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Australian Senate
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The Senate is the upper of the two houses of the Parliament of Australia. The lower house is known as the House of Representatives. Senators, popularly elected under a system of proportional representation, serve terms of six years. Significant power is conferred upon the Senate by the Australian Constitution, including the capacity to block legislation initiated by the government in the House of Representatives, making it a distinctive hybrid of British Westminster bicameralism and an American separation of powers.
Commonwealth of Australia Constitution Act (Imp.) of 1900 established the Senate as part of the new system of dominion government in newly-federated Australia.
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The Senate is the upper of the two houses of the Parliament of Australia. The lower house is known as the House of Representatives. Senators, popularly elected under a system of proportional representation, serve terms of six years. Significant power is conferred upon the Senate by the Australian Constitution, including the capacity to block legislation initiated by the government in the House of Representatives, making it a distinctive hybrid of British Westminster bicameralism and an American separation of powers.
Origins and role
The Commonwealth of Australia Constitution Act (Imp.) of 1900 established the Senate as part of the new system of dominion government in newly-federated Australia. From a comparative governmental perspective, the Australian Senate exhibits distinctive characteristics. Unlike upper houses in other Westminster system governments, the Senate is not a vestigial body with limited legislative power. Rather it was intended to play, and does play, an active role in legislation. Rather than being modelled after the House of Lords, as the Canadian Senate was, the Australian Senate was in part modelled after the United States Senate, by giving equal representation to each state. The Constitution intended to give less populous states added voice in a Federal legislature, while also providing for the revising role of an upper house in the Westminster system.
Although the Prime Minister, by convention, serves as a member of the House of Representatives, other ministers may come from either house, and the two houses have almost equal legislative power. As with most upper chambers in bicameral parliaments, the Senate cannot introduce Appropriation Bills (bills that authorise government expenditure of public revenue) or bills that impose taxation, that role being reserved for the lower house. That degree of equality between the Senate and House of Representatives is in part due to the age of the Australian constitution it was enacted before the confrontation in 1909 in Britain between the House of Commons and the House of Lords, which ultimately resulted in the restrictions placed on the powers of the House of Lords by the Parliament Acts 1911 and 1949 but also reflected the desire of the Constitution's authors to have the upper house act as a 'stabilising' influence on the expression of popular democracy (much as the colonial Legislative Councils functioned as at the time). The smaller states also desired strong powers for the Senate as a way of ensuring that the interests of more populous states as represented in the House of Representatives did not totally dominate the government.
In practice, however, most legislation (except for Private Member's Bills) in the Australian Parliament is initiated by the Government, which has control over the lower house. It is then passed to the Senate, which may amend the bill or refuse to pass it. In the majority of cases, voting takes place along party lines, although there are occasional conscience votes.
Where the houses disagree
If the Senate repeatedly refuses to pass legislation initiated in the lower house, the government may either abandon the bill, continue to revise it, or, in certain circumstances outlined in section 57 of the Constitution, the Prime Minister can recommend the governor-general dissolve the entire parliament in a double dissolution. In such an event, the entirety of the Senate faces re-election, as does the House of Representatives, rather than only half the chamber as is normally the case. After a double dissolution election, if the bills in question are reintroduced, and if they again fail to pass the Senate, the governor-general may agree to a joint sitting of the two houses in an attempt to pass the bills. Such a sitting has only occurred once, in 1974.
On 8 October 2003, the then Prime Minister John Howard initiated public discussion of whether the mechanism for the resolution of deadlocks between the houses should be reformed. High levels of support for the existing mechanism, and a very low level of public interest in that discussion, resulted in the abandonment of these proposals.
Blocking Supply
The constitutional text denies the Senate the power to originate or amend appropriation bills, in deference to the conventions of the classical Westminster system. Under a traditional Westminster system, the executive government is responsible for its use of public funds to the lower house, which has the power to bring down a government by blocking its access to Supply i.e. revenue appropriated through taxation. The arrangement as expressed in the Australian Constitution, however, still leaves the Senate with the power to reject supply bills or defer their passage undoubtedly one of the Senate's most contentious and powerful abilities.
