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7. Chapter VII. The Relations of the Senate and the House of Representatives.

IN the working of responsible government in the colonies, we are accustomed to such a constitution of the two Houses of the Legislature as ensures the supremacy of the Lower House. The colonies are democratic communities, and the Legislative Councils sin against the current doctrines of democracy in that they are constituted by nomination and not election, or, if they are elective bodies, their members generally require some qualification of property, and are always elected by a “select” constituency; while they are not by dissolution made readily responsive to public opinion. The Assembly, always elected on the broadest basis of qualification both for the members and electors, and frequently reconstituted by a general election, is the predominant power, because it harmonizes, and the Legislative Council does not, with the national life and spirit.

These conditions are not fully reproduced in the Commonwealth Government. The Constitution described in the last chapter shows us two Chambers, each elected upon a popular basis, uniform alike in the qualification for members and for electors; and the provision for payment of salaries equal in amount to Senators and Members of the House leaves no room for the suggestion of social exclusiveness as a mark of distinction between them.

Thus popularly constituted as the House itself, the

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Senate represents an essential principle of Union—it is the House of States in a Federal Commonwealth. It is true that neither in Canada nor in Switzerland does the House of the States exercise an equal power with the other House, but in both cases there are circumstances of constitution—in Canada, the nomination of members and the imperfection of the States' principle; in Switzerland, the small number of members and the want of any single principle of constitution—which have determined for it an inferior position.note

The other circumstances of constitution which may affect the position of the Senate in the Government are its permanent existence as a body and the longer tenure of its members. These are conditions which are commonly believed to be a check upon “democratic recklessness”; they are the especial marks of the “revising” and “retarding” Chamber, the “Second Chamber,” or “Upper House.”

The circumstance which most closely touches the relation of the two Houses of the Parliament is the introduction of Cabinet Government, with its tradition of the supremacy of one House through the control of finance. The constitution seeks to reproduce the main features of this familiar relation in two ways: (1) by provisions as to Money Bills; (2) by a novel provision for deadlocks.

Revenue and Appropriation Laws.

This matter is dealt with by sections 53 to 56. Sections 53 to 55 seek to define with more detail and precision than is customary in constitutions the powers of the two Chambers of the Legislature respectively, a matter which has in all the colonies been one of controversy, and in some has produced conflicts of so much heat as to involve Governor, Ministry, and both Houses of the Legislature in discredit. The attempt to translate to the colonies the traditions of the Lords and Commons has hardly succeeded

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even where the Legislative Council has been a nominee body; where the Legislative Council has been elective, there has been more than a plausible ground for standing purely upon the law of the Constitution, a law which, reproducing often clumsily and in ill-chosen words some of the conventional rules which are observed by the Lords and Commons, has been silent as to others. In the Commonwealth the Senate is more than the Legislative Council of a colony; not merely elected, it rests upon the the same popular basis as the House of Representatives, and its constitution charges it with the protection of interests which might not be those represented by the majority of the House. On the other hand, the States contribute to and receive from the Commonwealth upon a population basis, and the House of Representatives is broadly speaking the representative of population. While the House of Representatives cannot claim that Parliamentary supplies are made good by their sole constituents, they can evidently claim a larger power than can the Senate. These are the conditions which underlie sections 53 to 55.

53. Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand, or payment, or appropriation of fees for licences, or fees for services under the proposed law.

The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government.

The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people.

The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make

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any of such omissions or amendments, with or without modifications.

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

54. The proposed law, which appropriates revenue or moneys for the ordinary annual services of the Government, shall deal only with such appropriation.

55. Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

In section 53 the Constitution avoids the ambiguous words “for appropriating” of the Constitution Acts of the colonies, and adopts a word expressive of the most extensive power claimed by the Lower House. The words following, however, while preserving the initiation of measures of finance to the Lower House, make provision against certain inconveniences which would attend the strict application of the rule. The exclusion of fees and penalties from the rule is suggested by the Standing Order of the House of Commons of July 24th, 1849.

The succeeding paragraphs of the section are suggested by certain resolutions adopted by the Council and Assembly in South Australia, and known as “The Compact of 1857.” Unlike the Constitution Acts of some of the colonies, the Constitution Act of South Australia (No. 2 of 1855-6) made no special provision as to Money Bills save as to their recommendation to the Assembly by the Governor. Conflicts between the Council and Assembly as to their respective powers, in other colonies postponed for a time, began in South Australia at once. In the result, the Council waived its claim to deal with the details of the ordinary annual expenses of the Government submitted in

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an Appropriation Bill in the usual form, but reserved the right to demand a conference thereon, to state objections and to hear explanations. As to other Bills, the object of which was to raise money or to authorize the expenditure of money, the Council asserted its competence to suggest alterations to the Assembly, and to assent to or reject such measures. These resolutions were agreed to by the Assembly.

