I. Introduction

The principle of federalism which forms an essential component of the Australian constitution, is perhaps best exemplified through the structure and role of the Senate in Parliament. As the upper house of our bicameral national legislature, the Senate was purposely instituted as a body empowered to check and balance the natural tendency of the House of Representatives to overreach.[1] Looking to the United States’ example, from the earliest conventions of Australian Federation, the framers debated the role of the Senate.[2] Ultimately being conceived in large part as an anti-majoritarian measure, to ensure that larger states like New South Wales could not overpower completely their smaller sister provinces, such as Tasmania.[3] Undoubtedly, the ability of the Senate to serve such a function is dependent upon two interconnected and key factors; the first is that representation be equal, and the second that the state be deemed one electorate.[4] These factors together reveal the importance of the institution as a representation of federalism.[5] In the absence of these factors, were membership to the federal senate determined proportional to population, it would pose a significant risk that larger states would consistently control the legislative, and by extension the executive branches of government.[6] The result being that our national polity would almost exclusively be controlled by the majority sentiment of the day, particularly present in states like New South Wales and Victoria.   

The equal membership of states to the Senate, as opposed to proportional representation therefore is vital to ensuring our constitutional system of government is maintained. In discussing the importance of the present arrangements, it will be necessary to first outline the constitutional history and driving factors our framers considered. Following from this historical foundation, the role the Senate retains in expressing the interests of constituent states, and finally, discussion of the dangerous effects proportional representation could have upon the system. 

II. The Framers’ Intention

The key factor which resided within the minds of the Australian framers when debating representation in the senate was highlighted perhaps most succinctly by John Forrest, the first premier of Western Australia who stated at the Sydney convention in 1891:

I believe the only security to those states, with small populations, is that the senate or upper house should have equal power with the lower house in regard to amending bills.[7]

Indeed, his sentiment was shared by many at the conventions, particularly Sir Samuel Griffith and Andrew Inglis Clark, the latter of which has been regarded as Australia’s primary constitutional author.[8] The framework being debated at the 1891 convention was largely based upon Clark’s draft, which closely followed the United States Constitution in modelling the Senate.[9] Our constitution’s primary architect was in his lifetime both an Attorney General and later, Supreme Court judge of Tasmania, who held both an expert understanding of U.S. constitutional jurisprudence and a healthy scepticism towards majority rule.[10]

The Tasmanian jurist was frequently observed carrying the writings of James Madison and Thomas Jefferson and could quote long passages from their work.[11] Indeed, this initial enthusiasm by the primary drafters for American federalism led to the development of the Australian hybrid constitutional system. Namely, that the Westminster tradition of responsible government was retained and structured within an entrenched federal constitution, largely on the United States republican system.[12] While Clark offered a significant intellectual influence, his colleague Sir Samuel Griffith pressed with fine oration, the virtues of an empowered Senate as a protection of federalism.[13] The position of Griffith was defended on numerous occasions, perhaps most emphatically by Andrew Joseph Thynne, a fellow Queensland solicitor and politician, who stated the importance of an upper house empowered with the authority to veto bills, holding that the new government would be vulnerable:

…without those guards against the tyrannic exercise of the power of temporary majorities which are necessary to the peaceful government and continuance of every state in the world.[14] 

The fear which inspired these orations and debates, were closely shared with the American experience just over a century earlier, namely that smaller states would be left defenceless to the will of those larger who in forming popular majorities, would detract from their rights as equal constituting bodies.[15]

The Australian colonial politicians were guarded against the threat central government posed to their newly formed state sovereignties. Undoubtedly this mirrored closely the anti-federalist movement of the U.S., which was cautious to the notion of consolidation, and favoured equal representation in the Senate as a sign of confederation, to draw a precise line between state and national government.[16]

A. The American Experience

In the Federalist Papers 62 and 63, writing under the pseudonym ‘Publius’, James Madison answered the anti-federalist criticisms in establishing the structure of the senate, seeking equal representation for each of the U.S. states constituting the new nation.[17] It is established in Madison’s essay that the House of Representatives, in voicing the popular will of the American people would be tempered by the Senate, whereby each State legislature would appoint two representatives to serve for a course of six years.[18] This was later altered by the seventeenth amendment to allow for the election of senators by the people of their representative state.[19] The reasoning for the equal representation was based upon three key factors, all of which align to the Australian experience.

