A Not So Humble Anniversary: A Year of Government Senate Control

Author: Senator Chris Evans is Leader of the Opposition in the Senate and Shadow Minister for Indigenous Affairs, Family and Community Services

Just days before he took control of the Senate, John Howard promised that his would be a “modest, even humble” use of his upper house majority.

In the year since he made those remarks, nothing could be further from the truth. John Howard's use of numbers in the Senate has been anything but humble. As Mac Davis sang: “Oh Lord, its hard to be humble when you’re perfect in every way…”.

The Howard Government has systematically eroded the Senate’s capacity for scrutiny, accountability and review and trampled its processes in the passage of major legislation. Humility has been replaced by arrogance and a Government convinced of its own perfection.

Last week the Government announced that it would restructure and take control of the Senate committee system. John Howard has emasculated one of the strongest parliamentary checks on his own power and is restructuring the Senate to entrench that power.

Labor and the minor parties' parliamentary capacity to combat this arrogant, high-handed abuse of power is limited. Numbers count in politics. Beyond the party political battle however something fundamental to our democracy is at stake.

Over nearly two and half decades (since the last Government majority) the Senate grew into a strong and effective check on government, a powerful tool for accountability and review. I hope Australians will agree that those Senate functions are worth preserving and will reject the Government’s abuse of its numbers and emasculation of democratic processes. Right now, the Senate's core capability and contribution to parliamentary democracy is suffering a death by a thousand cuts.

From July 1981 to July 2005, the balance of power between the government in the lower house and the non-government controlled Senate - with its functions of scrutiny, accountability and review – was a key political dynamic of the period.

Senators of all political parties agreed to implement mechanisms and processes, such as legislation and references committees, which developed and enhanced the capacity of the Senate to carry out its functions as a house of review. The paired system of committees – with government controlled legislation inquiries and non-government controlled references inquiries – was used to facilitate the Government's legislation program but also to hold governments to account; scrutinise executive actions; review and amend legislation; and directly involve the community in the work of the Parliament.

As the Senate has become a more powerful check on Government, the respect for the institution in the Australian community has grown with it. This is despite, or perhaps because of, the discomfort that scrutiny of government performance affords all governments. As the Senate's role and value to the democratic process has grown, Labor's attitude to the upper house has also changed - in government or opposition Labor supports the Senate as a strong house of review, scrutiny and accountability.

Reflecting on the Government’s exercise of its Senate majority over the last year, it is clear that the Howard Government of 2006 has abandoned any commitment to the proper role of the Senate.

Over the last 12 months, John Howard has not only rammed through an extreme legislative agenda but he has trampled over the mechanisms and processes of the Senate, and its core roles of accountability and review. In the Senate chamber, debate has been suffocated with the gag and major bills rammed through by use of the guillotine. John Howard has kept legislation inquiries disgracefully short, restricted and Canberra-centric – reducing public input, limiting investigation and minimizing scrutiny and debate.

The Government has moved to shut down questioning and exposure of its actions. It has reduced the time for Estimate Committee work and threatened to limit their scope. Reference of inquiries to Committees into matters which could embarrass the Howard Government has been prevented by use of Senate numbers. In an unprecedented move the Government banned questions regarding the AWB scandal at Senate Estimates hearings.

John Howard’s abuse of his Senate power reached a new peak last week when the Government announced that it was going to change Senate standing orders so as to scrap the existing committee system, and replace it with a new set of government–controlled committees. This is the final nail in the coffin of the Senate's capacity to undertake inquiries such as those into the GST, Children Overboard, military justice and the Nationals’ regional rorts.

The Howard Government will now control not only the matters that are referred to Senate inquiries, but also who chairs those inquires, where and when they meet, the subjects they consider, the witnesses they hear and the content of the reports they provide. His government will have complete control of the Senate committee system whose independence has proved so valuable. That control will be codified in the rules of the Senate.

The Government can run roughshod over the Senate because of its successful Senate outcomes at the last two elections. Labor accepts the results of those elections and takes full responsibility for our poor performance at the elections in 2001 and 2004.

The Government has argued that the Senate majority it won at the last election gave it a mandate to pass its legislative program without Senate interference. Clearly, if it can control its backbench it has the power. Despite our deep opposition to much of that agenda, key aspects of which were not revealed to the people prior to the election, Labor accepts the political reality. However, the Howard Government's use of its majority to alter Senate rules to eliminate democratic checks on his government is another matter altogether. We strongly contend that this is an abuse of the Government's Senate power. Labor does not believe, and the Government has not argued, that the Australian people voted in 2004 to dismantle the mechanisms and processes of the Senate.

