A Review of the House of Review
A Review of the House of Review
Blackacre contents page, June 1947 edition
When E.G. Whitlam was studying law at the University of Sydney, he was associate editor of Blackacre, the Journal of the Sydney University Law Society, before and after his service in the RAAF. After his admission to the Bar in February 1947, he wrote an article 'A Review of the House of Review' for the issue of Blackacre which appeared in June 1947.
In December last, yet another attempt was made to persuade the Legislative Council to agree to the steps preliminary to its own abolition. Steps have been instituted on no less than a dozen occasions to change or abolish the Council. On this occasion the status quo was maintained by the casting vote of the President. The daily papers and the opposition placed their objections to the latest bill, and their consequent refusal to let the electorate vote at a referendum, which alone could make the bill effective in law, on two grounds: that upper houses in general are a valuable safeguard that ours in particular had proved its value.
It was not denied that the provinces of Canada and South Africa and the States of Queensland and Nebraska had been as well governed by unicameral legislatures. It was not claimed that this State could have been better safeguarded by a multicameral legislature, such as the three Yuans of Chiang Kai-shek's China or the four chambers of Napoleon 1's France. It was not maintained that there was the justification for an upper house that there is in a federation, like the USA, or the Commonwealth, to represent the electorate according to States, while a lower house represented it according to population. It was admitted that it was something less than democratically ideal to have members of the legislature who are not responsible to the electorate or to the governor; who are elected indirectly and for a long and irrevocable term; who have more power over legislation, including money bills, than the House of Lords or the upper house of any dominion or colony; any who themselves, it seems, can frustrate any attempt to alter the constitution of their house or its powers. Few conceded that the Council should be directly and periodically elected by adult suffrage, for they were presented with the dilemma that in that case the Council would merely be a superfluous replica of the Assembly. For our Council as compared with other upper houses the apologia was made that the members served without pay and therefore deserved the respect accorded persons engaged in any other charitable activity; that they were no more unrepresentative, in regard to numbers if not term, than members of the Senate, where a bare majority of the electorate had frequently secured an overwhelming majority of the house; that, with all their fuller powers, they had interfered with the legislation of the lower house less than any of the surviving Australian Councils; that it was better to have a house elected indirectly by the representatives of the whole electorate than directly, as in those Councils, by a restricted electorate based on property and educational qualifications; and that, whereas those Councils at any one time represented the views of only part of the people, ours now at least represented the views a majority of the people held not much more than six years before.
It is open to question, however, not merely whether there should be a reviewing body of all, but also whether this body has usefully performed the function of review. Supporters of the Council urged the commendable insertions and salutary deletions the Council had made in Assembly bills, whether the Sedition Bill of 1918, the Marriage Act Amendment Bill of 1924-25, the Mortgages Taxation Bill of 1932 or the Coal and Liquor Bills of last year. Much of this argument is quite plausible. If the desirability of having a house of review is conceded, most would admit that the work of review has been painstakingly and conscientiously performed. Even those who have been elected on a pledge to vote for its abolition have become convinced of the importance of their own work in the Council. To get the full picture it is proposed to refer to its record over the last 60 years in regard to some policies and pieces of legislation which we now regard as axiomatic or at least accept as inevitable. It is not suggested that what is now accepted must invariably prove the ultimate in political wisdom or moral perfection. It may, however, prompt champions of the Council's role to be less sure of that role when they consider how generally we have diverged on what it once regarded as vital issues. Three such issues were the franchise, federation and direct taxation; and the social, constitutional and fiscal conditions in the country 60 years ago are recognizably the forerunners of today's.
One of our universal tenets is the belief that every adult, male or female, should be eligible for the legislature and the franchise. The first measure for opening parliament to men regardless of financial background was the Parliamentary Representatives Allowance Bill. This was twice rejected by the Council in 1887 and once in 1888 before being agreed to in 1889. It was met by the same arguments which Pericles encountered 23 centuries before when he sponsored payment for citizens attending the Ecclesia. The first bill to extend the franchise in our period was the Electoral Reform Bill of 1891, which proposed to abolish plural voting, the disqualification of full-time naval and military personnel and of all grades of the police, and cash deposits by candidates. This was rejected by the Council. The Franchise Extension Bill of 1895 made another attempt to give the vote to the forces and the police, but after a year's delay the Council agreed to the enfranchisement of the police alone. The Women's Franchise Bill, which for many years had been stopped by successive prorogations, was rejected in 1900 and 1901 and was not accepted till 1902, after the Federal electoral law had made the exclusion of women, at all events, untenable. Women had had the right to be elected to either house of the Federal Parliament since its inception. They achieved the right to stand for the Legislative Assembly in 1918 under the Women's Legal Status Act. The Council declined to allow women to be appointed to its membership on that occasion but acquiesced by 33 votes to 25 in 1926. Inmates of charitable institutions, more pithily described in the Council as paupers, were given the vote in the same year. The State franchise was assimilated to the Federal as late as 1928, after a delay of over a quarter of a century, when it was extended to all adult males and females save, in effect, lunatics, traitors and serving criminals.
