John Faulkner: Balancing Government Effectiveness With Oversight And Scrutiny

Senator John Faulkner has delivered a wide-ranging speech on Senate reform to The Sydney Institute.

Faulkner, the ALP Leader of the Opposition in the Senate, said the Senate had evolved into an effective house of review but the task now was to ensure that governments can carry out their electoral promises whilst maintaining oversight and scrutiny.

Transcript of Senator John Faulkner’s Address to the Sydney Institute on Senate Reform.

FaulknerLadies and Gentlemen, in June this year the Prime Minister announced his Government’s intention to reform the “deadlock provisions of the Constitution in section 57.”[1]

For Mr Howard constitutional reform is a newfound interest. For Labor, constitutional reform is a long held conviction, reforms not solely about the moment, reforms not solely about advantaging the Government in power. Unlike John Howard and the Liberal Party, Labor has been committed to restricting the powers of the Senate since Federation.

In 1974 and 1984 we put proposals for simultaneous elections to referendum. In 1988 the Labor Party put forward four proposals for constitutional change, including four-year terms for the House of Representatives and the Senate. In 1999 the Labor Party supported the republic referendum.

These referenda were opposed either formally by the Liberal and National Parties themselves, or by sections of those parties. It seems constitutional reform is only desirable when the Liberals are in Government.

Regardless of the Liberals’ double standards and opportunism, I welcome the fact that Mr Howard wants to look anew at constitutional reform. I question, however, why his exclusive focus is Senate powers.

The Prime Minister has not always been a critic of the Senate. In fact, during his years in Opposition Mr Howard was a fervent supporter of the Senate. He staunchly opposed all Senate reform proposals.

As Opposition Leader in 1987, Mr Howard was responsible for responding on behalf of the Liberal Party to the recommendations of the Constitutional Commission. I note those recommendations were very similar to Mr Howard’s own recent proposal about the deadlock provisions. This is what he said then:

“In effect, what the Constitutional Commission is recommending, and what the Government would be supporting if it put those proposals to referendum, is a suggestion that a money Bill as defined by the Constitutional Commission could not be delayed for more than 30 days and that in the event of any other measure being rejected by the Senate, the joint sitting proposals now contained in section 57 of the Constitution could be invoked, not after an election was held but after a subsequent rejection by the Senate after a period of three months. The Senate would be no more than a rubber stamp. The Liberal and National parties say to every voter in Australia, particularly those residing in the less populous States, that this is a charter to overturn the federal compact. … That is why we find utterly untenable the proposition that the existing powers of the Australian Senate ought to be destroyed. I say to the Government: get off your 1975 kick. Do not maintain the rage over this proposal.”[2]

Even in his early days as Prime Minister, Mr Howard told Alan Jones that the reality of his job was to cooperate and work with the minor parties in the Senate. To talk and listen to them and inevitably, at times, disagree with them, in order to try and get his programme through.[3]

But just like his predecessor Paul Keating, who once famously described the Senate as “unrepresentative swill”[4], these days John Howard has become a trenchant critic of the Senate.

In June this year at the Liberal Party National Convention Mr Howard described the Senate as no longer a State’s house or a house of review but as “a house of obstruction”.[5] He even made the preposterous claim the Senate only became a “house of obstruction” after the Liberal Party came to power in 1996.

The real story is quite different. During the period of John Howard’s Prime Ministership, one thousand, two hundred and sixty nine bills have been passed by the Senate, with or without amendment. Only twenty-five bills have been negatived in the Senate (7 negatived twice) and 11 have been laid aside by the Government (4 laid aside twice).[6]

Since 1996 the management of the Senate has become much easier. The Opposition has granted the Government extra sitting hours, extra days, extra weeks and exemptions to allow early consideration of urgent legislation. Labor has ensured more time is devoted to Government business. You have to wonder if the present-day Liberals are ever shame-faced about how inflexible they were in Opposition on the same matters.