The ability to block Supply was the origin of the 1975 Australian constitutional crisis. The Opposition used its numbers in the Senate to defer supply bills, refusing to deal with them until an election was called for both Houses of Parliament, an election which it hoped to win. The Prime Minister of the day, Gough Whitlam, contested the legitimacy of the blocking and refused to resign. The crisis brought to a head two Westminster conventions that, under the Australian constitutional system, were in conflict firstly, that a government may continue to govern for as long as it has the support of the lower house, and secondly, that a government that no longer has access to Supply must either resign or be dismissed. The crisis was resolved in November 1975 when Governor-General Sir John Kerr dismissed Whitlam's government and appointed a caretaker government on condition that elections for both houses of parliament be held. This action in itself was a source of controversy and debate continues on the proper usage of the Senate's ability to block Supply and on whether such a power should even exist.
The membership of the Senate
Under sections seven and eight of the Australian Constitution, the Senate must:
- comprise an equal number of Senators from each original state;
- have at least six Senators per state; and
- ensure any laws governing the election of Senators is non-discriminatory among states.
These conditions have periodically been the source of debate, and within these conditions, the composition and rules of the Senate have varied significantly since federation.
Voting system
The voting system for the Senate has changed twice since it was created. The original arrangement involved a first past the post block voting mechanism. This was replaced in 1919 by preferential block voting. Block voting tended to grant landslide majorities and even "wipe-outs" very easily. In 1946, the Australian Labor Party government won 33 out of the 36 Senate seats. In 1948, partially in response to this extreme situation, proportional representation became the method for electing the Senate.
Senate Ballot Paper
The Australian Senate voting paper under the single transferable vote system resembles this example, which shows the candidates for Tasmanian senate representation in the 2004 federal election.
Electors must either:
- Vote for an individual party by writing the number "1" in a single box above the line this means the elector wants their preferences distributed according to a party's or group's officially registered ticket.
- Vote for all candidates by writing the numbers 1, 2, 3, through to the last number (in this example, 26) in all the individual boxes below the line.
Because each state elects 6 senators at each half-senate election, the quota for election is only 1/7th or 14.3% (1/3rd or 33.3% for territories, where only 2 senators are elected). Once a candidate has been elected with votes reaching the quota amount, any votes they receive in addition to this may be distributed to other candidates as preferences.
Some states may have upwards of 70 candidates on their ballot papers, and the voter must individually number every single candidate for a "below the line" vote to count. As a result the "above the line" system was implemented. Over 95% of electors vote "above the line".
The ungrouped candidates in the far right column do not have a box above the line. Therefore they can only get a primary (number 1) vote from electors who vote below the line. For this reason, some independents register as a group, either with other independents or by themselves, such as groups F and G in the above example.
Size
The size of the Senate has changed over the years. The Constitution originally provided for six Senators for each state, and thus a total of 36 senators. This was increased to ten Senators per state (and a total of 60) in 1948. In 1975, the two territories, the Northern Territory and the Australian Capital Territory, elected 2 Senators each for the first time, bringing the number to 64. The last expansion took place in 1984, under which the number of senators from each state increased from 10 to 12, and the entire Senate to 76. The Senators from the Northern Territory also represent constituents from Australia's Indian Ocean Territories (Christmas Island and the Cocos (Keeling) Islands), while the Senators from the Australian Capital Territory also represent voters from the Jervis Bay Territory.
Normally, senators are elected at the same time as members of the House of Representatives, but because their terms do not coincide, the new Parliament will for some time comprise a new House of Representatives and a substantially old, lame-duck Senate.
Slightly more than half of the Senate is contested at each general election (half of the 72 state senators, and all four of the territory senators), along with the entire House of Representatives. State senators are normally elected for fixed terms of six years, commencing on 1 July following the election, and ceasing on 30 June six years later.
The terms of the four senators from the territories are not fixed, but are defined by the dates of the general elections for the House of Representatives, the period between which can vary greatly, to a maximum of three years and three months. Territory senators commence their terms on the day that they are elected. Their terms expire the day prior to the following general election day .
Following a double dissolution, all 76 senators face re-election. There have also been elections at which only half the Senate was up for election. The last time this occurred was on 21 November 1970.
The "Unrepresentative" House?