It will be observed that in section 53 the prohibition of amendment by the Senate is not co-extensive with the provision as to origination, so far as concerns proposed laws appropriating revenue or moneys. While all proposed laws appropriating revenue or moneys, save those specially excepted in the first clause, must originate in the House, the Senate is restrained from amending none but the proposed law for appropriating revenue or moneys for the ordinary annual services of the Government. But in no case must the power of amendment be exercised by the Senate so as to increase a proposed charge or burden on the people. Where the power of amendment is denied, the power of suggestion is given to the Senate, and as such suggestion may be made “at any stage” in the progress of the Bill through the Senate, it is clear that the Senate may exercise the extreme power of rejection if its suggestions are not adopted.

The last clause in section 53 has a political rather than a legal importance. Australian experience has abundantly shown that no opinion upon financial powers is too wild to obtain some currency; and, therefore, it may not have been superfluous to insert words showing that the powers conferred by section 53 upon the Senate do not exhaust the powers of that body over Money Bills—that the section in general is not one granting new power, but limiting and directing the exercise of power already enjoyed.

Sections 54 and 55 are auxiliary sections designed to secure the arrangements of section 53. They prevent “tacking” in its most objectionable forms; they also deprive the House of the power of effectuating its control

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over finance by including the whole of the financial measures for the year in one bill—the course hinted at by the Commons resolutions of 1860, and often adopted in the colonies for the purpose of compelling the Upper House to accept an unwelcome measure. The great resource of the Commons, however, depends for its efficacy upon a tradition which has not equal force in the colonies —that the Upper House will not embarrass the Crown by refusing to pass an Appropriation Act. In Australia, a Legislative Council, by rejecting an Appropriation Bill, merely embarrasses its political opponents, and has not hesitated thus to deal with attempts to deprive it of power over such matters as the tariff or payment of members. In fact, the old constitutional weapon—the refusal of supplies —is in new hands, and may be made to serve a new purpose. The control of the Lower House over the policy of the Crown and its Ministers is now so complete that the problem of modern governments is rather now to protect the Government from the caprice of the House than to secure further control; it is never necessary for the House to fall back upon the source of its power. But the responsibility of the Ministry to the Upper House, if it exists, is of a very indirect kind, and one of the checks upon the Ministry and the Lower House lies in the fact that the Upper House might in an extreme case refuse to pass the Appropriation Bill, and thereby force a dissolution or a change of Ministry. These are the conditions recognized by the Constitution. It marks the province of the Senate in financial matters, and prevents the House of Representatives from taking a course which might justify or excuse the Senate in rejecting an Appropriation Bill. In the balance of power in the Commonwealth, it is a factor not to be neglected that, while the Senate has a recognized power over Money Bills beyond that of any other Second Chamber in the British Dominions, it can hardly exercise the extreme power of rejecting the Bill for the “ordinary annual services of the Government” upon any other ground than that the Ministry owes responsibility

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to the Upper not less than to the Lower House. That is a position which in the future the Senate, as the House of the States as well as the Second Chamber, may take up; but it is a position from which, even in the history of Parliamentary Government in the colonies, the strongest supporters of the Upper House have generally shrunk.

There is one matter which from the very nature of the Senate is its special concern. As the Courts are the guardians of the rights of the States in matters that lie outside the federal power, so the Senate is the guardian of the interests of the States in matters which are within the federal power. For the rest, it has been contended that the system of Cabinet Government which has been introduced from England to the Colonies, and which the Colonies have imposed upon the Commonwealth, is essentially a feature of unitary government, and is inapplicable in a federal government; that a Ministry cannot serve two masters—the Senate and the House; that if the weakness of the Executive is one of the greatest dangers of party government with responsibility to one House, responsibility to two Houses would break down the Executive machinery altogether; and that responsibility to one House alone means unitary, not federal government. The answer to this seems to be that neither the Cabinet system nor federal government is a rigid institution. The liability of the first to change and to mould itself to conditions is its one permanent feature, and perhaps its principal advantage. Both “federal” and “unitary” governments are commonly mere approximations to a type, and neither necessarily excludes all the features of the other.

