Jacob Levy over at the Volokh conspiracy has some comments on the discussion Iain Murray and I were having on bicameralism and House of Lords reform, and on whether Australia was a good example to copy.

Jacob makes the good point that in the US, Australia and Germany, strong bicameralism has been a natural consequence of federalism. Upper houses have been created in which the states or provinces are equal, and this has provided the different basis for election of the second house that is necessary for a working federal system.

To that, I would add that federalism builds defences into a bicameral system that bicameral systems with different electoral bases do not necessarily have. Equal representation in a powerful upper house or senate is usually part of the deal done when the constitution in written, and the small states are generally keen on making it very difficult for these powers to be taken away later. If an executive government (as executive governments do) decides later that it does not like bicamalism, then constitutional barriers that were put in place to protect the small states usually prevent it from doing anything about it. Plus, small states see such moves as an attack on their power, and at the very least they make a lot of noise. In cases where the upper house has some other electoral basis, then there is the chance that the population at large sees it as all a bit arcane and doesn't care greatly. (I think this is what we see in Britain today).

For instance, in Australia a constitutional amendment normally requires a Swiss style double majority in a referendum to pass: a majority of voters overall must vote for it, and so must state wide majorities in a majority of states. This is designed to protect the small states, and changing the powers of the senate is difficult, and requires the consent of at least some of the smaller states. An amendment to change the equal representation of the states in the senate requires a triple majority: the double majority above plus a majority of votors in the state having its representation reduced. This clearly will never happen.

As a further example, it is worth comparing the bicameral system that applies in Australian federal politics with the systems that apply in the Australian states. The federal senate was brought into being by the constitution on 1901, and has always been fully elected by popular vote. The senate has essentially the same powers that the House of Lords had in Britain at that time (Ie prior to the Parliament Act): its consent is required for all legislation (including appropriations bills).

The stories in the Australian states are different, however. (The history is also different). Generally, without the federal justification for bicameralism, bicameral systems in Australian states have worked much less well. Plus, without the strong protection against arbitrary constitution amendments, lower houses have been able to gradually chip away at the powers of upper houses, rather as has happened with the house of Lords in Britain.

Early in the history of each Australian colony, a Legislative Council was set up to assist the governor. These were appointed, and normally consisted of wealthy citizens. From the 1850s, second chambers, normally called Legislative Assemblies, were set up, and were normally elected by popular vote, and the two houses together formed bicameral systems. As is normal in parliamentary systems, the party controlling a majority in these lower houses got to form the government. (In Australia in the 19th century, this arrangement was known as "responsible government"). Australian state legislatures are essentially like this to this day.

However, almost immediately after the establishment of responsible government in the various Australian colonies, bickering broke out between the upper and lower houses. As the lower house was popularly elected, and got to form the government, the lower houses normally won out. Basically they got their way in two ways.

Firstly, Legislative Councils became more democratic. Appointment was replaced with property based franchises and eventually with popular votes with universal franchises. Secondly, the powers of upper houses were generally reduced. Most state upper houses in Ausralia do not have the right to block money bills, and in some instances the upper houses only have the right to delay legislation, and not to actually block it. The upper house in the state of Queensland was in the 1930s abolished entirely. This type of thing was possible because state constitutions were and are much easier to amend than federal constitutions, and this is the case because when they were written, they did not have representatives of smallers states trying to ensure this.

Today, five of the six Australian states still have upper houses. In the State of New South Wales, where I come from, the upper house is elected using PR, and half of it is elected every four years. (The lower house is up for re-election every four years). The makeup of this house is quite similar to the federal senate, with the major parties holding about a third of the seats each and various minor parties holding the balance of power. To get legislation passed, the government normally has to do some horsetrading and perhaps offer some pork, but it can generally do so. This house has rather less power than the federal senate, but on the whole it works reasonably well.

On the other hand, in the state of Victoria, the upper house is elected with single member electorates, just like the lower house. (Upper house electorates are bigger, however). Half the upper house is elected every four years. This tends to lead to one of two situations. The first is that the party that holds power in the lower house also controls a majority of seats in the upper house, in which case the upper house just becomes a rubber stamp and does nothing useful. The second is that the party that forms the opposition in the lower house controls an absolute majority of the seats in the upper house. This often makes it impossible for the government to do anything at all. In practice, in this situation governments whine a lot, and try to to reduce the powers of the upper house. And voters are often sympathetic. And this is what has happened. The upper house in Victoria still exists, but it has been turned into an irrelevance.