Originally published in The Canberra Times on February 19, 2022

Australians are confused about the Senate.

That is the unmistakable conclusion of the Australia Institute’s national poll of Australians on their knowledge of and attitudes towards the upper house, the largest and most comprehensive poll of its kind.

However, that does not mean the Senate is not important in the public’s democratic engagement. In fact, the Senate – with its unique powers and proportional voting system – could be key to restoring the electorate’s diminishing faith in our democracy.

At first blush, Australians are confused over even basic questions about the Senate. Our research reveals they see distinctions between the Senate and the House of Representatives that are not there, wrongly answering that ministers must come from the House, that senators and MPs are paid differently and that question time is not held in the Senate. Only three in 10 identified that the House is green and the Senate red.

The public’s shaky understanding of the Senate is in spite of its importance to our democracy. Unlike some upper houses in other Westminster-style democracies, our Senate is active, powerful and representative of the public.

As well as a legislature in its own right, the Senate is a house of review – of bills, regulations, government administration and policy. It also exercises accountability functions, like ordering the production of documents by the government and conducting the estimates process where ministers and senior public servants are questioned.

The founders wrote into the constitution a Senate, not a states’ house, with almost co-equal powers to the lower house. Unlike conservative upper houses in other jurisdictions, the Senate has always been elected, and with the same franchise as the House of Representatives. Since proportional representation in 1949, the Senate has been more willing to exercise the powers bestowed upon it by the constitution.

Proportional representation makes the Senate a diverse and representative body. The first two Indigenous Australians elected to Parliament – Neville Bonner and Aden Ridgeway – were senators. Senator Bonner was appointed in 1971 and won election in his own right in 1972, 38 years before an Indigenous Australian – minister Ken Wyatt – would be elected to the House of Representatives.
In our Parliament, the first Asian-Australian man, the first Asian-Australian woman, the first Indian-Australian, the first Muslim woman and the youngest woman were all senators.

Senator Bob Brown was the first openly gay man elected to Parliament, and the first openly gay party leader, and Senator Penny Wong was first openly gay woman elected to Parliament, the first Asian-Australian woman elected to Parliament, and the first openly gay member of cabinet.

While women were simultaneously elected to the Senate and the House of Representatives in 1943, the first female party leader, the first woman to administer a federal department and the first woman in cabinet with portfolio responsibilities were all senators. To this day, the Senate much better reflects Australia’s gender balance than the House does. Women hold 40 of 76 Senate seats (53 per cent), but only 47 of the 151 seats in the House of Representatives (31 per cent).

The Senate is also more prepared to stand up to the executive arm of government than the House of Representatives. The most visible example is the crossbench, which has held the balance of power for most of the period since 1955. But party lines are also more fluid in the Senate. As a senator, Barnaby Joyce crossed the floor 28 times. Liberal senators Reg Wright and Ian Wood have him beat, having crossed the floor 280 times between them.

The Senate also serves as an important “ideas bank”, developing and advocating policies that will, in time, be taken up by governments. The legislation for same-sex marriage began in the Senate, as has much progressive climate legislation. The Hawke government saved the Franklin River from being dammed, but only after the Democrats introduced and passed legislation in the Senate. Hawke would later adopt the legislation as his own. Looking further back, Australia owes its compulsory voting to a private senator’s bill in 1924.

With trust in government declining, the Senate is more important than ever. However, it needs to find its feet to fight back against efforts to stymie its powers. Answers to the legitimate questions of senators in estimates have become more evasive and derisory. The government’s interpretation of public interest immunity bears little resemblance to the Senate’s. Orders for the production of documents have been disregarded. Bills originating in the Senate are ignored in the House of Representatives, even though they would pass if brought on for debate.
The Senate has the tools it needs to remedy the situation. Foremost among them is one that is fundamental to its status as a co-equal legislature: the Senate can block the government’s legislative agenda until the government accounts for itself.

The Senate has used this power with success. For example, when the government wanted to implement an ethanol subsidy scheme in 2003, the Senate did not pass the relevant bills until the government provided documents relevant to the scheme. However, it is rare that executive intransigence is challenged. Every remedy at the Senate’s disposal depends on its strength of will, and the Senate has often baulked.
One comfort for the Senate is the evidence, in previously unreleased Australia Institute polling, that the Australian people back the Senate. Six in 10 Australians agreed that when the Senate and the government disagree on whether the government has to hand over information, the Senate should insist on its interpretation

Australians may be confused about the details of how the Senate operates, but they expect it to be a vigorous, powerful chamber that holds the government to account. Seeing the Senate hold the government to account would give the community renewed confidence in the body. Indeed a stronger Senate could help renew confidence in democracy itself.

The above is an edited extract of an upcoming Senate lecture to be delivered by Ben Oquist and Bill Browne at 12.15pm on Friday, February 25. Watch the free livestream online: aph.gov.au/Senate/Lectures

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