I received my postal vote a few days ago. I must say I felt a rush of pride when I opened the envelope and unfolded the Senate paper across the length of the table. There are 50 candidates on the list, and in Australian elections you can list them in the order you choose. I always number every box for the Senate. That, my friends, is representative democracy.

Having the leisure of an internet connection this year, and being happily free of thugs intimidating me to vote a certain way, I decided to drill down a little further than usual. In extravagant detail, even. Who are these people, anyway?

Six incumbents are up for election in Queensland. Both Liberals Brett Mason and George Brandis are lawyers; Democrat John Cherry is a lawyer; Labour's Jan McLucas was a teacher but Joe Ludwig is a lawyer; and Len Harris may have been a fine gold miner, but is a political joke.

(Of the six not up for re-election: Andrew Bartlett was a social worker for a bare 2 years before becoming a politician; Labour's John Hogg was a BSc and life-long union man where Claire Moore was a public servant; the Nationals Ron Boswell was a small businessman; the Liberal's Ian MacDonald is a lawyer and Santo Santoro is a career politician.)

What a depressing collection of lawyers and toadies, especially on the Liberal side. Ron Boswell is almost the pick. Struth.

Who else is on the ticket then. Nigel Freemarijuana must be running for the lower house this year, his brother Guy Freemarijuana is heading up the Hemp ticket. Might throw some preferences their way just on principle. Australian Progressive Alliance doesn't impress. Greens, like their environment and immigration stuff but they're protectionists and Drew Hutton might actually win a seat, best not put them too high. Family First, never heard of them before, probably social conservatives at a guess. Pundits say they've got a Pentecostal church base and preference the Coalition, which is interesting. The website says "Family First wants Australia to be the very best place on earth to raise a family." The Christian Coalition meets the DLP. Not really my style.

Whatever happened to the Natural Law Party? I desperately need taxpayer's money to help me achieve yogic flying and a holistic health balance. Who's going to represent me now ...

Barnaby Joyce heads the Nationals ticket, an accountant apparently. At least he's not a lawyer. Nationals - they should probably split and merge with the Liberals and the Greens. A Green / Green alliance of social and environmental conservatives with economic protectionism, now there's a scary thought. You could mix foreign policy isolationism with self-righteous denunciation pretty effectively though. The Fishing Party - seems pretty self evident and doesn't have a website. Will have to go with my first impression of it being the "habitat protection is irrelevant to my fishing weekends" party.

Hetty Johnston, never heard of her but the pundits say she's the gadfly responsible for bringing down Peter Hollingworth as G-G. Unafraid of slinging mud too. Gadflys are great, but perhaps this one would be better outside Coward's Castle. I wonder who these

other independents are ... Terry Rushton doesn't seem to have a web presence. Selwyn Johnston - ah, interesting. Appears to be in the American Reform Party mold, a states rights, constitutionalist, isolationist, protectionist and Citizen Initiated Referendum man. Well, you have to take the good with the bad, I guess. All the minor parties seem to have a CIR bent, even the major minor ones, as it were. Selwyn doesn't trust people to see his below-the-line how-to-vote card though. Gail Duncan doesn't have a web presence. They're missing a trick here, using the web is a cheap way to get word out with a small campaign. Doesn't help if you're from the Luddite party though.

I am intrigued by the party name The Great Australians. What's the slogan, "Vote for us, we're tops"? Their website is unusually comprehensive for a minor party. More or less Australian libertarians - a point of view sorely lacking in Australian political discourse. However, they lack the intellectual honesty of American libertarians with respect to the economic competence of the state. Rather than planning to abolish government involvement in wide swathes of the economy they claim that a flat tax reform will dramatically increase the efficiency of the state. The claim is that by abolishing all existing tax and instituting a 2% transaction tax they will reduce the costs of labour in tax collection and the Australian government can have its cake and eat it too. Resulting in policy like this:

AusEtax will mean we can provide more funding for Government and non- Government schools. Government schools will be adequately funded to provide the resources needed to educate our children.

They support ratification methods and an independent defence policy, but with tax policy like that they may as well support feline emancipation and the annexation of Munchinland. Are there no serious independent thinkers in Australian politics? Does no-one think this creature of government should treat citizens as adults? Is everyone so in love with the cuddly koala leviathan? American libertarians are wacky and extreme, but at least they recognise that politics involves hard choices.

The New Country Party website, basically social conservatives that yearn for the days of the Old Country Party, of Australia under God, Queen and Menzies. Two ungrouped independents, gamely trying to get some publicity for their causes, like Hassan Ghulam, Afghani refugees advocate.

Whoops, forgot the Citizens Electoral Council.

... necessary legislation for economic reconstruction, including debt moratoria for farmers and the re-establishment of a national bank, among other key elements; these programmes and legislation are far more urgently needed now, than when they were written.

So, it appears my choice is between lawyers, civil servants, and a plethora of command economy romantics in a variety of socially conservative, socially liberal, or environmentally friendly strains. I might have missed some off my list too, the electorate is a fickle thing.

