benefit of the public, they would probably be horrified by contemporary politics exemplified by the Senate.
But there can be no going back. We have a Senate as it has evolved during the past 114 years; we have to live with what we have.
There is probably a good case for examining the way in which the Senate is elected, just as happened on several occasions in the first half of the 20th century.
Above all, we need senators who recognise the public trust placed in their hands.
This article was originally published in The Australian. Read the original article.