Keri Phillips: Hello, I'm Keri Phillips. Australia's upper houses, members have included racists, religious zealots and gun lovers. But are they vital for Australia's democracy?

[Archival audio of Paul Keating speaking in parliament]

Prime Minister Paul Keating famously describing members of the senate, our federal upper house, as 'unrepresentative swill'. With the exception of Queensland and Australia's two territories, which have a single house only, the states which make up Australia's Federation all have two, the house of assembly, legislative assembly or lower house, and a legislative council or upper house. Australia's lower houses generally produce a governing party holding a majority of seats, while the upper houses rarely duplicate that majority, giving rise to the horse trading over legislation we are so familiar with. Does this system give us good government, and where does it come from in the first place?

Anne Twomey, Professor of Constitutional Law at Sydney University, says the upper houses were actually Australia's original parliaments.

Anne Twomey: So New South Wales was the first one with a legislative council and it was established in 1823, and it only had five members, and its role was just to advise the governor. So really the governor was still the person in charge who was doing things, creating laws, doing all those sorts of things, and this was giving the governor five people that the governor had to consult with and discuss before making any of those laws. So they weren't elected, they were just appointed, and that was really the beginning of legislative councils in Australia.

And then over time those legislative councils gradually increased in number and started taking on a bit more of a parliamentary type of role, and so you've got 1842 in New South Wales where you first got what's described as representative government and they meant that two-thirds of the legislative council were elected, but you still had one-third of them appointed by the government and they were effectively the ministers at the time.

And then when you get to 1850, the British allowed each of the Australian colonies to write a constitution. And the key thing that they allowed was a system of responsible government similar to the system in the United Kingdom which involved a bicameral parliament, so two houses. So what was the legislative council, the one single house, did the job of writing the first constitution and setting up a system where you'd have an upper house and a lower house, and so those legislative councils continued on but as the upper houses under this new bicameral system that they produced, and that came into effect around 1855 for New South Wales, Victoria, Tasmania and South Australia. Queensland was a little bit later, and Western Australia was later than that.

Keri Phillips: These state governments were modelled on the Westminster system.

Anne Twomey: Now, the difficulty there of course was that the UK upper house was a House of Lords, it was hereditary offices. So one of the more amusing things is that the New South Wales legislative council when it decided to draft a constitution actually did propose to have an upper house where you were going to have hereditary seats in it. So you would have had Lord So-and-so from Wagga Wagga, and Lord So-and-so from Gundagai, and all the rest of it.

Now, the very good sense of the Australian people was that when that proposal went out for discussion in the various town halls and the like around the state or the colony as it then was, people just laughed at it and it became known as the 'bunyip aristocracy' and it was ridiculed profoundly. And so they had to drop that idea. So you weren't going to have a hereditary system to compose your upper house, so how else to do it?

In New South Wales they chose to have people appointed for life. Really it was supposed to be a conservative body, it was supposed to be an ongoing body that was unaffected by the perils of democracy. Democracy in those days was still a bit of a dirty word, it was the unwashed and the like getting to control these things and that was considered inappropriate. So it was supposed to maintain continuity and it was really supposed to be the great and the good, which was ultimately the big landowners really. And so in New South Wales you had an appointed upper house appointed for life.

Victoria did it slightly differently. They decided to have an elected upper house, which you'd think would make it more representative and democratic over time, but in fact their elected upper house had a very high property franchise, so it was only the property owners and the rich people who got to vote for the upper house. But in terms of what it was supposed to do, it was supposed to be a house of review, but it was not a house comprised for the purposes of necessarily showing expertise. In some other countries where they have an upper house, it's a house of review, you choose scientists and people with expertise in agriculture and the like and that's what they are supposed to do. Not so much the colonial or the state upper houses, they were actually more intended to give stability but really representing, at least initially, the rich, the conservative, the landholders and the like.

Keri Phillips: Not surprisingly, when Labor candidates began to contest elections in the late 19th century, their goal was to tame the power of these upper-class legislative councils. Paul Strangio is a political historian at Monash University.

