It has been widely reported that the Senate, on November 29, ramrodded 32 bills through the Senate without any meaningful debate. Some of the legislation was very contentious, if not controversial. For example, the Senate, with bipartisan support, adopted the under-16 social media ban.
Commentators speculated that the government wanted to use the last sitting day to clear the deck, in preparation for an election early next year. Regardless, it is legitimate to question whether the procedure used in the adoption of these laws corrupts the legislative process. In this context, Senator Ralph Babet even noted that the Senate is no longer a House of Review – its expected role in Australia’s democracy – but is merely a house of approval.
By virtue of sections 7 and 24 of the Constitution, Australia is a representative democracy because electors directly choose the senators and the members of the House of Representatives. Obviously, effective representation requires that the people’s representatives have many opportunities to debate the bills that come before them. There is thus a link between ‘representative democracy’ and the way in which Parliament operates. Yet, what we have seen in the last sitting week of 2024 is that the Senate, in curtailing Senators’ opportunities to debate these 32 bills, effectively operates as a rubber-stamping authority.
The government relied on Senate standing order 142, known as the guillotine order, to enable the relevant minister to characterise a bill as ‘urgent’, thereby justifying the allocation of a time limit to its discussion. According to the order:
When a motion for leave to introduce a bill is called on, or when a message is received from the House of Representatives transmitting a bill for concurrence, or at any other stage of a bill, a minister may declare that the bill is an urgent bill, and move that the bill be considered an urgent bill, and such motion shall be put forthwith without debate or amendment.
Following the use of the guillotine order, a majority of members of the Senate passed the 32 bills.
Although the doctrine of parliamentary privilege enables the Senate to determine its own procedures, it is appropriate to consider their compatibility with the fundamentals of Australia’s representative democracy. What happened in the last sitting week reveals that, in Australia’s representative democracy, a Senate majority can pass laws without sufficient debate, reflection, and oversight. As Standing Order 142 facilitates this situation, it should be reviewed to ensure that debates in the Senate on controversial bills are not unnecessarily curtailed.
This recommendation to review Standing Order 142 assumes that democracy is not just based on the simple adoption of majority rule. This assumption has often been relied upon to advocate for the adoption of a bill of rights, the implementation of which is a recognition of the view that unfettered decision-making by the majority does not always result in true democracy. Of course, a bill of rights may itself be incompatible with democratic processes when interpreted by activist judges, who might read their own biases, philosophy, and ideology in such a document. In this context, the American Supreme Court Justice, Felix Frankfurter, said that courts ‘are not designed to be a good reflex of a democratic society’ and that the ‘independence of the judiciary is jeopardised when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures’. In Australia, the Constitution does not contain a bill of rights and, hence, the power of the legislature is not subject to such document. A bill of rights is regarded as ‘a want of confidence in the will of the people’.
Subject to the validity of the observation that there is a link between democracy and the operation of the Senate, a representative democracy surely would be concerned about the transparency and fairness of the procedure used in the lawmaking process. Specifically, a representative democracy is only truly deserving of its name if Senators are allowed to thoroughly discuss and examine the merits and demerits of the bills before them. If that is not happening because of the operation of a guillotine standing order, Australia’s representative democracy has a problem that needs solving.
Those in favour of simple majoritarianism would argue that, if the guillotine order were abandoned, or its application restricted, the adoption of worthy legislative initiatives would be obstructed or postponed. However, the events of the last sitting week of 2024 have highlighted the flaws in the legislative process in the Senate. One of the flaws is that it is not a house that represents the states. It has become a party-affiliated tool, like the House of Representatives. Hence, it will merely implement party policy, regardless of the impact on the states the senators come from. This is a relevant point because the Senate would occasionally, if not often, adopt laws that the home state of the Senator and its electors may abhor, thereby making a mockery of representation.
The European Commission for Democracy through Law, better known as the Venice Commission, which is an advisory body to the Council of Europe states that: ‘The foundation stone of democracy is the involvement of the population of voters in the design and enactment of laws through their representatives.’ The Commission states categorically:
Sufficient time should be allocated to parliamentary debate, both in committee and in plenary meeting, in the light of all relevant circumstances, and in particular the complexity and importance of the bill. Laws changing fundamental institutional arrangements … need more time than ordinary legislation. Complex and controversial bills would normally require particularly long advance notice, and should be preceded by pre-drafts, on which some kind of … consultation takes place. By contrast, for the passage of minor and uncontroversial legislation shorter timeframes and simpler procedures … may be designed. However, such cases shall be clearly defined and tightly circumscribed in the regulations.
The participation of electors in ‘the design and enactment of laws through their representatives’ is thus not merely a perfunctory or cynical exercise in majoritarianism. Indeed, A C Grayling, the noted British philosopher, argues that if the state wants to capture the diversity of views and interests among the people, it should do more than simply implement majority rule. He says:
… democracy is not mere majoritarianism … It entails that government once formed, must as far as possible transcend politics in the sense of transcending political divisions so that it will serve the interests of all and not just a section (however large) which has been successful in capturing the organs of government.
As the Senate, in accordance with section 53 of the Constitution, has equal legislative power with the House of Representatives, it should not embrace the crude guillotine order to facilitate the passing of contentious bills. As diverse, and often incompatible perspectives are involved, these bills require the allocation of sufficient debating time and balanced deliberation. After all, the Senate is a house of review, representing the states – a view the High Court reinforced by recognising the existence of an implied right to political communication in Lange v Australian Broadcasting Corporation. In this case, the court said that ‘freedom of communication … is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution’. Nevertheless, standing order 142 allows the government to move a guillotine or ‘time allocation’ motion, limiting the time available for debate on bills or other parliamentary business. And in accordance with standing order 142(4), a motion can be moved to bring a discussion, even on a controversial piece of proposed legislation, to an immediate vote, ending further consideration.
If the bills include contentious or complex matters, such as those impacting fundamental rights, for example the under-16 social media ban, or migration issues, or changes to the Reserve Bank of Australia, a longer review period is necessary. Such legislation often requires detailed scrutiny to ensure compliance with constitutional principles, including freedom of speech, the right to privacy, and the democratic function of Parliament. Hence, guillotine motions limiting debate on significant public interest legislation undermines the role of the Senate as a deliberative body. The rushed passage of multiple bills risks creating poorly drafted legislation, conflicting with the principle of legality that requires clear, reasoned, and well-scrutinised laws that meet Australia’s rule of law expectations.