The hypocrisy of the Liberal Party is most evident when you compare today’s Senate with the Coalition controlled Senate of the Whitlam Government years.

From 1972 to 1975, the Opposition rejected a record 93 Government bills, 25 more than the total number of rejections in the first 71 years of the Senate’s history.[7]

Let me quote Gough Whitlam from his book The Whitlam Government:

“It is true that, throughout our three years, the Opposition in the Senate used first its inherited and then its accidental majority to obstruct, delay and reject legislation in a way never experienced before or since”.[8]

In April 1974 the then Liberal Party Opposition voted against the Supply bills in the Senate. Prime Minister Gough Whitlam sought a double dissolution and was returned to Government. The Liberal Party still in Opposition in October 1975 again refused to pass Supply in the Senate “until the Government agree[d] to submit itself to the judgment of the people”. The Liberal controlled Senate plunged Australia into a constitutional crisis.

As the new Member for Bennelong, Mr Howard supported the decision by the Coalition in 1975 to block supply in the Senate. More recently Mr Howard has indicated he now thinks the decision to block supply was a mistake – not because it was an inappropriate use of Senate powers but because Malcolm Fraser would “not have got so tentative” when he came to office![9] As Mr Howard declared in Parliament in 1987 “I will defend to my last breath the action taken by the Liberal and National parties in 1975.”[10]

For the young John Howard the decision by his party to block supply was a major bonus to his career. After less than two years in politics he became Minister for Business and Consumer Affairs in the new Fraser Government.

I say that if Mr Howard now truly believes the legislative agenda of an elected government should not be obstructed by the Senate he may care to forthwith renounce the actions of his own party in the Senate in 1975.

In 1993, the same Liberal Party, again in Opposition, but this time with support of the Greens and Australian Democrats Senators, gutted the Dawkins Budget by refusing to pass six Budget Bills.

Then Shadow Finance Minister Peter Costello defended the actions of his party stating “…The Australian electorate didn’t vote for any of this. They don’t want it; it’s not going to help them; it’s not going to give them jobs. How do you expect us to vote for it?”[11]

The truth is both side of politics have taken advantage of the Senate’s power to amend or negative government bills. Only the Liberals have blocked supply.

The Labor Party does not support the Senate retaining the power to reject, defer or block money bills. And if Mr Howard wants to propose a referendum to remove that power it will have Labor’s unequivocal support.

In 1897 Alfred Deakin, Australia’s greatest non-Labor Prime Minister, made this prescient observation at the Constitutional Convention:

“…it is possible that a more conservative party in the House of Representatives would be confronted by a more radical party in the Senate. In both cases the result after a dissolution would be the same. The men returned as radicals would vote as radicals; the men returned as conservatives would vote as conservatives. The contest will not be, never has been, and cannot be, between states and states…it is certain that once this constitution is framed, it will be followed by the creation of two great national parties.”[12]

Deakin was right. The Senate never divided along State lines. The notion of the Senate as a State’s house was stillborn. Nevertheless the Senate has evolved into an effective and respected house of review. But it wasn’t always so.

Initially, the Senate lacked popular legitimacy. Polls in 1950, 1953 and 1958 found more Australians wanted to abolish the Senate than keep it. That opinion gradually waned. One reason was the growing acceptance of Senates elected under the proportional representation voting system – introduced in 1948.

By 1979, 62 per cent supported retaining the Senate as a house of review and a check on executive power.[13] More recently a survey found only 34 per cent wanted the Senate to be government controlled, while 44 per cent said it was better if it was not government controlled.[14]

Proportional representation has made it more difficult for Governments to gain a majority in the Senate. It has thus led to more conflicts between the executive and the Senate. In 1984 when State representation in the Senate was increased from 10 Senators to 12 Senators, the chance of a government achieving a Senate majority became even more remote because of the even number of Senate seats (six) to be contested in a half Senate election.

