The constitutional time-bomb continues to tick. Section 53 of the Constitution provides: “”The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. . . . Except as provided by this section, the Senate shall have equal power with the House of Representatives.”
The Founding Fathers may have intended that the words “”shall not amend” also meant “”shall not reject”. That interpretation carries some logic. After all, if a law prevents you from damaging something, there is a fair presumption that it also prevents you from destroying it. However, that logic is not accepted as the legal view and it is now accepted that the Constitution does permit the Senate to block the Government’s money supply, starving it of the wherewithal to govern and putting pressure on a head of state … whether President or Governor-General … to intervene.
Today is the 20th anniversary of just such an intervention … the dismissal of the Whitlam Government by Sir John Kerr. It caused deep divisions in Australian society. But in the ensuing 20 years, Australians have done nothing to either prevent a recurrence or to legitimise it with formal recognition of how the power should be exercised.
Governments in democratic Australia should be formed on the floor of the House of Representatives, the House where the mass of the people are represented by a vote of roughly equal weight per person. The Senate, which gives equal representation to each state, should not have a part in that role, though it has a very important checking role. That role has several parts. It can revise legislation. It can check abuse of Executive power. And through the committee system it can inquire and advise.
Precisely how or if the Senate should be stopped from defeating governments by blocking supply would require a great deal of thought, but the attempt should earnestly be made.
The Constitution already provides some safeguards. It says appropriation and tax Bills can deal only with appropriation or tax, nothing else. So a Government could not sneak through other legislative aims if the Senate were stripped of any money powers. Incidentally, that gives weight to the view that the Founding Fathers intended that the Senate have no power to reject money Bills … otherwise why demand their separation?
The other factor in the 1975 incident was the possibility that the Government might act illegally. Continued illegality should be the cause for dismissal. But in 1975, the Government had not acted illegally. Sir John Kerr acted prematurely. Moreover, he got advice only from the Chief Justice. It would be better if the Constitution provided a formal process for the head of state to seek the opinion of the whole High Court before dismissing for illegality.
Today’s anniversary is a sorry reminder that nothing has been done to remove the uncertainties surrounding the powers of the Senate and the head of state. They should be clarified. That the dismissal still arouses hotly divided opinion 20 years later indicates that Australia could do without a repetition. But no-one is moving to defuse the time-bomb.