Webdiary - Founded and Inspired by Margo Kingston

G'day. Last December I set out my predictions for the collapse of the last real parliamentary accountibility for John Howard and his ministers - the Senate - in The year ahead. The government would really be saying up yours to all of us by doing this, of course, and Senator Julian McGauran did the gesture in the Senate last week in a helpful visualisation of the government's contempt for our democracy. Of course Howard, our perception-trumps-reality king, frowned and said that was very bad. I thought it was honest, but, of course, that's very bad.

Webdiary will keep a very close watch on the Senate, and today, long-time Democrats Senator Andrew Bartlett kicks off with his thoughts on what is to come. Andrew's blog is here.

How might the Government neuter/gut/de-fang/stifle the Senate?
by Andrew Bartlett

I have had the privilege of serving as a Senator for the state of Queensland in the Federal Parliament for nearly eight years, and was closely involved behind the scenes for seven years before that. I can only wish the press gallery had paid half as much attention to the potential consequences of a government controlled Senate before the election as they are now.

I can recall few times over that 15 year period when the Senate has received as much media attention and public attention.  In some ways this is ironic, as it is reasonable to assume the Senate will become far more predictable now that the Government has a majority in its own right and the safety net the Democrats were often able to provide in the past has been removed.

However, it is the first time for nearly a quarter of a century that a Government has had control of the Senate (a 24 year long "anomaly" according to last week's first speech by new Liberal Senator Michael Ronaldson) so there is a lot of uncertainty about how the Coalition will cope with this new and unexpected power. Federal politics was very different 24 years ago. Now pressure for party room discipline much stronger, as is the cult of the Leader.

Possible changes to Senate procedures might not strike people as the most crucial consequence of Government control when there are so many issues – workplace relations, welfare changes, Voluntary Student Unionism, Telstra sale, tougher security laws just to name a few – all of which could have major, direct impacts on people's lives.

However, each of these individual issues are just a sub-set of the single overarching issue that I believe is most important – what a Government controlled Senate will mean for our democracy and for the ability of the Senate (and therefore the Parliament) to effectively oversee and balance the power of Governments into the future.

The biggest signal as to the potential long-term consequences will not lie in whether or not things like the Telstra sale goes through. It will be in what changes the government tries to make to Senate processes and procedures, as well as to the law that elects it (the Electoral Act). For this reason, it is worth having an examination of what might happen and what to watch out for.

A major area where Parliamentary checks and balances could be gutted is the Senate Committee system.  This could occur in a range of ways.  The most obvious will be the Government's ability to prevent matters to be referred to Committee for inquiry in the first place.

Establishing a Senate Committee Inquiry into a specific matter requires a motion to be passed by the Senate.  In the absence of a couple of Coalition Senators crossing the floor, this can no longer occur without government agreement.  (As the Coalition has 39 of the 76 votes, if there is only one defector, it will create a tied vote of 38-38 which is resolved in the negative. It may seem like a small thing, but if getting one floor crosser is hard, getting two is obviously harder.)

Committees will be unlikely to be shut down altogether - even the Government echo chamber, the House of Representatives, has Committee inquiries. However, contentious, controversial or potentially embarrassing matters are highly unlikely to get agreement. Many existing House of Reps and Joint Committees which have always been Government controlled tend to get agreement from the relevant Minister before even establishing an inquiry.

While a majority Senate vote has always been required to initiate a Committee inquiry into a specific policy matter, it has tended to be different for proposed legislation.  Existing Senate convention has (with a few exceptions) enabled any Senator to refer a piece of legislation to a Committee if they believe it is warranted.

I believe the Government will be reticent to appear to be curtailing this widely valued mechanism for scrutiny, but it is quite likely that over time it will more and more regularly refuse agreement for politically significant legislation to be given Committee scrutiny. 

With a cheer squad among the media elites already trumpeting about the government finally being able to get on with governing without the 'hindrance' of a Senate that is not controlled by any one party, I'm sure there will always be vested interests willing to support government excuses about the urgency of a matter or some manufactured mandate justifying the refusal to allow legislation to be scrutinies by a Senate Committee.