As a body intended to provide equal representation to smaller states, the Senate (like many upper houses) necessarily does not adhere to the principle of "one vote one value"; Tasmania, with a population of 500,000, elects the same number of Senators as New South Wales, which has a population of 6-7 million. Perhaps because of this imbalance, former Prime Minister Paul Keating famously referred to the Senate's members as "unrepresentative swill". Nevertheless, the proportional election system within each state ensures that the Senate incorporates more political diversity than the lower house, which is basically a two party body. The elected membership of the Senate more closely reflects the first voting preference of the electorate as a whole than does the composition of the House of Representatives, despite the large discrepancies from state to state in the ratio of voters to Senators. This often means that the composition of the Senate is different to that of the House of Representatives, contributing to the Senate's function as a house of review.
Parties in the Australian Senate
The overwhelming majority of Senators have always been elected as representatives of political parties. Parties which currently have representation in the Senate are:
Past minor parties who have achieved Senate representation are the Australian Democrats, One Nation, Nuclear Disarmament Party, Liberal Movement, and Democratic Labor Party.
Due to the need to obtain votes state-wide, independent candidates have difficulty getting elected. The exceptions in recent times have been the Tasmanian Brian Harradine and the South Australian Nick Xenophon.
The Australian Senate serves as a model for some politicians in Canada, particularly in the Western provinces, who wish to reform the Canadian Senate so that it takes a more active legislative role.
There are also small factions in the United Kingdom (both from the right and left) who wish to the see the House of Lords take on a structure similar to that of the Australian Senate.
The Senate in practice
The work of the Senate
The Australian Senate typically sits for 50 to 60 days a year. Most of those days are grouped into 'sitting fortnights' of two four-day weeks. These are in turn arranged in three periods: the autumn sittings, from February to April; the winter sittings, which commence with the delivery of the budget in the House of Representatives on the first sitting day of May and run through to June or July; and the spring sittings, which commence around August and continue until December, and which typically contain the largest number of the year's sitting days.
The senate has a regular schedule that structures its typical working week.
The Senate and legislation
All bills must be passed by a majority in both the House of Representatives and the Senate before they become law. Most bills originate in the House of Representatives, and the great majority are introduced by the government.
The usual procedure is for notice to be given by a government minister the day before the bill is introduced into the Senate. Once introduced the bill goes through several stages of consideration. It is given a first reading, which represents the bill's formal introduction into the chamber.
The first reading is followed by debate on the principle or policy of the bill (the second reading debate). Agreement to the bill in principle is indicated by a second reading , after which the detailed provisions of the bill are considered by one of a number of methods (see below). Bills may also be referred by either House to their specialised standing or select committees. Agreement to the policy and the details is confirmed by a third and final reading. These processes ensure that a bill is systematically considered before being agreed to.
The Senate has detailed rules in its standing orders that govern how a bill is considered at each stage. This process of consideration can vary greatly in the amount of time taken. Consideration of some bills is completed in a single day, while complex or controversial legislation may take months to pass through all stages of Senate scrutiny.
The Senate's committees
Main article: Australian Senate committees
In addition to the work of the main chamber, the Senate also has a large number of committees which deal with matters referred to them by the Senate. These committees also conduct hearings three times a year in which the government's budget and operations are examined. These are known as estimates hearings. Traditionally dominated by scrutiny of government activities by non-government senators, they provide the opportunity for all senators to ask questions of ministers and public officials. This may occasionally include government senators examining activities of independent publicly-funded bodies, or pursuing issues arising from previous governments' terms of office. There is however a convention that senators do not have access to the files and records of previous governments when there has been an election resulting in a change in the party in government.
Holding governments to account
One of the functions of the Senate, both directly and through its committees, is to scrutinise government activity. The vigour of this scrutiny has been fuelled for many years by the fact that the party in government has seldom had a majority in the Senate. Whereas in the House of Representatives the government's majority has sometimes limited that chamber's capacity to implement executive scrutiny, the opposition and minor parties have been able to use their Senate numbers as a basis for conducting inquiries into government operations. When the Howard government won control of the Senate in 2005, it sparked a debate about the effectiveness of the Senate in holding the government of the day accountable for its actions. Government members argued that the Senate continued to be a forum of vigorous debate, and its committees continued to be active. The Opposition leader in the Senate suggested that the government had attenuated the scrutinising activities of the Senate. The Australian Democrats, a minor party which has frequently played mediating and negotiating roles in the Senate, expressed concern about a diminished role for the Senate's committees.