The first was that the principle of federalism was best upheld by ensuring that the voice of the people, as well as the States, were being expressed in the legislation passed through the Congress.[20] This thereby having the effect of legitimising the laws of the United States, while also preserving the capacity of the States to block the growth of federal government.[21] Secondly, that the State legislatures whose sovereignty were the constituting basis for the federal government, should be given a voice in the lawmaking process.[22] Finally, that the powers of the Senate when combined with its structure, would make it a legislative bulwark against majoritarianism.[23] While the Australian Senate was in these regards modelled on considerations analogously to the United States, the framers were reluctant to depart from responsible government principles to allow for senate confirmation of officials in executive and judicial roles, as well as conferral of functions concerning treaties.[24]

The founders also departed from the United States quite notably in that the election of senators was to be by their respective state, voting as one unified electorate.[25] This pre-empting the U.S. seventeenth amendment by over a decade.[26] During the constitutional conventions,  James Wilson of Pennsylvania, a largely forgotten founder who later served as an associate justice on the U.S. Supreme Court voiced the only opinion in favour of proportional representation for both the House and Senate.[27] Wilson believed that a nation based upon popular sovereignty required the people to have a direct voice in the Senate, and that this should be proportional to population.[28] His position was strongly opposed and contrasted to state sovereignty pressed by the anti-federalists of the time,[29] such as Thomas Jefferson and Patrick Henry.

In his time as an associate justice to the court Wilson very notably presided in the matter of Chisholm v. Georgia (1793),[30] which considered the question of whether a state government could be sued in the federal supreme court or whether this was precluded by their immunity as a sovereign entity. In such a matter, Wilson as part of the majority found the matter justiciable, stating quite clearly:

Let a state be considered as subordinate to the people. But let everything else be subordinate to the state.[31]   

The case was quickly negated by the eleventh amendment to the U.S. constitution which instituted a restriction that states could only be sued by individuals in the Supreme Court with their consent.[32] Though, this would be subjected to later abrogation by the congress under the fourteenth amendment.[33]

Consideration in Australia of the role of the Senate and its federal character was resolved in favour towards equal as opposed to proportional representation.[34] While popular sovereignty would be expressed through state election, as contrasted to legislative appointment of senators, the framers at the Federal convention favoured the Senate as a protection of state rights and democratic will. The words of Sir Richard Chaffey Baker, the inaugural President of the Australian Senate stated of the 1891 convention:

An elected Senate in which each State is equally represented is a guarantee that no law will be passed, not only without the consent of the majority of the people, but also without the consent of a majority of the States.[35]

Arguably therefore, the Australian framers took a measured approach to both the structure and powers of the senate, expressing both a form of popular will, while also preserving the federal structure. The American experience was therefore, a considerably informative and influential factor in the debates of the Federal conventions of the 1890’s.

B. Federalism by Design

Quick and Garran’s recounting of the ‘prolonged and exhausting’ debates of the conventions concerning the Senate, found a strong majority in favour of equal original state representation on the grounds James Madison described.[36] They identified the senate as the ‘Federal part’ of the constitution, and held that the basis for its structuring was that the states as quasi-sovereign entities were equal with each other regardless of their size at the time of federation.[37] Principles such as these in our legal history have been fundamental to jurisprudential development for the past century, playing a significant role in how the constitution is characterized. This reasoning as to the rights of the state legislatures informing the federal character of the constitution, was arguably instrumental to the jurisprudence of the Griffith Court in upholding the reserve powers doctrine.[38] However, it could equally be considered consistent with the view taken by Issacs J in the Engineers Case, in support of responsible government as the predominant constitutional principle, as the states while not themselves sovereign, were deemed equal repositories of the monarch’s ultimate sovereignty.[39]

Whether one takes the position of Griffith CJ or Issacs J concerning the nature of state sovereignty, equal representation in the senate is undoubtedly an expression of Australia’s federalised constitutional structure in both judicial views.

III. The Present Senate Arrangements

Given the intention of the founders considered in constituting the Australian Senate, the question arises as to whether the arrangements are appropriate over a century later. We as posterity have over this time, been adequately capable to ascertain the effects of equal state representation in the Senate as directly opposed to the proportional model in the lower house. While there are flaws with the upper house as it currently exists, which shall be discussed, these arguably would not be solved by instituting proportional representation in the Senate.

The founders intended that the Senators would represent the interests of states within the legislative process.[40] Sir Baker stated this quite emphatically concerning the role of the upper house in the Parliament: 

It is essential that there should be in the Federal Government some body representing the Provinces as such; some body sufficiently strong, to uphold the rights of the Provinces whom it represents.[41]

It is without question that the Senate is empowered to perform this function adequately, though when polled the members of the upper house largely do not consider this their role in the process.[42] Of present and former senators who answered the poll, most viewed the Senate as a ‘house of review’, as opposed to very few who saw it as the ‘state’s house’.[43] While many of the senators noted their interest in joining the parliament was to represent their state,[44] it could be held that the perceptions representatives have as to what their role is, plays a significant part in how the institution has developed over time.[45]

This view of the Senate as a house of review, was likely influenced by the stronger focus on Westminster constitutional principles since the Engineers decision. Arguably this has caused our Senate, while being empowered in an American sense, to function in a more resigned manner, in line with the modern U.K. House of Lords.[46] A substantial contributing factor to this may also have been the development of party politics in Australia, which causes the senate to defer more power to the lower house, in which the de facto head of the executive resides by Westminster convention.[47] Indeed, Prime Minister Paul Keating went so far as to pass a motion in the lower house asserting that the Senate was a ‘house of review’.[48] While the functioning of the Senate may not entirely resemble the intention of the founders, in protecting the interests of smaller states, this would be neither improved nor amended positively by instituting proportional representation.