There is, of course, one name left. Pauline. That woman, who will forever be linked in my mind to The Whitlams, live, singing

Come on Pauline
What the fuck do you mean

to the strains of a song usually featuring Eileen. Ah, Pauline. A riddle, wrapped in an enigma, wrapped in yesterday's newspaper.

What a list of jokers. What dismay. This, my friends, is representative democracy.

And yet, and yet. Whatever the limitations of the unimaginative Australian polity, I will still enjoy my choice as a citizen, when I inscribe the number 50.

How do you enforce checks and balances in a parliamentary system?

Separating Powers in a Parliamentary System

The separation of powers is a mess in the parliamentary system. Because the executive cabinet can be drawn from both upper and lower houses (in the states that have both), then there is no clean constitutional check on the executive cabinet by the Senate. Not withstanding party discipline muddying the waters further.

So a simple delineation would be to make Senators ineligible for positions on the Executive Cabinet or Executive Council. Senators would then be Senators and purely legislative rather than a mix of Executive/Legislative.

But what of the rise of a-constitutionality that has been appearing. One of the problems is that the founding document of any government is its constitution. In the case of parliaments like the federal parliament and many of the states, such as NSW, Victoria and Queensland; the constitution is a singular document that determines the authority and sovereignty of not only parliament, but also the three branches of government - the executive, the legislative and judicial.

Supposedly the judicial interprets constitutional limits on legislative law-making and executive implementation of those laws. But they require challenges to be brought to them first. They are passive. In the meantime legislation that is unconstitutional or of dubious constitutional stature is implemented anyway.

A good example of this is the Workchoices legislation. There is nothing in the federal constitution which gives the federal parliament authority over industrial relations. It relies on the tenuous interpretation of the corporations power. The constitutionality of the legislation is being challenged by NSW, Western Australia and Tasmania. Yet the legislation has become law in the meantime.

A similar issue arises with rights. This is a basic principle of Republican governance that there are individual political rights. These are basic precepts that cannot be legislated over, nor ignored when executing law.

Governor-General

Since the Governor-General is a pretty candy on a stick, it makes sense to give the Governor-General something to do in terms of a political role. This would need to be an area of modern government that is not being done and needs attention.

Since the Governor-General is the final arbiter of all things executive, it makes sense that the Governor-General should veto legislation that contravenes a Bill of Rights and the Constitution.

It will need to be made plain that the Governor-General cannot veto legislation because the bill costs too much, has too much debt in it, or creates nationalises Randwick Rugby Club. The Governor-General can only veto legislation that is unconstitutional.

Any legislation that the Governor-General veto is sent back down to the Senate (who now doesn't have any executive members in it at all) who can override the Governor-General with a 75% super-majority. This will stop a repugnant Governor-General thwarting genuine legislation.

The Senate will also be able to start criminal proceedings into the Governor-General after achieving a super-majority. This will have to be ratified by the House of Representatives who would also need a super-majority. This will stop factional retribution against the Governor-General.

That covers the check and balance between legislative and executive in relation to unconstitutional legislation being created.

There may also need to be a clause in the constitution where the Governor-General, instead of veto-ing the legislation can pass it immediately to the High-court to judge on its constitutionality.

Again this could be over-ridden by a Senate super-majority. This would stop repugnant legislation being passed and then being decided five years later that it is unconstitutional and no longer valid.

Governor-Magistrate

The other problem is when the Executive acts, rather than legislates, in a manner that is repugnant to the constitution, to political rights , to liberty or even just to common law (ie corruption or delinquence of duty).

This is another check and balance that is needed in the system. The Governor_Magistrate is a mix of Chief Magistrate and Vice-President. The Governor-Magistrate is the head of the Senate and can cast a vote when the Senate is tied.

The Governor-Magistrate can also initiate commissions into the Executive. These have to pass the Senate with a majority. This is the proactive check and balance on how the Cabinet is executing laws.

Run-down

• Governor-General is elected
• Governor-Magistrate is elected
• Governor-General cannot pass legislation that is repugnant to the constitution (including bill of rights)
• Senate can over-ride the Governor-General's veto
• Senate can bring criminal proceedings against the Governor-General which must get a super-majority in the house to proceed
• Governor-Magistrate is head of the Senate and has deciding vote in a tie
• Governor-Magistrate can initiate commissions into the conduct of the Executive Cabinet
• Senate must pass any commission before it can proceed

I would prefer if the candidates for Governor-General and Governor-Magistrate didn't run on the same ticket, nor that it be party political, but it will be. I don't think this is a bad thing, just non-ideal.

I have been enjoying Barnaby Joyce simply because he carries his inner-debate between representing his conscience, his state, his party and the coalition government so publicly. Joyce had predominantly voted with the coalition and has been notable more for the few times he has dissented, however, he delivered a very independent minded speech last month to the Law Institute of Victoria; Crossing the floor: Political Hero or Renegade? The sensationalist title aside, it contains a good insight into Joyce's view of what democracy should be.

Due to the preferential multi-member nature of the Senate the last twenty-five years has seen the Australian Democrats be elected as the independent minded representatives in the Senate. Acting as a check and balance on executive largess since we have such poor separation of powers between the executive and legislative in the Australian parliamentary system.