Since the 1970s, minor parties in the Senate – first the DLP, now the Australian Democrats and Greens – have exerted leverage over legislation. Much of the law that has been passed by the Australian Parliament over the last 30 years has been the result of tortuous negotiation, debate and compromise until the Senate is satisfied. This process is frustrating for governments, but by assiduously pursuing its proper role as a house of review, the Senate can ensure Australians benefit from better and more rigorously tested laws.

As the Senate’s role has evolved since Federation, so has Labor’s attitude towards the Senate.

In 1919 Labor introduced abolition of the Senate into its platform (after the first Senate election was held using the new method of preferential voting). In that election the ALP got 42 per cent of the vote but won only one Senate seat. The Nationalists, who got 45 per cent of the vote, won 17 of the 18 Senate seats.

Abolition of the Senate remained a plank of Labor’s platform until 1979, but no Labor Government from 1919 to 1979 moved to abolish the Senate. Abolition was always a bridge too far.

In the early 1970s Labor Senator Lionel Murphy was the driving force behind extending the Senate’s activities into scrutinising legislation and examining Government spending. Murphy worked to increase the relevance of the Senate at a time when his Party’s Platform still proposed abolition. As a result of his efforts, the Senate now boasts a comprehensive committee system which I believe provides the most effective accountability mechanism in the Australian Parliament.

Today the Senate’s key role is scrutiny. Its powers of scrutiny are important tools for enhancing Australian democracy. They deserve to be defended by all political interests and all sides of politics.

Tonight I had hoped to be able to respond to the Prime Minister’s promised discussion paper on Senate reform.

Amid great fanfare at the Liberal Party National Convention in June, Mr Howard announced his intention “to prepare and issue for public debate a discussion paper”.[15]

The issue to be canvassed was a proposal on the settlement of deadlocks originally recommended in the 1959 report of the Parliament’s Joint Committee on Constitutional Review – a “nugget” to use Mr Howard’s words – “when you look back through the history of constitutional examination you find some nuggets and I found a nugget back in 1959.”

The report did propose a new constitutional provision allowing for a joint sitting of the two houses to pass disagreed legislation after a period of three months has elapsed.[16]

The report also recommended the current Double Dissolution provisions be maintained substantially unaltered. Mr Howard did not mention this.

The Report went on to recommend that the Governor General have the power to terminate a Joint Sitting, regardless of whether or not the disputed Bill had been voted on. Mr Howard did not mention this.

The Report also went on to recommend that if a General Election occurred less than 12 months after a deadlock occurred, a joint sitting could be held after the General Election. Mr Howard did not mention this.

Clearly his search for nuggets left much of the potential treasure undiscovered.

On the 10th August Mr Howard told Laurie Oakes on the Sunday Programme that his discussion paper was “pretty well advanced”. “I hope to have it out next month” he said[17]. Well, we still have a couple of hours to go!

Perhaps Michelle Grattan was right when she wrote that Mr Howard has delayed the release of the discussion paper because he cannot make up his mind on which model to endorse. [18]

We do know that one of the models, also proposed by the Joint Committee on Constitutional Review in 1959, was revisited by Mr Howard early last month – he called it the “Lavarch” model.

Labor’s former Attorney-General Michael Lavarch, in a radio interview, floated the idea of a constitutional alteration to allow for a joint sitting of parliament after every ordinary election to vote on bills twice blocked by the Senate in the previous term.[19]

Professor George Williams proposed a similar model and integrated within it the concept of fixed four-year terms.[20] I am convinced these models would have more chance of success in a referendum than Mr Howard’s first proposal.

We need to understand the effect of Mr Howard’s June proposal.

A Government would simply wait three months and then, using a joint sitting, pass unpalatable legislation.

What would this mean for our democracy?

Take the example of the ASIO Bill that the Government introduced last year.

