The Senate poser

By Michelle Grattan
October 23, 2005
Illustration: Matt Davidson

Illustration: Matt Davidson

AGE has slowed but not wearied him. Gough Whitlam is still pursuing the Senate and pushing constitutional reform as if "The Dismissal" were yesterday and he were 59. Actually, it was 30 years ago this November 11 (and he is 89). The events and coverage to mark the anniversary are already under way. It could be some great historical battle. In its way, it was.

In Ballarat last night a letter from Whitlam was read to an early November 11 commemorative dinner. With debate about four-year federal parliamentary terms restarting after a recent report from the parliamentary committee on electoral matters (chaired by Victorian Liberal Tony Smith) advocated a referendum with the 2007 election, Whitlam's observations have a contemporary relevance.

But it wouldn't be Gough if there weren't a few preliminary cracks. "Most Australians are aware that 30 years ago Governor-General Kerr, Chief Justice Barwick and Opposition leader Fraser conspired to remove a Labor Government", he wrote.

"Although my government achieved the elimination of the DLP (Democratic Labor Party), the Hawke and Keating governments failed (a) to counter the growth of new parties, (b) to prevent the Senate ever rejecting or again stalling supply and (c) to define the duties of the Governor-General or a President."

After these salvos, the Whitlam letter went on to warn and advise.

"'Our federal caucus is in a precarious position," he argued. He raised a dramatic scenario many will consider far-fetched, although it remains constitutionally possible. If Labor won the 2007 election, a coalition-dominated Senate could act against it "in the same way as their predecessors acted in 1974 and 1975", Whitlam said.

He strongly backed "the Labor policy of having fixed four-year terms for both houses". (Whitlam would also like to see state elections synchronised with federal ones.) He opposed extending senators' terms (now six years) to eight years.

The Senate's blocking of supply led to the 1975 crisis, and it's the Senate's role and senators' term that present difficulties for any constitutional referendum on four-year parliamentary terms.

How this immensely powerful second chamber of the Australian Parliament either frustrates or facilitates the government of the day is thrown into stark relief by comparing the Senate that laid the ground for Whitlam's sacking with John Howard's present Senate. The conservative-dominated Senate of 1972-75 tore at the Whitlam government's program, rejecting major legislation. Medibank, for example, the forerunner of Medicare, could only be introduced after a double dissolution.

And while the Senate's 1975 blocking of supply dominates history, in 1974 the Senate headed down the same road, only that time the Government was happy to have an election.

Today, the contrast couldn't be greater. Howard, thanks to unexpectedly winning control of the upper house in the 2004 election, can implement much more of his reform program than he expected. Between July, when the new senators came in, and the end of this year, the Senate will have approved the full sale of Telstra, sweeping industrial relations changes (including a unitary system), and tough counter-terrorism legislation.

But even a government-controlled Senate is never completely docile. National Party Senator Barnaby Joyce's holding of the balance of power is leading to complications, not just in the chamber but (arguably more importantly) within the Coalition.

Joyce has only crossed the floor on one piece of legislation — he and the non-government parties changed, in a way unacceptable to the Government, a bill designed to make company mergers easier. But that, together with his earlier agitation over Telstra, his threat to vote against the voluntary student unionism bill and his criticism of part of the industrial relations package have collectively caused a lot of bad blood in Coalition ranks.

Nationals, including leader Mark Vaile, are angry with Joyce; some Liberals are furious with him. As Joyce has boosted the profile of his party, the latent tension between the coalition partners at backbench level has surfaced. All this caused by the arrival of a particular senator who has been delivered extraordinary clout, thanks to a proportional representation voting system and the power of the upper house.

In between the 1975 feral chamber and the 2005 (more or less) compliant one, particular mixes of party and personality in the Senate have been crucial for government.