Another basic constitutional fetish is our faith in Australian federation, even union. Yet the Legislative Council of New South Wales opposed federation more strongly than any Australian chamber outside Western Australia. The first draft of the Australasian Federation Enabling Bill, drafted by the Federal Convention, came before the Council in July, 1897, and was rejected. The Assembly then inserted a stipulation that the referendum on the bill must be supported not only by the greater number of those voting but by a minimum number. This amendment was carried in the Council by four votes. At the referendum in June, 1898, New South Wales voted 'yes' but failed to reach the essential minimum. At the elections that year the Reid Government was returned a third time. The Assembly then passed resolutions for amendments to the Enabling Bill, and these were accepted at a Premiers' Conference early in the following year and incorporated in the Bill. The Council had resisted the resolutions and now made several amendments to the Bill. The Assembly decisively rejected these amendments. Managers conferred to no purpose and parliament was prorogued. In April, 1899, 12 federationist appointments were made to the Council. The Enabling Bill was again passed by the Assembly and this time by the Council by 30 votes to 23. In June a second referendum resulted in a greatly increased 'yes' majority.
The predominance in finance which elsewhere in English speaking countries is allowed to the lower house has never been acknowledged by our Council. Indeed, its equality in regard to money bills, but not appropriation bills, is now enshrined in the Constitution Act. The most striking illustration of the Council's exercise of its power over finance occurred during the struggles about the respective merits of protection and free trade or, rather, indirect and direct taxation. A Land Tax Bill, providing for a tax on the unimproved value of land, was rejected by the Council in 1886 and 1888 and an Income Tax Bill in 1893. In 1894 Reid was returned at the head of the largest party in the Assembly on a policy of 'direct taxation of land, income and mortgages'. In June the following year the Land Tax Bill was again passed by a large majority in the Assembly but was set aside by the Council by 41 votes to four. The Income Tax Bill, which had been similarly endorsed in the Assembly, was then dropped. Reid secured a dissolution and was returned with increased numbers. The Land Tax Bill, providing for an exemption of £475, and the Income Tax Bill, providing for an exception of £300, were again sent to the Council. The Council struck out the exemption in the first and reduced that in the second to £160. After a delay of three months and the appointment of managers, the Council was induced by the threat of swamping to compromise on exemptions of £240 and £200, at the respective rates of 1d. and 6d. in the pound.
The impression might be gained from citing the Council's behaviour in these respects that it has clung tenaciously to the status quo and to those social, political and economic concepts which favour the conservative elements in the community. This impression is fortified on a consideration of its attitude during periods of progressive ascendency in the Assembly; for the Council has been most active in its work of review during the Reid, McGowen, first Holman, Lang and McKell regimes. In the nature of things the least a house of review can do is to effect delay: in the nature of things this delay proves most irksome to reforming parties.
In 1894 Reid led a party of 58 in a house of 125 and had the support of 27 Labour members. During the session of that year the Council rejected, amongst others, the Trade Disputes Conciliation Act Amendment Bill, providing for compulsory investigation of trade disputes, the Navigation Acts Amendment Bill, providing for one representative of the seamen on the Marine Board of eight, and the Coal Mines Regulation Bill, introducing the eight-hour day, as well as the Franchise Extension Bill and the taxation bills already mentioned. After Reid's appeal to the country on the taxation bills, he was returned with 62 seats. In the life of the Parliament the Council drastically amended the Factories Bill of 1897 and again excised the eight-hour day from the Coal Mines Regulation Bill. In 1898 it refused to raise the succession duties and substituted a tax on tea. The following year, notwithstanding Reid's third success at the polls and its own swamping over the Federation Enabling Bill, the Council rejected the Early Closing and Navigation Bills; in 1900 it rejected the Closer Settlement Bill, the Women's Franchise Bill and the Industrial Arbitration Bill, introducing compulsory arbitration. In 1901 the Labour party transferred its support to the party led now by See. This resulted in the passing of the Industrial Arbitration Bill but could not secure the passage through the Council of three bills conferring immunity from civil actions on striking trade unions, regulating coalminers' wages and limiting their hours to eight.
