FEDERAL-STATE RELATIONS COMMITTEE
Report on
FEDERALISM AND THE ROLE OF THE STATES:
COMPARISONS AND RECOMMENDATIONS
Chapter 10: Reforming Australia’s federal upper chamber
10.0 The Committee’s Terms of Reference require the Committee to 2. Identify areas of responsibility for which the States shuld have an enhanced role for the benefit of the Federation, with particular reference, but not necessarily limited to:This chapter draws on the findings of the Committee’s Second Report, as well as on the observations that this report has reached concerning the features of other federal systems, to make a number of recommendations about how the functioning of Australia’s federal upper chamber might be enhanced. However, the Committee is of the view that any recommendations for sweeping reform of the Senate could only be made following an extensive period of public debate. The Senate10.1 The Senate is the upper chamber in the Australian Parliament. With the exception of laws appropriating revenue or imposing taxation, the Senate has equal power with the House of Representatives.110.2 The Constitution provides that the Senate is to be popularly elected on a federal basis: each original State (ie each State which was a State at the time of federation) is to have at least six Senators, all are to have an equal number of Senators and Senators are to be directly elected by the voters of each State.2 10.3 The Constitution also provides that No alteration [to the Constitution] diminishing the proportionate representation of any State in either House of the Parliament . . . shall become law unless the majority of the electors voting in that State approve the proposed law.310.4 The Senate is thus an important federal institution. Voters in the smaller States receive a greater degree of representation in one of two near-equal Houses of the Commonwealth Parliament than they would receive were representation entirely proportional to population. The referendum requirement for constitutional amendment further means that the voters of each State are able to protect their representation in the Senate. Professor Brian Galligan, Director of the Centre for Public Policy at the University of Melbourne, described the Senate to the Committee thus: [The Senate] give[s] some sort of a check on the populations and the representatives from the larger States, so in a sense it is a representational device which ensures that the people of the smaller States have a disproportion of representation as part of the national legislature.410.5 While the Senate does protect representatives elected by voters in the smaller States from having their views swamped by representatives elected from the larger States, it does not represent interests that are particular to individual States in any systematic way. The Committee heard criticisms from a number of witnesses of the performance of the Senate as a States’ House.5 The failure of the Senate to represent particular State interests stems from the fact that Senators are national politicians, responsive to the motivations of electors voting at national elections; whereas it is the States who are best able to represent interests particular to individual States. As the Committee found in its Second Report, the Senate, while a federal institution, is not an intergovernmental one;6 Senators do not represent State Governments or State Parliaments. Federal upper chambers in other federations10.6 The predominantly national focus of Australian Senators contrasts with the roles played by members of upper chambers in other federations.Germany and Belgium10.7 A striking feature of the federal systems of Belgium and Germany is the overlapping membership and the extent of interaction between state and federal legislative and executive organs.10.8 In Germany, the Bundesrat enables members of Land governments to sit as federal legislators. This ensures the participation of Länder Governments in national policy-making, and provides a focus for an extensive network of intergovernmental institutions.7 Members of the Bund are able to participate in debates of the Bundesrat and its committees, without having a vote;8 Members of the Bundesrat are similarly able to participate in the debates of the Bundestag and its committees.9 10.9 In Belgium, Members of the Belgian Regional Councils sit also as Members of the Community Councils, and Members of the Community Councils also sit as Senators.10 The United Kingdom and Scotland10.10 The possibility of overlapping membership of legislatures is also a feature of the arrangements for Scottish devolution in the United Kingdom. Members of the Scottish Parliament will be able to stand for election to the United Kingdom Parliament, and vice versa.11The United States of America10.11 Until the Seventeenth Amendment came into force in 1913, Senators in the United States Congress were elected by the legislatures of each State, with two for each State. Since 1913, Senators have instead been directly elected by the voters of each State. In composition and election, the United States Senate is therefore quite similar to the Australian Senate. However, it is significantly different in its operation.10.12 In a Westminster parliament, the principal obligation of most Members is to support either the Government or the Opposition. However, in the United States, no members of the executive sit in the Congress. This strict separation of the legislature and the executive means that the business of the Senate is not dominated by executive concerns, and Senators have