Papers on parliament no. 34 - december 1999 - why we chose proportional representation

Why We Chose Proportional Representation
This background paper answers the historical question: why did Australia adoptproportional representation for the Senate? The bare facts are well known: in 1948 theChifley government initiated amendments to the Electoral Act to alter the existingmethod of counting the Senate vote which had traditionally rewarded the majorityparty with a disproportionately large share of Senate seats. Labor itself had a Senatemajority of 33 to 3 after the 1946 election. But why did the Chifley governmentintroduce proportional representation? The standard answer, given by Oppositionleader Menzies at the time, was that Labor knew that it would lose the 1949 election(and probably most of its contested Senate seats) and so devised this change toconsolidate its parliamentary power base in the Senate to frustrate the expectedMenzies government. This answer is true as far as it goes. But a fresh review of thehistorical record shows that the 1948 decision was really the final stage in afrequently-deferred plan of parliamentary reform that goes back to Federation. Evenbefore Federation, many prominent constitutional framers had expected the firstParliament to legislate for proportional representation for the Senate. Sure enough, theBarton government included Senate proportional representation in the originalElectoral Act, but this was rejected in the Senate on the plausible ground that it wouldundermine the established conventions of strong party government. But over timeeven the partisans of strong party government came round to see the merits of theoriginal plan. At many stages between the first Parliament and 1948, advocates ofproportional representation moved for its adoption for Senate elections, with manyparty leaders joining the ranks of parliamentary reform: conservative leaders such asCook, Page, Bruce, McEwen; and Menzies; and even Labor leaders such as Scullin,Curtin and Chifley. This paper summarises the history of early hopes and delayedfulfilment.
∗ Thanks to Wayne Hooper, Rosemary Laing, Anne Lynch, Marian Sawer and Bernard Wright forhelpful comments on earlier drafts of this background paper; and especially to Senator John Faulknerfor his assistance in providing important material from Australian Archives which has improved thisrevised version.
The purpose of this background paper is to help answer the question as to whyproportional representation (PR) was chosen by Parliament in 1948 for Senateelections, beginning with the 1949 general election. As a balance to the conventionalwisdom which holds that the 1948 decision reflects more party pragmatism thandemocratic principle, this paper reports the widespread appreciation within Australianpolitics of the theoretical merits of PR. Other Conference papers examine the track-record after the 1949 elections to determine to what extent Senate performance hasmatched the high expectations held out by advocates of PR.
There are many good reasons to celebrate the 50 anniversary of PR in the Senate. Butthere is also a danger that one might exaggerate the benefits of PR and fail toacknowledge any shortfall between the theory of a proportionally representative Senateand the practical realities of Senate elections. This introductory note simply forewarnsreaders that the practical operations of any system of PR can fall below the highesthopes of advocates of PR. Although this shortfall is no reason to walk away from PR,readers should be prepared for the discovery that, like all electoral systems, those basedon PR admit of endless variety in their practical operations. Depending on the preciserules for parliamentary representation, the established major parties can exertformidable influence in stage-managing the system.
When it comes to evaluating the performance of a Parliament, it pays to keep things inproper perspective. The more one exaggerates the promise of PR, the easier it is for itscritics to document the many gaps between promise and reality. Hence it is prudent atthe very outset to acknowledge that, despite the adoption of PR, the Australian Senateretains something of the character of those nominee upper houses so roundly criticisedby a long tradition of Australian democrats at state as well as national level. Theversion of PR that was consolidated as recently as the 1980s allows party officials atstate level to nominate their party list of candidates and invites electors formally toapprove their preferred party list. Almost all Australian electors take this easy option ofvoting ‘above the line’ which confirms the nominating power of party officials in eachstate.
All of this is simply to suggest that PR refers to a family of electoral possibilities.
Australian electors should watch as closely as possible the ways in which theparticipating political parties manage the system. The decision in 1948 was not the endof the matter. Parliament can just as easily today unmake what it made in 1948; and sotoo Parliament can change the rules to amend or refine details of the electoral system,as it has done repeatedly since 1948, often of course for good reason. This paperclarifies the basic framework but makes no attempt to trace through the manyrefinements that Parliament has made since 1948.
Labor’s legacy?
Preparing a background paper on the 1948 decision by the Commonwealth Parliamentto adopt PR for Senate elections is no easy task. Although the record of theparliamentary passage of the legislation giving effect to PR is open and accessible, acertain mystery surrounds the prior decision by the Chifley Labor government tointroduce legislation to replace the traditional ‘block vote’ electoral system with thenew proportional system. It is curious that such a momentous decision has not attracted a wealth of historical scholarship and somewhat frustrating that there is no definitivearticle laying out the various reasons behind the Chifley government’s decision infavour of PR.
This background paper attempts to summarise what is known about the political andparliamentary decision to adopt PR. It is only fair to report at the outset that we reallyknow too little to be very confident about what was in the mind of those members ofthe Parliament when they replaced the traditional electoral system dating from 1902. Tothe outside observer, this change has many of the qualities of an institutional revolutionbut there are few if any members of that parliamentary generation claiming the title asReformer of the Senate or Founder of the New Senate. One problem is that Labor,which is otherwise a party with a keen interest in all facets of its own political historyand tradition, has appeared reluctant to celebrate this decision to adopt PR. As initiatorof the change to PR, Labor might have been uncomfortable championing the renewedeffectiveness of the federal upper house. Only as recently as 1979 did the Labor partywithdraw its policy calling for the abolition of the Senate. And while it is true that MrBeazley has this year responded to recent non-Labor calls for a change of rules to makeit harder for minor parties to secure Senate representation with a refreshing defence ofPR, it is still the case that the original Labor decision of 1948 cuts across the grain ofLabor’s traditional understanding of responsible government, as I will illustrate towardsthe end of this paper through Arthur Calwell’s commentary on the role of the Senate.
To my mind, it would be a great pity if Labor were not to come forward with acontemporary justification of the merits of the Chifley reforms. I say this because, asthough to prove that the original decision was somehow flawed, forces on theconservative side of national politics are now mobilising to wind back the degree ofcommitment in Australian electoral law to minor party representation. Both sides ofpolitics have something of an interest in maintaining the conventional wisdom that the1948 decision was either a mistake giving rise to unintended consequences, or anunderstandable but still uncommendable partisan act from which we should nowdistance ourselves. The conventional account holds that the Chifley government optedfor PR primarily for reasons of party-political expediency—as a stratagem to boosttheir own electoral chances at the 1949 general election they rightly feared they wouldlose. In this view, Labor hoped that it could take advantage of the transitionalarrangements to the new and enlarged Senate and build a new if temporary power basein the Senate for their opposition to the likely Menzies government.
The stratagem worked, at least until Menzies beat Labor at its own game and broughton the 1951 double dissolution to wash out Labor’s power-base in the Senate and usherin that Indian summer of Australian parliamentary politics from 1951-1955 whengovernments had a majority in both houses. Executive governments can now onlydream about the ease of parliamentary management enjoyed then by Menzies. But theinstitutional changes associated with PR had already begun to develop their own chainof consequences, as other papers and speakers at this conference will document.
The Chifley government’s decision
The starting point for understanding the decision of the Chifley government to adoptPR is to appreciate their interest in increasing the size as distinct from altering thecomposition of Parliament. The talk of the time was the need to enlarge the size of the75 member House of Representatives which had not been changed since the election for the first Commonwealth Parliament in 1901. Nor of course had the size of the Senatewhich remained at 36 with six senators per state. The House of Representativesoriginally had seats with an average number of 12 000 electors but by the time of thefirst general election after the conclusion of the Second World War that average hadrisen to over 63 000 electors.1 After winning the 1946 election, the Labor governmentbegan to intensify internal discussions over how best to enlarge the House ofRepresentatives from 75 to 121 which can be traced back to cabinet interest from atleast the 1942 Labor party conference. One new stimulus was the anticipation of aredistribution of House of Representatives electorates following the 1947 census.2 For constitutional reasons, any enlargement of the House requires an enlargement of theSenate: section 24 of the Constitution requires that the number of House members‘shall be, as nearly as practicable, twice the number of senators’. The Chifleygovernment had no option but to include an enlargement of the Senate. The timing ofthis revision of the size of the Senate thus had little to do with any deep-seated interestin enlarging or otherwise altering the composition of the Senate. The driving force wasthe interest in smaller, more stable and hence more secure seats for the Laborbackbench in the House of Representatives. As party discussions took place after 1946,two factors emerged to turn the attention of the parliamentary Labor party towards theintroduction of PR in the Senate.
First, there was a lingering sense of dissatisfaction with the traditional Senate electoralsystem that produced huge majorities in turn to whichever political party built up Houseof Representatives majorities. This ‘block vote’ system was included in the originalElectoral Act of 1902 and was revised to include preferential voting from 1919. Thepractical result of this system was the so-called ‘windscreen-wiper effect’ whichdelivered almost all contested Senate seats in each state to whatever political partyachieved a majority. Senate majorities oscillated wildly between the two major politicalparties (Labor and successive Non-Labor coalitions), both of which could expect totake their turn as the majority party in the Senate. The first two Senate elections afterthe establishment of the 1902 Electoral Act saw a relatively even ‘two third: one third’distribution of Senate seats. But once the political parties became consolidated thesystem began to deliver disproportionate victories to whichever political party wasriding high with the passing electoral majority: Labor won all of the 18 seats on offer atthe 1910 election; non-Labor won all on offer at the 1918 and 1925 and 1934 elections;and Labor won all Senate seats at the 1943 election and 15 of the 18 on offer at the1946 election.3 According to Crisp, the adoption of PR was in large part ‘a desperate effort to avoid thegrotesque results of two previous systems of election to the Senate…’, meaning the 1 L. Barlin (ed), House of Representatives Practice, 3rd edn, Canberra: AGPS, 1997, p. 108.
2 P. Weller (ed), Caucus Minutes. Volume 3: 1932-1949, Melbourne, Melbourne University Press,1975, p. 417; L. F.Crisp, The Australian Federal Labor Party 1901-1951, Melbourne, Longmans,1955, pp. 228-9.