Paul Strangio: It's really interesting that as the fighting platforms of the early Labor parties quickly embraced the principle of abolition of upper houses, they conclude that the upper houses are incurable, reform is not enough, abolition must be the agenda. But mostly those Labor parties were powerless to effect that policy of abolition. For example, in Victoria, Labor can't really even achieve a majority government in the lower house, let alone gain control of the upper house. Queensland of course is the one exception where Labor achieves that cherished goal of abolishing its upper house. The other states, in New South Wales the Labor Party endeavours to do so, tries at least three times in the 1920s to abolish the upper house there but unsuccessfully.

Keri Phillips: The Queensland legislative council voted itself out of existence in 1922, having been stacked by a Labor government appointed ‘suicide squad’. Similar attempts in New South Wales ultimately lead to a referendum in the 1960s, which failed.

Anne Twomey: New South Wales has a very long tale of attempts to get rid of the upper house. So Jack Lang did his best to do so in the 1920s, and managed to get the governor to swamp the upper house with his own numbers and selected his ‘suicide squad’, which was supposed to go in there and effectively blow up the place by voting it out of existence, and then discovered that the couches in the upper house were really quite comfortable and, oh, we do do quite a good job anyway. And so there were a number of defectors who ensured that that little proposal didn't work.

They tried to do it again in the 1950s or in fact by the time they had the referendum it was 1961. But again, you had a ‘suicide squad’ come in to the legislative council, all pledged, you had to take the pledge to abolish the legislative council beforehand. And indeed, again, some of them ratted and decided to stay and not pass it through the legislative council. And there's a marvellous headline in the newspaper that said 'House of fossils saved by rats'. If you've got people appointed for life, they do after a while tend to become very old, so it was known as a house of fossils because of the old people in it, and of course the defectors were known as rats. So you had a house of fossils, saved by rats. Eventually however it does go to a referendum and the referendum fails. So we still have an upper house in New South Wales.

Keri Phillips: In the post-war period, Labor governments gradually reformed the states' upper houses, bringing in proportional representation. Unlike 'first past the post' where whoever has the most votes wins, proportional representation means that parties or candidates are elected in relation to the proportion of votes they get. These reforms redefined the role of the upper house and would ultimately mean that whoever held government in the lower house would be unlikely to have a majority in the upper.

Paul Strangio: The Labor Party, once you get into the post-Second World War era, gradually begins to reframe its attitude towards upper houses, legislative councils. It starts to move beyond the goal of abolition to the notion of turning them into a house of review. And the principal method for that is to 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. So by having a different system of voting, you are unlikely to have a mirrored outcome in those two houses. That is led in South Australia by the Dunstan government in the early 1970s, and then the Wran government in 1978 follows in New South Wales, a legislative council elected through proportional representation, and that's the point at which New South Wales moves into a wholly elected legislative council. So that's as late as 1978.

The other Australian states follow in sequence. Victoria is the last to achieve wholesale reform of its upper house. The problem there for Victoria, and Victoria’s was always regarded as the most intransigent, conservative, entrenched upper house in the land. In Victoria it was known, it had the moniker of the 'red morgue' during the 20th century because Labor certainly had never held a majority there. So any chance of reform was really stymied by Labor's inability to gain an upper house majority. And in the post-war period, Labor went from the mid-1950s to 1982, in fact not being in government at all in Victoria. And so reform of the upper house in Victoria is delayed indeed and till finally Steve Bracks leads Labor to a thumping majority known as the Bracks-slide. And for the first time in Labor's history, in Victoria it has an upper house majority and therefore is able to belatedly drive through reform.

Keri Phillips: You're listening to Rear Vision with Keri Phillips on Radio National, RN. We are following the evolution of Australia's parliamentary system from the colonial era to the current arrangement where two houses, a lower and an upper, provide the framework for most governments.