Even when the Government agrees to Committee inquiries, they now have significant power to use other means to curtail proper scrutiny. They will be able to ensure all Committees have a majority of Government members, meaning decisions such as which witnesses are called to give evidence, how long they get to appear for and how many public hearings are held (or if hearings will be held at all) can all be dictated by the Government. There is a big difference between taking eight weeks and taking one week examine a Bill. Witnesses who might be potentially embarrassing or create publicity problems for the Government can be scheduled at the end of the day or given restricted time to provide evidence. The disincentives for whistleblowers to provide written submissions to a Committee will also be greater than ever, as a Committee can even decide not to receive a submission, thus denying it the protection of Parliamentary privilege.

It must be emphasised that often the most valuable part of a Senate Committee Inquiry into legislation isn't that it gives Senators the chance to look at the real world impacts of a proposed law, it is that it gives those from the public with expertise or experience in the area to comment and to have views publicly tested by the Committee.

Even if an issue or a piece of legislation does get referred to a Committee and public hearings are scheduled, it is feasible for Government Senators to curtail or prevent hearings at short notice just by becoming 'unavailable'. A Committee will need a Coalition member to have a quorum and therefore a potentially awkward hearing can be avoided simply by not turning up.

For an example of how a government controlled Committee can behave if it doesn't like the issue before it, one only has to look at the recent action of the Joint Standing Committee on Treaties (of which I am the only non-major party member).  As Alan Ramsey detailed recently in Another grubby favour for favour, despite the Senate passing a motion three times directing the Committee to inquire into the proposed agreement to exempt USA citizens from Australia's obligations to the International Criminal Court, it simply refused to do so, instead reporting back to the Senate with the blatantly false assertion that the Committee was not able to conduct an inquiry into the matter.  Do not underestimate the ability of government MPs to insist that black equals white or that 2+2=5 if the political imperative is strong enough.

Senate Estimates Committees will not be shut down in the near future, but they are likely to be slowly suffocated. Because the Government has a majority, they can enforce rulings to curtail the topics on which questions can be asked.  Government Senate Leader, Robert Hill, has already mused aloud that this may occur. They can reduce the number of days or amount of time allowed for questioning.  They can use excuses such as cost and 'efficiency' to limit the number or length of written questions that can be put on notice or increase the number that they refuse to answer. They can cease to require the attendance of particular departments, government agencies or personnel.

Over time, as Estimates and other Committee processes becomes more and more stifled and of less and less value, the self-fulfilling prophecy can start to be asserted that the whole process is really a waste of time (and taxpayers' money) and may as well be halted altogether. The recent revelations by the Sydney Morning Herald that the Government had failed to respond to the findings and recommendations of a huge range of Committee inquiries reflects badly on the Government, but it also leads to public perceptions that the Committee process is just a waste of time and money. The Herald's reports hammered the Government, but also contained passages reinforcing the perception that the Senate isn't genuine about the Committee process, talking of Senators flying around the country and the Pacific, gaining extra travel allowances and "lunching on lobster and salmon" while the public appearing as got "little more than a cup of tea and a biscuit."

Interestingly, while the Government has been very poor in the slowness of its response to Senate Committee recommendations, the Herald's figures showed they have been even worse responding to reports from the far more tame Inquiries held by their own House of Reps Committees, with "none of the 62 public inquiries conducted over the past six years responded to on time"! An attitude that the Senate no longer matters will mean its processes and activities may also start being treated with the level of contempt currently reserved just for the lower House of Parliament.

Another obvious area where Senate scrutiny can be reduced is by reducing the number of sitting days. This has already been a clear tactic over the last couple of years, with a decreasing number of Senate sitting days scheduled by the government coinciding with a historically high number of pieces of legislation. Again, this can easily be used to generate public reaction to then discredit the Senate as an institution, which ironically would have the result of giving the Government even more power.