3 A. Fusaro, 'The Effect of Proportional Representation on Voting in the Australian Senate',Parliamentary Affairs, vol 20, number 4, Autumn, 1967, p. 330.
block vote as modified through the adoption of preferential voting from 1919.4 Thechoice of PR was far from surprising because it was not a new idea, having beenfrequently advocated as a way of repairing the defects of the traditional ‘winner-takes-all’ electoral system. The web site of the Proportional Representation Society ofAustralia contains copies of documents recording that Society’s history of vigorousadvocacy of PR (see For instance, the Societyorganised a public meeting in Melbourne in October 1943 which resulted in a letter toprime minister Curtin reporting their resolution about the urgent need to reform theelectoral system to include PR, for the House of Representatives no less than theSenate. Given this widening public interest in electoral reform, it soon became apparentthat an enlarged but otherwise unchanged Senate would pose risks to the publiccredibility of Parliament, particularly at a time when public funds were being spent onold Parliament House to accommodate the many new members. As the Senate Clerk atthe time recorded, any increase in the size of the Senate made all parliamentariansrealize ‘that to continue a system which might result in a Senate of 60 members allbelonging to one party would make a farce of Parliamentary government’.5 But there was an important second factor: the closer the Labor party got to the end of itsthree year parliamentary term the more fearful it became that with the changingelectoral tide against Labor, it would soon be Menzies’ turn to dominate both chambers.
Even if Chifley was confident of retaining office, many in the caucus feared that theirtime was up.6 It was at this point that Labor discussions took an ever-keener interest inthe dual merits of PR: as the revival of a long-discussed option to bring party balance tothe Senate that would be in the long-term interests of both major party blocs; and as anewly-discussed option to provide Labor with a short-term parliamentary power-basethrough the one-off transitional arrangements to the larger Senate which would benefitLabor given its existing domination of Senate numbers. Labor had won 15 of the 18Senate seats at the 1946 election and before the 1949 election had 33 to the opposition’sthree Senate seats. Thus Labor had a near monopoly of long-term sitting Senators andfaced the prospect of winning half of the enlarged group (seven from each state as aone-off transitional arrangement) of 42 newly elected senators under the reformedelectoral system, promising to give it a very healthy majority for many years.
The alternative was to stick with the traditional system and risk losing this large swagof Senate seats to the incoming Menzies government. At the 1949 general election,Labor emerged in a minority position in the enlarged 121 member House, with 47 toMenzies 74 seats but won a victory in the Senate with 34 seats to the governments 26.
Labor lost office but the Senate gamble worked. In the words of Reid and Forrest, PRemerged ‘not as a result of the pursuit of principles of electoral justice, but frompragmatic consideration of party gain’.7 5 J. Edwards, 'The Senate of the Commonwealth of Australia', The Table, vol 17, 1948, p. 243; cf G.
Souter, Acts of Parliament, Melbourne: Melbourne University Press, 1988, p. 397.
6 L.F. Crisp, Ben Chifley, Sydney, Angus and Robertson, 1961, p. 369.
7 G.S. Reid and M. Forrest, Australia's Commonwealth Parliament, Melbourne: Melbourne UniversityPress, 1989, p. 99; A. Fusaro, 'The Australian Senate as a House of Review' in C.A. Hughes (ed),Readings in Australian Government, St Lucia: University of Queensland Press, 1968, pp. 129-130; J.
Rydon, 'Electoral Methods and the Australian party System 1910-1951' in C.A. Hughes, op. cit., pp.
Labor’s Party Debate
A useful portrait of the pre-reformed Senate is contained in Denning’s InsideParliament.8 Observers noted that the traditional Senate performed more goodlegislative work than its was credited for, but few were prepared to enlarge the existingSenate without alteration of its electoral system. It seems that even Curtin as Laborleader a decade before the 1946 election at the 1936 party conference had favoured anenlarged Parliament on the condition that the Senate be altered through PR.9 Reid andForrest chronicle the history of caucus discussions over the enlargement of the Houseand the gradual turn of interest to the reform of the Senate electoral system.10 In April1947, the minutes of caucus reveal a notice of a motion by Labor backbencher Lawsonof a recommendation to cabinet that Parliament be increased ‘by at least 25%’. Lawsonwas allowed to delete his precise reference to a 25% increase and another motion to setup a caucus committee was lost.11 In May 1947, the Labor caucus recommended tocabinet that the size of Parliament be increased before the next redistribution of seats.
After preliminary cabinet discussion in July relating to the prior need for reliable censusinformation, cabinet finally established a sub-committee in December 1947, comprisingthe minister for the Interior (Victor Johnson as chair of the sub-committee) the ministerfor Health and Social Services (Senator McKenna) and the minister for Information andImmigration (Arthur Calwell). ‘Calwell was the dominant member: he was mainlyresponsible for the Committee’s recommendations, and it was he who sold them toCaucus’.12 So tradition has it: Calwell made PR a reality. But the caucus minutes reveal thesustained contribution of Senator McKenna, Labor’s Senate leader. At a caucusmeeting on 17 February 1948, Prime Minister Chifley called on senator McKenna toreport on the cabinet sub-committee proposals which had been agreed on by cabinet inJanuary. The caucus minutes record that McKenna ‘also suggested a system of PR berecommended for the election of the Senate and added that the method would bedecided by the Party’.13 After what is described as ‘a lengthy discussion’, McKenna isreported as saying that the party would have to determine ‘by what number Parliamentshould be increased and the system of voting’. He relayed the news that cabinetfavoured an increase of senators from 6 to 10 per state, to be elected through ‘a systemof PR’.14 McKenna’s motion ‘That the law be amended to provide for PR for theelection of the Senate’ was carried on the voices, as then was his second motion for anincrease from 6 to 10 senators per state.15 183-6; Iain McLean, 'E.J. Nanson, Social Choice and Electoral Reform', Australian Journal of PoliticalScience, vol 31, number 3, November, 1996, p. 380.
8 W. Denning, Inside Parliament, Sydney: Australian Publishing Company, 1947, pp. 61-70; A.
Fusaro, 1968, 'The Australian Senate as a House of Review' in C.A. Hughes. op. cit., pp. 123-139.
9 L.F. Crisp, The Australian Federal Labor Party, op.cit., p. 222.
10 Reid and Forrest, op. cit., pp. 118-122.
15 L.F. Crisp, Ben Chifley, op. cit., pp. 368-9.
So much for the formal record of caucus decision-making. The best insider account isavailable in the entertaining memoirs of veteran Labor parliamentarian Fred Daly whowas a young House of Representatives member at that time. According to Daly, thescheme for Senate reform ‘was the brainchild of Arthur Calwell who argued that wewould retain a majority there after the next elections, due in 1949, and probably into thefuture’. Daly reports that Chifley was personally opposed to PR and may well havevoted against it in the cabinet. But Calwell ‘won the day by convincing sitting senatorsthat they would be re-elected in 1949 and that the new voting system favoured them inthe future’.16 This is consistent with Calwell’s preference for centralism and biggovernment, and his biographer notes that Calwell was convinced that the support ofALP senators provided him with his base of support in caucus, where 33 senatorscomprised nearly half of the caucus total of 76 members.17 Another commentatorreports that Calwell ‘had given Labor senators a large present and could reasonablylook forward to future ‘paybacks’.18 Daly also records the much-quoted response to Calwell by Labor’s House speaker JackRosevear who opposed the Calwell plan which he described in classic terms as a ‘goldbrick’ proposal—one that was too good to be true, with its promise of electoral successto sitting House members, who would now have safer seats as well as sitting senators.
Daly ruefully comments: ‘Time has proved Rosevear right. Proportional representationin the Senate was disastrous for the Labor Party’.19 Never again was Labor to obtain aSenate majority and minor parties, noted Daly, have arisen with ‘the opportunity to playan over-important part in national politics, even to controlling governments’.20 Thisrueful reference to the rise of minor parties reflects the widespread assumption of thetime that PR would simply restore the balance between the major parties in the Senate.
The major parties which managed the transition to a PR system gave little thought tothe possible effects in encouraging the formation of minor parties, even though thehistorical case against PR was that it would jeopardise the conventions of strong partygovernment.
The 1948 Parliamentary Debate
Despite Calwell’s involvement in developing the basic policy, it was Attorney-GeneralEvatt who introduced the 1948 legislation in the House. Predictably, Evatt explainedthe reformed system of Senate representation as ‘one most likely to enhance the statusof the Senate’. According to Evatt, the direct aim was to ensure that ‘the majority groupwill get the majority of seats and no more’, a policy on representation long advocatedby the Country party, and recommended by the 1929 royal commission on theConstitution.21 Not that the government really knew all the likely effects of thesereforms, which were not designed to encourage minor parties but to redress theimbalance between the major parties. Senator McKenna, the government’s leader in the 16 F. Daly, From Curtin to Hawke, revised edition, Melbourne, Sun Books, 1984, p. 51.
17 C. Kiernan, Calwell, Melbourne, Nelson, 1978, pp. 149-150; cf J.R. Odgers, 'The Senate: case for thedefence', Australian Quarterly, vol 20, number 4, December, 1948, p. 91.
18 R. Lucy, The Australian Form of Government, Melbourne: Macmillan, 1988, p. 210.
19 F. Daly, op. cit., p. 52; cf Souter, op. cit., p. 396.
21 CPD, (Commonwealth Parliamentary Debates), 16 April, 1948, pp. 965-68, 1295-96; cf McEwen, p.
1014; Beazley, 28 April, p. 1171. See also Souter, pp. 395-6.
Senate, emphasised ‘the greatest blessing any country can have is a stronggovernment—one that is strong enough in numbers to take hold of the reins ofgovernment and really rule’.22 Opposition Leader Menzies clearly identified Labor’s partisan strategy in which aLabor majority in the Senate was an insurance policy against the probability that theylost office at the next election, as in fact happened. Menzies also foreshadowed thepossibility of a government using the barely tested procedures for double dissolutionsto attempt to restore majority representation in both houses, which is exactly what hedid in 1951. For Menzies, the existence of the constitutional provision for doubledissolutions and subsequent joint sittings was proof enough of the subordinate place ofthe Senate in Australian government. The ‘will of the people’ must trump therepresentation of minority groups in the Senate; and it is the people’s House which‘makes and unmakes governments’.23 Consistent with this, the Opposition moved todelay the adoption of PR until after a referendum seeking to abolish the s24 ‘nexus’provision. If carried, such a referendum would have meant that the House could then beenlarged without any increase to the size of the Senate. The government defeated thisOpposition move, arguing that this proposed change would jeopardise the interests ofthe smaller states, whose representation would suffer disproportionately, and be a bodyblow to the future of the Senate.24 There were those who clearly identified the costs of re-legitimating the Senate. Onesobering voice raised in warning about the long-term consequences was futureconservative Prime Minister Holt, who identified the reformed representation as ‘aprofound constitutional change’. Holt foresaw the emergence of ‘a powerful oppositionin the Senate’ with ‘a very much stronger voice’ which might compete against thedominant party in the House.25 A more strident voice was that of aging Jack Lang, aformer state premier dedicated to the traditional Labor policy of Senate abolition.