Votes in the Senate
Senators are called upon to vote on matters before the Senate. These votes are called divisions in the case of Senate business, or ballots where the vote is to choose a Senator to fill an office of the Senate (such as President of the Australian Senate).
Party discipline in Australian politics is extremely tight, so divisions almost always are decided on party lines. Nevertheless, the existence of minor parties holding the balance of power in the Senate has made divisions in that chamber more important and occasionally more dramatic than in the House of Representatives.
When a division is to be held, bells ring throughout the parliament building for four minutes, during which time Senators must go to the chamber. At the end of that period the doors are locked and a vote is taken, by identifying and counting senators according to the side of the chamber on which they sit (ayes to the right of the chair, noes to the left). The whole procedure takes around eight minutes. Senators with commitments that keep them from the chamber may make arrangements in advance to be 'paired' with a senator of the opposite political party, so that their absence does not affect the outcome of the vote.
The senate contains an even number of Senators, so a tied vote is a real prospect (which regularly occurs when the party numbers in the chamber are finely balanced). Section 23 of the Constitution requires that in the event of a tied division, the question is resolved in the negative. The system is however different for ballots for offices such as the President. If such a ballot is tied, the Clerk of the Senate decides the outcome by the drawing of lots. In reality, conventions govern most ballots, so this situation does not arise.
Political parties and voting outcomes
The extent to which party discipline determines the outcome of parliamentary votes is highlighted by the rarity with which members of the same political party will find themselves on opposing sides of a vote. The exceptions are where a conscience vote is allowed by one or more of the political parties; and occasions where a member of a political party crosses the floor of the chamber to vote against the instructions of their party whip. Crossing the floor very rarely occurs, but is more likely in the Senate than in the House of Representatives.
One feature of the government having a majority in both chambers between 1 July 2005 and the 2007 elections was the potential for an increased emphasis on internal differences between members of the government parties. This period saw the first instances of crossing the floor by Senators since the conservative government took office in 1996: Gary Humphries on civil unions in the Australian Capital Territory, and Barnaby Joyce on voluntary student unionism. A more significant potential instance of floor crossing was averted when the government withdrew its Migration Amendment (Designated Unauthorised Arrivals) Bill, of which several government Senators had been critical, and which would have been defeated had it proceeded to the vote. The controversy that surrounded these examples demonstrated both the importance of backbenchers in party policy deliberations and the limitations to their power to influence outcomes in the Senate chamber.
In September 2008, Barnaby Joyce became leader of the Nationals in the Senate, and stated that his party in the upper house would no longer necessarily vote with their Liberal counterparts.
The composition of the Senate
Main articles: State-by-state upper house results, Members of the Australian Senate, 2008-2011
The election results of the most recent federal election, were as follows:
Party composition
Historical
The Senate has included representatives from a range of political parties, including several parties that have seldom or never had representation in the House of Representatives, but which have consistently secured a small but significant level of electoral support, as the table shows.
Recent results
The 2004 result meant that, from 1 July 2005 until the 2007 general election, the party governing in the House of Representatives also had a majority of votes in the Senate. This government majority meant that, for the first time in a generation, a government did not generally have to negotiate with other political parties if it wanted to secure passage of legislation through parliament.
The 2007 election resulted in changes in the composition of the Senate, which came into effect on 1 July 2008. Until that date, the ALP government of Prime Minister Kevin Rudd had faced a hostile Senate controlled by an absolute majority of Liberal/National Coalition Senators. This was the first time since 1975 that a government in the House of Representatives had needed to negotiate with a Senate controlled by the Opposition. In July 2008 the Opposition lost its absolute majority, and a balance of power situation resumed.
See also
Further reading
Platypus and Parliament: The Australian Senate in Theory and Practice, Department of the Senate, 2003. Harry Evans, , A detailed reference work on all aspects of the Senate's powers, procedures and practices. John Halligan, Robin Miller and John Power, Parliament in the Twenty-first Century: Institutional Reform and Emerging Roles, Melbourne University Pulishing, 2007. Wilfried Swenden, Federalism and Second Chambers: Regional Representation in Parliamentary Federations: the Australian Senate and German Bundesrat Compared, P.I.E. Peter Lang, 2004. John Uhr, , Working Paper no. 69, Graduate Program in Public Policy, Australian National University, 1999.
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