I predict the government will be unable to resist the temptation of forcing through legislation using a guillotine. Whilst there has occasionally been a justification for putting some sort of time limit on bringing a long-standing matter to a final vote, it will now be able to be used to push anything through at very short notice. There will be nothing to prevent the Government bringing on legislation with no notice at all and using its numbers to force it through. This was tried at the time of the Tampa 'crisis'. Given their record, it is not hard to imagine this Government using a terrorist bombing or even an alleged terrorist threat to justify pushing through previously unseen draconian security laws in the space of a day.

Whilst there have been a small number of occasions where guillotines have been used on legislation – agreeing to a set number of hours to conclude debate and bring on a vote – I can't recall the last time the Senate agreed to a motion that a vote on legislation be put straightaway without further debate. The Senate may even see the introduction of the notorious House of Representatives gag – where a Government Minister can interrupt another speaker at any time to move that a speaker no longer be heard.

The first week has already seen the Government move unilaterally to increase the number of questions it gets to ask of itself in Question Time. Of concern was not just the decision to give the government more questions, but the process by which the decision was made.  In the past, there has always been some degree of consultation amongst the parties before the Senate President made the final decision as to allocation of questions. This time, the decision was simply presented to the Senate as a fait accompli. It may be less obvious than direct alterations to Senate procedures and Standing Orders, but if the Senate President becomes as acquiescent to Government needs and desires as the Speaker in the House of Reps has long been, then it provides another way the Government can reduce serious scrutiny. Embarrassing questions can be ruled out of order, flagrant abuses of procedures can be permitted.

The Government will now be able to use its numbers to prevent the Senate from passing motions requiring the production of documents.  These are known as 'return to order' motions (because the Government has to 'return' documents in response to the Senate's 'order'). While the government had become more and more blasé in ignoring these Senate Orders, have still often been very valuable in enabling information to be produced that the Government otherwise refused to provide.

Procedures can be amended to limit the ability of minor party Senators to generate debates on matters of public importance. An hour long debate on a matter of public important or urgency can currently be initiated on any sitting day if five Senators agree.  If this is increased to 10, the major parties can lock the minors out of this process altogether. Other procedural changes which can occur include reducing the amount of time that is set aside for the business of non-government Senators (known as General Business) and making it more difficult for other general motions by non-Government Senators to be voted on.

More subtle but more dangerous methods can also be used. There have already been signs of a winding back in the resources for the Parliamentary Library.  The Library is a crucial source of information and impartial advice to Senators. While Government Ministers have the seemingly limitless resources of an entire Department to draw on, most Senators have to rely on three or four staff to do the majority of their work. The ability to also draw on specialist expertise in the Library is vital. In an extreme case, resources for Committee Secretariats could also be wound back, so that even where Committee inquiries are allowed to occur, the ability of a Committee to properly perform the task can be compromised.

The other major area to watch out for is changes to the Electoral Act that determines how the Senate is chosen by the electorate.  There have long been plans publicly (and not so publicly) floated by various Liberal MPs, such as Andrew Robb or Helen Coonan, aimed particularly at eliminating minor parties. With the growing misuse of public resources giving incumbents ever-increasing advantages, the playing field is tilting even further to the bigger parties (and the Government of the day in particular). Changing the voting system to make electoral results ever less proportional than they are now risks sealing that in for ever and the Coalition is in a rare position of being able to do that.

In listing all these scenarios, I do not suggest that they are all going to be implemented or attempted. However, it does show the wide variety of options available to the Government if they wish to move to diminish the strength and power of the Senate. Given the propensity of Executive Government to always grasp more power to itself the longer it is in office, and the particular record of the Howard Government in regularly attacking and by-passing the Courts, weakening the independence and accountability of the public service and diminishing the importance of the Parliament, it would be naïve to think there will be not be serious attempts to attack the powers, effectiveness and credibility of the Senate over the next couple of years.

Andrew Bartlett
Queensland Senator since 1997 and Australian Democrats Whip in the Senate

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