The Howard Government is using its numbers to drastically limit scrutiny of its exercise of executive power. The Government is making these changes to the Senate process because it has the power to do so, motivated by pure political self-interest. Just as political self-interest drove the recent passage through the Senate of electoral changes which will make it easier to make large secret donations to political parties and make it harder for disadvantaged Australians to vote. Political self-interest has motivated the Government to seize full control of the Senate’s committee system. Power corrupts and absolute power will corrupt the Howard Government absolutely.

Long term governments invariably become increasingly intolerant of criticism, fearful of scrutiny, convinced of their right to govern and inclined to govern in their own interests and not those of the people.

The Howard Government is displaying all of these traits in their arrogant abuse of the Senate and its established functions and procedures.

It is no wonder that some Liberal MPs have rebelled against the completely unprincipled actions of the Government in relation to immigration law. But occasional outbursts of criticism within the Government are no substitute for the capacity of the Senate to review legislation and scrutinize executive action.

It is no coincidence in my view that threats of breach of Government party discipline have been accompanied by measures to tighten executive control of the Senate committee system.

But the changes are also designed to entrench Coalition control of the Senate if it retains government, but suffers the loss of one of its Senate seats at the 2007 election. The Government’s current Senate majority stems from its good result at the 2001 and 2004 elections. Labor and the minor parties can not escape the consequences of our poor showings. In 2001, Labor returned only two senators in each state plus one in each of the territories. In 2004, we performed better winning three seats in NSW and South Australia and two seats in the other four states, plus one in each of the territories. Critically in 2004, the total minor party vote fell below 20 per cent for the first time since 1996, and only three minor party senators, two Green and one Family First were elected.

This was half the number of minor party Senators elected in each of 2001, 1998 and 1996. The last time the minor parties had so few senators elected was in the 1977 election when the Coalition last won a Senate majority.

In 2007 the Coalition will need to replicate its 2001 performance and return three senators from each state and one from each territory. If they lose one senator in two states then the Coalition will be in the minority in the Senate. If they lose a senator in only one state they will lose their majority and the Senate will be evenly balanced between 38 Coalition senators and 38 Non Government senators. In the Senate a tied vote is resolved in the negative.

By making changes to the Senate Standing Orders now, the Government is ensuring that if re-elected next year, even with the loss of a Senate seat their control will be entrenched until July 2011. Changing the Senate rules is in part about entrenching the power the current majority affords to outlast the loss of that majority.

Labor's task is clear. Our primary objective and overriding focus must be on winning government. However my task and that of Labor Senators must include putting an end to a Coalition majority. This means fundamentally that Labor has to perform better at the next election in the Senate. Improving our primary vote is critical to winning a Senate seat off the Coalition. We must do better than return only 28 out of 76 Senators. But even if Labor were to return three senators in each state in 2007, this would not, on its own, be enough to prevent the Coalition retaining Senate control if it again won three spots in each state. So like Labor, the minor parties must do better if the Coalition is to be denied a majority. This will be a challenge given that the Australian Democrats have all four of their senators up for election next year and are at serious risk of failing to return any of them.

Until the Coalition’s control of the Senate is broken, Labor’s role must be in part to defend the Senate's role and procedures from the tyranny of the government majority. This will involve continuing the defence of Senate processes in the chamber, in the community and in the media. This has been part of our core activity over the last year and, I believe, Australians are now more aware and more concerned about the Government's attack on the Senate and its abuse of its majority.

Labor believes that the Senate’s role is worth defending and will continue to take up that fight at every opportunity. We also know that our capacity to use the mechanisms of the Senate to hold government to account has been greatly diminished. The opportunity left to us will be pursued vigorously but there is no denying the Government's success in undermining the capacity of Non Government Senators to do their job effectively. We fear becoming a pale imitation of the House of Representatives condemned to the ritualised exercise of executive control over the Parliament.

If we are to be denied the opportunity to play the role the community expects of us, then we must take action.

Action to ensure the review and scrutiny function is kept alive and action to alert the community to the dangers of the Government's domination of the Senate.

Tonight I am announcing two initiatives Labor will be taking to meet the challenge the Government actions represent.

Labor will seek to establish Independent Senate enquiries with the support of the minor parties.

These enquiries will focus on issues of public concern or legislation where the Government refuses to allow Senate committees to discharge their responsibilities properly.

Such enquiries will allow terms of reference that encourage community input throughout Australia and hear from people with expertise, experience and opinions.

When the Government refuses the scrutiny or accountability we think necessary we will seek to establish an Independent Senate enquiry to fill the void and fulfil the Senate's traditional role.

Labor will not allow the Senate to be usurped or emasculated by the Government.

