COMPOSITION OF THE SENATE AS A RESULT OF THE 2004 ELECTION

Party Seats

Liberal Party-National Party coalition 39 Australian Labor Party 28 Australian Democrats 4 Australian Greens 4

Family First 1

An important factor entrenching executive domi- nance is the large scale of governmental activity, necessarily administered through the executive. This phenomenon, common to all Western democracies, is exacerbated by the Westminster-style strengthening in Parliament of disciplined political parties, making for no clear separation between the governmental execu- tive and its origins in the legislature. Backbench mem- bers of the majority party or coalition identify closely with the government. They realize that they were almost certainly elected because of their party affilia- tion and that their chances of reelection depend on the performance of the government. If they were to oppose their own party’s government in Parliament, the result might be the defeat of the government, its enforced resignation, and an early election. Without reendorse- ment by the same party, the backbenchers would have little chance of reelection (though several disendorsed members of Parliament successfully contested and won their seats in the 1990s in defiance of their former parties). It is usually much safer for any criticisms and misgivings to be expressed within party meetings than within Parliament (and Labor Party members of Parliament are in any case pledged always to vote in accordance with the majority decision of the party’s parliamentary caucus). Party discipline is generally as rigid in the Senate as in the House of Representatives, despite the original intention that the Senate represent the interests of the States and despite the fate of the government not being at stake.

The internal procedures of the Parliament also contribute to its weakness. Parliamentary debates about proposed legislation or matters of public controversy, especially debates in the House of Representatives, where the government has a built-in majority, tend to be ritualistic and predictable, with government mem- bers praising the government and opposition members finding fault with it. The “committee” stage of legisla- tive procedure, in which a bill can be examined clause by clause, sometimes produces useful technical amend- ments and improvements. There is also an increasing prominence accorded to some formal parliamentary standing committees, which take an active role in pro- viding policy advice, examining draft legislation, and reviewing the implementation of legislation, thereby becoming more important in the career development of politicians.

It would be very misleading, however, to dismiss Parliament as insignificant. Parliament remains the formal and symbolic focus for the democratic system and remains in the public spotlight. It is the arena in which national leaders are identified and tested. It pro- vides regular publicity for the opposition, whose leader is provided salary and privileges equivalent to those of a minister and whose “shadow cabinet” mirrors the portfolio responsibilities of the cabinet. A period during each day of a sitting Parliament is devoted to “questions without notice” during which ministers can be questioned about their portfolios. While ministers often evade probing questions from the opposition and indulge themselves in the self-congratulation invited by friendly queries from their own backbenchers, this question period does provide a well-publicized arena for the “cut-and-thrust” of political debate.

In addition, the notion of executive dominance can be significantly attenuated by the role and poten- tial of the Senate. Because of its electoral system, it is very difficult for a governing party or coalition to com- mand a majority in the Senate. The “balance of power” between government senators and opposition senators is usually held by minor-party and/or independent senators. While the defeat of its ordinary legislation in the Senate does not compel a government to resign and may provide the basis for the government to threaten the Senate with a double-dissolution election, a gov- ernment’s ability to govern is obviously impaired if such defeats become regular. The government therefore frequently needs to negotiate and bargain with minor- party senators and, sometimes, with the opposition in order to ensure the passage of legislation. The Senate has also upgraded its oversight and investigatory capa- bilities with respect to executive activities.

Even in the Senate, political considerations and party loyalty remain as primary factors. A government recently elected or otherwise confident of its popular- ity may rhetorically claim an electoral mandate to implement election promises. More commonly, com- promises are reached under which the government is prepared to accept opposition or minor-party amend- ments that do not significantly subvert the essence of its proposed legislation.

A sensitive aspect of government-Senate rela- tions concerns the Senate’s power with respect to the government’s budget, without whose legislative authorization a government cannot operate. Under the constitution the Senate is prohibited from amending bills dealing with taxation or financial appropriations, though it is assumed that it can defeat such bills and thereby effectively pressure the House of Representa- tives to make amendments.

Until 1975 the Senate had never defeated a govern- ment’s budgetary legislation. In that year, however, the Liberal-National opposition in control of the Senate attempted to force what it perceived as an unpopular Labor government to resign and contest a new elec- tion. It therefore did not allow the Senate to pass the budget legislation. The government, however, refused to resign, citing the Westminster convention that a government that retains the confidence of the House of Representatives stays in office. A stalemate—a “con- stitutional crisis”—developed.

The most appropriate solution would probably have been a political one, with the stalemate persisting until public funds started to run out and the pressure of the crisis or public opinion or perceived political advantage produced a compromise on one or both sides. Instead, the situation was resolved, dramatically and controversially, by the unprecedented intervention of the head of state. The governor-general, contrary to the tradition that he act only on the advice of ministers but consistent with a literal reading of the constitu- tion, dismissed Prime Minister Gough Whitlam and his Labor government. He installed the leader of the opposition as prime minister of a caretaker govern- ment, even though this new government had only minority support in the House of Representatives, and called a double-dissolution election. This election endorsed the new government with an overwhelming majority in both houses.