Even in the contemporary time, the Senate provides perhaps its most significant role in ensuring the federal character of the government through such equality of representation.[49] Maintaining simultaneously, both the founder’s intention for federalism and a bulwark in extreme cases against encroachment on smaller states.[50] Moving the senate to a system of proportional representation would be a significant systemic shift, away from federalism and towards a unitary state, a factor which was considered by Andrew Inglis Clark who stated:

…the only logical alternative to the equal representation of each State in the Senate is a refusal to recognise the separate existence of any State in the composition of the federal legislature, in which case the government ceases to be federal…[51]

The founders purposely federated the Australian colonies, as opposed to instituting unitary government.[52] Their reasoning, to prevent the centralisation of power and ensure against unchallenged majoritarianism is as true today as it was in the 1890’s. While it may not always serve this function fully, equal senate representation in the present time does ensure that major parties consider the interests of smaller states to maintain control of the upper house.[53] Further to this, the constitutional power of the Senate promotes greater scrutiny within the system of responsible government.[54]

IV.Conclusion

In conclusion it could be stated that the Australian Senate was intended by the framers to be an expression of federalism, as demonstrated by the equality of state representation to the upper house of Parliament. The institution was designed to serve the purpose of protecting states against majoritarianism and encroachment by those larger, upon the legislative rights of their smaller sister provinces. Taking its structure and powers largely from the American system, and function from the United Kingdom, the Senate has become an empowered house of review.

Proportional representation in the upper house would pose nothing short of a threat to the system of constitutional government we have experienced for over a century. It would fundamentally alter the relationship between the state and national governments and would ultimately tend towards institution of a unitary constitutional system, wherein power emanates from the national government downwards to constituent limbs. Such would doubtless cause the marginalisation of smaller states, and further centralise power in the national government. Contrary both to the intent of the framers, and the interests of posterity.

Bibliography

A.Articles/Books/Reports

Baker, Sir Richard Chaffey, A Manual of Reference to Authorities for the Use of the Members of The National Australasian Convention (W. K. Thomas & Co, 1891).

Brenton, Scott, ‘State-based Representation and National Policymaking: The Evolution of the Australian Senate and the Federation’ (2015) 21(2) The Journal of Legislative Studies 270.

Brown, William Jethro, ‘Australian Commonwealth Bill’ (1900) 16 The Law Quarterly Review 24.

Clark, Andrew Inglis, Studies in Australian Constitutional Law (Legal Books, 1997).

Deakin, Alfred and John Andrew La Nauze (ed), The Federal Story: The Inner History of the Federal Cause, 1880-1900 (Melbourne University Press, 2nd ed, 1963) 36.

Fenna, Alan, ‘The Character of Australian Federalism’ (2012) 10(1) eJournal of Tax Research 12.

Hamilton, Alexander, John Jay and James Madison, The Federalist (Easton Press, 1979) 415.

Pederson, Nicholas, ‘The Lost Founder: James Wilson in American Memory’ (2010) 22(2) Yale Journal of Law & the Humanities 1.

Quick, John and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books, 2015).

Reynolds, John, ‘A.I. Clark's American Sympathies and his Influences on Australian Federation’ (1958) 32 Australian Law Journal 62, 63.

Richard Mulgan, ‘The Australian Senate as a 'House of Review’ (1996) 31(2) Australian Journal of Political Science 191.

Sampford, Charles, ‘The Australian Senate and Supply - Some Awkward Questions’ (1987) 13 Monash University Law Review 119.

B.Cases

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 146.

Chisholm v. Georgia, 2 U.S. 419, 453 (Wilson J) (1793).

D'Emden v Pedder (1904) 1 CLR 91, 109 (Griffith CJ). 

Fitzpatrick v. Bitzer, 427 U.S. 445, 446 (Rehnquist CJ) (1976).

Theophanous v Herald and Weekly Times Limited (1994) 182 CLR 104.

C.Other

Australian Constitution

Commonwealth, House of Representatives Hansard, 19 August 1993, 319 (Paul Keating).

J. Kowalczyk and Dr. Shannon Brooks (eds), Federalist vs. Anti-Federalist Study Guide, Monticello College, 393 <https://www.monticellocollege.org/sites/default/files/files/federalist-v....

Official Report of the National Australasian Convention Debates, Sydney (1891).

United States Constitution