The Australian Democrats branch structure is currently struggling, and this is being reflected in the difficulty they are having being elected and re-elected. Consequently the integrity of the Australian system may become ever more dependent on independent minded Senators and House Parliamentarians. Hopefully Joyce and Georgiou are the beginning of this style of movement.

I don't hold out much hope for an independent parliament or Senate though.

The Labor Party were a disruptive political technology in the 1890s. Their two innovations of the pledge and a local branch structure revolutionised Australian politics, and not necessarily for the better. The pledge effectively makes Labor block voting permanent in parliament. The only negotiating room for Labor parliamentarians is with the National Executive to influence their decision.

The branch structure has not been destructive, the modern Liberal Party restructured itself along those lines under Menzies to make a more permanent party than the United Australia Party was capable of. The Greens and Australian Democrats have also benefited in stability from adopting a branch structure.

Joyce's Speech

In the speech Joyce aligns himself as a legislative check and balance on the Executive. This is the correct philosophical position and stance for a Senator in a parliamentary system. Joyce says;

In the world where selling political parties is now like selling brands of bottled water, the contents are indistinct but the packaging is colourful, there has been a democratic devolution that has been exploited by the executive.

When the executive calls public debate and associated dissention in the Senate Chamber bad manners it stands to reason that we should be discussing the principle of coram populo.

Is a Senator a renegade, a hero or just doing what he or she swore an oath of office that they would do? ...

The so called discussion behind closed doors, as opposed to informed debate in front of the public in the Senate, is no more than a usurping of your democratic right. ...

If it is believed by the executive that a more just form of government is one not subject to open and diligent review then this should be proposed to the public as an alternative to the bicameral system of parliament and taken to an election.

The constant moves for Executive dominance are insidious and persistent. Constitutional systems make usurping the constitution openly a difficult and daunting prospect so Executive dominance and centralisation is often done by less direct and obvious means; party discipline, direction of tax monies, or emergency powers.

I consider the Executive the most dangerous component in a liberal democracy. Unfortunately in a parliamentary system the predisposition toward Executive avarice is a weakness that can only be maintained by strict constitutionalism and a vigilant legislative.

Both those actions require, in my opinion, an overhaul of the present Australian constitution to give the legislative and judicature the correct constitutional tools to maintain their independence against executive usurpation and as well as act as an explicit check and balance against each other and the executive.

Joyce suggests that Senators are failing to perform their constitutional duty, and this in part to the mixing of legislative with the executive as well as the party structures;

The demise of the Senator's roll has come with the inclusion of the executive in the Senate. How can you be an ardent and forensic arbiter of the person who sits in front of you in the chamber of review and beside you at every other lunch? What is even more peculiar is how the Senators who are in the executive can be the directors of an informed debate to flesh out the contrarian views of their own decisions. This would have to be thought of as slightly schizophrenic at best but more likely insincere.

The preselection process of a Senator is failing to catch the imagination and capture new Senators who will fight for more for democracy than for their personal political future. The Damoclesian issue of disendorsement and the laurels of a ministry, committee chair or general bonhomie in the party room override what should be a deeper obligation to our nation, i.e., that you are a Senator not a Member.

The party system is currently corrupted or, at the least, ill informed because the basis of its selection criteria for a Senator is those who are the least likely to fulfill their constitutional role to their fellow Australians. How the preferred candidate is then hidden is that they stand as Mr or Mrs Liberal, or Mr or Mrs Labor, or Mr or Mrs Green. They are made to feel beholden by sections in that party, that their responsibilities to that party are greater than their responsibilities to the Senate and the proper operation of review.

Simple changes that probably only need to be conventionalised, rather the constitutionally ratified, though it would give them greater authority to be constitutional, would be the prohibition of Senators from being in the Executive Cabinet or Executive Secretaries.

Other changes which would be positive would be simple checks and balances changes such as the Senate having to ratify treaties and endorse executive appointments.

Making the Senate a purely legislative body, while the House remains an unhealthy mix of executive and legislative, may give the Senate more prestige and encourage more independent minded Senators. I don't know how much this would have an effect on Joyce's complaint of parties restricting the constitutional duty of a Senator.

I think it is a mistake to call the Australian Democrats a post-materialist party. They were structurally formed to plug the hole of parliamentary failure. They were an emergent response to the pitfalls of poor separation of powers, lacking checks and balances, as well as independent parliamentary action.

For instance, in the Australian Democrats constitution, an elected representative can conscience vote against the national executive. Something that is denied Labor representatives. The Australian Democrats platform also focuses heavily on parliamentary procedure which found its jingoistic expression in "Keep the Bastards Honest".

Strategy and Predictability

Joyce also comments on the predictability of the Senate voting in blocks giving him a tactical advantage;

Currently in the Senate there is a position of leverage that is given by the fact that I can rely, almost totally, on other Senators voting as directed.

Absolute party discipline has been an Australian innovation, though not necessarily a positive one. Joyce's speech is well worth reading the whole way through.