Debate still continues over the propriety of vari- ous actions in the constitutional crisis, particularly those of the governor-general. Another “constitutional crisis” resulting from a threat to the government’s budget is unlikely in the foreseeable future because of

a pervasive sentiment that the events of 1975 should be avoided if possible.

JUDICIARY

The High Court of Australia exercises judicial review over matters relating to the constitution as well as being the final court of appeal within the Australian system of justice. In many respects, the High Court was modeled on the United States Supreme Court and exercises a similar capacity to invalidate legislation it has deemed unconstitutional. The other courts cre- ated at the national level include the Family Court (established in 1975 to handle matrimonial, divorce, and associated custody and property matters; a sepa- rate Family Court exists in Western Australia), the Federal Court (established in 1976 with responsibil- ity for a range of matters such as bankruptcy and administrative appeals), and the Industrial Relations Court (established in its current form in 1993 to exer- cise judicial power over industrial relations matters). Beyond these specialized courts, there is no further system of national-level courts. Instead, the court sys- tems of the states have been vested with jurisdiction over Commonwealth law.

The High Court’s varying interpretations of Sec- tion 92 of the constitution illustrate the political impact of its decisions. Section 92 declares that “trade, commerce and intercourse among the States . . . shall be absolutely free” and was presumably intended to prevent the reemergence of barriers to interstate trade such as the tariffs that had existed during the colonial period. High Court interpretations in the first half of the twentieth century gradually made Section 92 a significant restraint on any form of economic regu- lation, culminating in 1945 and 1948 in the annul- ment of attempts by the Chiefly Labor government to nationalize the private airlines and the private banks. Such a broad-brushed interpretation of Section 92 was overturned, however, by a later High Court in 1988 so that the original apparent intent of the section—to create an Australian “common market”—now seems to prevail.

In recent times the Court, besides revising its approach to Section 92, has also been innovative in other important areas. A Court majority in the early 1990s “discovered” several hitherto-unrecognized citi- zen rights guaranteed under a constitution that, in formal terms, features (in contrast to the U.S. Consti- tution) only a few explicit rights-type provisions. For example, the Court ruled in 1992 (in overturning leg- islation that attempted to prohibit, on cost and equity

grounds, paid political advertising in the electronic media) that the constitution guaranteed freedom of speech in relation to political matters. The Court has also overturned long-standing common-law inter- pretations to rule that some Aboriginal Australians hold, under certain conditions, “native title” to land hitherto thought to have been totally usurped by the British crown at the time of colonization. The Keat- ing Labor government took advantage of this ruling (known as the Mabo decision) to institute a formal procedure of “native title” claims. A later High Court ruling (in the Wik case) that “native title” could coex- ist with pastoral leases presented the Howard coalition with a difficult political problem, requiring it to find some legislative resolution that appeased its support- ers in the pastoral and related rural industries without negating the native-title rights the Court had discov- ered. The government legislation on this matter finally passed through the Parliament, after tortuous Senate negotiations, in July 1998.

Through its judicial review of legislation and role as ultimate arbiter on legal cases brought before it, the High Court is a significant political actor. The justices of the High Court—the chief justice and six associate jus- tices—are formally appointed by the governor-general, on the advice of the government. Formerly appointed to life terms, justices have been subject since 1977 to a mandatory retirement age of 70. Appointed justices occasionally have had party and/or parliamentary asso- ciations (both coalition and Labor governments having at various times appointed their own former attorneys general), and the appointment process probably pre- cludes potential appointees regarded as antithetical to government perceptions of the Court’s role. However, the notion of judicial independence also remains as a strong value, and most appointees have had extensive experience in lower courts or in a state court system. High Court justices can be removed only by a resolu- tion of both houses of Parliament on the grounds of “proved misbehaviour or incapacity,” something that has never happened.

REGIONAL AND LOCAL

GOVERNMENT

In terms of providing direct public services to citizens, the states are a very prominent level of government. State-level identification remains fairly strong among Australians, reinforced by a social geography that sees about three-fifths of the population residing in five major metropolitan areas that also happen to be the seats of state governments and by the focus of the

state-based mass media (though national networking is weakening this factor).

State governments in Australia provide extensive services. According to the federal constitution, states are responsible for regulation of local government and managing and providing public education, health and welfare, and police services. While states differ a little in the style, quality, and range of public ser- vices, standards and policy styles are fairly uniform by comparison with other federations. The modesty of the inter-state variation is assisted by an equalization component in the formula by which untied Com- monwealth grants are distributed to the states and by regular national meetings of ministers responsible for specific portfolios.

Each state has its own constitution, most dating from the mid-nineteenth century, and each state oper- ates under a parliamentary system, with parliaments normally having a maximum three-year or four-year term in office. In five of the states, the parliament is bicameral, with the composition of the government being determined in the lower house. The other state, Queensland, abolished its upper house in 1922. The Northern Territory and the Australian Capital Territory both have unicameral assemblies.

