Two Years Of Government Senate Control
Speeches
Speech by Senator Chris Evans Leader of the Opposition in the Senate To the Subiaco Branch of the Australian Labor Party Irish Club, Subiaco WA 28 June 2007 - 6.30pm
Date: 29 June 2007
Speech by Senator Chris Evans
Leader of the Opposition in the Senate
To the Subiaco Branch of the
Australian Labor Party
Irish Club, Subiaco WA
28 June 2007 - 6.30pm
Thanks for the opportunity to address the Subiaco Branch. I was a member of this branch in my youth, and it’s good to have the chance to be here.
Very few Australians expected that John Howard would win a Senate majority at the Federal Election of 2004. In the weeks following the election, media and public attention focussed on the consequences of the result.
The change in Senate numbers represented a significant shift in Australian parliamentary politics and government. A key dynamic which had defined Australian politics for nearly quarter of a century was gone. The numbers which had allowed the Senate to function as a powerful check on the executive government were reversed. The Senate became captive to the executive. The Howard Government moved quickly – using its numbers to limit the scrutiny and accountability it faced in the upper house, to entrench its power over Senate process and to implement a radical legislative agenda.
Over the last 12 months the media and public focus has shifted away from the Senate. This is not surprising. The creative tension of the non-government-controlled Senate has been lost. Senators and the public have adapted to the new Senate reality. The Government has used its majority to undermine the strongest parliamentary check on its power. In using his Senate majority to weaken our system of checks and balances, John Howard has demonstrated that power corrupts and absolute power corrupts absolutely.
I don’t have to tell members of the Subiaco Branch that numbers count in politics. It was the numbers which allowed the Senate to develop into a powerful check on Government in the period from 1981. And it is the numbers which have allowed John Howard to emasculate the Senate over the last two years. It is only through a change in the numbers that the Senate can be restored to its proper place as a house of scrutiny and review.
Between 1981 and 2005 the fact that no one party or grouping controlled the Senate was the cause of the dynamism and effectiveness of the chamber. Both Labor and Coalition Governments had to debate, negotiate and face the scrutiny of the upper house. Despite facing a strong check in the Senate, both the Hawke / Keating and Howard Governments were able to govern effectively and implement major reforms.
Senators of all political persuasions developed processes and mechanisms to enable the Senate to function as an effective house of review. The system of paired committees was the key mechanism through which the Senate scrutinised legislation and investigated matters of public interest. Legislation committees, controlled by government senators, oversaw the legislative review process. References committees controlled by non-government senators enquired into matters of public interest. It was through the committee process that the public was given real input into the content of Bills, and that issues such as Children Overboard were investigated and government held to account. The Estimates process was developed into a powerful mechanism for accountability – exposing ministers and officials to scrutiny for public administration and the expenditure of public funds.
As the Senate became more effective in holding governments to account, shining a light on executive actions and opening up the legislative process, so too did public support for the Senate and its role increase. Labor recognises the role and value of an empowered Senate. Our support for the Senate has grown as it has developed into an effective political institution. Labor – in government or opposition – supports the Senate as a strong house of review, scrutiny and accountability.
Following the 2004 election there was substantial media interest in how the Government would use its majority. The Government argued that the result expressed the electorate’s intention that it pass legislation previously rejected by the Senate – such as the full sale of Telstra. However, even they never argued that the Senate result signalled public approval for the radical, unannounced WorkChoices policy. Nor did the Senate result signal public support for curtailing the Senate’s role as a house of review.
Over nearly a quarter of a century, the community had grown so used to the Senate functioning as a strong check on government that people expected it would continue to play that role. John Howard and senior ministers promised that they would not abuse their majority – they promised a modest and humble use of their newfound power. That rhetoric soon proved hollow.
People underestimated the power that a Senate majority gave to the Government. The rules of the Senate are not set down by the Constitution but are determined by the vote of a majority of senators – no matter how slim. The numbers in the new Senate gave John Howard not just the power to pass legislation, but to control every Senate process through which Bills are scrutinised and governments held to account. With a majority of one John Howard had the capacity to reshape the Senate to suit his needs and purposes. And that’s exactly what he has done.