Warning of the potential of the new Senate to ‘frustrate’ and ‘obstruct the decision ofthe voters’, Lang reflected the majoritarian norms of strong party government inridiculing ‘the chamber of obstruction’, although he also called for restoration of theHouse’s ‘deliberative status’ which had been reduced under the system of ‘juntacontrol’ carried over from the war.26 The issue of the States’ rights function divided parliament. Enthusiasts for Senatereform noted that the States’ rights function had never taken off, and some like Beazleydefended the reforms as providing a substitute role for the Senate as a house of review,‘in a manner analogous to the constitution of the United States of America’.27 Amongthe opponents of the reform were those who argued that the only legitimate role for theSenate was as protector of States’ rights, and that PR would do nothing to keep state 22 CPD, 21 April 1948, McKenna, p. 1474.
23 CPD, 21 April 1948, Menzies, pp. 1001-3.
24 See for examples exchanges between Evatt and Beazley, CPD, 29 April 1948, pp. 1254-6, andMcKenna, p. 1475.
25 CPD, 23 April 1948, Holt, pp. 1102-3.
26 CPD, 28 April 1948, Lang, pp. 1137-41.
27 CPD, 28 April 1948, Beazley, p. 1174.
delegations cohesively together. Better alternative schemes of representation includedindirect election by state Parliaments.28 For the purposes of this background paper, it is important to return to the historicalorigins of the Australian Senate and to recover the original rationale for its intendedcontribution to Australian parliamentary life and to try to discern any evidence of earlyanticipations of the 1948 choice for PR. The story that emerges is that PR is not a lateaddition to the institution of Parliament but one of the original ingredients assembledand prepared by the constitutional framers and successor parliamentarians, although notsuccessfully used until 1948. But the legitimacy of that 1948 decision takes on a newdimension when seen against the background of earlier expectations of a Senate basedon PR. Once we appreciate that the history of expectations about the Senate and PRgoes back well beyond the fifty years since the 1949 election, we can begin to lookanew at the merits of the decision made by the Chifley government. The 1948 reformcan then be seen as a late delivery on a very early promise about the importance of aproportional Senate in Australian government.
Pre-Federation views of the Constitutional framers
As we approach the centenary of Federation, it is important that we see the events andinstitutions of 1901 in light of the original intent of the constitutional framers in the pre-Federation decade. But one challenge for this search for evidence of interest in ‘PR’ isthat this term has taken on many different meanings in the past. A search for the termwill throw up many false leads, such as discussion of the nexus between the twoparliamentary chambers where the relationship in size of House and Senate memberswas understood by the framers to be one of proportionate representation.29 And again,many framers spoke of ‘PR’ when referring to the relative proportions of House seatsthat would accrue to the different States according to their different populations.30 Thusfor example section 24 of the Constitution refers to the ‘proportion’ of House membersfrom each state. The existence of representation proportional to population wasfrequently cited as a prerequisite of democracy, with Canadian precedents drawn fromthe composition of the Senate of Canada.31 But it is only in reference to debates over the role of the Senate that we find any realevidence of the framers’ interest in what we mean by PR. It is well known that thedesign of the Senate repeatedly gave rise to the most protracted disputes during the1890s Conventions in which the Constitution was framed.32 The Convention delegateswere divided over the purpose and practices associated with a federal house of review.
Progressive liberals tended grudgingly to accept the Senate as the price that had to bepaid for federation and the transition to the new nation. Perhaps the most exaggerated 28 See for example Abbott, CPD, 28 April 1948, pp. 1180-83.
29 See for example Barton, Convention Debates, Australasian Federal Convention, 1891, 1897-98, 5volumes, (republished Sydney: Legal Books 1986), Adelaide, April 1897, pp. 435ff.
30 See for example, Convention Debates, op. cit., Isaacs, 26 March 1897, p. 170; Solomon, 30 March1897, p. 265.
31 See for example Lyne, Convention Debates, 26 March 1897, p. 163.
32 Consider B. Galligan, A Federal Republic, Melbourne: Cambridge University Press, 1995, pp. 63-86;J. Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament, Melbourne,Cambridge University Press, 1998, pp. 77-81.
liberal view was that of Victorian framer H B Higgins. Higgins fought for as small andas insignificant a Senate as possible, in the belief that the primary institution ofresponsible parliamentary government would be the appropriately named House ofRepresentatives, from whose majority the governing party would be drawn, and towhose majority that government would be solely accountable. At the other extremewere conservatives like Hackett, famous for his preference for federalism and States’rights over traditional responsible government: a preference which elevated the Senateinto a place of co-ordinate importance with the House within the institutions ofgovernment.
There were of course many views caught between these extremes, with two looseclusters associated with the two great colonial Premiers and proven masters ofresponsible government: on one hand, Parkes’ open tolerance of a Senate designed torepresent each of the States equally; and on the other hand, Griffith’s more adventurousenthusiasm for reshaping traditional conventions of responsible government byconferring equality of power on the two institutions of the new national Parliament.33The Constitutional design for a Senate based on equal state representation and armedwith legislative powers virtually equal to those of the lower house was agreed to on theprinciple that ‘minorities’ deserved legislative protection against what Thynne called‘the tyrannic exercise of the power of temporary majorities’.34 This approach to equalstate representation is frequently confused with a conservative defence of States’ rights,but from the outset of the 1890s constitutional debates it was made clear by advocatesof an elected Senate that equality of state representation was the most promisinginstitutional device to protect the rights of minorities against what Tynne termed ‘hasty,corrupt, or dishonest action on a part of any section, now matter how large it may be’.35The first federal election of 1901 took place, of course, without any federal electorallegislation. Senators, for example, were elected according to prevailing state electorallaw, with Tasmania adapting its established Hare-Clark system of PR. Although theexception, the Tasmanian model of PR was by no means inconsistent with the framers’intentions in regard to the Senate. From time to time, delegates at the 1890sConstitutional Conventions raised the question of the most appropriate electoral basisfor a federal house of review, eventually deciding to have the Constitution leaveelectoral arrangements to be decided by the federal Parliament. It is clear from thescattered commentary and such practices as the Tasmanian 1901 reliance on PR that theframers considered PR to be an acceptable, possibly even the preferred, electoral basisof the upper review house.
The Convention records reveal too little for a conclusive case to be made, but what callsthat there were for the use of PR attracted only scattered rebuttal. The argument for PRderived from a distinction made between a democratic principle of ‘rule of themajority’ and a liberal-constitutional principle of ‘rule of the people’. The argumentwas in two steps: first, the theoretical case for protecting minority representation, bywhich was meant not a claim to rule by minorities but the rights to parliamentaryrepresentation of those who support the non-governing parties; and second, the 33 J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth, Sydney: LegalBooks, 1976 (originally 1901), p. 126.
34 See for example Thynne, Convention Debates, 6 March 1891, pp. 104-8. My thanks to WayneHooper for drawing this to my attention.
practical case for the provision contained in s9 of the Constitution which kept the dooropen to PR by allowing Parliament to legislate as it saw fit, thereby protecting theoption for PR for the Senate if there was sufficient parliamentary support.
The framers’ theoretical case for PR is scattered and largely implicit. Emphasis shouldbe placed on the fact that the framers rescinded their early preference for ‘StatesAssembly’ as the name for the upper house, and substituted the American term ‘Senate’with its connotations of national as well as federal responsibilities.36 Furthermore, manyof the framers were under few illusions as to the likely place of party-politics in bothhouses of the federal parliament; some, like Deakin and Barton, quite probablytolerated PR as a means of adapting the principle of party to serve a distinctivelyqualified Australian variant of parliamentary government.37 The argument for an upperhouse conceded the case that equal state representation was the inevitable entry pricebeing extracted by the smaller States; but it reached beyond that to issues relating to thestructural requirements for effective parliamentary deliberation.38 The framers’ case was that Parliament must widen its representation from prominentpartisan opinion to something more like ‘a reflex of the opinion of the people’ as awhole.39 The Senate offered hope that ‘everyone, whether they are in the majority or theminority, will know they are fairly represented’.40 Tasmanian advocates of Hare-Clarktilted against South Australian advocates of what they preferred to call ‘Hare-Spence’,although both supported PR on the ground that its ‘essential to widen the areaof the electors’ choice’.41 Glynn went so far as to present a petition in defence of the‘The Hare–Spence method’ for the election ‘especially of senators’. His petitiondeclared that ‘while desirous of leaving undisturbed the rule of the majority’, it wasvital that ‘the minority should not be absolutely silenced’.42So much for the framers’ political theory. The practical case about the feasibility of PRis perhaps more surprising, in that very prominent framers like Deakin and Barton wenton the record predicting that Parliament would probably opt for PR for the Senate.
Deakin, for example, expressed his preference to ‘take care’ that States which ‘think fitto adopt a system of proportional voting for the representation of minorities shall havethe power to do so’.43 Along with Barton and O’Connor, Deakin argued for a liberalinterpretation of ‘the method of choosing’ provision in what was to become s9 of theConstitution. O’Connor agreed that the provision ‘must allow for representation ofminorities’or indeed any other manner of recording votes which Parliament might seefit to arrange.44 This reference to the rights of minorities was understood to refer torights to parliamentary representation as distinct from any misguided claim to the rightsof minorities to rule. Barton was later to come under some criticism for his 36 Reid and Forrest, op. cit., p. 88.
