1.1 The contemporary debate
Upper Houses, in Australia and elsewhere, have recently become the focus of renewed political and academic attention. In NSW, a senior member of the Carr Government, Hon Michael Egan MLC, has campaigned for the abolition of the upper house or, failing that, for its 'substantial' reform.¹ Moreover, responding to concerns arising from the Council periodic election held in March 1999, in order to prevent the manipulation of preference flows by political parties the voting system for Council elections and the requirements for registration of political parties have been reformed.² In fact no government has had a majority in the NSW Legislative Council since 1988 and there are now 13 cross-bench members in a chamber with a total membership of 42, a situation with important implications for the Council as an effective house of review. Two major decisions, both arising from the prevailing balance of power in the Legislative Council, Egan v Willis³ and Egan v Chadwick,4 have also focused attention on the powers of scrutiny and review available to upper houses in this country.

Important developments have also occurred in other Australian States. In Victoria, the Bracks Government introduced a Bill to reform the Legislative Council in November 1999, a proposal it subsequently refined in June 2000; with the defeat of this proposal in October 2000, the Government intends to establish a constitutional commission to pursue its goal of reforming the upper house.⁵ In South Australia, it was reported that proposals to reform the Legislative Council would go before Parliament sometime in late 2000, but this must now wait for the resumption of parliamentary sittings in March 2001.⁶ As to overseas developments, with the passage of the House of Lords Act 1999 the United Kingdom upper house has undergone a drastic overhaul. For the first time in its 700-year history, the automatic right of hereditary peers to sit in the Lords has been removed so that now, in what is supposed to be a transitional chamber, there are 525 life peers, 26 bishops, 27 current and ex-law lords, plus 92 remaining hereditary members.

Such developments have re-ignited worldwide academic interest in upper houses, while the increasing political significance of the Australian Senate in recent years, together with the controversies which have attended the exercise of its powers, have also proved to be a spur to academic analysis. In 1999, SC Patterson and A Mughan edited an important work of comparative analysis titled, Senates: Bicameralism in the Contemporary World.7 More recently still, Meg Russell, from the London-based Constitution Unit, an independent think-tank devoted to the analysis of proposals for constitutional reform, published another comparative account of upper houses, Reforming the House of Lords: Lessons from Overseas.8 The Russell book, which was released around the same time as the report of the Royal Commission headed by Lord Wakeham on the reform of the House of Lords,⁹ was only one of many research initiatives undertaken by the Constitution Unit as part of the debate on the future of the upper chamber.¹⁰ That debate has also excited a plethora of journal and conference literature, much of which has asked fundamental questions about the appropriate powers and functions of upper houses in Westminster-style democracies. The question of the relationship between upper houses and the mandate to govern is often raised, as are the related implications of strong second chambers for the theory and practice of responsible government.

None of these is a new issue. The main focus of this paper is on their reconsideration in the light of the contemporary powers and functions of State upper houses in Australia, with particular attention being paid to the NSW Legislative Council. In effect, the paper is a study of bicameralism at the sub-national level within a federation. While much has been written about the Australian Senate in recent years, far less attention has been paid to the upper houses of the States.¹¹ The paper deals, therefore, with a relatively neglected area of study. It reflects the situation as at the end of February 2001.

1.2 The Australian Senate - leading by example?
Because so much work has been done on the Australian Senate over the past decade or so it is not considered in detail in this paper. The decision to present only a brief overview of the Senate has also been made on methodological grounds, on the basis that the States are comparable political entities, as are their upper houses, whereas different considerations apply to the Senate and the national polity of which it is a part. One obvious difference is that the Senate, as a federal upper house, was designed to protect the interests of the less populous States by giving equal representation to all States.¹² Even if it has not operated in practice in this way, or only intermittently,¹³ it is still important to recognise this federal dimension to the Senate, as well as the absence of any comparable considerations as far as the upper houses of the States are concerned.