Journalist [archival]: November 11, 1975. After meetings with both leaders, the Governor General announced that he was dismissing Mr Whitlam and appointing Mr Fraser as caretaker prime minister until a general election decided the issue. An angry Mr Whitlam responded to his sacking in a speech on the steps of Parliament House.

Gough Whitlam [archival]: Well may we say God save the Queen, because nothing will save the Governor General.

Keri Phillips: The dismissal of Labor Prime Minister Gough Whitlam after the senate, controlled by the opposition, blocked his government's money supply in 1975, remains possibly the most controversial event in Australia's political history. And although we don't have time to go into it here, let's shift the focus to the federal government and hear about the establishment of the senate, the Commonwealth upper house, at the time of Federation. Anne Twomey says that we looked to the United States, not Britain, for a model.

Anne Twomey: Yes, so the senate, as indeed its name suggests, was really copied off the idea of the United States rather than the United Kingdom. Because we were a Federation we took that from the American system, and so sometimes our system is described as a Washminster; we've got a bit of Washington and we've got a bit of Westminster. And so the principle there was that each one of these colonies that came into become the Federation of Australia would have equal representation in the senate, regardless of its population. And so that's the same as in the United States. So the tiny little states in the United States have exactly the same number of the senators as the ones with extraordinarily large populations. So their extremes are even greater than ours. But nonetheless it does mean that those smaller jurisdictions, like Tasmania…I mean, frankly, if you want to be a politician go to Tasmania because you get far more of them there for a smaller population than anywhere else, because they get a full complement of senators.

So partly it was to bring the various colonies in and to get them to agree, because the small colonies would otherwise have been very wary of agreeing to Federation. They did worry that otherwise their interests would be wiped out by the interests of the greater population in the other what were to become states. And so from that point of view to even have Federation you needed to give them a deal that involved equal representation in the senate.

So the upper house became a states’ house to the extent that it has equal representation of each state. But it wasn't the case that people just voted according to the interests of their states, because at the same time you saw the rise of political parties where political parties were starting to direct how people should vote on particular things. So, its role as a states’ house never really happened in practice because you just had that coincidence of the two things sort of happening at once. But in a sort of a way it still is a states’ house to the extent that Tasmania and Western Australia and South Australia have more politicians than they otherwise would have in the party room, when the party room decides what to do. So although it doesn't happen that they vote according to state on the floor of the senate, there is still an indirect impact through their senators having a role in the development of policy in a party room where they will press forward the interests of cane growers in Queensland or miners in Western Australia or whatever it is.

Keri Phillips: From Federation, the senate had a system of block voting; voters in each state could choose from lists of candidates grouped by party. Chances were if your party won government convincingly, it could also see all its candidates elected to the senate. But in 1948 the expansion of both houses of federal parliament led to significant change in the way senators were elected. Antony Green is the ABC's election analyst.

Antony Green: They went from having six senators per state to ten. Instead of electing three they were electing five per election. And the problem was the old block voting system and then the ticket voting system they had used to result in one party winning every seat in a state. And there were elections…for instance, after the 1946 federal election, the Labor Party had a majority in the senate 35 to 1, because they'd had two elections in a row where they had won every seat. And if they were going to expand the parliament, and they had to expand both houses because the house has to be twice the size of the senate, if they wanted to increase the house, they had to increase the senate, and what was the point of replacing a 36-member chamber in the senate with all seats held by the same party with a 60-member chamber? It was ridiculous.

So proportional representation had to be addressed. So that's how we got PR, there was a good reason for it if members were elected at large. And the senate became a more powerful chamber from that point, because up until then either the senate had been totally controlled by the government, or for two terms in the first 50 years it was controlled by the opposition and was obstructive. So the senate with proportional representation meant the majorities were smaller, and over time we started to see the development of smaller parties. The DLP was the first small party in, the Australian Democrats came later, the Greens later still.

Keri Phillips: The senate system required compulsory preferential voting. You had to fill in all the numbers on the ballot, lots and lots of numbers, and if you made a mistake your vote was invalid. To avoid this problem, both South Australia and New South Wales had gone for optional preferential voting for their upper houses. You didn't have to number every square.

