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The Theory of Bicameralism 18 The Upper House Question South Australian Bicameralism in Comparative Perspective Jordan M. Bastoni, B.A. (Hons.) A thesis submitted in fulfilment of the requirements of the degree of Doctor of Philosophy in the discipline of Politics at the University of Adelaide, 18 December 2009 Contents Abstract iii Declaration iv Acknowledgements v Introduction 1 Chapter One The Theory of Bicameralism 18 Chapter Two The Decline of Responsible Government 32 Chapter Three The History of the South Australian Parliament 41 Chapter Four The Parliament of the United Kingdom 53 Chapter Five The Parliament of Canada 65 Chapter Six The Parliament of New Zealand 74 Chapter Seven The Parliament of Queensland 85 Chapter Eight The Development of the Other Parliaments of 111 Australia Discussion Lessons from the Case Studies 130 Chapter Nine Methods of Composition 139 Chapter Ten The House of Review 158 Chapter Eleven The South Australian Legislative Council into the 176 Future: an analysis of potential reforms Conclusion 193 Bibliography 200 ii Abstract This thesis presents an examination of bicameralism as it operates in Australia. The specific focus is the parliament of South Australia, where the existence of the Legislative Council recently came under threat. Prior to the 2006 State election, the Premier of South Australia, Mike Rann, announced that, concurrent with the 2010 State election, a referendum would be held at which the people of South Australia would be able to decide the future of the Legislative Council. They were to be presented with three options: the retention of the Legislative Council with no changes made; a reduction in the size of the Legislative Council from 22 members to 16, and a reduction in the term length served by members from eight years to four years; and finally, the abolition of the Legislative Council (the stated preferred position of Rann). The Government backed away from this commitment in 2009, instead seeking only the reform of the Legislative Council, as outlined in the second option above. At the time of writing, the Bill to enable the referendum has been defeated in the Legislative Council, and so the referendum was not held concurrent with the 2010 election. Rann has indicated that he will not back away from Legislative Council reform though, and so this remains a live issue. The thesis considers the nature of Westminster-style bicameralism, as is practiced in South Australia, by canvassing its development in South Australia, as well as in several other parliaments, namely: the parliament of the United Kingdom, in which this form of bicameralism originated; the parliament of Canada; the parliament of New Zealand; and the other Australian parliaments. By examining these parliaments lessons about the development and nature of Westminster-style bicameralism are drawn. The methods of composition of upper houses are examined. It is concluded that the most effective upper houses are filled by a different method than their respective lower houses. It is also concluded that the most effective upper houses are those that enjoy the popular legitimacy conferred by election, which helps them to justify their scrutiny of the government of the day. The position of upper houses as ‘houses of review’ is detailed, with upper houses serving to fill a void left by the iron- clad executive dominance of lower houses, leaving them unable to fulfil their traditionally theorised roles as guardians of responsible government. Upper houses do not ensure responsibility in the way that was theorised for lower houses, that is they do not as a rule possess the legitimate power to formally sanction a government. Instead, by scrutinising government activity and legislation, they provide accountability, by exposing errors, corruption and malfeasance. Finally, in light of the preceding studies, the thesis returns to the Legislative Council of South Australia, concluding that the Legislative Council is a valuable part of the South Australian parliamentary system, but one that could benefit from some suggested reforms. iii Declaration This work contains no material which has been accepted for the award of any other degree or diploma in any university or other tertiary institution to Jordan Bastoni and, to the best of my knowledge and belief, contains no material previously published or written by another person, except where due reference has been made in the text. I give consent to this copy of my thesis when deposited in the University Library, being made available for loan and photocopying, subject to the provisions of the Copyright Act 1968. The author acknowledges that copyright of published work contained within this thesis (as listed below) resides with the copyright holder of that work. I also give permission for the digital version of my thesis to be made available on the web, via the University’s digital research repository, the Library catalogue, the Australasian Digital Theses Program (ADTP) and also through web search engines, unless permission has been granted by the University to restrict access for a period of time. ………………………………………………. 