The ASIO Bill was appallingly drafted and draconian. The Senate passed substantial amendments to strengthen the protection of civil liberties and our democratic values while, at the same time, providing enhanced powers for ASIO to track down terrorists.

The challenge was always to get the balance right. A challenge we met. Just one example: the original provision for a 10-year-old child to be detained in secret and strip searched was removed from the ASIO Bill. If the Prime Minister had his way the ASIO Bill would have passed in its original, wholly unacceptable form after just a three-month delay.

Instead the ASIO bill was passed this year, with the support of the Labor Party, after fifty-seven amendments were agreed to, 18 proposed by the Government, 38 by Labor and 1 by the Democrats. The ASIO Bill showed the Senate and its Committee system at its best – surely what Australians want and expect from the Senate.

The potential for abuse must be addressed.

The Labor Party will not accept a situation where a joint sitting, held at the whim of an unscrupulous government, could undermine the statutory powers and independence of – for example – the Australian Electoral Commission, the Auditor-General or the Ombudsman. The scrutiny powers of the Senate, particularly the Senate Estimates Committees, must also be defended at all costs. Such safeguards must be beyond the reach of any executive government enraged by the examination of its actions.

The Labor Party is serious about constitutional reform and we are serious about Senate reform. But we do not think the deadlock provisions in section 57 should be addressed in isolation.

Other important issues, like the removal of the power to block supply and fixed four-year terms for both Houses, must also be addressed.

The removal of the power of the Senate to block, defer or reject supply is integral to any reform of Senate powers.

Surely it is now time for the Prime Minister to consider Labor’s proposal for fixed four-year terms for both the House of Representatives and the Senate. After all, a major argument used against four-year terms was that they give minorities in the Senate too much power. The lower quota in a full Senate election makes it easier for minor parties or independent Senators to be elected. Surely if the powers of the Senate are curtailed, four-year terms become more acceptable. Australians will need to consider if wider representation in the Senate should be balanced by the sacrifice of some powers.

Australia has three-year parliamentary terms in name only. According to a Parliamentary Library Paper it is calculated that the Australian parliament in the last 25 years has only lasted on average 28.5 months.[21]

The Joint Standing Committee on Electoral Matters in 2001 recommended four-year terms on the ground they would “facilitate better long-term planning for government and ensure consistency with state jurisdictions and cost savings.”[22] It also argued four-year terms would be a logical topic for examination “in any future discussion on constitutional reforms.”[23]

Mr Howard has indicated his preference for four-year teams over three year terms.[24] With bipartisan support we have the opportunity to address this issue.

Labor also believes election dates should be fixed. Such a reform would address some of the uncertainties and limitations of our current political system.

Ladies and Gentlemen, the Prime Minister has said he will not pursue a referendum on the deadlock provisions without Labor’s support.

But history shows YES case success in a referendum campaign requires more than just the backing of the two major parties. Even if the Coalition and the Labor Party agree there is no guarantee of success at the ballot box.

I remind you of the important 1967 referendum to break the nexus between the House of Representatives and the Senate. The referendum was supported by the two major parties. It was unsuccessful because of the opposition to the proposal from the DLP, a handful of dissenting Senators from the Government and two independent Senators who vocally opposed the referendum and ran the official NO campaign. Their slogan “no more politicians” was simple and effective.[25] The referendum failed with only one state obtaining a majority of votes. This referendum was held in tandem with the resoundingly successful referendum to include Aboriginal people in national censuses, which produced the largest YES vote on record and passed in all six States.

Since June, the Greens and Australian Democrats have voiced opposition to Mr Howard’s Senate reform proposals. Just last week the Australian Democrats Leader Senator Andrew Bartlett outlined the Democrats’ election message, which looks like it could easily translate into a NO case if a referendum on Senate reform occurs at the next election. Here it is:

“Mr Howard wants to remove the Senate’s power. But the Democrats say Australians do not want a dictatorship and there should be more checks and balances on government, not less.”[26]

If only the Coalition had supported our efforts in 1974 to change section 128 of the constitution so that referendums would only require a majority of voters in at least half the States (three) rather than the existing requirement of a majority of States (four). If this referendum had been passed then the 1977 simultaneous elections referendum would have been carried.

