Make the Senate an election issue

It’s a lie that nothing can be done

As “watershed moments” go, that was pretty tectonic. No, I’m not talking about the much leaked auditor general’s report on the Senate, which at time of writing was still a day away from its official release. I’m talking about Monday’s decision by two of the three top Senate leaders reportedly found to have filed claims for ineligible expenses to … pay them back.

Until the day before, the pair had been vowing to appeal the auditor general’s findings, via an adjudication process they themselves had recently put in place — shortly after they were informed they were on the AG’s naughty list — and in front of an adjudicator they themselves had hired. Both men continue to insist their claims were entirely aboveboard, and for all I know they are correct.

But they could surely see how inappropriate it was to be pleading their case in front of a process hastily tailored to their own designs (a process that, curiously, asks a retired Supreme Court judge to pronounce upon the work of an auditor: If we are going to start second-guessing his professional judgment, would another auditor not be more in order?).

And yet until Monday, they didn’t see. Perhaps their ethics are above reproach.

Perhaps this was all just a simple misunderstanding. But for sheer cluelessness — about the requirements of public office, about the necessity for justice to be seen to be done, about how they are perceived, and why that matters — the Senate leaders have shown themselves to be every bit as out to lunch as their most errant followers. Or did, until Monday, when the penny seemed finally to drop.

How complete that new-found awareness — they are on to us — really is will remain to be seen. The same Senate that seems at least half-chastened by the public reaction to its members’ habitual padding of their expense accounts may as easily turn around tomorrow and vote down a bill passed by the elected House of Commons — or what is the same thing, allow it to die — for all the world as if they actually represented anybody but the people who appointed them. And they will do so out of precisely the same invincible sense of entitlement.

That’s what an appointment for life will do to you. And that prospect — that legislation drafted, debated and passed by the people we elect could be blocked by a chamber full of party donors, party bagmen, party strategists and other odds and sods the measure of whose concern for the public interest is that they said yes to the offer of several decades on the taxpayer’s tab — that prospect, no, that likelihood will remain so long as the Senate does, at least in its present form.

It isn’t as if this is a theoretical concern. Among the matters on which the Senate has seen fit to overrule the Commons in living memory are such trivial issues as abortion, the GST, global warming, and workers’ rights. Worse, the very play-acting of a “vote” by such a body, sitting in a chamber that resembles an elected house, passing bills as if they were elected members, has gulled too many of us into going along with the pretence: even today, you will hear people expressing the hope that the Senate will defeat some bill, as if its passage by the Commons were of minor relevance.

Thus the Senate has corrupted us all. It isn’t the existence of such a patronage palace that stains our democracy, so much as our tolerance of it: the shrugging, smirking references to the “taskless thanks,” the nodding acknowledgment that for generations prime ministers have been carrying on this brazen trade in offices, not secretly or furtively, but right out in the open. Because they knew we didn’t care. Because we had been taught to accept that this was how a mature democracy conducted itself.

And now that we have finally reached the end of our patience with the Senate, we are being taught to believe another lie: nothing to be done. Sure it’s undemocratic, sure it’s corrupt, sure it’s a disgrace, but we’re stuck with it. It’s the Constitution, you see. Uniquely among the democracies, our Constitution is regarded not as an instrument of the people’s will, but an obstacle to it; not as the expression of their highest democratic ideals, but the guarantor that they will never be realized.

I am not suggesting there is any shortcut to be taken around the requisite constitutional amending formula: unanimity among the provinces (to abolish) or seven-provinces-with-50-per-cent (to reform). The Supreme Court, in its wisdom, has ruled on that. But that does not mean we should simply throw up our hands, either. A national plebiscite on abolition, for example — not a binding referendum, but a kind of straw poll — would surely be instructive as to where popular sentiment lay.

Would that single solitary premier of which we are constantly warned, the lone holdout against reform, really wish to stand in the way of a popular majority, not only of the nation, but of his own province? (My preferred option is a reformed, elected upper house, but scrapping the existing one seems more and more the precondition for getting there.)

Or never mind constitutional amendments. As legal scholars have lately been pointing out, it is entirely within the Senate’s powers to reform itself — if not with the permanence of a constitutional amendment, then certainly with the power of precedent and moral example. The Senate, if it wished, could amend its own standing orders to forbid it from defeating any bill passed by the Commons. It could similarly amend its rules to require the kind of transparency and accountability it has hitherto resisted.

I say the Senate, but who are we kidding: the Senate majority is as much under the control of the prime minister as the Commons. If he willed it, it could happen tomorrow. How about we make that an election issue?