From August 2005, the Prime Minister moved swiftly to exert the power of Senate numbers, trampling every Senate process in ramming through his extreme legislative agenda. In pushing the full sale of Telstra, WorkChoices, welfare-to-work, voluntary student unionism and other legislation through the Senate the Government did not hesitate from abusing the gag and guillotine and kicking non-government senators off speakers' lists.
Seeking to consolidate and entrench its power the Government dismantled the paired system of Senate committees. Non-Government controlled references committees were abolished – leaving eight standing committees with a Government majority and a Government Chair. This was a naked grab for power. John Howard redesigned the committee process to ensure that he controls the issues that committees examine, their terms of reference, the length of inquiries, the number and location of public hearings and the content of reports. John Howard’s control over the Senate was complete.
Over the past year, the focus has shifted from the Senate. With its major legislation passed and the Government in full control of the Senate levers, much of the drama has gone out of Senate politics. John Howard has effectively emasculated the Senate and deeply undermined its capacity to hold his government to account. Over the past year there have been fewer high-profile abuses of the Senate majority because John Howard has the chamber functioning largely as he wants it. The Senate has become predictable – it has lost the capacity to surprise. Senate Estimates remains a source of interest and largely unchanged as a strong accountability mechanism. Although the Government has threatened to restrict the power of Estimates Committees, strong media support make the Government nervous about carrying through that threat. Restrictions on the scope of Estimates questioning will be part of the Government’s agenda if it is returned with a Senate majority.
The promise that Barnaby Joyce would be an independent force on Government benches and provide new dynamism and interest to Senate politics has not been realised. While he and fellow Nationals occasionally flirt with crossing the floor or opposing bills these threats have largely been political posturing to satisfy National constituencies.
The Senate has adapted to the reality of John Howard’s control. Both the capacity of non-government senators to influence legislation and the capacity of the Senate to function as a legislative chamber driven by negotiation and the debate of ideas have been removed. Non-government senators have little expectation that their amendments will be accepted. For example, in 2004, 234 substantive amendments and requests moved by non-government parties and senators were agreed to, while 303 were negatived. In 2006 only 30 non-government amendments and requests were agreed to, while 656 were negatived.
The Howard Government has tried to maintain the appearance that the Senate is doing its job of scrutinising legislation, while working behind the scenes to squeeze and neuter the legislative review process. Mechanisms and practices designed to ensure full and detailed consideration of legislation have been trampled. Changes to the workings of the Selection of Bills Committee (SBC) – through which the Senate refers legislation for inquiry and determines the nature of that inquiry – show how the Government has seized control and restricted the scrutiny of legislation. Prior to June 2005[1] the Government referred no Bills to inquiry through the SBC – this was done by Labor, the minor parties and independent senators. Since July 2005 nearly half of all Bills referred have been referred by the Government – seeking to control from the outset the nature of the inquiry into each of those pieces of legislation.
Referring large numbers of Bills off to inquiry has been a key element in maintaining the façade that legislative review is alive and well. Pointing to the number of Bills referred is part of the Government’s defence of its use of its Senate majority. However, what the Government has done is remove those elements of the review process which contributed to the Senate’s reputation for effective scrutiny of legislation.
The Government has made sure that Bills are rammed through the review process as quickly as possible. Practice built up over time was for a Bill to be considered by the SBC in the sitting week following its introduction – giving senators time to review the legislation before considering whether it should be referred to an inquiry. Before July 2005 there was generally a three or four week gap between introduction of a Bill and its consideration by the committee. Since the Coalition gained control, fifty seven per cent of Bills are considered by the SBC on the day of their introduction or the day after. Senators do not know the detail of the Bills they are referring off for inquiry.
There have now been 21 Bills which have been referred for inquiry before they had been introduced or seen by the Parliament. The recent legislation for a “fairness test” for WorkChoices was referred to committee before it was even written. In addition to pushing Bills through the SBC process, the Government has cut the time available to committees to examine Bills, hold public hearings and report to the Senate. The shambolic one-day inquiry into the Telstra sale legislation was a sign of how the Government wanted the inquiry process to run. The average length of a committee inquiry into a Bill has dropped by 30 per cent since John Howard gained control of the Senate. The Media Ownership package was referred to an inquiry before it was introduced into Parliament. The committee was given only three weeks to report even though it was yet to receive a copy of the legislation.