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Senator Andrew Bartlett has an article on why Judges should not be elected . Andrew suggests that a judicature sensitive to re-election will perform for a majority, with the goal of re-election, at the expense of minority rights. Andrew also points out the problem of political donations polluting the judicial process. The idea of an elected judicial brings into tension the balance between specialist, representative and crowd wisdom.

Andrew argues against it from the point of political and legal equality;

Community standards can play a part in determining a reasonable interpretation of same parts of the law and in sentencing. Evolving standards and understanding are part and parcel of the evolution of the common law.

However, this sort of thing should only be at the margins, as it is crucial the law is applied as impartially and consistently as possible. It is crucial that marginalised people or those from minority groups are not treated more harshly or unfairly by a justice system, just because they are from outside the mainstream. Reality will always fall short of the ideal, but these remains ideals worth striving for.

Implicit in Andrew's in statement is that an elected judicial is more likely to follow majority public opinion which is no guarantee of preserving minority rights. A basic function of a representative republican system is that the minority respect the will of the majority while the majority respect the rights of the minority. Representative system cease to function in a liberal democratic sense when that is broken.

Australian High Court judges are appointed by nomination from the Executive Cabinet and after consultation with the State Attorney-Generals (since 1979). There is no qualification for a High Court judge, any joe-bloe can be one, but it is usually a political appointment. There is no confirmation process for High Court judges like there is in the US system, another area where Australia falls down on checks and balances between Executive and Legislature.

A good immediate improvement, that would be cheap and bolster the Senate's legislative independence, would be the creation of a confirmation process in the Senate for judicial appointments.

One of the purposes of an appointed judicature is to fulfil the specialist role. Tenure is intended to raise the judicature above day to day concerns of political retribution and public opinion so that they can make legal decisions without being influenced politically. The goal is a legal specialist that is impervious to political influence.

The Westminster system, as practiced by Australia, minimises the chances of that goal by having no confirmation process to determine the specialist qualifications of the judge. The lack of a confirmation process and a deliberative role from the states enables a politically influenced judicature to be nominated by the Executive Cabinet.

The High Court of Australia is to represent the state's interest, as such it makes sense to have the state's house - the Senate - conduct the confirmation process.

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There was an interesting debate in the Senate on October 16th between Andrew Murray, Chris Evans and Eric Abetz. It pretty much represents all that was good and bad with the Senate. Andrew Murray argued for discrete budgeting, line by line, in parliamentary entitlements which is covered in sections of the Remuneration Tribunal Act. He did so in the interests of greater transparency and ease of auditing.

The fact is that each individual item we are entitled to spend as part of our allocations for doing our jobs is discrete and separate. So this is a principle whereby one which has been traditionally always been separate is to be used in aggregation, if there is a carry-over amount, with another. That is a new principle, and one which I would challenge in this circumstance because, unless we move to the holistic approach of a macro budget, I think it is far preferable to keep things separate.

Chris Evans weighed in with concern for both principle and electoral advantage. Another of the issues is that the aggregation of communications and transport entitlements to House members with districts greater than 10,000 square kilometres is that it was recommended by the independent Remuneration Tribunal. So the recommendation itself wasn't political in origin, however, independent boards are not immune from making bad decisions and recommendations.

Evans spoke;

This determination also provides for an annual carry-over of this mechanism. So the aggregated entitlement can be carried over to the next year. Of particular interest, of course, is whether or not these entitlements can be carried over into election years to maximise their impact in a year when a member might be looking to focus the electorate's attention on their desirable qualities, which might lead to their re-election.

and produced figures using the example of the Kalgoorlie district;

I did some calculations. I do not want to pick on Mr Barry Haase but I had a look at Kalgoorlie and at my own seat. Mr Haase's printing entitlement is now up to $150,000. He can roll over 45 per cent of that. So as a result of the measure the government put through a few months ago his total is a staggering possible $217,500 taxpayer-funded printing allowance in an election year. His communications allowance or postage, based on the number of electors at the last election, is now about $81,000 for two years worth of postage.

He has the capacity to spend $81,000 on postage in an election year, plus under this measure he is allowed to take 100 per cent of the election year's charter allowance, plus 20 per cent of last year's charter allowance. So 120 per cent of his charter allowance is able to be used for postage. That is a staggering $95,000 extra made available, potentially, for Mr Haase. He has a total possible communications or postage allowance in an election year of $176,000 and $217,000 worth of printing.

The member for Kalgoorlie has $393,500 at his disposal to spend on his re-election in an election year, if he chooses to do so. This is not money that he has raised by using the new electoral laws that allow him to raise money without telling anyone where he gets the money from; this is $393,000 of taxpayer's money that the government is allowing him to use to campaign for himself. I pity some poor Independent wanting to run for election in Kalgoorlie.

They would not have the staff, the cars or the offices, and I use the plural word offices, and they certainly would not have the $393,000 of taxpayer's money before they began. That is a pretty good start for Mr Haase in Kalgoorlie, it is a pretty good start for the other 33 members who are beneficiaries of these changes and it will certainly be a pretty good start for the 36 coalition members who will benefit at the next election. These changes are not good for our democracy, they are not good for encouraging participation and they ought to be opposed.

