Chapter 4 - Elections for the Senate

Bases of the constitutional arrangements

The constitutional foundations for composition of the Senate reflect the federal character of the Commonwealth. Arrangements for the Australian Senate correspond with those for the United States Senate in that each state is represented equally irrespective of geographical size or population; and senators are elected for terms of six years. Both Senates are essentially continuing Houses: in Australia half the Senate retires every three years; in the United States, a third of the Senate is elected at each biennial election. A major distinction is, however, that the United States Senate can never be dissolved whereas the Australian Senate may be dissolved in the course of seeking to settle disputes over legislation between the two Houses (Constitution, s. 57; see Chapter 21).

An important innovation in Australia was the requirement that senators should be “directly chosen by the people of the State”. Direct election of United States senators was provided in the constitution by an amendment which took effect in 1913, prior to which they were elected by state legislatures.

The innovatory character of Australia’s Senate is also illustrated by contrasting it with the Canadian Senate created by the British North America Act 1867. The provinces are not equally represented in the Canadian Senate; and senators are appointed by the national government, initially for life and now until age 75. Composition on this antiquated basis has deprived the Canadian Senate of the legitimacy deriving from popular choice and has meant, in practice, that the Canadian Senate has not contributed either to enhancing the representivity of the Canadian Parliament (the more desirable because of the first-past-the-post method of election used in the House of Commons) nor to assuaging the pressures of Canada’s culturally and geographically diverse federation. Prominent proposals for reform of Canada’s Senate in recent decades have included equality of representation for provinces and direct election of senators.

The principle of equal representation of the states is vital to the architecture of Australian federalism. It was a necessary inclusion at the time of federation in order to secure popular support for the new Commonwealth in each state especially the smaller states. It ensures that a legislative majority in the Senate is geographically distributed across the Commonwealth and prevents a parliamentary majority being formed from the representatives of the two largest cities alone. In contemporary Australia it acknowledges that the states continue to be the basis of activity in the nation whether for political, commercial, cultural or sporting purposes. Many organisations in Australia, at the national level, are constituted on the basis of equal state representation or with some modification thereof; this includes the two nation-wide political parties. By contrast, very few nation-wide bodies are organised on the principle of the election and composition of the House of Representatives. Indeed, in Australia’s national life, a body such as the House of Representatives is, if not an aberration, at least relatively unusual. This demonstrates that in Australia federalism is organic and not simply a nominal or contrived feature of government and politics.

Constitutional provisions governing composition of the Senate thus remain as valid for Australia in the 21st century as they were in securing support for the Commonwealth in the nation-building final decade of the 19th century.

In addition to senators elected by the people of the states, the Constitution also provides, in section 122, that in respect of territories, the Parliament “may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit”. Since 1975 the Northern Territory and the Australian Capital Territory have each elected two senators. The particular arrangements for election and terms of territory senators are set out in detail below.

The principles of direct election by the people and equal representation of the states are entrenched in the Constitution and cannot be altered except by means of referendum and with the consent of every state (s. 128). On the other hand, the principle of choosing senators “by the people of the State, voting ... as one electorate” is susceptible to change by statutory enactment. It is, however, essential to the effectiveness of the Senate as a component of the bicameral Parliament.

As explained in Chapter 1, the Senate, since present electoral arrangements were introduced in 1948, taking effect from 1949, has been the means of a marked improvement in the representivity of the Parliament. The 1948 electoral settlement for the Senate mitigated the dysfunctions of the single member electorate basis of the House of Representatives by enabling additional, discernible bodies of electoral opinion to be represented in Parliament. The consequence has been that parliamentary government of the Commonwealth is not simply a question of majority rule but one of representation. The Senate, because of the method of composition, is the institution in the Commonwealth which reconciles majority rule, as imperfectly expressed in the House of Representatives, with adequate representation.

Proportional representation applied in each state with the people voting as one electorate has been twice affirmed. In 1977, the people at referendum agreed to an amendment to the Constitution so that in filling a casual vacancy by the parliament of a state (or the state governor as advised by the state executive council), the person chosen will be drawn, where possible, from the party of the senator whose death or resignation has given rise to the vacancy. A senator so chosen completes the term of the senator whose place has been taken and is not required, as was previously the case, to stand for election at the next general election of the House of Representatives or periodical election of the Senate. The previous arrangement had the defect of, on occasions, distorting the representation of a state as expressed in a periodical election. The Constitution thus reinforces a method of electing senators which is itself only embodied in the statute law. The present combination of statute and constitutional law serves to underline and preserve the representative character of the Senate.

If the statute law were amended so as to abandon the principle of state-wide electorates for choosing of senators in favour of Senate electorates, this would not only have the defect of replicating the House of Representatives system, which by itself is an inadequate means of even trying to represent electoral opinion fairly, but would invalidate the special method of filling a casual vacancy now provided for in section 15 of the Constitution. Single member constituencies would probably be unconstitutional, as they would result in only part of the people of a state voting in each periodical Senate election. There are grounds for concluding that anything other than state-wide electorates and proportional representation would be unconstitutional (cf resolution of the Senate, on an urgency motion, 15/2/1999, J.428-9).

The second affirmation of state-wide electorates for the purpose of electing the Senate may be found in the decision of the Commonwealth Parliament, on the basis of a private senator’s bill, to remove the authority of the Queensland Parliament to make laws dividing Queensland “into divisions and determining the number of senators to be chosen for each division” (Constitution, s. 7; Commonwealth Electoral Act s. 39, added in 1983).

The irresistible conclusion of any analysis of basic arrangements for election of senators is that, for reasons of principle and practice, these features are essential: direct election by the people; equality of representation of the states; distinctive method of election based on proportional representation as embodied in the 1948 electoral settlement for the Senate; elections in which each state votes as one electorate; and filling of casual vacancies according to section 15 of the Constitution.

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