Antony Green: And you saw elections like the senate election in 1974, the double dissolution election, there was 73 candidates nominated for the senate, and to vote you had to number all 73 squares and you weren't allowed to make any errors, and the informal rate was 14. It was outrageous. It also meant that if you had that many candidates it took a long time for everybody to vote and it delayed the vote and everything. The Labor Party was committed to doing something about that. When Labor came to office in 1983, they had the same proposal, optional preferential voting, but they didn't control the senate and the Australian Democrats and the Coalition wouldn't have a bar of optional preferential voting.

So, what was proposed by the Electoral Commission was something called ticket voting where you voted one above the line and you didn't have to number all the squares and the party ticket applied. And that worked for a while but started to come undone because up until that point the major parties had always controlled preferences anyway because people followed a how-to-vote card. Minor parties couldn't do that because they didn't hand out enough how-to-vote cards, but ticket voting meant minor parties could control how-to-votes because if you voted one above the line, your preferences went by that ticket. And we started to see candidates elected from ridiculously low votes because of these preference tickets.

Originally it was the major parties’ preferences, so in 1998, which was the first big election where ticket votes mattered, the Labor Party and the Coalition and the Australian Democrats all put One Nation last. One Nation did very well on first preferences but didn't get preferences from any other party and therefore they only elected one senator, when on their raw numbers they should have elected five but they were cut off by the preferences.

After that we started to see an explosion of minor parties and they've all done this tactic of preference harvesting, the preference whisper idea. It was like keepings-off in football; you put somebody in the middle and you kick the ball around between you and you keep the ball away from the major parties, and that's what the preference whispering did. All the little tiny parties would swap preferences ahead of anybody who was bigger. And so you started to find that the Labor Party and the Liberal Party would be cut off from winning an extra seat because some minor party…we saw this most spectacularly with Ricky Muir from the Motorist Party in 2013. He had 0.05 of a quota. The Liberal had 0.8, and she was run down by preferences, because these tickets really controlled the preferences. And we've since seen a move…the senate has now abolished the system, the South Australian upper house has abolished the system, as has New South Wales.

So the profusion of parties came about in this era. Proportional representation made it easier for them to be elected, so more of them stood. And once ticket voting was in place, even more of them stood because there was no disadvantage from splitting the vote between different parties because you could always swap it by the ticket voting. The test for the new senate system, which has abolished the ticket voting, will come at this year's federal election because if you have multiplicities of minor parties now they are going to cut each other's throats because they will get votes and then their preferences won't flow. We're still going to get these bigger ballot papers, they are certainly going to be bigger than the house, but we made the move at the last federal election with the changes to the senate system to make it so that the preferences are now under control of the voter. We've done away with party control of preferences.

So how did we get to the situation we've got now? As I like to say, the system we have has come about by evolution, not by design. You wouldn't have designed this system, it's evolved the way it has.

Keri Phillips: There's a conundrum at the heart of our political system. The major parties campaign on a list of things they'd like to do, a list of commitments really, but once elected they will have to negotiate with an upper house where small parties and independents, often with niche and sometimes extreme interests, hold the casting votes. Is this democracy at work?

Anne Twomey: On the one hand it's quite frustrating, I can say that because I’ve worked in government at the Cabinet office and had to negotiate things through the upper house a lot, and I think at the time I was there we had to get something like nine or so crossbenchers to agree to any one single thing. So you can find it extraordinarily frustrating if you're a government, particularly if you allege that you have a mandate for doing something. Having said that and having had all that frustration, I could still say, hand on heart, that upper houses are really important. And the reason for that is that you don't want to give a government full power to do whatever it likes. So my colleagues when I worked in the Cabinet office who remember the days before the legislative council changed, said that the laws would be whipped through really quickly, within a day, with virtually no scrutiny whatsoever, no one looking to see if there were even any mistakes in the bill, because they could.