Bob Brown was next and gave a short highly partisan speech that is not worth reproducing. He then also interrupted Eric Abetz throughout his reply to Murray and Evans. As Abetz noted there are unusual circumstances in the large electorates;

On that basis, the government decided to recommend the extension of the ability to aggregate to all MHRs who had a charter entitlement. Keep in mind that the extent of the charter entitlement is predicated on the size of the electorate and therefore the suggestion that Barry Haase has a large charter entitlement is absolutely correct. In fact I understand he has the largest [single member] electorate not only in Australia but in the world.

The legislation does not extend to the Senate electorates, obviously the Western Australian and Queensland Senators have very large electorates, though with multiple Senators to represent their interests. The tone of the debate devolved further into partisanship;

We were told that this was going to assist coalition members. Out of the 33 members of the House of Representatives who represent rural and regional areas, it happens to be that 26 of them are in fact members of the coalition. Of course, Labor members benefit, as I would assume do certain Independent members in the House of Representatives. The threshold question is not, "Are you a member of the coalition?" and to suggest that is just outrageous. The threshold question is: "Is the member of the House of Representatives entitled to a charter entitlement by virtue of the size of their electorate?" That is the category on which the Remuneration Tribunal has determined this.

There is no denying, however, in the current environment it would advantage the Liberal Party if this recommendation does increase incumbency. Long term changes to try and entrench encumbency or electoral advantage have a habit of back-firing though. The best example of this when Chifley changed the Senate to a proportional system from the party-based first past the post [FPTP] - Labor has not had a Senate majority since.

Andrew Murray wrapped up by returning to his original opposition to the recommendation;

I do not go to motive but I do go to effect, and I say that the effect is reprehensible. Frankly, I think the policy is just wrong. I am not a supporter of macro budgets; I am a supporter of itemised budgets by discrete areas. I think that as soon as you cross over and cross-subsidise one allowance with another you are getting into trouble. I just do not agree with the policy. I accept that other senators do, and that is their right. But I do not think a charter allowance should be used for communications or vice versa. ... We [Australian Democrats] think its effect is reprehensible, we think the policy is wrong and we think that the principle has not been motivated by Remuneration Tribunal reasons or justifications. That is why I move that the disapproval stand.

It should also be noted that the Australian Democrats have no sitting members in the House of Representatives which this recommendation affects. The voting on the disallowance was standard Australian-style block voting. No Liberal Senators disagreed and no Labor Senators agreed.

I agree with Andrew Murray. He was right to bring the issue up and put forward a motion of disallowance which should have gone through.

I have to say I find the Senate Hansards a more informative read than the House Hansard. I recognize that the media often requires a combative basis for any story to hit the papers or television; and an issue of party differentiation has to be couched in those terms to get any mass-media play; but I don't like it.

It seems the likes of John Howard and Julia Gilliard enjoy that gladitorial style of House theatrics. They are good at it. I am not denying that, but I question its utility toward governance. That style of debate, squeezing a political opponent in parliament, is good for party advantage but it is hard to discern the philosophical underpinnings of a representative's view of governance in that environment.

I have been enjoying the adjournment speeches in the Senate. Several Senators have got up and made wonderful speeches of principle and understanding where they explain their own internal debates of conscience over an issue. George Brandis' recent speech on sedition laws being incompatible with liberal democracy was an absolute cracker. Andrew Murray's speech calling for oversight of executive appointments to the judicial was another. I have also enjoyed watching Andrew Bartlett tackle the difficult issue of Israel and Palestine, Barnaby Joyce on the media laws and Mitchell Fifield's speech on liberalism. All good stuff.

But I have to temper all this with the knowledge that party discipline is so strong in the Australian system that they will, in nearly all cases, block vote as their national executive or executive cabinet demands.

Order of Representation

The Australian Democrats and Greens [pdf] both have in their party constitution that they can put their conscience and electorate before their party. Any representative doing so has to explain why to the party's executive. The Liberal Party constitution [pdf] does not mention the responsibilities of its representatives nor does the Labor Party's [pdf].

The Labor party has the pledge which ensures block voting with the National Executive's policies. This has been an Australian political innovation which is not a good one. After the failure of the Shearer's Strike in Queensland the strike organisers decided that industrial action was a dead end and chose to pursue political action instead.

Labor party candidates were quickly successful leading to the world's first Labor government in Queensland. In the NSW elections of 1891 Labor won thirty-five seats and held the balance of power. The Labor Parliamentarians were politically naive and were quickly out-manouvred and wedged by the protectionists, free-traders and conservatives. Labor's representatives were quickly reduced to seventeen.

The Labor party's response was to seek political strength through block voting; the pledge to the National Executive was the result. Several Labor members including Joseph Cook refused to sign it and split with the Labor party over the issue. Cook was to join with Deakin as the Fusion Party in what would become the labor-antilabor political pattern for the next century.

