The Senate is one of the two houses of the federal Parliament, the other being the House of Representatives. Democratically elected, and with full legislative power, it is generally considered to be, apart from the Senate of the United States of America, the most powerful legislative upper chamber in the world.
The framers of the Constitution intended that the primary role of the Senate would be to protect the interests of the less populous states in the federal Parliament by giving equal representation to all states (see Senate Brief No. 9). As was foreseen by some of the framers, soon after federation parliamentarians began to vote as members of political parties rather than as representatives of states. While this has obscured the role of the Senate as a protector of the less populous states, the state-based system of representation has ensured that legislative decisions are not made only by the representatives of the more populous states. The Senate has also assumed greater importance as a check on the power of the government of the day. The framers' design of the Senate has enabled it to perform this role effectively.
It has long been recognised that checks and balances are necessary in a system of government to ensure that individual power is not abused. A Parliament to which the executive government, the ministry, is responsible for its actions is one such check. Parliament is the law-making assembly where the opinions, interests and beliefs of the people are represented. It is the foundation upon which modern democracy is built. It is the Parliament's role to ensure that government is answerable to the governed.
In the federal Parliament, the opportunities for the House of Representatives to operate as an effective check on government are significantly reduced because the party or coalition of parties forming government usually holds a majority of its seats and, through extremely rigid voting discipline, controls the House. However, the development of the Australian system of responsible government, under which the federal government is responsible to the Senate as well as the House of Representatives, has ensured that the federal Parliament, through one of its Houses, is able to perform its role as a check on government.
The federal government is held responsible to both the House of Representatives and the Senate, though in different ways. The federal government is formed by the party or coalition of parties that holds a majority of seats in the House of Representatives. The government must resign if it loses this majority. In practice, party discipline ensures that the government controls the House of Representatives and that the House imposes no check on government.
The government is responsible to the Senate in the sense that, while the party or coalition of parties possessing the confidence of the House of Representatives does not need to hold a majority of the seats in the Senate to form government, the Senate may force the government to account for its actions by withholding finance from it; that is, by rejecting an appropriation bill for the ordinary annual services of government.
This position recognises that the Senate is democratically elected and possesses constitutional powers nearly the equal of the House of Representatives. To fulfil the role the Constitution allows the Senate in relation to the government, the Senate is able to scrutinise and judge the activities, policies and legislation of the government. This is why the Senate is known as a house of review.
The Senate fulfils its role as a check on government by scrutinising bills, delegated legislation, government administration, and government policy in general. It does this by way of procedures utilised in the Senate chamber itself and through the operation of the Senate committee system.
The effectiveness of these processes in holding the government accountable to the Parliament is increased because the government rarely possesses a Senate majority. This is largely a consequence of the adoption by the federal Parliament in 1948 of a system of proportional representation for Senate elections. This system helps ensure that parties gain representation in proportion to their share of the vote. Consequently, smaller parties and independents have gained significant representation in the Senate (see Senate Brief No. 1). As a result, the government must win support from non-government Senators, usually the minor parties and independents, before the Senate will agree to pass a government bill. On the other hand, if the opposition party or coalition is able to gain the support of the minor parties and independents, the Senate may reject or amend government bills. It may undertake activities which do not have the support of the government: for example, it may direct a Senate committee to inquire into particular government activities, legislation or policy. This political situation in the Senate, together with its democratic election process and its extensive constitutional powers, provides the foundation of the Senate's role as a check on government.
A bill must be passed by the House of Representatives and the Senate in identical terms before it can become law. Most bills are initiated by the government and implement government policy. The Senate scrutinises all bills to ensure that they further the public interest. Ultimately, the Senate may pass a bill without amendment, pass it with amendments (or, in the case of money bills, request amendments before passing it) or reject it.
Bills are 'read' (i.e. approved) three times during their passage through the Senate. The broad policy of the bill is debated in the second reading debate, held before the second reading. The Senate then resolves itself into a committee of the whole, during which Senators are able to examine the detail of bills, engage in debate with ministers (or Senators representing ministers in the Senate) and move amendments (see Senate Brief No. 8). This procedure provides the opportunity to ensure that all aspects of a bill are examined thoroughly before the Senate votes to pass, reject or amend a bill.
The Senate committee system substantially increases the ability of the Senate to review bills in the Senate chamber (see Senate Briefs Nos. 4 and 8). Bills considered to require more detailed examination are referred to the relevant Legislative and General Purpose Standing Committees for inquiry. The inquiry process is described below. It concludes with the presentation of a report to the Senate. A report may recommend amendments to a bill, or recommend that the bill be passed without amendment. The report is then considered by the Senate when examining the bill in the chamber.