Having an upper house forces a government to publicly justify what they're doing and explain what they're doing. So the system as it worked, at least this is how it used to work, is that before any bills were introduced into the parliament, as a bureaucrat if you had a bill you had to front up to a crossbench committee and be examined by that committee of people who needed to decide how they were going to vote in the upper house, and they'd ask you a whole lot of questions about this bill and how it worked and all the rest of it, and from time to time you'd see the bureaucrats doing this sort of collapse as they realise, actually, they hadn't thought out their legislation very well, there were flaws in it, it actually did need to be fixed. So this sort of scrutiny was happening not even on the floor of the parliament but happening before the bill actually got into the parliament, because 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.

And the key thing about it all is that you actually end up with more moderate policies. Governments can't go to extremes one way or another. If you don't have an upper house you can end up with a government that has one particular view going off, in extremes in one direction and then they lose power and you go off in extremes in the other direction. If you've got an upper house you tend to be a lot more middle-of-the-road heading down a similar sort of direction because you don't get the extremes, and I think that's actually a really good thing.

Antony Green: I think we have an increasing problem with upper houses and it's to do with when we elect to government do they have a mandate to govern, do we elect them with a plan, a policy to do things. Now, mandate has no meaning in this country. In Britain if you have something in your party manifesto, you're allowed to use the Parliament Act to overcome the House of Lords if you block stuff, so that the manifesto or the policy platform matters.

In New Zealand with their single chamber parliament by proportional representation, a government with a platform, it's accepted that it has priority for putting its stuff forward based on it winning the election. In Australia we've moved away from accepting a government's mandate in the senate.

In the early days of proportional representation it was possible for a government to get a majority, and the Menzies government did from 1951. The DLP was the first party that broke that but it tended to work with the Coalition, so the Coalition plus the DLP effectively had a majority in that area, they set up the committee system which has since become very powerful.

The next party to come along was the Australian Democrats, and the Australian Democrats were a party formed in some senses as a reaction to the dismissal of the Whitlam government. They didn't want to see a government destroyed in the senate again. The senate is not a governing chamber, it is there to ameliorate government, it's not there to block government, it's there to keep the bastards honest, in Don Chipp's phrase. If a government has promised to do something, they're going to make sure they keep it honest. Which is where it gets interesting when you get to 1998 with the GST. John Howard won the election, came to office with a GST promise. The Democrats policy was ambiguous on the GST, and in the end they held a whole series of committees, the Democrats went along to all the committees and heard the evidence and they ameliorated the GST, they took food out of the GST, they changed the package, and that's what the Democrats position was. Their position wasn't to destroy the government in the senate, it was there to be a moderating balance.

But we've moved on, people don't remember the Whitlam government, they don't remember what the senate was. And so there's a tendency now for the parties in the senate to think, no, no, we lost the election, we'll continue on. And ever since then, since the mid '90s, senates have been much more a chamber where the opposition and the crossbench make life very difficult for the government. The government has got to do a lot more negotiation, they've got to work a lot harder to get things through. 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? And we still haven't resolved that.

Paul Strangio: I think that goes back to that really fundamental question of what we are trying to achieve here. Are we trying to provide representation to plural voices? Are we trying to provide a system that lends itself to majoritarian outcomes, strong government? And that will always be something of a conflict, a tension in the system. There could be some tweaking around the edges. For example, some people argue what should happen with upper houses is they should be required to achieve a threshold such as 4% or whatever to gain a seat, that could be another check on them to prevent really small parties and single issue parties. They are issues for us to wrestle with as a democracy. My basic view is that Australia has done this pretty well and balanced those competing imperatives pretty well.

Keri Phillips: Associate Professor Paul Strangio from Monash University. The other guests were Professor Anne Twomey, Director of the Constitutional Reform Unit at Sydney University and the man without whom no Australian election can truly be called, Antony Green, the ABC's election analyst.

Isabella Tropiano is the sound engineer for this Rear Vision. I'm Keri Phillips, thanks for listening.