37 Quick and Garran, op. cit., p. 444.
38 Quick and Garran, ibid., pp. 386-7 and 422.
39 See for example Clarke, Convention Debates, 30 March 1897, p. 304.
40 Howe, Convention Debates, 31 March 1897, p. 358.
41 Glynn, Convention Debates, 15 April 1897, pp. 677-8.
42 Convention Debates, 20 January 1898, p.2.
43 Deakin, Convention Debates, 15 April 1897, p. 673; J. Quick and R. Garran, op. cit., p. 426.
44 See for example O’Connor, Convention Debates, 15 April 1897, p. 673; Clarke , op. cit., pp. 367-8.
endorsement of ‘the Hare system’ as one designed to secure ‘the proper representationof the people’, and for holding the constitutional door open with his clarification of thelikely practical effect of s9’s protection of the competency of the federal parliament:that being the adoption of PR.45 Models of Senate representation
The Australian framers had two models of federal upper houses designed to operate ashouses of review. The first model was derived from fully-operational Senates: the set ofconstitutional provisions then in place for the two main examples of federal upperhouses, the Senates of the US and Canada. The second model was theoretical: beingderived from the influential political argument advanced by, among others, John StuartMill, for the institution of PR in a house of Parliament. It would certainly be possible tocombine these two sources of influence and construct an upper house appropriate to thepurposes of a federal polity, and credit goes to those framers who, as I shall show,attempted to do just that. Yet the two types of models contain many interestingexamples of institutional features which were not adopted by the Australian framers,but which might be important to an effective review capacity. It all depends on the taskof political representation considered appropriate to the Australian Senate. Someattention should first be paid to the institutional design principles inherent in each of thetwo types of possible models, in order to recover the latitude of scope open to theAustralian framers in equipping the Senate with a notional review function, regardlessof whether the institutional review capacity was sufficiently considered.
The framers certainly had a model before them of a Senate designed to performdifferently from a lower house: many commentators have recognised the powerfulpresence of the US Senate as an instructive working model of a house of review, even ifthe lessons were primarily of a sobering negative kind for constitutional designersoperating in a parliamentary environment. Still, many of the constitutional features ofthe US Senate held the attention of many Australian framers in search of theinstitutional roots of a house of review. The Australian framers derived only a limitedrange of provisions from the US model. These include: equality of state representation;six year terms; retirement by rotation (but subservient to the double dissolutionmechanism) so as to establish a ‘permanent’ institution; and votes for individualsenators, as distinct from state delegations, as had been the 1891 expectation.46 Butconsistent with the majority’s understanding of the ‘House-centredness’ of responsiblegovernment, the framers withheld from the Australian version of the Senate anyspecific grant of power in relation to the confirmation of top officials in executive andjudicial branches, and any hint of specific legislative function associated with treaties.
Stripped of exclusive constitutional functions, the Australian Senate had no need forthose other structural devices designed to differentiate the Senate from the House andso enhance the review capacity: such as the different age qualification—againattempted in 1891 but later abandoned47—and commitment to as small an upper houseas feasible.
45 See for example Barton, 7 March 1898, p. 1924; cf CPD, 26 and 27 February 1902 p. 10343 and p.
10432; Reid and Forrest, op. cit., p. 85; Graham, op. cit., p. 205.
46 Quick and Garran, op. cit., p. 412.
The Canadian model should have been of great interest, since the whole rhetoric of‘responsible government’ derived from the Canadian struggle for self-government; butthe Canadian federal model in the 1867 British North America Act attracted very littlesupport during the Conventions.48 Sure enough, Canada was a federation with aparliamentary form of government, but part of the problem was that the Canadian upperhouse had little of the makings of a house of review, and even less legitimacy when itcame to political representation. The creature of understandable 1860s over-reactionagainst the States’-rights orientation of the US system, the Canadian Senate was anappointive body, with the gift of life-membership in the hands of the federalgovernment (BNA Act, ss21-36). It substituted equality of regional for state (or morecorrectly ‘provincial’) representation, with Quebec’s representatives being chosen forcarefully identified ‘electoral divisions’ within that province, presumably to balanceEnglish and French interests within that province. Eligibility qualifications for Senatorswhich hint at a conscious review capacity included a lower age limit of 30 years,together with tests for property and against indebtedness.
Political Theory: Hare, Mill, Clark, Spence
The world of political theory also opened up the prospect of PR. Many importantconstitutional framers were convinced that PR would give substance to the promise ofthe Senate as a house of review, by establishing a different parliamentary institutioncapable of representing a range of community views either not wanted or needed in theHouse. When push came to shove with the inclusion of PR in the original electoral bill,opponents quite rightly saw the guiding influence of such philosophical liberals as J SMill, who was derided by Senator Symon as ‘a logician’ and a supporter of ‘a greatmany things that were theoretical’.49 O’Connor for instance, the initial mover in the firstparliament of PR for the Senate, probably had Mill in mind when he referred to ‘thevast heap of literature on the subject’ of representative government, recent ‘social andpolitical movements’, and ‘advanced political writers’.50 The academic literature on PR identifies two British authorities and two Australianchampions as the standard bearers acknowledged by the constitutional framers. The twoBritish authorities are Thomas Hare and John Stuart Mill, the two Australian championsare Andrew Inglis Clark of Tasmania and Catherine Helen Spence of South Australia.
Hare is the originator of the Hare system of PR which J S Mill did so much to publiciseas the best basis of parliamentary reform. This is not the place to review Hare’sdistinctive contribution to electoral systems but some attention should be given to theAustralian reception of Hare’s version of PR, first published in a series of publicationsin the 1850s, and here it is instructive to note the role played internationally by Spencein promoting electoral reform.
Australian scholarship has tended to give pride of place to Tasmanian constitutionalframer Andrew Inglis Clark because of the early acceptance in Tasmania of what 48 ibid., pp. 41, 55 and 119; J. Uhr, 'The Canadian and Australian Senates: Comparing Federal PoliticalInstitutions', chapter 5 in B.W. Hodgins et al (eds), Federalism in Canada and Australia: HistoricalPerspectives 1920-1988. Trent University. Peterborough, Canada, 1989, pp. 130-146; J. Uhr,Deliberative Democracy, op. cit., p .66-69.
49 See for example CPD, 26 February 1902, Playford, p. 10327; 27 February 1902, Symon, p. 10426.
50 See for example O’Connor, CPD, 31 January 1902, p. 9535 and pp. 9541-42.
became known as ‘the Hare-Clark system’ which is documented so well in thecollection edited by Marcus Harward and James Warden.51 Clark was certainly one ofthe most creative of the Australian constitutional framers: drafter of the original versionof the 1891 Constitution; founder of the Tasmanian system of PR in 1896 after morethan twenty years of public advocacy, and later a Tasmanian supreme court judge. Butthe international scholarship gives due recognition to Catherine Helen Spence, whostood unsuccessfully for election to the 1897-98 Constitutional Convention after a verybusy international career promoting the ideas of her British friends Hare and Mill.52 Spence’s Autobiography tells the story of her original discovery of the principles of PRthrough her observation of her father’s work as town clerk of Adelaide, when he usedPR-like mechanisms in Adelaide’s initial city council elections of 1840. It was laterthrough her avid reading of the works of Hare and Mill that Spence came to see thelarger import of PR and the international relevance of her own early writings on‘effective voting’: in her words ‘reform of the electoral system became the foremostobject of my life’.53 As the elected member for Westminster, Mill circulated anddefended amendments to include in the 1867 Reform bill provision incorporating bothwomen’s suffrage and PR.54 Spence became familiar with Mill’s revisions of Hare’sapproach and closely followed the fate of Mill’s public campaign for PR. Arguably,Mill’s account of the merits of a second chamber organised on PR provides one of theimportant missing ingredients in the framers’ confident recipe for a federal house ofreview.55 Mill provides the substance for the argument only hesitatingly put by a few ofthe framers that the primary purpose of an upper house, and of PR, is to enhance thedeliberative capacities of parliamentary institutions. Deliberation might sound like tooelevated a task for Australian parliamentary bodies, but Mill himself identifiedAustralian discussion of PR as evidence that the Hare method was not undulycomplicated and that it could be introduced and made to work.56 Mill’s case is made most conveniently in his Considerations on RepresentativeGovernment. In reluctantly accepting the place of a second or checking chamber, Millnoted that it need not be ‘of the same composition’ as the other house. The aim of thesecond chamber was to act as ‘the centre of resistance to the predominant power in theConstitution’, which in modern democracies is the force of the majority, or what hetermed ‘democratic ascendancy’ with its defective tendency to cultivate what he,following Tocqueville, identified as the tyranny of the majority. The review chamber isthere to check ‘the class interests of the majority’ and to represent above all theinterests of vulnerable minorities, although Mill is particularly conscious of the need to 51 M. Harward and J. Warden, (eds), An Australian Democrat. Hobart,Centre for Tasmanian HistoricalStudies, University of Tasmania, 1995.
52 See generally Jennifer Hart, Proportional Representation . Oxford, Eng, Clarendon Press, 1992, pp.
24-55; cf M. Sawer and M. Simms, A Woman's Place. (2nd ed) Sydney,Allen and Unwin, 1993, pp. 1-16.
53 C.H. Spence, 'Autobiography' in Helen Thomson (ed), Catherine Helen Spence, St Lucia, Qld,University of Queensland Press, 1987, pp. 429-30, p. 437 and p. 440.; cf Jennifer Hart, op. cit., p. 45.