greater flexibility in attending to concerns and interests that are particular to their individual States.12 Enhancing the performance of the Australian Senate as a federal upper chamber10.13 These features of the upper chambers of other federal systems suggest two major areas in which the operation of the Senate as a federal upper chamber needs to be reconsidered. The first is the extent to which communication takes place between the Senate and the States. The second is the extent to which the Senate is able to reflect interests other than those of concern to the Commonwealth Government and Opposition, while at the same time acting as a House of review.Enhancing communication between the Senate and the States10.14 Australia has quite an extensive network of intergovernmental co-operation.13 However, this intergovernmental network does not involve the Senate in any way. The only Australian government that interacts on a regular basis with the Senate is the Commonwealth Government. There is no systematic means of ensuring that the Senate is made aware of the views of State Governments. It is State Governments, however, that are best able to represent interests which are particular to individual States, and which ought to be taken into consideration by legislators in a federal upper chamber.10.15 Professor Kenneth Wiltshire, of Queensland University, suggested to the Committee that the Senate ought to have a standing committee dealing with intergovernmental relations: There is a debate whether the Senate is any longer a States’ House. The conventional wisdom in Australia is that the Senate is no longer a States’ House. By and large that is true, but there are a number of ways the Senate still performs something of a role as a States’ House. We could certainly restore it in some ways to a role as a States’ House. . . my answer is this: the Senate should create a permanent standing committee on federal-state relations, just like yours.10.16 Professor Cheryl Saunders, Director of the Centre for Comparative Constitutional Studies at the University of Melbourne, made the same suggestion: I have thought for some time that it would be a very good idea for the Senate to establish a standing committee on Commonwealth-State relations. I think there is a big gap in the Senate standing committee system, and that that is a role that the Senate should play, given that it is designed as a States’ House, even though it has not necessarily performed in that way.15 Recommendation 22:The Committee recommends a Senate Committee for Intergovernmental Affairs as one way of enhancing communication between the Senate and State Governments, and thereby increasing the Senate’s responsiveness, when legislating, to interests particular to individual States. 10.17 While a Senate Committee for Intergovernmental Affairs would go some way to improving the communication between the Senate and State Governments, it would leave the initiative in the hands of the Senate. The overlapping membership of legislative and executive organs seen in Germany, Belgium and the United Kingdom gives power to the Länder, the Communities and Regions, and Scotland, to initiate communication with the federal legislature, and ultimately (through their membership of that legislature) to initiate federal legislation. 10.18 In Australia, it is unconstitutional for a Member of one Parliament to be a Member of another Parliament. Nevertheless, it would be possible to institute arrangements whereby Senators were able to appear before State Parliaments, to report and respond to questions on the report from Members. Enhancing the extent of communication between the Senate and the States would go some way to enhancing the functioning of the Senate as a federal upper chamber. Recommendation 23:The Committee recommends that Senators be given the right to present and report to the Parliament of their State on a regular basis, and to answer questions, on matters of concern to their State. The Senate as a House of review10.19 Currently the Senate performs a role quite independent of its role as a federal upper chamber. Because it is elected on a quite different basis to the House of Representatives, it is able to operate as a House of review.10.20 Professor Saunders suggested to the Committee that these two roles, of acting as a House of review and acting as a federal upper chamber, are incompatible: I see very little prospect of turning the Senate into a genuine State House. One of the reasons for that being so is that it actually works quite well as a House of review in the sense that the lower House is a typical Westminster style parliament which is effectively a rubber stamp, so that the Senate has managed to capture people’s imagination by being a bit of a delaying agent and a House of review, however controversial the exercise of that role may be.1610.21 It is natural for the Commonwealth Government and Opposition to be focused on national affairs. Hence, so long as most Senators see their principal role as supporting either the Government or the Opposition, it will be unrealistic to expect them to represent interests of concern only to particular States, and it is ultimately no more likely that the Senate will focus on the concerns of the States rather than the Commonwealth in dealing with intergovernmental affairs, than in any other areas of its activity. 10.22 If Senators were ineligible for appointment to the Commonwealth Ministry and Federal Executive Council, the focus of the Senate could be expected to change significantly, and State concerns might be given higher priority. 