What to do with an upper house

Abstract

Paper 1: What is a house of review? (John Uhr) Speakers from Canberra might be expected to address lessons arising from the Commonwealth experience. But I want to begin by taking note of the ACT experience in self-government, which is an object lesson in not having an upper house. Then I do want to draw back and identify some lessons from the Commonwealth’s experience of the Senate as a ‘house of review’. Here I will argue that review at its most basic means legislative review, including reviews which take the policy initiative and set appropriate legal standards for government. Finally, I want to conclude with a warning about misapplying concepts of review (as in a ‘house of review’) that are foreign to Australian constitutionalism and regrettable in this, the centenary year, of Federation. And I want to do this and leave plenty of opportunity for other speakers, tonight and in subsequent seminars, to look more closely at the configuration of the house side of ‘houses of review’ eg, who gets in and under what electoral terms and conditions. Paper 2: Parliamentary mandate and accountability (Richard Mulgan) The topic for discussion is the role of the so-called parliamentary ‘mandate’ in the context of the powers of the upper house and the part played by that house in holding governments accountable to Parliament and the public. We are all familiar with the claims of newly elected governments that the voters have given them a mandate to govern and to enact the policies which they proclaimed on the hustings. Such claims are typically employed to forestall potential resistance from political opponents who may be in a position to obstruct the government in exercising power and implementing its program. They are particularly relevant in connection with upper houses. Upper houses, it is said, should respect the government’s mandate and allow safe legislative passage to the government’s election commitments. The mandate is thus linked to the concept of a ‘house of review’ which is essentially a limiting concept. Emphasis on the upper house as house of review is intended to limit the upper house to scrutinising government and to prevent the upper house from challenging the government’s right to govern and to implement its program. Respect for the government’s mandate is part of this self-imposed limitation. On the other hand, the concept of the mandate is often vigorously contested. It is said to imply a no view that majority governments have been literally instructed by the voters. It is considered a hangover from British struggles with an undemocratic House of Lords and out of place in relation to Australia’s elected upper houses. More recently, the attempt by non-government parties such as the Australian Democrats in the Senate to claim their own mandate has further muddied the waters. Most expert commentators consider the notion to be fallacious and misleading rhetoric and one generally to be avoided in serous political analysis. However, the notion of mandate should not be dismissed outright. Though containing some questionable implications, it also asserts some important democratic principles. We need to rescue the baby from the more disposable bathwater. This talk is in two parts. The first deals with the various meanings of mandate and seeks to distinguish the valuable core of democratic conventions from the more debatable accompaniment. The second concentrates more on challenges that have been posed to these conventions and points to some difficulties of maintaining traditional conceptions of mandate in relation to elected upper houses. Show more