55 Reid and Forrest, op. cit., pp. 87-94.
56 J. S. Mill, 'Considerations on Representative Government' in J. Grey (ed) On Liberty and OtherEssays. Oxford, Eng., Oxford University Press, 1991, p. 325.
reinforce rather than undercut the political principles of majority rule and so to promote‘nothing offensive to democratic feeling’.57 PR makes good the promise of a friendly critic of democracy, and defender of theelusive principle of democratic equality which might otherwise suffer at the hands ofthe utilitarian practice of majority rule. Institutions based on this supplementary form ofpolitical representation will never have overwhelming moral authority, or even thecrude voting power, to compete with popular elective bodies for the right to rule ordetermine broad public policy. Their custodial task is directed toward procedural justicerather than preferred public policy—through management of institutional filters whichare designed to protect the community against ill-considered and unjustifiable uses ofexecutive power, and to force the majority party to mobilise minorities so as to ‘speakand vote in their presence, and subject to their criticism’.58 The review function is one which Mill termed ‘the function of Antagonism’, by whichhe refers to the check or control to be placed on the unexamined power of ‘the rulingauthority’. Control in this legislative sense means open, public examination of thereasons for ruling; and PR can provide the requisite ‘rallying point’ around which‘dissentient opinions’ can form and thereby review and revise the policy andadministrative priorities of the ruling majority. Mill even anticipated some of thestandard criticisms of PR: that on the one hand, it tends to confer undue power on‘knots or cliques; sectarian combinations’ of small groups capable of blockingmeasures of wider community benefit; and on the other hand, it can favour ‘the greatorganised parties’ when operating through a ‘ticket system’ of ‘party lists’. Millconceded ‘that there is a difficulty’, but preferred to go down the reform road in which‘the two great parties’ would for the first time be ‘confined within bounds’, and forcedto use—or at least respond to demands from—the forum of parliament for theirnegotiations over private place and public policy.59 Australian advocates of proportional representation
Australian political science gives pride of place to Melbourne professor of mathematicsE J Nanson as ‘the expert’s expert’ on PR. Nanson was an adviser to the firstCommonwealth government and is regarded as the source of the legislative provisionsrelating to PR for the Senate. Nanson’s important role has been covered elsewhere andfor this occasion it is preferable to share the spotlight around and to treat others, likeSpence and the Ashworth brothers, who were more politically active than professorNanson.60 As early as 1861 when in Adelaide, Spence had published her own version of PR at atime when the legislatures of New South Wales and Victoria both debated the merits ofPR.61 Spence later formed the Effective Voting League. After women had won the vote 58 ibid., p. 314; cf Uhr, Deliberative Democracy, op. cit., pp. 70-74.
59 Mill, ibid., pp. 315-6 and pp.320-22; cf Hart, op. cit., pp. 44-45.
60 McLean, op. cit., pp. 369-385; Reid and Forrest, op. cit., pp. 88-89. See also D Headon, ‘No Weak-Kneed Sister’, ch 3 in Helen Irving (ed) A Woman’s Constitution. Sydney: Hale and Iremonger, 1996,pp. 42-54.
in South Australia in 1894, Spence put herself forward as a candidate for the 1897-98Constitutional Convention on a platform of ‘a just system of representation’ claiming tobe ‘the first woman in Australia to seek election in a political contest’.62 In the hope ofestablishing ‘a truly democratic ideal’ through Federation, Spence promoted ‘effectivevoting’ as one vital means of ensuring that ‘equality is to be as real in operation as intheory’. She held that ‘it is incumbent on all States to look well to it that theirrepresentative systems really secure the political equality they all profess to give, foruntil that is done democracy has had no fair trial’.63 Spence’s Autobiography reports that her Effective Voting League came forward towarn South Australian premier Kingston of the risks of ‘the monopoly of representationby one party in the Senate, and the consequent disenfranchisement of hundreds ofvoters throughout the Commonwealth’. She and her supporters lent their considerablesupport to Glynn during the 1897-98 Constitutional Convention and Glynn in turnpublicly advocated her cause. For Spence, the ‘fundamental principle of PR is thatmajorities must rule, but that minorities shall be adequately represented’. The minority‘can watch the majority and keep it straight’.64 By way of illustrating the breadth of interest in PR at the time of Federation, I can takeone of the many examples identified by Reid and Forrest to suggest the colour andcogency of the electoral reform movement. The example is the work ProportionalRepresentation Applied to Party Government by the two Ashworth brothers.65 T RAshworth was to remain active in the promotion of PR at the Commonwealth level formany years, culminating in his involvement as one of the 1927-29 royal commissionersinto the Constitution, which recommended in favour of PR for the Senate, as I willreport below.
The Ashworth book deserves brief comment for several reasons. First, the book waspublished during the year 1900 on the eve of the elections for the first CommonwealthParliament. It was designed to broaden Australian interest in PR at the outset of theCommonwealth. Second, the authors take pains to demonstrate the many varieties ofPR and in particular to promote their own version of a list system which is designed toconsolidate rather than fragment the two party system of parliamentary government,much like some contemporary critics from the major political parties. Their target wasto balance out the imbalance of seats between the governing majority and theOpposition party by protecting the parliamentary presence of the official Opposition asan integral component of the system of government. To the Ashworth brothers, theSenate is important as a site for PR but not as important as the House ofRepresentatives where Government and Opposition should face each other on the basisof their proportional electoral strength.66 Third, the Ashworth view, even before 62 C.H. Spence, op. cit., pp. 465 and 467; Sawer and Simms, op. cit., pp. 4-5; J. Uhr, DeliberativeDemocracy, op. cit., pp. 110-111. See also Ann Millar, ‘Feminising the Senate’, ch 8 in Helen Irving(ed) A Woman’s Constitution, Sydney, Hale and Iremonger, 1995, esp. pp. 128-136.
64 p. 467 and pp. 470-71; see also Glynn, Convention Debates, 15 April 1897, p. 678.
65 Graham, op. cit., pp. 204-6; Reid and Forrest, op. cit., pp. 92-94.
66 T.R. Ashworth, and H.P.C. Ashworth, Proportional Representation Applied to Party Government.
Melbourne: Robertson and Co, 1900, pp. 200-204.
elections for the first Commonwealth Parliament, is that the Senate would operate notas a States’ house but as a party house like the House of Representatives. Their interestin securing PR in both chambers rests on their belief that both would be driven by thepressures of party politics and ideally should fairly display the community’s balance ofgoverning and opposing parties.
The Ashworths’ commitment was distinctive among the promoters of PR in that theysingled out the importance of ‘organization and leadership’ of both the governing partyand the party of the official opposition as the predominant institutional requirements ofan effective parliamentary system. They saw ‘the fundamental error’ in Australiandemocracy to be the belief that ‘responsible leadership in Parliament is incompatiblewith popular government’.67 Whereas most proponents of PR reach out to ‘minorities’that are excluded from the parliamentary system, the Ashworths’ approach theopposition as the most deserving of minorities and seek institutional arrangements tobolster opposition numbers in Parliament. Unlike Hare, who sought ‘to allowrepresentation to as many minorities as possible’, the Ashworths sought barriers againstthe parliamentary representation of the sort of ‘cranks and faddists’ commonly fearedby opponents of PR.68 Critical also of Mill and Spence, the Ashworth brothers distancedthemselves from the Tasmanian experiment in PR, especially in their argument that the‘true function’ of minor parties ‘is to influence the policies of the main parties’.69 Thusthey are very critical of the emerging Labor Party as a sectional interest capable ofgaining disproportionate influence over national governments.70 The Ashworthargument used the new Senate as an illustration of how PR could be made to redress theimbalance in parliamentary representation between government and opposition. Theauthors state that their intention in writing their book was to prevent the adoption of theblock vote for the Senate.71 The Barton Government’s Electoral Act of 1902
The practical result of the framers’ consideration of these sources is the remarkablypermissive s9 of the Constitution, which provides that Parliament may legislate as itsees fit for any nation-wide ‘manner of voting’ for the new Senate. The original 1901Senate elections were held of necessity on state-wide systems, with Tasmania andSouth Australia using state-wide systems for their initial election of House members aswell. But only Tasmania adopted a form of PR for the 1901 elections: indeed, for bothof its federal houses.72 The parliamentary records for the first year of the Commonwealth Parliament includetwo reports which would appear to have helped prepare the ground for the governmentbill proposing PR. Home Affairs minister Sir William Lyne convened a committee ofparliamentary experts on electoral law and practice. Among the terms of reference wasone relating to the ‘practicability of the Hare-Spence system of voting’. This group 71 ibid., pp. 79, 97-103, and pp. 204-5.
72 S. Bennett, 'These New Fangled Ideas' in Haward and Warden, op. cit., p. 157; M. Mackerras, 'TheOperation and Significance of the Hare-Clark System', Haward and Warden, op. cit., p. 170.
reported to him in July 1901 in favour of PR for the Senate.73 The committee of expertsprovided no reasons for their recommendation which was included among a long list ofvery practical reports about emerging best practice across Australian electoral systems.
Claiming to have given the Hare-Spence system ‘our fullest consideration’, thecommittee simply implied that it was ‘practicable’ and moved on to recommend the‘contingent vote’ for all single member electorates (para 29).
The second report was on the Hare-Clark system of voting and ‘the true voice of theelectors’ prepared for the Senate by the Returning Officer and the Statistican fromTasmania.74 The two Tasmanian authors quote extensively from Justice Andrew InglisClark’s exposition of the merits of what he preferred to call ‘the Clark-Hare system’then in use in the two state electorates of Hobart and Launceston: ‘which enables everysection of political opinion which can command the requisite quota of votes to secure anumber of representatives proportionate to its numerical strength’. The two Tasmanianauthors emphasise that too many opponents of PR show a misplaced interest in topicsrelated to ‘the ease and convenience of the candidate’ in preference to ‘fairerrepresentation of the elector and his greater freedom of choice’. Their paper reviews thecounting that was used for the first election of Tasmanian members and senators to theCommonwealth Parliament, striving to demonstrate that systems of PR greatly benefit‘the represented’ who they identify as ‘the Hamlet of all matters regardingrepresentation’. This report in particular was cited as authority during the 1902parliamentary debate over the electoral bill.75 The electoral bill introduced by the first post-election federal ministry was, after a falsestart in the House, introduced in the Senate and provided for PR as the basis forcounting of the Senate vote.76 Of interest here is the lively debate in the Senate which,although in O’Connor’s words was ‘full of the most admirable matter’, eventually ledto the rejection of PR, against the warnings of the government that such a move,coupled with the adoption of a first-past-the-post system of representation might makethe Senate little more than a echo of the House of Representatives, open to the chargeof redundancy.77 When introducing the 1902 bill in the Senate, minister O’Connor quite correctly statedthat this legislation was designed for ‘bringing the Constitution of Australia intooperation’. The Labor party respected the occasion by granting its federal members afree vote on the issue.78 Together with the accompanying franchise legislation, theelectoral legislation bill aimed to provide for ‘the most representative Parliament,according to the truest principles of democracy, which exist in the world’.79 O’Connordefended PR in terms of establishing the true voice of the majority, and not simply in 73 See for example CPP, 1901-02, vol. 2, pp. 203-7; cf. Graham, op. cit., pp. 205-6.