The Council thereafter enjoyed a period of calm until 1910, when the Labour party was returned with 46 out of 90 members in the Assembly. In 1912 the Council again rejected the bill, first sent up in 1891, limiting miners' hours to eight, for a second time the Early Closing Bill, and for the first time the Shearers' Accommodation Bill and Rural Tenants Bill, securing to tenants a share in the value of improvements they effected. In 1913 it rejected the Closer Settlement (Super Tax) Bill, providing for a tax on land suitable for closer settlement and situated within a short distance of the railways, Eight Hours Bill, Fair Rents Bill, dealing with small dwelling houses, Underground Railway Bill, Government Railways and Police Appeals Bills, Public Service Superannuation Bill and Greater Sydney Bill, and for a second time the Shearers' Accommodation Bill. At the end of the year the elections resulted in Labour, under Holman, winning 50 seats. The Council, undeterred, rejected the Bakery and Baking Hours Bills, the Trades Union Amendment and Workers' Compensation Amendments Bills and the Grain Elevator and Industrial Arbitration Bills, for a second time the Closer Settlement, Rural Tenants, Government Railways Appeal and Police Appeal Bills, and for a third time the Early Closing and Shearers' Accommodation Bills. In 1915, however, it passed the Fair Rents Bill of two years before. In 1916 it rejected another Workers' Compensation Bill, and for the third time the Closer Settlement Bill, but this time it passed the Eight Hours Bill, though with amendments largely denying its benefits to miners, the Government Railways (Appeals) Bill and Rural Tenants' Improvement Bill. Much of the other projected legislation had to wait years for ratification, in two cases (the Baking Hours and Police Appeal Bills) to 1946.
At the end of 1916, Holman and some of his conscriptionist followers in the Labour party joined forces with the opposition in forming and Nationalist party. During the Nationalist regime in the Assembly the Council became much more co-operative. In fact it passed without appreciable protest two measures which potentially were more despotic than any bills which the Assembly has ever sent up to a reluctant Council. The one was the Legislative Assembly Continuance Act of 1916, extending for one year the term of the expiring Assembly, which had been elected on the implicit understanding that it would hold office for three years and which was dominated by a party that had not received a popular mandate and whose unifying doctrine had been soundly repulsed by a recent referendum; this act the Council passed by 27 votes to two. The other was the Judges' Retirement Act of 1918, providing for the compulsory retirement at 70 of all judges, both those to be appointed in the future and those who were already enjoying appointments for life.
Subsequent periods of great activity in the Council have coincided with the Lang and McKell premierships. It is not proposed to discuss in detail the nature of the Assembly's legislation and the Council's supervision during these periods, partly because they are still the subject of controversy and partly because the protagonists are still alive, albeit translated to different spheres. It may be permissible to comment, however, that the Lang Governments were defeated in the Council for their attacks on the rights of property rather than the liberties of the citizen; even social legislation, such as the Child Endowment Bill, which the Council had first crushed in 1919, was passed only after the Assembly's proposed benefits had been halved. And it is noteworthy that the McKell government, twice elected with a following of two-thirds of the members of the Assembly, was defeated 107 times in the Council in less than six years, whereas the conservative governments which preceded it were defeated on 25 occasions in seven and half years.
From the foregoing record, which is believed to be typical, it will be seen that few of the bills which the Council held up were what we would now regard as subversive, precipitate, inopportune. The contests which raged round them are all vieux jeux now, but at the time they were played out with the grim conviction that the future of the country and sanctity of the constitution depended on them. Our change of attitude may be the measure of our degeneration or our advance. Viewing the Councils' actions in perspective, all passion now spent, we can say that its review of these bills has resulted merely in delaying them. It has consistently delayed bills as long as it could short of being swamped, while that was still possible. Time and again the delay has occurred when the government in power in the Assembly has been elected on a platform including the projected legislation and even when the government has been re-elected on the same platform. Inevitably the delay has worked in favour of static or reactionary policies. If the house of review has not in practice worked with prescience and neutrality, there can be no other reason for its existence. The theory in English-speaking countries is that absolute power reposes in the hands of the people's elected representatives. It is submitted that, provided there are certain constitutional safeguards governing the election of those representatives - such as free, secret and universal ballot, regularly recurring elections, equally populous electorates and equal access to propaganda -, democracies do not need to be saved from themselves.
EG WHITLAM
