WHAT are we to do with this “unrepresentative swill”, as Paul Keating called the Senate in 1989?

The question arose again a week ago when WA Labor Senator Mark Bishop said that Labor should pass the whole of the Abbott-Hockey Budget in the Senate so the public would see how mean it was and flock back to Labor.

It was, of course, a resurrection of the Keating line in 1992. Keating, then Prime Minister, said that if the people of Australia voted the Liberals under John Hewson into Government, the public could not expect Labor to block the GST in the Senate.

It was vintage Keating – “If the Leader of the Opposition thinks, or if the cynics in the Liberal Party think, that you can go to a national election saying, `Vote for Hewson but the GST won't get up' . . . . We are making it abundantly clear that. . . if the people elect you [the Coaltion] the GST will get up . . . . If the people vote for you they will get it as surely as someone will get influenza from standing in the cold. . . .

“We will not stand in the way of Australian public opinion and Australian electoral mandates. We are not the people who nearly wrecked our Constitution in 1975. We are not the people who nearly turned the place to civil strife by failing to pass the Budget of a duly elected government in the House of Representatives. We are not the wreckers who seek to turn out governments by the illegitimate operation of this unrepresentative chamber. . . 

“We will observe, as the Labor Party has always done, the constitutional courtesies to the spirit and the letter [and we will have the Senate] operate properly as a place of review only. . . .

“Let me make it quite clear: there will be no slithering, sliding, backsliding and hiding by the Leader of the Opposition. When he lifts a rock, I will either be under it or I will have been there. I will be there, chasing him down, wherever he tries to go. He knows that and he is saddled up—and the Liberal Party knows it and it is saddled also—with the goods and services tax. No pantomime in here . . . will save your two miserable hides. The fact is you have it branded on you, just as though you had turned up to a cattle branding. I am quite sure that branded on you, are the three letters: G.S.T.”

It was politically effective. Voters shied away from Fightback! The 600-page plus longest political suicide note in history. And Keating won the 1993 election. Hewson was “done slowly”.

So Hewson lost the unloseable election for telling the truth and Abbott won the loseable election by telling lies.

Politics aside, Keating’s speech (which, by the way, was an off-the-cuff answer in Question Time) articulates and posits most of the answers about the question of what to do with the Senate.

If a Senate is to allow everything through, it is not doing any job, and so is an extravagant waste. If, however, it blocks significant parts of a program that a government went to an election upon, it is undemocratically denying the mandate of the people.

Worse, if the Senate uses its numbers to block the underlying appropriation in the Budget for the ordinary services of the government it is destroying democracy.

If you extrapolate from Keating’s speech, you can carve a reasonable role for the Senate without denying democracy.

First, the elected government should get parliamentary appropriation of funds to carry out the ordinary services of government – to continue with existing laws and policies. This was denied the elected Labor Government in 1975, leading to the constitutional crisis and the potential for civil strife.

Secondly, if a government takes a policy in detail to the election and gets elected, the Senate should respect that mandate. It should review the legislation and suggest reasonable changes, but ultimately, legislation consistent with what was put at the election should pass.

Thirdly, new legislation not pre-empted in the election campaign, should be subjected to greater scrutiny and the Senate should have every right to reject it outright or substantially amend it. If the House of Representatives objects to the amendments it cannot complain if the Senate fails to pass the whole legislation.

Fourthly, (and Keating did not suggest this, but I am), if the Senate rejects legislation and there is a subsequent election at which the Government gets relected, the legislation should be able to be passed after the election by the House of Representatives on its own. That would obviate the need for double dissolutions (which are a big sledge hammer to break a small legislative nut).

If the actual legislation is before the people and they know that it will become law upon the re-election of the government, why should the Senate get in the way?

If these principles could be crafted into the Constitution it would at once obviate the threat of future 1975-style crises and articulate a sensible middle-ground role for the Senate.

Related to the Senate-House conflict aside, we have also seen in the past week the conflict between the executive and legislature. This conflict has been between the executive of the new government against the legislative actions of the previous Parliament.

A new government, often has to contend with legislation passed by previous Parliaments to which it is vehemently opposed. The carbon tax is an example.

By let’s look at an earlier example.

In 1972 Gough Whitlam took Labor to an election promising to abolish national military service.

Upon election, he was asked at his first press conference how he could fulfil this promise unless the Senate agreed to repeal the National Service Act. Whitlam replied that the minister would simply not authorise another call up even if the legislation remained on the statute book.

Last week, Mathias Cormann went a step further and said he would introduce regulations that would in effect negate Labor’s legislation to tighten up the financial-advice market.

Undoing that regulation would require a majority vote 39-37. So the government gets its way with 38 votes, whereas if it tried to get its way through legislation – rather than regulation – it would need 39 votes to get its way.

Strangely, the Abbott Government has proposed neither of the above methods to simply not collect the carbon tax.

But why do that if you can make a political song and dance about a “failure to  repeal” instead, and maybe have the Senate save you from your own folly by keeping the carbon tax in place?

In any event, with no government majority in the Senate in prospect, we should carve out a defined and sensible role for this “unrepresentative swill”.