74 See for example CPP, 1901-02, S/46, pp. 1-8.
75 See for example, CPD, 31 January 1902, O’Connor, pp. 9541 and 6 March 1902, pp. 10709-11;Syme, p. 10430.
76 Reid and Forrest, op. cit., pp. 94-102; Maclean, op. cit., p. 379, J. Uhr, Deliberative Democracy, op.
cit., pp. 109-113.
77 See for example O’Connor, op. cit., p. 10701; Keating, CPD, 1902, pp. 10432-33.
78 See for example O’Connor, ibid., p. 9529; G. S. Reid and M. Forrest, op. cit., p. 104.
79 See for example O’Connor, ibid., p. 9530.
terms of minority rights. With some force, he argued that the conventional ‘block-votesystem’ too easily protected ‘the choice of a minority’ in the way in which it rewarded agroup which, compared with any other single group, attracted the highest number ofvotes—despite the possible existence of a majority of votes cast against that group. Andeven when the majority of opinion wins the available seats, ‘that majority has theabsolute power of securing the representation of its own opinion only, and a largenumber of the electors go unrepresented altogether’. The ‘moral aspects of thequestion’ are considerable in that a ‘compact minority’ from among ‘the two dominantparties in politics’ might alone secure representation, with ‘all sorts of wire-pulling andlog-rolling and combinations’ practised in the pursuit of voter preference.80 The proponents of PR stopped well short of advocating minority rights to rule, but theydid defend minority rights to representation. They explicitly accepted that democracymeans that ‘the majority in decision must rule’, and that the minority has ‘a right to beheard and not to rule’.81 But for all practical purposes, ‘government by the people’means that the people elect their representatives who rule on behalf of the community,and the only fair system of representation is one arranged ‘proportionate to the opinionof the community’. Traditional forms of representation associated with ‘the BritishConstitution’, and even those traditional organising principles of executive governmentwhich have been ‘invested with a certain amount of sacredness’ are, in O’Connor’sarticulation of Australian constitutionalism, ‘altogether unsuited to modern times’.82Parliament must strive to become ‘a true reflex of the opinion of the people’ byarranging political representation so that ‘every shade of opinion, as far as possible,may be represented’. That phrase ‘as far as possible’ reflects the Barton government’scommitment to a modified form of the Hare-Clark system in which representation isorganised according to quotas of popular votes obtained, with an institutional designpriority of cultivating manageable quota-sized pockets of opinion and representation.83 After extensive debate, the Senate threw out the provision for PR, chiefly on theunderstandable fear that it would introduce a war of representation into the new federalParliament, probably challenge the conventions of cabinet government (or ‘honest partygovernment’ as it was called84), and increase the potential of the Senate to compete forpopular legitimacy with the House. Symon derided it as making the parliament ‘akaleidoscope, not a representation of the majority’.85 The problematical issue ofrepresentation was clear: ‘To which Chamber is the Government directlyresponsible?’.86 Downer complained that ‘under Hare’s principle.majorities will haveto go to the wall’. Strong party government would be wrecked in that it would ‘preventthe parties working out what they desired’ and so incapacitate the operation of majority 80 See for example O’Connor, ibid., pp. 9535-6 and pp. 9541-42.
81 See for example O’Connor, ibid., p. 9537; CPD, 26 February 1902, Best, p. 10349; cf Graham, op.
cit., pp. 206-7 and p. 216.
82 See for example CPD, 31 January 1902, O’Connor, p. 9537; Best, pp. 10343-49.
83 See for example O’Connor, ibid.,, p. 9541; Keating, 27 February 1902, pp. cit., pp. 10431ff.
84 See for example Symon, CPD, 27 February 1902, p. 10425.
85 See for example Symon, ibid., pp. 9759 and pp. 10417-19.
86 See for example Symon, ibid., p. 10415.
rule.87 In Symon’s pithy words, PR would force governments to stoop to conquer and towork ‘both sides of the gutter, so to speak’.88 The preconditions of responsible cabinetgovernment would be eroded, in that under what the opponents cleverly called‘fractional representation’ political leadership would be challenged by the activity ‘ofsections and fads’, enfeebling cabinet’s claim to representative leadership as ‘thedominant power’. How, asked Symon, could a ‘many men many minds’ Parliamentfeasibly create a government, when it has all the potential to ‘altogether paralyzeresponsible government modelled upon the British system’?89 The great divide was that over the merits of strong party government. The proponentsof PR argued that the British conventions of party government did not suit thecircumstances of the new federal polity, and that to the extent that British conventionsheld sway then due account should be taken of electoral reform sentiment in Britainwhich pointed the way to the future. The continued existence of ‘two great parties’ wasat best doubtful and at worst undesirable.90 The proponents argued that hiddenminorities already held much power, in that the major parties contained ‘factions’dependent on the hidden influence of powerful minority groups interested in financingsympathetic parties or representatives within parties.91 The opponents defended partygovernment in the belief that so-called ‘faddists’ would alter the system of governmentto such an extent that ‘the principle of log-rolling’ would replace the conventions ofmajority government. They feared the growth of ‘cliques and minorities’ which wouldfragment ‘the symmetry of the system’ of party government, in which each of the majorparties ruled in turn according to the swings of popular confidence.92 The push for proportionality
It is instructive to note the early assessments of contemporary authorities like HarrisonMoore to the effect that Parliament had not yet (in this case, as at 1910) givenfavourable consideration to any scheme for PR for the Senate: as though suchconsideration was only natural and would one day come to pass.93 Moore’s analysis laysout the groundwork for later Senate reform and his book highlights the mood ofanticipation found among many critics of the early Parliament. Moore illustrates theearly sense of dissatisfaction with the Senate’s electoral system: as he so clearly puts it‘the existing system is, of course, open to the objection that it enables an organizedplurality of voters to secure the whole representation, though it has only a smallmajority of votes, or, even in the case of a large number of candidates, is an actualminority of the electors voting’.94 In a remarkably strong defence of the constitutionalrights of the Senate, Moore evaluates the emerging character of the Senate by reference 87 See for example Downer, CPD, 26 February 1902, p. 10327 and p. 10338.
88 See for example Symon, op. cit., p. 10415.
89 See for example Symon, ibid., pp. 10418-19 and pp. 10421-22.
90 See for example Keating, op. cit., pp, 10441-43; O’Connor, 6 March 1902, pp. 10705-06.
91 See for example O’Connor, ibid., pp. 10706-07.
92 See for example, CPD, 5 March 1902, Smith, p. 10631; 26 February 1902, Downer, p. 10338; 19March 1902, Millen, p. 11019; 19 March, 1902, Baker, pp. 11007-10.
93 W.H. Moore, The Constitution of the Commonwealth of Australia, (2nd edn). Melbourne: Maxwell,1910, pp. 115-117 and pp. 150-153.
to its ‘popular basis than by its position as a House of States’ or by its constitutionalpermanence. Further, he defended the Senate as displaying more progressive tendenciesthan those evident in the House of Representatives. Rejecting such traditionalcategories as ‘second chamber’ and ‘house of review’, Moore emphasises that the‘actual part of the Senate in Australian politics appears to reveal a new role for aSecond Chamber’ especially in the areas of ‘informing’ and ‘educating’ whichtraditionalists like Bagehot thought essential to the functions of lower houses.95 Moore points out the potential for Senate reform. What follows is a selective listing ofthe major instances when PR came to the fore in national politics as a desirablealternative to the ‘block vote’ system in the Senate. The aim of this listing is toillustrate the evolving depth and eventual breadth of attraction for PR. Seen against thisbackground, the 1948 decision is part of an evolution of Australian parliamentaryinstitutions that gives due recognition to a form of political representation longanticipated as an essential component of the Australian constitutional system.
The Labor party was ambivalent about the merits of Senate reform. By 1919 the partyhad committed itself to abolition of the Senate but this represents something of anambit claim. As we shall see, prominent Labor figures broke through the mould offormal party policy to pose PR as an alternative to abolition. The traditional Labor viewis nicely captured by its original prime minister, Watson, who told the 1912 partyconference that PR would entrench minority representation, and with it minoritylegislation. At the same party conference one of the party’s backbench members spokeout against PR as producing ‘a sort of shandy-gaff politician’ and raised the awfulprospect of a proportionally represented House of Representatives that ‘could onlywork by compromise’. Labor again defeated an interest in PR at the 1918 partyconference.96 During debate on the 1922 electoral bill, the future Labor Prime Minister James Scullinrecorded his support for the introduction of PR for Senate elections.97 The passage isshort but significant. Scullin states that the existing system ‘is obsolete’: a system thatallows Labor in 1910 to win all 18 seats and then allows Labor to win only one in 1919‘does not secure the representation of the electors proportionately, and we should try togive representation on the basis of the strength of the great sections of the electors’.
Apart from the reported preference for PR by Curtin at the 1936 party conference,Labor had little to say for Senate reform until the time of the Chifley government.98 But there were many interesting noises made on the other side of national politics. Theleader of the Liberal party, Joseph Cook, included a policy in support of PR for Senateelections during the 1913 (which he won) and the 1914 general elections (which helost).99 We also find fascinating instances like Glynn’s October 1914 motion that: ‘witha view to securing as far as possible representation of parties in proportion to their 95ibid., pp. 116-17 and pp. 152-155.
96 The Australian Federal Labor Party, op. cit., p. 218.
97 See for example Scullin, CPD, 14 September 1922, pp. .2283-4.
98 The Australian Federal Labor Party, p. 222.
99 G. Sawer, Australian Federal Politics and Law 1901-1929. volume 1, Melbourne: MelbourneUniversity Press, 1956, p. 128.
strength at the polls, the method of election by quota and transferable vote be adoptedas the method of choosing senators’.100 Another distinctive instance is the 1915 report of the Royal Commission onCommonwealth Electoral Law and Administration.101 This inquiry was generated bydisputes over the conduct of the 1913 general election, including allegations overofficial interference involving the Minister for Home Affairs King O’Malley. Thereport provided a major stimulus to the development of a professional body of electoraladministrators under the direction of a Chief Electoral Commissioner with powersstipulated in law. In a report containing many detailed observations about the practicalmanagement of national elections, including recommendations for compulsory votinggenerally and preferential voting in House of Representatives elections, thecommissioners boldly state: ‘In view of the large area represented by Senators, asystem of PR should be adopted; applying, of course, to each separate State’ (para 12;cf paras 11, 31).