In the early Howard days, major legislation such as the first Telstra sale was passed thanks to independents Mal Colston and Brian Harradine. From the Government's point of view, Colston's role as a balance-of-power player was serendipitous (although he later became an embarrassment because of travel rorts). Colston, originally a Labor senator, had become alienated from his party because he couldn't get the Senate deputy-presidency. The prospect of it under the Liberals dislodged him from Labor.

Harradine could have delivered the Government the GST but wouldn't. Just at the right moment for the Government, however, the Democrats were about to get control of the Senate and Howard was able to forge a deal with their leader, Meg Lees. If Natasha Stott Despoja had been in the job, that would have been impossible.

The Senate, with a voting system allowing candidates to be elected on a modest vote spread statewide, encourages small parties and potentially gives them great power (because government-opposition numbers are always relatively close). But neither the kind electoral system nor senators' ability (if they hold or share a balance of power) to deliver to their constituency ensures these parties' survival.

The DLP (a right-wing, Catholic-based party that splintered off from the ALP during the 1950s split) had its two senators wiped out in the 1974 double dissolution and never reappeared in the Federal Parliament. The Democrats have had up to nine senators (after the 1998 election); now they're down to four and, without a miracle, they'll likely disappear in 2008 (although it is possible Stott Despoja could be re-elected as sole flag carrier).

The Senate, through its committees (initially promoted by Labor's Lionel Murphy, who was Senate opposition leader 1967-72), also evolved into the sharpest instrument of parliamentary accountability. Remember its scrutiny of the "children overboard" affair.

The Government has now set about blunting that power (for example, confining the Senate's proposed inquiries into industrial relations and anti-terrorism legislation to a fortnight and a week respectively).

There are two interrelated issues in the new push for four-year parliamentary terms: whether they should be fixed, and the Senate.

In his Henry Parkes Oration delivered in Tenterfield, NSW, yesterday, former Senate opposition leader John Faulkner pushed for fixed simultaneous four-year terms for both houses and the removal of the Senate's power to block supply.

Although Labor policy is, as Whitlam and Faulkner state, for fixed four-year terms for both houses, in fact Kim Beazley has moved away from that in the hope of getting a compromise.

Howard has said his personal preference is for a flexible four-year term, with three years fixed, a formula also backed by PM-in-waiting Peter Costello. Beazley has flagged he'd support a referendum for this. Beazley is also willing to go along with senators' terms of up to eight years.

But when you drill down into what a government would be putting to any referendum, the Senate would be the bugbear. If a four-year term had a fixed three years (the compromise to get Labor support), how would deadlocks be resolved? Retain the double dissolution, and the first three years are not really "fixed". If there is no deadlock-breaking mechanism, the Senate's power to block supply must be removed, a huge change that has always been unacceptable to conservatives.

It might also be noted that while one reason for longer parliamentary terms is to provide a better policy-making environment, not allowing a double dissolution in the first three years could work against this. If this threat wasn't available to a government that had a reform program being frustrated by a hostile Senate, policy making could be hampered rather than assisted.

The Smith report's hybrid model (three years fixed, one flexible) provides for a premature election where there is a "constitutional crisis". But it defines this as the lower house withdrawing confidence in a government without expressing confidence in an alternative, thus leaving the Senate issues hanging (a government faced with constant frustration on legislation, or having supply blocked).

The only positions on senators' terms that could get bipartisan support would be extending them to a fixed eight years, or to the length of two parliaments (a maximum of eight years). But would a cynical public be willing to give its senators so long?

Victorian Liberal Sophie Panopoulos, arguing against four-year terms in a minority view in the parliamentary report, notes eight years is "unacceptably long" for senators. It is easy to imagine how such a line would resonate in the community.

In deciding whether a referendum is worth a try, the questions surrounding the Senate will be crucial. Once again, the upper house will have disproportionate clout.

Oh, if anyone wants to organise a "hypothetical" for those November 11 dinners or school classes, try this. In 2035, what sort of Senate will Prime Minister Samantha Smith face?