Labor may have been politically inexperienced in 1891 but no sane person would accuse them of that in 2006. The pledge's usefulness was outlived once the Fusion party co-alesced to oppose labor and the Fisher gained government at the federal level in 1910. The Liberal Party since the dissolution of the UAP has shown that near-absolute party discipline can be obtained without the need for a formal pledge.

Parties can actively campaign against liberty under the crush of executive and legislative over-reach. Too often party discipline aids the destruction and intrusion into liberties that previously remained the moral and ethical choice of the individual.

Madison argued in Federalist No.10 that the removal of parties (he called them factions) to stop the encroachment on individual liberty would not work as it would require the removal of the liberty for people to assemble and advocate in common-cause. The cure is worse that the solution in that instance. Instead he argued for separation of powers and checks of balances to keep the violence of faction in check.

I personally cannot see how a representative system can operate without some form of factionalism. Prior to the labor-antilabor pattern forming in the early 1900s the groups in the state parliaments maintained factions that were sufficient for majority and minority governance.

The Federal Structure of the Senate

The first responsibility of any representative, House or Senate, is to the constitution. Australia structured its houses in the American federal manner with the House representing a national point of view, and the Senate representing a federalist integrity. The Senate is divided by the constitute members of the federation - the states and the writs for Senate elections are provided by State Governors.

The legislative powers given by the Senate in the constitution are for the purposes of acting as a check and balance on the House's legislative production as shown by the equal power section;

Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

The exceptions for the Senate are that it cannot create money bills. These must come from the house. Due to the parliamentary system's crappy separation of powers and the consequent lack of executive veto, the Senate is the dominant check and balance on the House and Executive Cabinet. Which points to another issue; Senators can be in the Executive Cabinet which weakens what little separation of powers there is between Executive and Legislative in the Australian Westminster mutation.

Senate Legislative Independence

I am firmly of the belief that liberal democracy in the federal government would be improved and strengthened if the Senate was legislatively independent of the House. This means excluding Senators from serving in the Executive, it also means Senators breaking with party discipline and voting within the boundaries of the constitution, their conscience, their electorate and the party - in that order.

Conventions in the Westminster system usually require codification of they are broken or not adhered too. The lack of separation of powers between Legislative and Executive in the Senate will require a constitutional amendment. I expect it would pass without too much fuss. Australian referendums which advocate increasing centralism have a nearly 100% failure rate. Those that focus on improving democratic functions have a 50% pass rate. It is achievable.

The simplest amendment would probably be to section 62;

There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen from the House of Representatives and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

But any focus on that section will probably give the wider population fits as it mentions the Governor-General rather than Governor-General in Council. The latter has to take advice from the Federal Executive Council (Executive Cabinet) where the former does not. Nice constitutional bug left in there by the bearded men.

A less constentious amendment, which avoids pointing out the gaping holes in our constitution that the Australian navy could sail through, might be section 8;

The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

a. Senators are disqualified from serving on the Federal Executive Council.

Second party discipline will have to be broken. This is largely an internal matter for how the party's handle their own affairs, but a Senate that is unable to mix with the Executive will hopefully give Senators a greater willingness to act independently. If Labor is unwilling to dump the pledge entirely, then it should do so for its Senators and Councillors in the State Parliaments. The Liberal representatives are going to have to appeal to their parties platform of advancing Liberalism and vote their conscience which may not align with the Executive's wishes.

The Senate Hansard speeches that I linked to above give me hope that an independent Senate will happen. The speeches show thoughtful and reflective Senators who are committed to liberal democracy. Yet when I see voting on issues it is all block voting. I am willing to give Senators the benefit of the doubt and believe that their speeches denote a keener want for an upper house that is more independent. A large number of the Committees give that impression to.

It is probably good to end with a quote from Barnaby Joyce on the absurdity of party discipline and block voting;

Some of the commentary that surrounded the conscience vote on RU486 shows how far we have fallen. The fact that Senators said, with a straight face, that they had to think about their decision because it was a free vote makes you wonder what they do every other time.

x-posted on clubtroppo

Who dare mention them? Andrew Bartlett does in an adjournment speech in the Senate. Andrew questions the inflationary nature of these policies [pdf] on housing prices.

From the speech:

Negative gearing is the great unmentionable. For some reason we are just not allowed to talk about it. It can be talked about without saying that it should be abolished overnight, but there is a very strong case for looking at whether or not it should be modified in some way. It amounts to a $2 billion subsidy to those who are better off.

It is in many ways inflationary and in many aspects encourages the speculative side of the real estate market over those who are simply trying to buy a house to live in. We have the capital gains discounts that were put through this chamber in 2000, I think it was. They provide a massive incentive for more speculation in the real estate area and a massive gain for those who are better off. We cannot even measure how much of that goes into the housing area.

We have the first home owners grant. That has perhaps provided some short-term relief for many people, but in many respects it is also an inflationary measure. We have the capital gains tax exemption for the family home.

Again, in raising these things I am not proposing that they all be removed; but I am saying that we have to look at how much goes into that and what impact it has on the cost of housing and on equity issues and what other measures we could look at to address that. Some academics have estimated that up to $30 billion a year--maybe it is only $20 billion or maybe it is $30 billion; it is a hell of a lot of money--in all sorts of different ways is being spent in subsidies.

