23 October 2008
Those of us who were around in 1975 would have felt a sense of deja vu when they heard the Opposition Senators say that they intended to reject the Rudd government’s budget. Not that Fraser’s Opposition rejected supply; they merely refused to consider the Bills which meant that no vote was ever taken.
The wording of the Australian Constitution on their actions is interesting. The Chief Justice, Sir Garfield Barwick, thought that the Senate had the power to do what it did; but as a former Liberal Minister, he was unlikely to criticise the very tool chosen by the Liberal Opposition to bring about the crisis that would move Kerr to dismiss Whitlam when, at the same time, he was also advising Kerr.
But the wording of the Constitution on this point is very interesting. Section 53 which deals with this supposed power does say, expressly, that the Senate may not amend any proposed taxation or appropriation bills. As was his way, Barwick read this to mean that the Senate could do everything else but it could not amend the legislation.
Barwick’s reading of the Constitution is therefore at odds with what the Constitution actually says. Why would a Constitution remove a particular power from the Senate but, according to Barwick, provide it with as many practical alternatives of achieving the same end as malicious minds can invent? Who needs the power to amend if an Opposition controlled Senate can hold an elected government penniless until they agree to its amendments?
Barwick may not be around to answer these questions, but his legacy of reading the Constitution is at home in the hands of Opposition members who have a vested interest in finding obscure powers that might never have been intended by the founding fathers.
If we look at what the founding fathers intended, we find that section 53 incorporates, quite succinctly, the traditional understanding of the relationship between the House of Commons and the House of Lords in respect of appropriations and taxation bills. The following passage from Wikipedia states the practice accurately:
Even before the passage of the Parliament Acts, the Commons possessed pre-eminence in cases of financial matters. By ancient custom, the House of Lords may not introduce a bill relating to taxation or supply, nor amend a bill so as to insert a provision relating to taxation or Supply, nor amend a Supply Bill in any way.
This convention, which vests the power of the purse in the popularly elected chamber, was, like the convention that the monarch only acts on the advice of the Prime Minister, incorporated implicitly into the Australian Constitution by our Founding Fathers. Both conventions had been long recognised and adhered to in the United Kingdom at the time of our Constitution’s drafting. We may suppose that the conventions were so well known at the time, that it was not considered necessary by those men, that anything more than a general statement of principle was needed. It was, after all, such a reasonable and practical way of acknowledging the source of the government’s power in the people. Barwick and the Liberal Opposition thought differently.
However, as one learned commentator said, once it is accepted that a Senate can block or reject supply, everything after the first sentence of section 53 is redundant.
We are experiencing again the vision of a party, defeated at the polls, its government unceremoniously dumped from office by the people, unable to accept its proper role as an Opposition. Instead it has imagined a power into existence that it can use to bend a government to its will: government by Opposition. This is the power to reject supply that it has appropriated to itself.
It is not too late for our newly appointed Governor General to put the situation right. She should advise the Senate that it does not possess the power that it claims to have and that she has the power to sign taxation and appropriation bills into law without the consent of the Senate.