For as long as there have been upper houses — legislative councils and the Senate — in Australia's state and federal parliaments, there has been some resentment towards them.

Former prime minister Paul Keating famously called the members of the Senate "unrepresentative swill", while Tony Abbott described them as "feral".

"[The Upper House] can be extraordinarily frustrating if you're a government," says constitutional law professor Anne Twomey.

Loading...

In Britain, the Parliament Act gives the government primacy over the House of Lords, while New Zealand's single chamber allows the government to carry through on its election mandate.

But Australia's upper houses have the last word on legislation and crossbench members often hold power over what becomes law.

So how useful is our bicameral system? And would Australia be more democratic without it?

The original parliaments

In 1823, New South Wales became the first colony to establish a governing body. Called the legislative council, it had just five members, appointed by the governor of the day.

By the time Britain granted representative government to the colonies in the middle of the 19th century, they all had legislative councils.

The first "democratic" NSW legislative council sat for the first time in 1843. ( Wikimedia Commons: National Library of Australia )

Under the colonial constitutions, these became the upper houses in a bicameral system.

Still largely appointed, they were seen as a bulwark against the potential menace of democracy, still regarded with suspicion by the ruling elite.

In NSW the legislative councillors were appointed for life, and in Victoria, where voting was limited to property owners, the upper house was populated by the colony's landowners.

"Democracy in those days was still a bit of a dirty word," Professor Twomey says.

"The upper house was supposed to maintain continuity and it was really supposed to be for the great and the good, which was ultimately the big landowners."

At federation, a bicameral system was also adopted, this time based on the US Senate system, where each state had the same number of representatives, no matter the size of its population.

The idea was to protect state interests but its establishment coincided with the rise of political parties and so it has never functioned as a true states' house.

The Labor critique

Loading...

When Australian Labor Party (ALP) candidates began to contest elections in the late 19th century, it was party policy to get rid of these upper-class legislative councils.

But first they had to get control of them — something they could only do once they were in government and could appoint their own people to the upper house.

NSW Labor premier Jack Lang famously had a go in the 1920s, when he managed to convince the governor to swamp the upper house with his own numbers — a veritable suicide squad.

"They were supposed blow up the place by voting it out of existence but discovered that the couches in the upper house were really quite comfortable," Professor Twomey says.

Queensland is the only state where a Labor government managed to pull this off. The legislative council voted itself out of existence in 1922.

In the post-war period, Labor decided reform was better than abolition and gradually the states introduced a system of proportional representation.

Unlike 'first past the post' where whoever has the most votes wins, proportional representation meant that parties or candidates were elected based on their share of the vote.

"Once you get into the post-Second World War era, Labor gradually begins to reframe its attitude towards upper houses," historian Paul Strangio says.

"They move to a system of proportional voting because proportional voting by its nature means that major parties, the executive of the day, is much less likely to have control of that upper house."

The political headache

In recent years, as the crossbenches have filled with micro parties and independents, some analysts have argued that the Senate has become too powerful.

The Australian Senate, photographed here in 1923, was a far more passive house in its first decades. ( Wikimedia Commons: National Library of Australia )

"Ever since the mid-90s, senates have been much more a chamber where the opposition and the crossbench make life very difficult for the government," ABC election analyst Antony Green says.

"There's a tendency now for the parties in the Senate to think, 'no, no, we lost the election, but we'll continue on [with our agenda]'.

"And I do think the Senate is not a governing chamber, the Senate is not government, it doesn't run the government.

"At what point is the Senate able to impose its will on a government with a mandate in the Lower House? We still haven't resolved that."

Professor Strangio sees the possibility for some tweaking.

"Some people argue [members of] upper houses should be required to achieve a threshold such as 4 per cent to gain a seat," he says.

"That could be another check on them to prevent really small parties and single-issue parties — these are issues for us to wrestle with as a democracy."

The Motoring Enthusiast Party's Ricky Muir was elected with a primary vote lower than 0.23 per cent. ( Getty: Stefan Postles )

A moderating influence

And while Professor Twomey admits the Senate can be frustrating, she — like many close watchers of Australian politics — ultimately believes there is a lot to love about its moderating influence.

"I could still say, hand on heart, that upper houses are really important — you don't want to give a government full power to do whatever it likes," she says.

"Having an upper house forces a government to publicly justify what they're doing and explain what they're doing before any bills were introduced into the parliament.

"A government always knows it's going to have to justify it and be able to convince a broad range of people that this was actually the right and sensible thing to do.

"So that affects how you make your legislation, so you can't just whip something through in a minute without any proper thought, you've actually got to work it through properly."

Professor Strangio says we should think about what we are trying to achieve.

"Are we trying to provide representation to plural voices? Are we trying to provide a system that lends itself to majoritarian outcomes, strong government?" he asks.

"My basic view is that Australia has balanced those competing imperatives pretty well."

So amidst the horse-trading, obstructionism and grand-stranding that can take place in Australia's second houses, it seems there is also a lot to celebrate.