Of course it is obvious that with two irreconcilable Chambers of the Legislature with co-ordinate power, the Cabinet system would break down, and so also would any other system that could be devised. But in the Commonwealth, at anyrate, the Constitution of the two Houses is a sufficient guarantee that they will not be in perpetual conflict. It may even be that the Senate, which as a Second

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Chamber is designed to contribute to the stability of Government, will perform that office in an unexpected way by protecting the Ministry from the caprice of the House; and it will be no small service to the Commonwealth if Ministers, owing a certain responsibility to both Houses, learn that it is their duty not less than that of the Crown, to preserve a good correspondence between the two branches of the Legislature. The Cabinet system depends so much upon understandings and conventions that it would be rash to declare any development impossible.

The political effect of the clauses on the financial powers is to strengthen rather than weaken the Senate, for it is enabled to exercise an effective control by means less heroic than the rejection of an Appropriation Bill. “Deadlock,” then, in the strict sense—the bringing the machinery of government to a standstill—is a contingency so remote as hardly to be within the range of practical politics. But moved by the experience of more than one of the colonies, and especially of the Colony of Victoria, the Convention set itself to discover some constitutional means of reconciling differences between the Houses in any matter of legislation. All sorts of schemes were considered in the Convention, in the Parliaments, and in the press. Those who may be called the National Democrats desired that questions of differences should be settled by the Referendum pure and simple—by a simple majority of the electors in the Commonwealth. But this was a reference to the constituents of one Chamber only, and was naturally objected to by the smaller States. Accordingly, there was a party whom we may call Federal Democrats, who urged that there should be a Referendum to the constituents of the respective Houses. Then there were those who were totally opposed to the Referendum and favoured a resort to the ancient constitutional remedy of dissolution, to be applied alternatively, simultaneously, or successively to the Senate and the House. Others again thought that to make any provision at all was the surest means of precipitating conflicts which might be avoided in the ordinary course of

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things by a little forbearance and good sense. In the end, the Convention adopted a system which, with a trifling alteration by the Premiers, is now contained in section 57 of the Constitution.

57. If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if, after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time.

If after such dissolution the House of Representatives again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives.

The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of

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the Parliament, and shall be presented to the Governor-General for the Queen's assent.

The solution is curious and unique. In the first place it will be noticed that the scheme applies only to measures initiated in the House of Representatives, a fact significant of the parts which the two Houses are expected to play in government. Secondly, there is ample provision made for delay and for reconsideration by the House,note and there is no obstacle to a resort to the familiar means of conference. The application of the principle of dissolution to the Second Chamber is not wholly a novelty, and was inspired in a measure by the constitution of South Australia.note But in South Australia a dissolution of the Legislative Assembly must precede the dissolution of both Houses; and the Constitution of the Commonwealth avoids the appearance of punishing or putting pressure upon one House rather than the other. The mere double dissolution of the South Australian system may of course result in each House receiving a mandate from its constituents “to stick to its guns.” For such a contingency the Commonwealth Constitution provides by establishing a joint sitting of the Senate and House, in which the Bill is disposed of by the vote of an absolute majority of the total number of members of both Houses. The requirement of an absolute majority of each House, in its separate sitting is to be found in most of the Constitutions of the colonies as the condition of various amendments; but the joint sitting is a novel feature in Australian politics. In the United States it is resorted to by the States Legislatures in case the Chambers have in separate sittings chosen different persons as Senators. And in the Constitution of the Commonwealth a joint sitting of the Houses of the State Parliament fills casual vacancies in

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the Senate (section 15). The French Constitution can be amended by a National Assembly consisting of the two Chambers in joint session, and the same body elects the President. In Switzerland the two Chambers of the Federal Assembly meet in joint session for three purposes; the decision of conflicts of jurisdiction between the federal authorities; the granting of pardons; and the election of the Federal Council, the Federal Tribunal, the Chancellor of the Confederation, and the Commander-in-Chief of the Federal Army.note

The real origin of the joint sitting provided for in section 57, however, is none of these; but rather the Norwegian system according to which the two Chambers (or rather the two parts into which the House is divided) meet as one for the purpose of composing their differences.

The system of section 57 is applicable to proposed laws of every kind but one—the amendmont of the Constitution. That matter will be referred to in its proper place; but it may be noted here as a curious fact that the provisions of section 128 for avoiding the obstacle of disagreement between the Houses are less cumbrous than those applicable to ordinary legislation. The reason is that the alteration of the Constitution is treated as pre-eminently a matter to be determined by direct vote of the electors.