Options for Senate reform without the legislative pain

There should be little doubt that the way senators view their role has changed through the years. It certainly has changed considerably since the Constitution and the Federation took affect in 1901.

Apart from cultural changes in that time, the electoral system for the Senate has evolved. The 1949 introduction of proportional representation opened the door to the rise of minor parties. Since then these often niche players within the political system have seen their collective power grow.

Today, as this week’s Newspoll shows, minor parties and independents are as powerful as ever, especially in Australia’s upper house. Yet they do not perform their roles in the way the Constitution and the founding fathers necessarily intended.

The Senate was designed as a house of review, to act as a check and balance on executive government and the lower house. Originally this role was far easier than it is today because government was smaller, less complex, and legislation was less detailed and plentiful. Today, senators wouldn’t be able to read through all draft bills. It simply isn’t possible. The volume of material is too large, even for ever-expanding office res­ources within crossbench Senate teams.

And the nature of the electoral system (different to what was in operation when the Senate was designed) lends itself to the election of parties and individuals who target some issues above others as their areas of focus. Parties such as Family First, the Greens, Nick Xenophon Team and One Nation are clearly niche by nature, meaning they don’t view themselves as elected to be a check and balance on government and the lower house. Nor do they see themselves as operating within what is merely a house of review.

Activism on certain issues is at the core of most minor parties represented in the Senate, and a preparedness to block legislation that such parties ideologically disagree with. Equally major party senators put partisan loyalty ahead of their role as a state representative.

One of Tony Abbott’s most valuable contributions to public debate since losing the prime ministership has been his advocacy for reforming the Senate. He wants to neuter it, taking away its powers to reject laws. Abbott wants the abolition of the double-dissolution provisions in the Constitution, replacing them with the power to hold joint sittings of the parliament whenever the Senate rejects laws on two occasions without first having to go to the polls.

But there are problems with his recommended approach to reform. Why bother to even have a Senate if it’s so powerless and so easily overruled? There is certainly little point in it being an elected chamber, and there is no appetite for an appointed upper house similar to Britain’s House of Lords (which cannot block laws, only delay them).

Abbott is prepared to consider Senate reform, but what he has proposed is too simple and too stymieing of the Senate. That, however, is no reason to stop looking at ways to make the Senate better.

Of course Abbott’s proposal carries the implicit messaging that if he hadn’t been blocked by the Senate his government would have been a raging success. In point of fact rejecting Abbott’s unmandated agenda within the 2014 budget of broken promises was the Senate doing exactly what it is supposed to do: acting as a check on executive government, reviewing what wasn’t put to the people at the previous election.

The problem with the nature of the modern Senate is that even if Abbott had survived as prime minister, got to election last year and found a way to win it, those policy scripts blocked by the Senate and not discarded before election day would have been blocked again by the Senate after polling day because the parties were ideologically opposed to what the Coalition dished up.

This is a cultural failure of the Senate. Nothing wrong with standing in the way of a prime minister doing things not flagged at the election, indeed things specifically ruled out. But if the prime minister then takes those policies to the forthcoming election and retains power, the notion of a Senate again blocking such legislation is a sign of a broken democratic system in my view.

So what to do? Some traditionalist defenders of the Constitution as it stands would say there are already provisions to allow bills to pass into law after being blocked in the Senate: the double-dissolution election followed by a joint sitting. But these are outdated mechanisms, too cumbersome for a modern government. The greater complexity of legislation now compared with in the past means that going to the polls all the time is impractical and unlikely to deliver a crisp usage of the double-dissolution provisions. In the meantime the prime minister gets attacked for the cost of such an election (usually early) and questions are raised as to whether the gamble “was really worth it”.

A better solution would be for a government to be able to store up twice rejected bills and if it’s returned to office give it, let’s say, 12 months to be able to pass such laws by putting them only before the lower house. This would empower the house of government without neutering the Senate com­pletely. And governments would need to be prepared to wait for a new term to enact the mechanism of such a reform. It still would be worth negotiating with senators to get laws past via compromise, but where something is core to the ideological agenda of a government at least a mechanism would exist to resolve the deadlock without the complexity of a double dissolution. So long as people re-endorse the government.

And let’s not kid ourselves how easy it might be for oppositions to campaign against governments sporting a grab bag of laws just waiting in the wings to be passed by a single house after an election.

Governments would think twice before shutting themselves off to negotiations and being purists to the drafted bills they came up with. Under this model for reform Work Choices couldn’t have been sprung on voters without a mandate, as it could under Abbott’s system (noting that John Howard enacted Work Choices only because the Coalition gained full control of the Senate, courtesy of Mark Latham’s woeful showing at the 2004 election). Equally, Abbott wouldn’t have been able to ram through all his 2014 budget cuts. He’d have had to secure a mandate via another election, assuming he survived until then.

Given how different the complexion of the Senate is to what the constitutional founders envisioned, it’s time we look at ways to make it work more effectively within our democratic polity.

Peter van Onselen is a professor of politics at University of Western Australia and a presenter on Sky News. He did his PhD on the Senate.