Much of what has been noted above, with respect to the Commonwealth level, about the dominance of the executive, the importance of the bureaucracy, the weakness of the lower house of Parliament, and the possible significance of the upper house (depending on party balance) applies also to the states. Each state government is led by a premier, who is the state-level equivalent of the prime minister. The premier chairs a cabinet, which is the chief policy making organ of the state. The government must be able to command a majority in the state assembly. Each state also has a governor, who is the formal representative of the monarch.

The two territories, which were administered directly by the Commonwealth for most of their history, have been granted a large degree of self-government by the Commonwealth to the point where they now have (with a few interesting exceptions) virtually the same effective powers as states. However, the degree of autonomy was tested in 1997 when controversial legis- lation passed by the Northern Territory legislature that had permitted voluntary euthanasia was overturned by a bipartisan majority in both houses of the Common- wealth Parliament. The Northern Territory government has for many years been controlled by the Territory’s unique Country Liberal Party, whose campaign to win full statehood for the territory suffered a setback when

narrowly defeated in an indicative territory referendum in October 1998. In the Australian Capital Territory self-government is complicated by the co-location of the central organs of the Commonwealth government and where a proportional representation system pro- duces a diverse and sometimes strange membership in the territory assembly.

Except for some sparsely populated areas that remain unincorporated, Australia is divided into a patchwork of about 730 local government jurisdictions. These local governments possess many of the superficial characteristics of sovereign political systems, with an elected legislature (the council) whose members then elect one of their number as mayor (though in some jurisdictions the mayor is elected directly by the vot- ers). Local government as a whole, however, accounts for only a small fraction of total public-sector expen- diture and is of less significance than in most other Western democracies. Local authorities principally are involved with property services—garbage, nonarterial roads, parking, street lighting, sanitation, development control, and so on—though in some states there is also involvement in water, sewage, energy reticulation, rec- reation facilities, and some welfare services.

The Electoral System

Australians directly elect representatives to two houses of Parliament at the Commonwealth level, to two at the state/territory level (except for unicameral Queensland and the two territories), and to their local council. Different electoral systems may be in opera- tion for each arena.

There has been a long history of universal adult suffrage, of which Australian colonies were nine- teenth-century pioneers (though relatively inclusive property qualifications applied until the 1970s in some state upper houses and until the 1980s for some local government systems). The Australian colonies also pio- neered such devices as the preprinted secret ballot, still sometimes termed “the Australian ballot” in American political science textbooks. All citizens at least 18 years of age are eligible to vote. Except for most (though not all) local council elections, registration and voting are compulsory. Noncompliance without sufficient reason (such as illness) attracts a small fine. Turnouts of about 95 percent of eligible voters at Commonwealth and state elections are common.

Electoral boundaries generally are drawn up by independent commissioners, so that blatant gerry- mandering is virtually unknown. Malapportionment,

however, in the sense of an overrepresentation of rural voters, used to be quite common. Owing to reforms, only in Western Australia is there still an explicit sys- tem that favors rural areas over urban centers. In the Commonwealth House of Representatives, rural over- representation was completely eliminated in 1984.

The most common electoral system—used for elec- tions for the House of Representatives and for all state lower houses except in Tasmania—is based on prefer- ential voting and single-member districts. Under pref- erential voting, also called the alternative vote, voters rank candidates on the ballot in numerical order. If no candidate wins an absolute majority of first-preference votes, then the lowest-scoring candidate is eliminated, and his or her votes are redistributed at their full value according to the second preference indicated on those ballot papers. The process of elimination and redistri- bution continues until a candidate wins by acquiring an absolute majority of votes.

Although only major parties can usually hope to win a seat, the single-member preferential system allows some role for minor parties. In exchange for recommending to their supporters a particular ranking of major party candidates, minor parties sometimes hope to win policy concessions from major parties. The 1990 national election provides a good example. The Labor Party was returned to government despite winning less than 40 percent of all first-preference votes. This was sufficient to account for a majority of seats largely because the preference distribution from the unusually large number of first-preference votes for minor party candidates (especially those espousing environmental causes) strongly tended to favor Labor. Labor had attempted (successfully, as it turned out) to ensure such a flow of preferences by making a number of explicit environmental policy concessions.

The preferential system allows allied parties to endorse separate candidates for the same district with- out necessarily harming the alliance. For example, both the Liberal Party and the National Party, which often are coalition partners, may offer candidates for the same district. These candidates “exchange prefer- ences”—in other words, each candidate recommends that his or her supporters give their second preference to the other candidate. This helps the higher vote win- ner of the two effectively to benefit from their com- bined vote if neither of them wins an absolute majority of first preferences.

Elections to the Australian Senate are conducted through an electoral system called the single-transferable vote. Senators are elected at-large from each state, with six representatives being elected from each state at

each election (twelve in a double dissolution). Voters rank order their preferences and may vote for as many candidates as are elected. Candidates are elected if they receive a quota of votes calculated as one-seventh (one-thirteenth in a double dissolution) plus one of the total valid votes. Candidates who win more than the requisite quota have “surplus” votes distributed to other candidates at their full value according to the second or subsequent preferences recorded by the voter.