It is very difficult to carry any referendum, and a referendum to change the deadlock provisions of the Constitution will be no exception.

The Labor Party will look closely and seriously at the proposals contained in Mr Howard’s discussion paper on the Senate. While a minimum requirement for constitutional change will be agreement on any referendum question by both Government and Opposition, I am only too aware it is only a minimum.

As Scott Bennett from the Parliament Library has said, the Australian public “need a lot of convincing to tamper with the work of the Constitution’s founders”. History has shown Australians “will not alter aspects of the federal system of government if they perceive its basic structure to be under threat, nor will they seek to weaken the position of the Senate in any way.”[27]

The Senate has evolved into an effective House of Review and there is wide community support for its role.

Our challenge remains the need to balance the capacity of a government to deliver on key aspects of its electoral program, while entrenching the oversight and scrutiny role of the Senate.

If we succeed in that challenge we will improve our democracy, improve our government and improve our parliament.

[1] John Howard, Closing Address to 2003 Liberal Party National Convention, Adelaide, 8 June 2003

[2] John Howard, Discussion of Matter of Public Important, House of Representatives Hansard, 8 October 1987

[3] John Howard interview with Alan Jones, 2UE, 14 August 1996

[4] House Hansard, 4 Nov 1992

[5] John Howard, Closing Address to 2003 Liberal Party National Convention, Adelaide, 8 June 2003

[6] From the Statistics Unit – Senate Table Office, 18 September 2003

[7] Gough Whitlam, The Whitlam Government; 1972-1975, 1985, p. 737

[8] Ibid

[9] Gerard Henderson, Menzies’ Child, 1998, p. 258-259

[10] John Howard, Discussion of Matter of Public Importance, House Hansard, 8 October 1987

[11]Peter Costello interview, Meet the Press, Channel 10, 17 October 1993

[12] Convention Debates, Sydney 1897, at page 584; cited in Report from the Joint Committee on Constitutional Review 1959, paragraph 82, page 13

[13] The Bulletin, 15 January 1980

[14] Australian Election Study 2001, Social Science Data Achieves, Study No. 1048, ANU, April 2002

[15] John Howard, Address to the Liberal Party National Convention Adelaide, 8 June 2003

[16] Report from the Joint Committee on Constitutional Review 1959, p. 30-33

[17] John Howard, Sunday interview with Laurie Oakes, 10 August 2003

[18] Michelle Grattan, “Why the PM will not call an early election”, The Age, 17 September 2003

[19] Radio National Breakfast Program, 10 June 2003 and ABC Radio, PM Program, 17 June 2003

[20] George Williams, “Fixed terms hold the key to breaking the Senate’s legislative deadlock”, Sydney Morning Herald, 11 June 2003

[21] Scott Bennett, Four-year Terms for the House of Representatives, Department of the Parliamentary Library, Research Paper 2, 2003-04, p.10

[22] Joint Standing Committee on Electoral Matters, The 1998 Federal Election, June 2000, p.152; The 2001 Federal Election, June 2003, p.x1viii

[23] Joint Standing Committee on Electoral Matters; Report of the Inquiry into all Aspects of the Conduct of the 1996 Federal Election and matters related thereto, tabled June 1997, p. 114

[24] John Howard, Interview with Steve Price 2UE Radio, 18 April 2002

[25] The Australian Journal of Politics and History, May – August 1967, p.408

[26] Steve Lewis, “Democrats decry Howard ‘dictatorship’ in brand new poll approach”, The Australian, 22 September 2003

[27] Scott Bennett, The Politics of Constitutional Amendment, Parliamentary Library, Research Paper no 11, 23 June 2003, p.26

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