The 1919 introduction of preferential voting owes much to the rise of the Country partyas a demanding and capable third force in Australian politics and it is important toacknowledge that the Country party was also inclined to support a change to PR for theSenate.102 According to Geoffrey Sawer: ‘The budding Country Party group triedunsuccessfully to obtain PR on Hare-Clark principles for the Senate, claiming withjustification that the application of the simple alternative vote would tend to give all theSenate seats in a State to one party’.103 The following report of events in 1919 and 1922confirms this impression but also indicates that the interest in PR was far from confinedto Country party circles.
Proponents and opponents of proportional representation
Government changes to the Electoral Act in 1919 and 1922 sparked extensiveparliamentary debate over the merits of PR, with several proposals for the adoption ofPR brought forward to test the mood of both the House of Representatives and theSenate. All the proposals for PR were unsuccessful. The government proposals weremore successful. The 1919 changes included the establishment of preferential votingand the 1922 changes included the party grouping of candidates to make partypreferential voting easier. Neither change would have come about if it had notcoincided with the electoral interests of the major parties. The illustrations that I willuse here come from one episode of a failed attempt at a second-reading amendment in1919104 and from several episodes from 1922 of failed second reading amendments105,committee stage amendments106, and also votes over third reading of bills.107 The second 100 See for example Glynn, CPD, 28 October 1914, p. 410; G. Sawer, op. cit., p. 149.
101 Commonwealth Parliamentary Papers, 1914-1917, vol 2, part 1, pp. 435-453.
104 CPD, 15 October 1919, pp. 13308-13345.
105 CPD, 2 August 1922, pp. 973-995.
106 CPD, 9 August 1922, pp. 1203-1222.
107 CPD, 23 August 1922, pp. 1569-1580.
set of episodes took place when New South Wales was operating on a system of PR(1920-1926) that was attracting considerable national interest.108 Those proposing PR for the Senate were never government ministers and they includedmany representatives of the smaller States. Proponents tended to argue that the Senatewas not acting as a States’ house because its party composition was driven by thechanging tides of electoral popularity sweeping the lower house: the Senate eitherduplicated the party in power in the House of Representatives or reflected the lostpopularity of the majority that had preceded the current government. Rarely if ever didthe Senate provide a balance of representation between the two major party blocs:Labor and non-Labor. Proponents of change noted that periods of oppositiondomination of the Senate can and did occur but they were not convinced that thisantagonism to the political party dominating the House of Representatives providedadequate safeguards for state interests, particularly the interests of the smaller states.
Federalism was clearly an issue of considerable importance to the proponents of PR butthey were not alone in their reliance on the rhetoric of federalism. The opponents of PRchallenged the advocates of change to demonstrate how PR would enhance the capacityof the Senate to perform its original role as protector of States’ interests. The interestingresponse highlighted another model of federalism that went beyond the simplisticrhetoric of states’ rights to the more sophisticated rhetoric of minority rights, includingthose of national minorities. In this more ambitious view, the equal representation ofeach of the states gave the Senate its legislative leverage and it was now up toParliament to ensure that those using this leverage properly reflected the range ofdeserving if unrepresented interests across the nation. Proponents of change argued thatthe prevailing electoral system failed to protect the interests of many minority interestsand that PR would enable the Senate to claim to represent the vulnerable minorities thatthe government-sponsored changes in 1919 and 1922 failed to protect. For example,Senator O’Keefe supported the 1919 push for PR on the basis that ‘the party spirit’dominant initially in the House of Representatives had long ago upset the originalhopes that the Senate would act as a States’ house; now that the Senate too was a partyhouse it was time to widen the span of party representation to protect those intereststhat remain unrepresented by ‘the party spirit’ of the lower house.109 Proponents alsoargued that the thesis about the Senate being primarily a States’ house was falsified bythe constitutional protection that each state must be represented by six senators ratherthan one senator, thereby inviting diversity of representation which Parliament had aduty to protect.110 Proponents of PR argued that preferential voting without PR in effect provided for ‘theblock-vote under a new name’.111 Proponents held fears that ‘the very strong shackles,ties, and limitations of the party system’ were suppressing the representation ofminority opinion.112 The presence of minorities was an essential ingredient of 108 R.S. Parker, The Government of New South Wales. St Lucia, Qld, University of Queensland Press,1978, pp. 19-21.
109 See for example O’Keefe, CPD, 15 October 1919, p. 13344.
110 See for example Keating, CPD, 9 August 1922, p. 1209.
111 See for example Needham, CPD, 15 October 1919, p. 13309.
112 See for example Pratten, CPD, p. 13321.
parliamentary deliberation: proponents argued that ‘in order to ensure the Senate beinga deliberative assembly, the principal sections of public opinion in the nation shouldhave satisfactory representation’.113 A common distinction that helps clarify the nature of minorities was that between ‘thegreat sectional interests of this country’ and the interests of the great political partieswhich have failed to take up the interests of those vulnerable minorities not capable ofextracting concessions from the major parties. For instance, the Country Party was putforward as an example of a ‘section’ excluded from the Senate and a political partysupportive of PR.114 Although proponents often justified PR by reference to ‘theprinciple of minority representation’, most proponents conceded that not all minoritiescould hope for representation.115 A Parliament with regular election for only threesenators for each state would not be capable of sharing representation among verymany groups and ‘could not possibly represent, directly and in detail, small bodies ofpublic opinion outside supported by only a very inconsiderable section of the people’.116Senator Elliott drew a distinction between minorities as such and ‘the great minorities’deserving of parliamentary representation.117 Advocates of PR put their case in terms of ‘equitable justice’ or ‘plain electoral ethics’:‘the Senate at all times should be a reflex of the opinions of the community’.118 Inresponse to government fears that PR would unleash heatwaves of heterogeneity,proponents responded with defences of ‘the composite opinion of the community’. Inthis distinction, ‘composite’ highlights the positive qualities whereas ‘heterogeneity’highlights less consensus-building qualities. The alternative to PR was to condemn theSenate to the representatives of ‘the momentarily dominant majority on the momentaryquestions of the day’.119 Many proponents publicly stated their knowledge that PR would not be easily concededby the major parties and that the struggle would be a long one. As stated by Tasmaniansenator Bakhap: ‘We know, with the present personnel of this Parliament, that there isvery little hope of it being embodied in our statute-book, but it is our duty to hold up tothe people something worthy of achievement’.120 They knew that the Bartongovernment had attempted to legislate for PR and senators in particular appreciated theirony that their parliamentary chamber had put paid to the plans of the Bartongovernment. The feasibility of PR was driven home by reference to the operation ofsimilar systems in Tasmania since 1909 and in New South Wales from 1920-1926. TheGovernment of Ireland bill was another frequently cited inspiration.121 To do nothing toadvance PR would be to risk public disfavour. To proponents of Senate reform, the 113 See for example Bakhap, CPD, p. 13327.
114 See for example Elliott, CPD, 2 August 1922, pp. 977-78; Gardiner, CPD, 9 August 1922, p. 1218.
115 See for example Bakhap, CPD, 23 August 1922, p. 1571.
116 Keating, CPD, 15 October 1922, p. 13336.
118 Bakhap, CPD, 2 August 1922, p. .987; and 15 October 1919, p.13325; see also Pratten, p. 13320.
119 Keating, CPD, 15 October 1919, p. 13335-6; and 9 August 1922, p. 1210 120 See for example Bakhap, CPD, 15 October 1919, p. 13326.
121 See for example Keating, CPD, 15 October 1922, p. 13336.
practical danger was that public opinion would not tolerate a parliamentary chamber ‘inwhich perhaps one half of the electors are unrepresented’. This would be ‘a splendidargument for the abolition of this Chamber’. PR would make the Senate ‘less a targetfor ridicule and disrespect’.122 But it was the opponents of Senate reform who won these rounds of parliamentarystruggle. Many arguments were clever distractions rather than admirable feats ofparliamentary deliberation. For instance, opponents successfully defended the powersand composition of the Senate on the basis that compared with the lower house it was‘the more democratic house because it speaks for a larger constituency’. And again, attimes opponents would contend that if PR was really desirable then it was moreappropriate to the House of Representatives which claimed to represent populationrather than geography.123 More seriously, opponents argued that PR would fragment the solid voice of each statewith the prospect of each state sending to the Senate ‘six different sets of opinions, andall more or less representing minorities’.124 How could the Senate ever act as States’house, thundered senator Pearce, if through PR ‘we would divide up the Senate into aseries of sections representing varying political views’. Imagine, he continued, theexistence of a political party with one representative from each state but none capableof really representing their state ‘because their primary function would be to representthe political views’ of their section.125 Opponents contended that the purpose of the Senate as a States’ house precluded PRbecause that would ensure that State representatives were ‘divided, not by interests ofthe States, but by factions as represented by quotas’.126 Critics feared that there were‘wrangles enough’ with the clash of state interests ‘without superimposing upon themthe wrangling of the representatives of rival sections in the different States’. Opponentsof Senate reform won the day with their picture of a reformed Senate behaving as a‘House of proportions.a House of brawling political factions’ and as ‘a place ofbrawling votaries’.127 Behind all these incidental defects loomed that one basic defect:responsible government might become impossible because of Senate stalematesbetween equal representation of government and opposition forces. Responsiblegovernment required the ‘party system’ as its basic operating rule, and opponents wonthe day with their rally to the support of ‘the system of majority rule’.128 All of the above material comes from the record of the Senate. There is one importantepisode from the record of the House of Representatives in 1922, in addition to the 122 See for example Bakhap, CPD, 15 October 1919, p. 13325; O’Keefe, p. 13343; MacDonald, p.