18/12/2009 Jordan Bastoni The following conference paper appears in slightly modified form as Chapter Eleven of this thesis: Bastoni J. 2009. ‘The South Australian Legislative Council into the Future: an analysis of potential reforms.’ Refereed conference paper presented at the 2009 Australasian Political Studies Association conference. Copyright resides with the author. iv Acknowledgements I would like to acknowledge the advice and support given to me by my supervisors, Lisa Hill and Clem Macintyre. They have provided numerous helpful suggestions after having been subjected to many draft chapters and have kept me on course to finishing this thesis in a not too unreasonable amount of time. I would also like to acknowledge the support of my family. Without their support and encouragement, the writing of this thesis would have been a much more difficult process. After patiently allowing themselves for years to be used as sounding boards for my latest thesis idea, I am sure that they will be happy to see the back of it! v Introduction This thesis is about the nature and continued utility of bicameralism in the Westminster system of parliamentary democracy, and the evolution and distinctiveness of the type of bicameralism that has become characterised as “Australian bicameralism.” The specific focus is on the parliament of South Australia, though the focus is not limited only to South Australia. To better illuminate the workings of, and variations in, parliamentary design, the parliaments of the other Australian states, the Australian Commonwealth parliament, the New Zealand parliament, the parliament of Canada, and the parliament of the United Kingdom will be also be examined. Bicameralism is a generally understudied institution. Upper houses are perceived to be less interesting than lower houses. Except in times of extreme constitutional crisis they have no hand in determining the government of the day, which is always formed in the lower house. Oftentimes they are possessed of less power than their respective lower houses, and thus do not influence the development and passage of legislative programs to the same degree as lower houses. In some cases, even when upper houses are possessed of a considerable amount of power, they are loathe to use it for fear that using their power would expose them to accusations that they lack legitimacy. Such upper houses are frequently accused of being undemocratic relics, hold-overs from a time when the rich sought to preserve the status-quo from the reach of the average voter, concerned that too much democracy might flow from lower houses. Upper houses are also generally less reported by the media, who can find their proceedings arcane and irrelevant to the day to day political debates and machinations. There is not a great deal of scholarly research performed on upper houses, especially on Australian upper houses at a state level. What research that exists tends to examine specific features of upper houses, or their relationship with lower houses. This thesis presents a holistic view of Australian upper houses, particularly the Legislative Council of South Australia, by synthesizing such research as there is, and by making comparisons and contrasts with comparable parliamentary systems in the rest of the world. Bicameralism is the oldest form of parliamentary design in the Westminster system. From the time that those who would advise the British monarch divided themselves into the Lords and the Commons, the parliament at Westminster has been bicameral. This form of parliamentary design was imported to Australia with little question or thought for the adoption or invention of a different system. Each of the colonies began with a Legislative Council, which upon granting of responsible government became the upper house of their parliaments, with a House of Assembly, or Legislative Assembly, as the lower house of parliament. The Commonwealth parliament consists of the House of Representatives as the lower house, and the Senate as the upper house. Queensland in 1922 became the first, and so far only, state to abolish its Legislative Council, since then it has been the only state in Australia not to have an upper house. Since the abolition of the Queensland Legislative Council, the Lang Government attempted to abolish the New South Wales Legislative Council in 1926, and for much of the twentieth century unicameralism was the official policy of the Labor Party. The institution of bicameralism has, however, proven to be very resilient. It has also proven to be highly adaptable. The Legislative Councils of the colonies began their existence as inhibiting forces on any overly hasty or radical expressions of democracy that may have emanated from the lower houses. This inhibitory role was felt to aid in the maintenance of governmental and social stability. The practical effect was that these early Legislative Councils served to protect the status of the wealthy elite that served in them.
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