Having said that, it is also important not to overstate the differences between the operation of bicameralism at the federal and State levels. For one thing, the powers of the Senate are comparable to those of the State upper houses.¹⁴ More particularly, the role the Senate has played as something of a model for the operation of bicameralism in the States must be recognised, especially as concerns the democratisation of the State upper houses and their activism as houses of review in the second half of the twentieth century.¹⁵ The most obvious developments in this regard were the adoption of proportional representation for Senate elections in 1949, the outcome of which has been the representation of minority parties in the upper house,¹⁶ and the subsequent development of the standing committee system since 1970 which, as John Uhr commented, 'brought a new sense of legitimacy to the upper house'.¹⁷ What has emerged in the past 20 years or so is a house in which neither the government nor the official opposition has a majority¹⁸ and in which the minority parties have grown ever more adept and confident in taking full advantage of their strategic position in the prevailing balance of power. So much so that Uhr has written of the post-1993 period as 'the age of minority' which has witnessed a 'procedural revolution'¹⁹ including: the establishment of a 'double-deadline' test requiring the government to meet deadlines for the introduction of Bills into the lower as well as the upper house;²⁰ plus the breaking of what Uhr called the 'government chokehold on committee power'.²¹ This 'age of minority' has also seen the outbreak of what he described as 'mandate wars' between the Government and the Senate,²² notably over such issues as Telstra privatisation and the introduction of the GST in which the Government has had to negotiate with the minor parties in the Senate.²³ One reads with historical interest now KC Wheare's classic discussion of bicameralism in which he noted, on one side, the inconsistencies between what he called 'the conventions of Cabinet government' and the creation of two popularly elected assemblies, 'each entitled to claim to speak for the people' and, on the other, his observations about the extent to which the Australian Senate was dominated, in fact, by the House of Representatives.²⁴

'The conventional opinion', according to Uhr, 'is that responsible party government confers a mandate to govern on the majority party in the House of Representatives, although there is a clear trend to concede that the Senate is evolving its own modifications of that conventional doctrine'.²⁵ Added to this is Uhr's assessment that 'There is ample evidence that the Senate is in the process of redefining its representative role' in a way that poses 'fundamental challenges to the conventional model of Australian responsible government'.²⁶ In a similar vein, Richard Mulgan believed there are now 'two contrasting models of the Senate's role vis-à-vis the government of the day': one as 'an agent of accountability and review', which appears to be consistent with responsible government; the other as 'a partner in policy making', a spill-over from Uhr's mandate wars in which minor parties negotiate over the substance of government policy, a development which seems more at odds with the Westminster tradition of responsible government.²⁷

Perhaps not everyone would agree with such assessments and it may be that many would want to argue over details. It is certainly the case, however, that recent developments in the Senate's parliamentary role are, for some, unwelcome intrusions into the traditional system of responsible party government, most famously in Paul Keating's denunciation of the Senate as a 'spoiling chamber...usurping the responsibilities of the executive drawn from the representative chamber, the House of Representatives'.²⁸ On the other hand, for many academic commentators the Senate's new-found vigour is viewed as a positive development in the often lop-sided relationship between parliament and the executive. Bruce Stone has written of the Senate's achievements as follows:

Despite the fact that a powerful upper house has long been held to be inconsistent with Australia's Westminster inheritance of 'responsible government', the Australian Senate has undergone a celebrated revival in the second half of the 20^th century. From an apparently failed 'states' house at the mid point of the century, the Senate was gradually transformed through electoral system change and consequent representation of minor parties to the point where it is now regularly described as the most vital element of the parliamentary system. Among Westminster-derived democracies especially, with their tendency towards executive-dominated lower houses (a product of single-member constituency electoral systems), the Australian Senate offers a model for recovering something of the text-book functions of parliament.²⁹

Can the same be said of some or all of the State upper houses in Australia? If bicameralism is so 'strong' at the national level, is this reflected or reproduced in the States? Bruce Stone has suggested this may be the case, writing that the Legislative Councils in the States 'have also been evolving over the past half century in ways which partly parallel the evolution of the Australian Senate'.³⁰

1.3 Terminology and scope
This briefing paper uses the terms 'upper house' and 'second chamber' interchangeably. 'Upper house' is now used generally in Australia as a descriptive term for the Senate and the Legislative Councils of the States without apparently invoking any connotations of class or some other kind of social stratification. Reference is also made to second chambers in contemporary Australia, a term suggestive of those 'ancillary' scrutiny or revising functions associated with a house of review.³¹ From a purely historical standpoint, 'lower houses' certainly did not precede 'upper houses' or 'second chambers' in colonial Australia. In NSW, for example, the Legislative Council first met as an appointed body in 1824, whereas the Legislative Assembly dates to the establishment of the system of bicameral, responsible government in 1856.³² Legislative Councils also predated Legislative Assemblies in Tasmania, South Australia, Victoria and Western Australia. 'Lower houses' may be considered as 'first' in terms of legislative initiative, therefore, but not otherwise.³³

The paper starts with an account of the theoretical and practical questions which are often asked in relation to bicameralism, notably in relation to the doctrine of responsible government. It then looks at the powers and functions of the five State upper houses, and reviews their historical and contemporary record as houses of review. The main focus, however, is on the NSW Legislative Council and in this respect the paper can be looked upon as an update of the 1988 Background Paper by Barbara Page titled, The Legislative Council of New South Wales: Past, Present and Future.