In the recent 2010 federal election the first preference Senate vote across the country for one of the minor parties (the Greens) was 13 per cent. Through proportional representation this translated into a new Greens senator in each State. In the Australian Capital Territory (ACT), however, where the same minor party’s Senate vote (23 per cent) was almost double, it had no senator elected. We argue this electoral arrangement is fundamentally contrary to the democratic intentions of proportional representation and requires urgent legislative attention at the federal level.
It is sometimes thought that the ACT only has two senators because that is what the Constitution prescribes. This is not so. Section 122 of the Constitution provides: “The Parliament … may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it sees fit.”
This section provided the constitutional support for the Senate (Representation of Territories) Act passed after the double dissolution in 1974. This Act survived constitutional challenge in two High Court cases - the First and Second Territory Senators Cases (1975 & 1977). In broad terms, the judges divided over whether the basic legal principle to apply was protection of democratic representation, or of the federal nature of the Constitution. Judgments favouring the latter emphasised section 122 might be used to flood the Senate with Territory senators. Judges prioritising the former considered it undemocratic for Australian citizens to have no Senate representation merely because of the geographic accident of their residing in the Northern Territory (NT) or the ACT. Self government and population growth in the Territories (ACT to over 350,000 and NT 225,000, with Tasmania by comparison 500,000) has made the issue more pressing in terms of basic democratic principles.
No particular number being constitutionally prescribed, it is widely believed that the two major parties decided as a compromise to allocate two senators to each Territory on the basis that, under the proportional representation quota system, they would get one each.
Section 7 of the Constitution allows the Parliament to make laws increasing the number of senators in each State. The so-called “nexus provision” in section 24, however, requires the total numbers of House of Representatives members must be “as nearly as practicable, twice the number of senators”. The Representation Act 1983 now specifies 12 senators for each of the six States. These 12 state senators serve six-year terms, half retiring every three years. The current total number of 76 senators thus is a consequence of the Commonwealth Electoral Act providing that two senators are to be elected from each of the ACT and Northern Territory. These senators always are elected concurrently with members of the House of Representatives and so serve three-year terms.
The High Court in McKellar’s Case in 1977 held that the people of the ACT and NT and any senators they elect are not included in the “nexus” calculation under section 24 of the Constitution. The parliament nonetheless inserted into the Commonwealth Electoral Act an unusually discriminatory provision (section 40) allowing the number of senators in the ACT (or the Northern Territory) to increase beyond two only when there are “six or more” members of the House of Representatives in those jurisdictions.
This peculiar legislative constraint on ACT and NT Senate representation is contrary to basic principles of proportional representation. The Australian Senate proportional representation electoral system involves each elector’s vote being transferred between candidates in the order of the elector’s preferences. A candidate is elected when his or her total number of votes equals or exceeds a quota calculated using a mathematical formula. In the ACT, if two candidates get 33.3 per cent of the Senate vote they have a quota and all other candidates are eliminated, but in the six states, a successful Senate candidate need only get 14.3 per cent of the vote at a half-Senate election to obtain a seat.
The standard justification for proportional representation is that it facilitates the composition of the Senate reflecting the overall proportion of votes allocated in each State or Territory. By assisting the election of independents and candidates of smaller parties, proportional voting now is considered to perform an important democratic function in ensuring the Senate’s role as a genuine house of legislative review by people representing a wide range of community interests. Yet this intended beneficial outcome is undermined when electors in a particular jurisdiction have only a limited number of senators to elect (two in the Territories, instead of 12 in the States).
Given the changing nature of Australian population and polity it is now unacceptable in terms of fundamental principles of democracy underpinning proportional representation that there are only two senators in the ACT and NT. The Commonwealth Electoral Act should be amended to require the ACT and NT be represented each by four senators serving three-year terms (a third the Senate representation of every State).
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