123 See for example De Largie, CPD, 2 August 1922, p. 974; Pearce, CPD, 9 August 1922, p. 1580.
124 De Largie, CPD, 2 August 1922, p. 974.
125 Pearce, CPD, 9 August 1922, p. 1206.
127 See for example Lynch, CPD, 9 August 1922, p. 1221; 23 August 1922, pp. 1575.
128 See for example De Largie, op. cit., p. .974 and p. 976; Millen, CPD, 9 August 1922, p. 1219.
supportive comment from Scullin quoted a few pages earlier.129 Country party leaderEarle Page feared that the government bill to permit the grouping of party candidates onSenate ballot papers would consolidate the party characteristics of the upper house andensure that it followed the party swings of the lower house. Arguing that the existingsystem was ‘recognised by everybody throughout Australia to be ludicrous’, Pagewarned that ‘the one-party character of the Senate’ would eventually cause great publicoffence when the community understood that there were alternatives capable ofreforming Senate representation to include ‘all classes of the people’. The ‘very essenceof representative government is that all sections of the community should have theirspokesmen in Parliament’. Page proposed a series of committee stage amendments tointroduce PR for the Senate, also providing for the record a chart of comparablecountries where PR was in place or being introduced, particularly in relation to upperhouses. Page’s amendments were defeated by 9 votes, Scullin voting with Page.
Further evidence
The interest in PR did not end there. Country party leader Page included policies for PRduring election campaigns in the early 1920s and also advocated that a constitutionalconvention be organised on PR of interested political parties.130 Further, Stanley Brucewas also reported to be favourable to Senate reform based on PR.131 As late as the 1943general election, Page was still advocating PR for the Senate.132 The Peden Royal Commission on the Constitution of the Commonwealth (1927-1929)included as one of its commissioners T R Ashworth, co-author of ProportionalRepresentation examined earlier. The royal commission noted that the introduction ofpreferential voting for House and Senate elections, which was designed to secureparliamentary representation for candidates with the highest number of votes, ‘gives noroom for the representation of minorities’. The Report noted the historic imbalanceamong Senate parties and regretted ‘that there may be no opportunity for thepresentation of different points of view’. The commissioners argued that ‘the Senatewould be better qualified to act as a chamber of revision if senators were elected undera system of PR’ which they recommended for adoption on an experimental basis for tenyears.133 The ‘Supplement and Recommendations by Mr Ashworth’ is the Royal Commission’smost extensive treatment of PR.134 Ashworth distanced himself from the majority’sattempt to ‘excise minor disabilities or cure minor ailments’ and called for ‘a completechange in the character and constitution of the Senate’. Repeating the earlier thesisabout the merits of two party systems elected under list systems, Ashworth emphasisedthat ‘it becomes the duty of minorities to work through the constitutional parties’.
Preferential voting ‘is a direct encouragement to party multiplicity’. The Senate is‘slowly atrophying’ and given that it has failed to represent the States it should be 129 CPD, C, 15 September 1922, pp. 2331-6 and pp. 2472-74.
130 G. Sawer, op. cit., pp. 183-4 and p. 223.
131Crisp, The Australian Federal Labor Party, op. cit, p. 221.
133 J. Peden (Chair), Report of the Royal Commission on the Constitution, Canberra: GovernmentPrinter, 1929, pp. 42, 47-48 and 267.
reformed to represent something new: in this ‘age of association’ it should be reformedto represent ‘the various interests and vocations’ with the German Federal EconomicCouncil as one possible model.
Although the 1929 royal commission had no immediate effect, it did provide a resourcefor many generations of later advocates of Senate reform. One source from theAustralian Archives is the October 1935 cabinet memorandum prepared for the Lyonsgovernment by Thomas Paterson, Minister for the Interior. This memorandumcanvasses the general issue of PR and although it does not advocate a change, it reflectsa growing confidence within government that a change to PR can be made to workeffectively. The Page initiative of 1922 is used as an illustration of the periodic eruptionof interest in PR within even the ranks of the House of Representatives. It would seemthat nothing came of this 1935 cabinet interest.
I can conclude this section with one such episode of advocacy involving rising Countryparty leader John McEwen.135 In a general debate in 1937 on a supply bill, McEwendirected his comments at the Labor opposition, which at the time had only threeSenators, as though to test their interest in Senate reform. Claiming to be interested ingreater parliamentary representation for minorities, McEwen wondered aloud what itwould take for ‘a great political party to be always assured of some representation inthat chamber, without it being necessary for it to be beholden to any other politicalparty in the arrangement of joint tickets for candidates’.
Was this a plea for help to Labor from the Country party which suffered at the hands ofits conservative allies? McEwen surveyed the record of the 1890s constitutionalconventions and detected strong support for the principle of PR, driving home hismessage with his call that ‘Parliament should declare that the time is ripe for a realreform of the method of electing senators’. Drawing on recent electoral statistics,McEwen contended that ‘there has been a very substantial minority body of politicalopinion which has been denied representation’ in the Senate, and he called on thegovernment to bring in legislation to reform the Senate ‘as a democratic body in whichit is possible for minorities to secure representation’. The parliamentary record has noobvious response from the serving government but there is a fascinating reply fromLabor’s Lazzarini which taunts McEwen almost exactly as Menzies was later to tauntthe Chifley government in 1948.136 Menzies argued that Chifley’s Senate reformpackage was really designed to secure a Senate power base in the event that Labor lostcontrol of the House of Representatives at the 1949 election. So too Lazzarini claimedthat McEwen’s only real interest was in securing a consolation prize of upper houseseats for his Country party in the event that Labor’s stocks continued to rise and sweepit into office and the Country party out of its House of Representatives seats at the nextgeneral election.
Reviewing Labor’s legacy
The 1948-49 changes have transformed the Senate. But it has taken many years of closestudy for Australian political analysts to shake off their traditional views about thesubsidiary role of the Senate in Australian government. One of the best formulations of 135 CPD, 24 June 1937, pp. 352-5.
136 CPD,24 June, 1937, pp. 360-61.
the perverse pathology attributed to the Senate comes from Australian politicalpsychologist A F Davies.137 Writing during the late 1950s and early 1960s when thereformed Senate was itself still learning about the potential reach of its new institutionalcapacity, Davies damned the new Senate with the faint praise appropriate to the pre-reformed Senate. With his characteristic cleverness, Davies described the Senate as themaniac/depressive institution in Australian government: he saw the Senate as operatingthrough ‘manic and depressive phases, so to speak’: manic in pursuit of its owninterests when dominated by an opposition majority and depressive and unproductivewhen dominated by a government majority.138 This is exactly the view of the Senate that one finds in Calwell’s later contributions.
Despite his role in fashioning the 1948 changes, Calwell reflects the traditionalism ofan earlier version of Australian democracy where majoritarianism rules supreme.
Calwell’s chief manifesto Labor’s Role in Modern Society is virtually silent on theplace of the Senate. His later memoirs Be Just and Fear Not report little about theintroduction of PR, other than a reference to ‘our wretched, undemocratic, preferentialvoting system’ on which it was based.139 What little Calwell does have to say about the place of the Senate reflects a verytraditional Labor stance on the abolition of the Senate. On the eve of the 1972 electoralvictory of the Whitlam Labor government, Calwell repeats the traditionalism about theimportance of the ‘abolition of the Senate’ which he sees as ‘a useless institution’, a‘shocking waste of public money’, and a ‘time wasting, expense-consuming politicalliability’. This from the founder of the modern Senate! Whatever his motivations in1948, Calwell’s considered view was that the Senate is fundamentally anti-democraticbecause of its ‘non-representative character’, by which he means its lack ofproportionality of representation with population: he sees equal state representation asthe Senate’s enfeebling birth defect. Calwell maintains to the end his antagonism to theSenate which to him has ‘no moral rather than to try to frustrate the will of the people,as expressed at the previous House of Representatives election’.140 A more challenging version of the same thesis is presented in Whitlam’s The Truth ofthe Matter. Where can one turn to try to find a contemporary Labor account of theSenate that is consistent with the best hopes of 1948? Consider this contrast betweentwo Labor leaders of the opposition: Calwell and Hayden who had been a minister atthe time of the 1975 dismissal, yet somehow has found room for praise of the Senate.141Hayden’s perspective is the mirror opposite of that of Calwell: where Calwell cools onthe Senate after PR, Hayden warms to it. Hayden brings a new sense of realism to theLabor debate over the Senate. He acknowledges that even before Federation there wasan expectation, even among Labor, that the Senate would act as a party house. Haydenalso acknowledges the history of Labor’s use of its occasional control of the Senate tocheck governments of the day, as in 1913-1914 and 1914-1951. Other contributors to 137 A.F. Davies, 1966, Australian Democracy, (2nd edn), Longmans. 1966, pp. 38-46.
139 A.A. Calwell, Be Just and Fear Not, Hawthorn, Vic., Lloyd O'Neil, 1972, p. 260.
141 B. Hayden, Hayden : An Autobiography, Sydney: Angus and Robertson, 1996, pp. 241, 288 and544.
this conference will judge where to place the mark between the two assessments ofCalwell and Hayden. Hayden does not hide his estimate of the value of thecontemporary Senate as a foundation for Australian democratic governance.142 Conclusion
Let me draw-out from this lengthy history three of the most significant illustrations of
the case for proportional representation. Each case illustrates a distinctive voice of
parliamentary reform: the ‘minorities voice’ as mobilised by Catherine Helen Spence
from South Australia, one of the most significant non-aligned or independent political
actors around the time of Federation; the ‘multicultural voice’ as raised by Senator
Thomas Bakhap from Tasmania, perhaps the first Chinese- speaking Commonwealth
legislator: a progressive Liberal who stands out as a wonderful early model of
Australian multiculturalism; and finally the ‘reform voice’ as articulated by Senator
Albert Gardiner from New South Wales, Labor leader of the Opposition in the Senate
during the Hughes governments, who tried to hold up the 1918 consolidation of
Australian electoral laws into a comprehensive code until the government saw the merit
of PR.
Each of these voices represents something deeply honourable in the tradition ofAustralian public life. All were advocates of proportional representation but they werenot the voices that are, or at least not yet, recorded in our history books on this issue. Tome, these three voices represent core components of the enduring case for PR in theSenate. They were the voices who sustained the case until enough party leaders werepersuaded of the merits of PR. To the extent that we credit the wisdom of the partyleaders and forget the tenacity of these forgotten voices, we distort the history of PR inAustralia and weaken its real achievement.


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