I have spoken to the minor parties' leaders some time ago and will take a formal proposition to them when the Senate resumes in August.

It is my intention that independent Senate enquiries will only be established on major issues of public concern when the non-government Senators are frustrated by the Government in properly discharging their duties.

It is our strong preference that the normal Senate procedures apply and enquiries are conducted in the normal way. However, the Government's arrogant changing of Senate rules means that, on issues to which they are sensitive or vulnerable, full Senate investigation will be prevented.

Advice from the Senate Clerk, Mr Harry Evans, confirms the capacity of non-government senators to conduct independent Senate enquiries and to debate the reports in the Senate.

While independent Senate enquiries will not attract privilege or Hansard coverage, I am confident they can effectively do the job Australians expect of the Senate committee system.

The Howard Government fiercely resisted the Senate enquiries into the GST that were so successful in examining the proposed tax engaging the community and eventually resulting in the amendment to exclude food from the GST.

Independent Senate enquiries will allow us to do what we did with the GST, with military justice, with children overboard, with regional rorts – even in the face of a Government majority that refuses to allow the Government to be held to account.

We will not sit by and watch as the John Howard trashes our democratic institutions.

Raising awareness and promoting debate about the role of the Senate, and the upper house’s future is central to the work of Labor in the Senate between now and the next election. Labor believes that the scrutiny, accountability and review functions that the Senate has exercised over the last two and a half decades have added to Australia’s democracy and are worth defending. But, the Howard Government’s undermining of these functions has called into question the future of the upper house. Do Australians want the type of Senate that John Howard has in mind – a rubber stamp for an increasingly powerful political executive? If so, do we need a Senate at all?

As a community we need to be thinking and talking about the type of democratic institutions we want to serve us long after John Howard’s retirement.

Today I have written to approximately 2000 community and peak organisations encouraging them to debate the issues around the Government control of the Senate.

These included Australia's media representatives, education and business leaders, local governments, community groups and unions.

My colleagues and I will write to thousands more in the next few weeks to ignite community debate and feedback.

While media commentary on the Howard Government's attacks on the role of the Senate has been extensive and overwhelmingly critical – we need to deepen the debate.

Many thousands of Australians have made submissions and appeared before Senate committees at public hearings. They have valued their participation and we have benefited from their contributions.

The Senate is at its best when listening and giving voice to the community and bringing that back to the Parliament.

I accept that people will question my motives. I am a partisan political player, and Labor certainly bears responsibility for the paucity of our current numbers in the Senate. But beyond the partisan party politics and the issue of who will form the next government, there are other important issues at stake here. This is far more than the loser of the last election bemoaning his or her lot. This goes to the heart of the type of democratic institutions we want for Australia. Do we want government that is not subject to checks on its power and faces virtually no parliamentary accountability for its actions between elections? These issues are at the centre of how Australia wants its parliamentary democracy to function.

I am asking people to initiate discussions within their communities and their organisations about the role they would like to see the Senate play in the future. Many Australians who voted for the Coalition in both houses did so in order to support the Government's legislative agenda I respect their decision. But I think many of those people are increasingly concerned that the Coalition Government has taken that mandate, that power and used it to do far more than pass legislation – but to dismantle the established checks and balances of the Australian Parliament. So I want to encourage Australians to analyse and debate these issues and to reflect on the Government’s use of its Senate numbers. I strongly believe that this is a debate we need - we should not allow the Prime Minister to redesign our parliamentary system by crude exploitation of political power without reference to the Australian people.

John Howard commenced a debate about legislative deadlocks and the role of the Senate in 2003.

Labor took up the debate and argued for a package of reform that facilitated the Government's passage of money bills but preserved an important role for the Senate.

Howard dropped his proposals after failing to get broad community support.

His Government's 2005 Senate majority has allowed him to pursue effective executive control of the Senate without the need for community debate or any form of public endorsement.

I am hopeful that we can ignite that debate, get Australians talking about the Senate, and encourage people to consider the Government’s use of its numbers when they cast their vote in 2007.

Labor will take up the fight in the Senate on two levels.

Firstly, to argue the merits of the Labor policy and to campaign for the election of a Beazley Labor Government.

Secondly we will campaign for the maintenace of the role of the Senate and the need to remove the Government's majority.

I of course will argue that both outcomes are important for the future of Australia.

But for those who want to support a Labor Government they should give serious consideration to the issue of the role of the Senate in the face of a Coalition majority.

That is a debate all Australians have a stake in and I would urge them to consider what is good for our parliamentary democracy.

If humility is replaced by arrogrance all Australians ought be concerned.

Thank you.