We have all the rent assistance payments now that are going up and up and up. It is well over $1 billion. We have $1 billion in the Commonwealth-state housing agreements. Rent assistance is now more than that.

All of those things are going into the mix in an untargeted, ad hoc, bandaid way with no overarching strategy. In many cases the data is not even collected to know where it is going, who it is going to and how it is being applied.

He continues:

If you look at the first homeowners grant, you see that hundreds of millions of dollars have been spent; and we do not even know who it is going to. We do not even know which houses are being bought for it. We do not know the price of the houses that it is being applied to. We do not know if it is the best way to spend public money.

You have got billions of dollars going to this key area of the economy, and raising all of those issues is in no way suggesting they should all be stopped. But it is suggesting it is about time we stopped and had a look at them in totality, and looked at what it means and what their impact is. We are spending tens of billions of dollars a year in various ways or via forgone revenue, and we do not know what impact it is having.

We do not know where it is going and we have no way of assessing whether we could spend the same amount of money in a much fairer, more economically efficient and more effective way that would ensure affordable housing for a much greater proportion of the Australian community.

Why won't we do it? Because nobody wants to open it. There are too many vested interests; it is much easier to just blame the states or blame the federal government. Nothing progresses, and what happens instead is that more and more Australians fall further behind and the housing affordability crisis gets worse.

Good speech and good questions that need to be asked of both policies. I do not think the first home owners grant is a good policy at all, I think a better policy would be allowing people to take money from their superannuation for first home deposits and maybe subsidising the tax rate on that removal if it can be proved it is a for a first home.

Negative gearing is another problem that has become equated with the economy of rental in Australia. As Andrew said, it does not necessarily need to be abolished, just looked at to determine if it is good policy and where it can be improved/cut/changed.

cam

At present the Prime Minister enjoys unprecedented power of the House and the Senate. He does this not just through party membership, but by enforcing party discipline through the carrot and stick relationship all members of the Liberal have with their leaders power over patronage.

(Members of the Labor party have a similar relationship with the party through caucus and their faction, but not with the leader as such).

I want to see the Senate freed from the Prime Ministers patronage.

It's pretty simple. If Senators cannot be ministers, then they owe less loyalty to the Prime Minister of the day, and may perform their role as reviewers of legislation with a degree more independence.

I first published the diagram above with a bit more detail to the argument at The Dead Roo .

Klaas Worldring has an article in Crikey on removing the major parties from the Senate. It carries the blurb of removing "the two party tyranny". I don't subscribe to crikey and that article is behind a paywall. I thought it may be an editorial headline, but Worldring has been active on Online Opinion and he has an article titled: Two party tyranny.

Firstly, there hasn't been a two-party system in the Senate for over twenty years because of the Australian Democrats who have invariably held the balance of power in the Senate. The Liberals having a majority is only recent. The last time that happened IIRC was a small period in Fraser's term after the Democrats got up and going.

Westminster has poor separation of powers, however, like the Washington system, the check and balances between branches have largely been led by party machines. The Australian Democrats, as a legislative party and without any reasonable executive aspirations - they don't have the numbers - acted as a party machine check and balance on consecutive Labor and Liberal governments.

If Labor wins the next federal election, which it may do, there will be a party machine check and balance on the Labor executive through the current Liberal Senate majority.

Worldring's article on the Two Party Tyranny is mainly about the single-member districts in the federal House of Representatives and how it enforces a duopoly. The UK has single-member districts but has three cornered contests between the Conservatives, Labor and the Liberal Democrats. There is significant third party representation in the UK Parliament. The difference is that the UK is first past the post.

I am of the opinion if there is to be single member districts then first past the post is the best mechanism. It may not produce condercet majority winners, but it does provide pluralism.

I still can't see why the major parties should be removed from the Senate. Party machine block voting is infuriating for parliament watchers, and makes much of the supposed deliberative debate senseless. Fortunately there are some who take the responsibility seriously. But the effect is minimal unless they have a majority of numbers - which is something that the major parties do well.

Political parties are specialists in the political process. Despite their small numbers - it is believed there are approximately 160,000 liberal party members - they are good at political organisation, raising money and getting candidates elected. Not to mention media management. As groups, they are devoted to achieving election, and the major parties consider themselves failures if they have not achieved government.

James Madison argued in Federalist No.10 that the forming of parties, or faction as he called them, is a result of having the liberty to form differing opinions. To remove the liberty or freedom of association is worse than people forming factions or parties.

The Australian Republican response is the same as Madison's; rather than ban parties, create a constitutional form of government which stops the violence of faction. Many of the political technologies developed by republicanism are expressly for this purpose.

Kerry Nettle made a speech in the Senate on the citizenship test legislation [pdf] which has been tabled. Nettle was a part of the Senate inquiry into the test consequently his a speech is a good summary of the findings - basically there is little need or value in it.

From the speech:

As part of that discussion, there was no additional justification provided by the Department of Immigration and Citizenship when it appeared before the committee. There was reference to the fact that there had been consultation--we were all aware of that--and to the fact that citizenship tests exist in other countries, but simply because it is done in other countries is not a justification for why we should do it.