In addition, the Scrutiny of Bills Committee informs the Senate of any bills that unduly trespass on individual rights and liberties or fail to observe proper legislative safeguards, for example, rights of appeal.
Most bills are initiated by the House of Representatives because that is where the majority of ministers sit. However, the Senate possesses the power to initiate any bill (other than a money bill). Bills may be initiated in the Senate when, for example, the minister in charge of the bill is a Senator, or when the House of Representatives, which usually meets for fewer days than the Senate, is not sitting.
Many statutes do not attempt to comprehensively regulate the subject they cover, but leave the details to be regulated by delegated legislation. The power to make this type of legislation is delegated by Parliament to the Governor-General (acting on the advice of the government), a minister or a statutory office holder. Much use is made of delegated legislation. Delegated legislation carries the full force of law; that is, it has the same effect as an Act of Parliament. Each year, the federal Parliament passes around 200 bills. In contrast, around 1600 pieces of delegated of legislation are made.
All delegated legislation must be tabled in the Senate (and the House of Representatives) and the Senate (or the House of Representatives) may disallow any piece of delegated legislation (s.48, Acts Interpretation Act 1901). To improve the effectiveness of the Senate's oversight of this area, the Standing Committee on Regulations and Ordinances examines all delegated legislation against criteria similar to those used by the Scrutiny of Bills Committee. It takes up any problems with the relevant minister. Unresolved problems can lead to the disallowance of the regulation by the Senate.
Nine government ministers sit in the Senate as of April 1994. They also represent in the Senate the ministers who sit in the House of Representatives. Each sitting day, during Question Time, they may be questioned by Senators on any aspect of the administration of their departments, proceedings in Parliament over which they have carriage, or public affairs with which they are connected. Questions may be asked without notice, orally to the Minister, or with notice, i.e., in writing.
Senators may also put the government under examination at other times; for example, during time set aside for raising matters of public importance, and during debates of a general nature, such as the debate that takes place before the Senate adjourns for the day.
An important way in which the Senate examines the operations of government departments and agencies, which develop and implement government policy, is through its Estimates Committees (see Senate Brief No. 5). They examine in detail the estimates of annual expenditure of government departments and agencies, looking to see whether revenue is being spent appropriately and efficiently. These estimates are contained in appropriation bills introduced into Parliament as part of the Budget in May, and in additional appropriation bills introduced later in the year. There are six committees, each with responsibility for a number of departments. The relevant Senate minister and senior departmental officials appear before the estimates committee which is examining their department to explain expenditure proposals and to answer questions concerning the effectiveness and efficiency of various programs. The estimates committees report to the Senate upon the completion of their inquiries.
In addition, the annual reports of government departments and agencies are scrutinised by the Legislative and General Purpose Standing Committees. This provides a vehicle for those committees to examine the performance of departments.
The Senate is able to review government policy and activities generally, as well as the affairs of the nation, through its Legislative and General Purpose Standing Committees (see Senate Brief No. 4). These committees are able to inquire into how government policy already implemented is affecting the community, whether a proposed government policy will be beneficial to the community, or whether problems exist in the community which the government ought to be addressing. They also inquire into bills referred to them, on any other matter which the Senate believes ought to be examined.
Committees advertise the terms of reference of their inquiries and invite written submissions. Later, they hold public hearings to take evidence in person. Public hearings are often held outside Canberra, at the sources of the information. Government ministers, departmental officials, experts in the field, and community groups and individuals with an interest in the matter may all appear. In this way, the opinions of a wide range of people are heard, and a great deal of useful information is gathered. Inquiries conclude with the presentation of a report to the Senate. The report will usually contain recommendations directed at any relevant bodies ¾ most often at the federal government. Since 1978, successive governments have undertaken to inform the Senate of their response to committee reports.
Although the Senate, like all institutions, has changed greatly since the Constitution came into effect in 1901, it still performs the functions envisaged by the framers of the Constitution: ensuring that laws are supported by a majority, properly representative of the country, and ensuring that ministers are accountable for their conduct of government to the Australian public.
This Senate Brief was prepared by Paul Palisi, Research Section, Senate Department. For further information on this series and other Research Section publications, exhibitions, seminars and lectures, contact (06) 277 3072.
Senate Briefs No. 10 - June 1994