The power of the Senate to demand information from government has been diminished. Some Senate accountability mechanisms have fallen into disuse, such as Returns to Order, through which the Senate can require the Government to release certain documents. In the two years to June 2005, 58 orders were made. In the two years since, the mechanism has only been used once. Responses to questions on notice have been getting slower and slower. More and more questions are going unanswered. We are still waiting for full answers to questions about the costs of the Prime Minister’s overseas trips which were asked five years ago.
Some departments have begun including the cost of answering a question as part of their response. The Office of Workplace Services, recently refused to answer a question on consultancy services, but pointed out that preparation of its non-response had, “taken approximately 4.6 hours at a cost of $84.00.” As concerning as the Government’s refusal to provide basic information is the assumption that being accountable to the Parliament is not a fundamental responsibility of both the Government and the bureaucracy. It is an expression of the growing arrogance and high-handedness of John Howard’s administration.
The Senate does continue to play a role, albeit reduced and resticted. The Government’s slim Senate majority was not enough to prevent the Prime Minister being rebuffed by his own backbenchers over his proposed migration changes. It was through the leadership of a group of women senators that the legislation responding to the Lockhart Review was developed and a new regime governing human cloning and stem cell research put in place. Senators Santoro and Lightfoot were held to account for their repeated breaches of disclosure rules over share trading.
Senate Estimates still exposes executive incompetence and excess. It is through this year's Estimates hearings that we know that the Prime Minister’s $10 billion National Water Plan never went through the normal Cabinet process and that the Government is seeking advice on using Commonwealth powers to overturn state bans on nuclear power stations. Estimates revealed that the Prime Minister's department 'forgot' to report that it would be spending $208 million on advertising, but that it had spent $350,000 on a jewel encrusted carriage for the Queen. And of course, it was after a morning of Estimates questioning that John Howard rushed to cancel the half million dollar renovation of his private dining room.
The Senate can still shine a light on government but that light is far weaker than it was. Senate committees still hold enquires, but they run to the Government’s agenda. The Government seeks to maintain the façade that the Senate continues to operate as it did up until 2005. Keeping up appearances is in the Government’s political interest. Pointing to the number of inquiries held or the hours of chamber debate helps John Howard deflect accusations of arrogance and abuse. But the political potency of those inquiries is gone: and although non-government senators can have our say in debates over legislation, we are powerless to affect their content.
It is very possible that John Howard’s Senate power may contribute to his political undoing. A major concern of mine prior to 2005 was the possibility that the non-government Senate had worked in the Howard Government's favour. In moderating the Government's worst policy excesses, Labor and the other non-government Senators may have inadvertently made John Howard more electable. It is ironic that John Howard’s biggest political problem in the lead up to the 2007 election is the result of his greatest abuse of his Senate majority – the WorkChoices legislation.
It is certainly the case that the trampling of Senate processes, and the remaking of the Senate to entrench John Howard's power and reduce scrutiny and accountability have helped feed a deeply negative public perception of the Howard Government. The manner in which John Howard has used his Senate majority has shown his government as tired, arrogant and corrupted by absolute power. John Howard's abuse of the trust placed in him by the Australian people is a serious electoral problem for the Coalition.
However beyond the electoral politics of the 2007 election there are deeper issues at stake. The fact is that the Australian Parliament constructed better legislation when governments had to negotiate and argue their case in the Senate. We got better legislation when Bills were thoroughly scrutinised by committees, the public had their input and governments were forced to listen and respond. We had a stronger and more open democracy when issues like Children Overboard, Abu Ghraib or the AWB Affair could be properly scrutinised by the Parliament and governments faced strong checks and balances.
A recent Galaxy Poll released earlier this week found a significant loss of support for the Coalition in Senate voting intention. Whatever its accuracy, it reflects the trend of all such polling, which predicts a drop in Coalition Senate support at the next election. Many who voted for the Government did not expect or intend that they gain the majority in the Senate and are worried about how that power has been exercised.
Focus on the role of the Senate has reduced dramatically. In part this is because the Senate reality has lost its newsworthiness and the Government has got its way with its major pieces of controversial legislation. However, by far the major reason has been the increased interest in Labor as a potential new government and high expectations of a Labor victory. The question has become not whether the Government can retain its Senate majority, but whether the Coalition can retain government.