In fact, the Department of Immigration and Citizenship was not able to provide any information to the Senate committee about ways in which a citizenship test had assisted with the project of improving the cohesiveness of society in any of the countries to which it pointed as examples of countries which have citizenship tests.

And:

The government has not put forward a need or a justification for this change. Indeed, our citizenship laws as a whole are working quite well. The example of overseas countries was the only justification put forward to us and the government could not even provide us with an example of how the test had helped in other countries.

In fact, we heard evidence to the contrary. Then there was the issue of whether or not the government's proposed citizenship test would achieve its objectives. We had an extraordinary number of witnesses appear before the committee to say that, no, it would not achieve the objective of improving cohesiveness and that, rather, it was likely to fuel division within our society and undermine existing English language programs.

The problem is that this legislation is not written in the immigrants or the national interest. It is for the purpose of making nativists, isolationists and nationalists feel better about themselves.

Nettle does another excellent speech which summarises the issues surrounding legislation for covert search and seizures by the Australian Federal Police [pdf]. It should be noted that Australian Democrats and Labor had issues with this component of the legislation. Nettle's speech is a reply to Stott Despoja's speech announcing the Democrats oppose that part of the legislation.

Nettle's speech:

I spoke extensively on this matter in my speech on the second reading. This amendment, as Senator Stott Despoja outlined, is about removing the power of the Australian Federal Police to carry out secret searches in people's homes, to confiscate their equipment, to plant listening devices and to access their computer equipment, all without those people ever knowing.

As I explained in my speech, and as Senator Johnston has heard me explain before, our concern is that, if evidence is gathered as a part of that covert search which is subsequently used against an individual in court, they will not be able to contest that evidence because they will not have known about the search having been carried out.

As I explained in my speech, currently the way in which warrants are issued is that you know someone is searching your home or your property and you are able to be there to check that they carry out the search properly. You get receipts for things that they take, and you are also able to have a lawyer present.

What that means is that you are able to check to see that the search is carried out lawfully and properly. If the search is carried out covertly and you never know about it then, if evidence is gathered and brought into a court and used against you, you cannot contest the accuracy of the collection of that evidence or whether that evidence was collected legally, because you were not able to observe or be aware of the search or receive receipts for documents taken because you would not know that the search had been carried out.

As I said in my speech, the government's rationale is that this is about evidence. The position I have put forward is that, given the delay in notification of the search warrant, it is inevitable that it will be used for intelligence.

But, if I take the government's rationale that it is for evidence, you would not be able to contest that evidence in a court if you were not aware of the way in which the search was carried out because you would not have been notified, you would not have had anyone present, you would not have had a lawyer able to observe the search and you would not have been able to access receipts for the process.

The amendment is about ensuring that there is not an abuse of the power to carry out the search. I am not saying that there will be an abuse; that is not what I am saying. I am just saying that this mechanism prevents you from being able to ensure that such a search is carried out properly.

If evidence is gathered and is used against you in a court, you have the right to be able to ensure that that evidence was legally and properly collected. But this takes away your right to be able to ensure that evidence used against you in a court is appropriately collected.

That is the concern that the Greens have in relation to this, and that is why we do not support giving these new sneak and peek powers to the Australian Federal Police.

I dealt with the issue of the time delay in my speech on the second reading. It is an extraordinary length of time.

If it is for evidence-gathering in particular, I cannot see why you need six months extended to 12 months and then 18 months. And, with the approval of the minister, the extensions can continue. That might make sense if it were for intelligence gathering, but it is not.

The government's rationale is that it is for evidence-gathering. Presumably, you are gathering evidence to use in the courts, so why such long delays?

It is interesting to compare it to the USA PATRIOT Act. In that act, at section 213, it says that such warrants are only able to be delayed for 90 days.

What is being proposed here, as the initial period of time, before there is any requirement for notification, is double what is in the USA PATRIOT Act.

Then this legislation allows for further extensions to make it 12 months or 18 months and then, with the approval of the minister, to extend it beyond that. So it is quite extraordinary, even when compared with overseas examples such as the USA PATRIOT Act.

Where you give powers to the Federal Police to carry out a search of somebody's home, there needs to be that accountability.

Our concern is that this model for covert search warrants, the sneak and peek powers for the AFP, does not allow you to have the oversight that you need, particularly if evidence is being gathered that is being used against you in your court case, because you cannot contest it. That is the concern that the Greens have, and that is why we strongly support this amendment.

We are concerned, and I outlined this in my speech in the second reading debate, that the process outlined in the bill suggests that an 18-month delay in notifying anybody can be easily obtained. This goes to the matter of there not being guidelines for Administrative Appeals Tribunal members or judges on making a determination about when it is extraordinary circumstances and should be extended even further. That allows 18 months to become standard.

Obviously there is an additional approval from the minister for a period beyond 18 months, so the length of time indicates to us that it is of concern. As I have said, that is far longer than is allowed in the United States, for example.

The Greens are far more liberal than they get credit for.