10.23 If such a change to the Senate took place, the Senate’s role as a House of review would not necessarily be curtailed. While the Senate would no longer have question time in the traditional sense, as there would be no members of the Commonwealth Ministry to answer questions, it would still be able to consider and vote on government legislation. Moreover, the Bundesrat has the power to call members of the Federal Government to appear before it,17 and it would be possible for the Senate to be given a similar power.18 10.24 Nevertheless it is true that such review activity would tend to focus Senators on the concerns of the Commonwealth Government and Opposition, at the expense of their concern with other matters. A more thorough divorce of the Commonwealth executive and the Senate would require a fundamental change in the way in which the Senate deals with the legislation and activity of the Commonwealth Government. 10.25 Such a divorce is evident in Germany. The Bundesrat is entirely a federal upper chamber, with no specific role as a House of review. The review role played in Australia by the Senate is in part met by the Bundestag, which is elected on the basis of proportional representation, and thus is less likely to be dominated by any one party than is Australia’s House of Representatives. 10.26 An alternative to the German model is suggested in further comments made to the Committee by Professor Saunders: So if we want to inject genuine federal considerations into national decision-making, I think we need to find other mechanisms to do it, and one mechanism may be through the intergovernmental network if it can be made to work better than it is now.19It may be possible to retain the Senate as a House of review elected on the basis of proportional representation, but introduce a separate, federal process for dealing with certain categories of legislation which have implications for the power or finances of the States. This would not represent a total break with Australian constitutional procedure, as the Constitution already limits the Senate’s legislative power over certain matters in the areas of appropriations and taxation.20 The future of the Senate10.27 The Terms of Reference of the Committee’s Inquiry require it to make recommendations on the role of the Senate, which would enhance the role of the States for the benefit of the federation. The Committee has concluded that, in this context, fundamental change to the Senate is necessary.10.28 Recommendations 22 and 23, if implemented, would require Senators to focus on their role as representatives of State electors, and would therefore be a good start to more extensive change. 10.29 The ultimate form that a federal chamber might take - whether it should be an intergovernmental body, as is the Bundesrat, or whether it should be elected by the voters of the States - and the extent of its powers, could only be decided after a widespread debate on the merits of such a proposal for significant constitutional change. Recommendation 24:The Committee recommends that change to the Senate is necessary for it to more effectively represent State interests in the Australian federation. Change should take place following extensive community consideration of the issues involved. If the Senate is to play its role as a federal upper chamber, the following matters must be resolved:
Other federations provide models which ought to be considered:
Endnotes
1Constitution of Australia, s 53. 2Section 7. Currently each State has twelve Senators. The Northern Territory and the Australian Capital Territory are given two Senators each by the Commonwealth Electoral Act 1918, s 40 (1). 3Section 128. 4Minutes of Evidence, FSRC, April 15th 1997, p 402 (per Professor B Galligan). 5Minutes of Evidence, FSRC, April 15th 1997, pp 401-2 (per Professor C Saunders); April 21st 1997, p 412 (per Mr K Baxter); June 26th 1997, p 474 (per Professor G Davis); June 30th 1997, pp 577-8 (per Professor C Saunders), p 586 (per Ms K Walker): see Federal-State Relations Committee, Australian Federalism: The Role of the States, Second Report on The Inquiry into Overlap and Duplication, Parliament of Victoria, Melbourne, 1998, pp 21-3. 6Federal-State Relations Committee, Australian Federalism: The Role of the States, Second Report on The Inquiry into Overlap and Duplication, Parliament of Victoria, Melbourne, 1998, Finding 3. 7See Observations 11, 14 above. 8Basic Law for the Federal Republic of Germany, art 53. 9Basic Law for the Federal Republic of Germany, art 43 (1). 10See Observation 18, above. 11See Observation 20 above. 12See Observation 6 above. 13This intergovernmental network is outlined in Federal-State Relations Committee, Australian Federalism: The Role of the States, Second Report on The Inquiry into Overlap and Duplication, Parliament of Victoria, Melbourne, 1998. 14Minutes of Evidence, FSRC, June 26th 1997, pp 512-3 (per Professor K Wiltshire). 15Minutes of Evidence, FSRC, June 30th 1997, p 579 (per Professor C Saunders). 16Minutes of Evidence, FSRC, April 15th 1997, p 402 (per Professor C Saunders). 17Basic Law for the Federal Republic of Germany, art 53. 18Section 50 of the Constitution allows the Commonwealth Parliament to determine the powers, privileges and immunities of both Houses of Parliament, and of the Members and Committees of each. 19Minutes of Evidence, FSRC, April 15th 1997, p 402 (per Professor C Saunders. 20Sections 53-6. |
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