The permutations people seriously canvass of a post-election Parliament have expanded in number. A Labor Government confronting a Coalition-controlled Senate is now a real prospect. One thing is for certain. Labor will not control the Senate after the next election. I don’t want to sound defeatist. Labor’s vote will rise and I expect us to return more senators to the next Parliament. But to gain a Senate majority at this year’s election, Labor would need to win four out of six seats in five states, and three in the other, as well as returning our two territory senators. Quite frankly – that’s not going to happen.
For the Coalition to lose effective Senate control (that is 38 senators and the ability to block any initiative) they must lose two of their senators from the 20 facing re-election or replacement. Non-Coalition parties must win a total of 22 of the 40 Senate seats up for election. The task of Labor and the minor parties will not be easy. In three of the last four elections the Coalition has returned at least three senators in each state and one in each territory – it needs to do the same in 2007 to retain its majority. The poor prospects of the Democrats in retaining their four seats will make the task of removing the Coalition majority even harder.
Labor accepts completely the verdict of the Australian people at the last election, and that the Senate result was an accurate reflection of the will of the electorate. Labor can not walk away from the fact that the current Senate numbers are a reflection of our poor performance at the elections of 2001 and 2004. We know that we have to do better – and that means winning more than our current 28 Senate seats.
Bob Brown continually seeks to focus attention on Labor’s preference decision driven by his fear and loathing of Family First. Labor, like all parties, will make a decision closer to the election predicated on a judgement about our best interests. Unfortunately Senate preference decisions and vote distribution is not an exact science and the result in the last spot in most states will remain unpredictable even to the most astute political judges.
What is certain is that an incoming Labor government will have to negotiate its legislation through a Senate it does not control and will face a level of scrutiny that the Coalition Government has not confronted since July 2005. The Senate will once again be at the centre of Australian political debate. Labor reforms on industrial relations, telecommunications, climate change, electoral law and education will have to navigate a non-Labor-controlled Senate.
Whatever the result in the battle for government, there is a very strong case for electors not to return a Coalition Senate majority. In the event of continued Coalition Senate control a re-elected Howard government would again not face proper parliamentary checks and balances. A newly elected Rudd Labor government facing a Coalition–controlled Senate would be an undesirable outcome from anyone’s perspective. Only by removing the Coalition majority and ensuring that no one party has control will voters ensure that the Senate again functions as a strong house of scrutiny and review.
If John Howard is re-elected, then Senate control - be it for six months or three years - will provide him or his successor with the capacity to implement whatever changes they see fit unimpeded by a check in the Senate. We have already had an indication of the policy direction which a re-elected Coalition would take. The Prime Minister indicated in April that his government was developing a strategy to prepare Australia for a nuclear energy industry. Given that the Government has already sought advice on using Commonwealth powers to override state bans on nuclear power, it is likely that putting in place the legislation to force the development of nuclear power stations would be high on the Coalition's agenda.
Similarly, there are indications that a re-elected Coalition Government may also seek to use Commonwealth powers to override State responsibilities in the areas of health and education. With the check of the Senate removed John Howard is pushing the limits of Commonwealth power. This is a government increasingly inclined to impose and extend its authority within our federal system. After 11 long years in power, the Howard Government is more and more convinced of its right to do so.
For long periods since Federation the Senate played a marginal role in Australian politics and government and was held in low-esteem by the Australian public. It was only relatively recently - with the evolution of the modern committee system and through the 24 years when no one group had control – that the Senate came into its own as a powerful house of review. It became a strong check on governments of all persuasions.
As a partisan political player, many will question my motives in arguing for strong checks and balances in the Senate. People have a healthy scepticism of politicians. But the case for removing the Coalition Senate majority has been made by John Howard and his ministers. Over the past two years the capacity of the Senate to scrutinise and review legislation and to hold government accountable has been deliberately and systematically undermined. This is a direct consequence of the way in which John Howard has chosen to wield his Senate power. Our democracy is weaker as a result.
The Senate functioned well when no one party or grouping had control. The Senate has been diminished by the actions of the Coalition majority. Restoring the checks and balances which make our system strong can only result from ending the Coalition’s Senate power.
