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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 1 - The Senate and its constitutional role

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Composition of the Senate

The Senate consists of 76 senators, 72 of whom are elected by the people of the six states, 12 from each. The people of the Australian Capital Territory and the Northern Territory each elect two senators.

The Constitution, s. 24, authorises the Parliament to change the sizes of the two Houses, but they are linked by the provision that the number of members of the House “shall be, as nearly as practicable, twice the number of the senators”. For this purpose, senators for the territories are not counted.[20] The effect of this provision is to maintain the role of the Senate of ensuring that the Commonwealth Parliament is broadly representative of the nation as a whole and not subject to excessive domination by members from the more populous states. This is of considerable practical importance if, following simultaneous dissolution of the two Houses, they remain in dispute over legislation and a joint sitting is required (see Chapter 21 for further consideration of this matter). Section 122 of the Constitution authorises the Parliament to grant representation to the territories.

From 1901 until 1949, the size of the Senate was 36, six from each state. From 1949 until 1975, it was 60, ten from each state. In 1975 the size of the Senate was increased to 64 by addition of four senators elected by the two major territories (two each). The size of the Senate was again increased in 1984 by increasing the number of senators from each state from ten to twelve. The changes in the sizes of the Houses were accomplished by the Representation Acts; the provisions for territory senators are now in the Commonwealth Electoral Act, ss. 40-44.

The Constitution provides that in deciding the size of the Senate, “equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators” (s. 7). A state cannot be deprived of its equal representation in the Senate without the consent of its people (s. 128).

The Constitution states that senators shall be “directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate” (s. 7). No use has been made of the possibility of departing from the principle of each state voting as one electorate. Because of the improved representation of electors by the proportional method of election of senators instituted in 1948, the principle of each state voting as one electorate is now essential to the Senate’s, and the Parliament’s, effectiveness and should be retained. This principle is a protection against “localism” in the election of senators. It also strengthens the bicameral quality of the Commonwealth Parliament by giving each House a distinctive system of election. The representational value of the Senate would be diminished not only if the representative base were to be subject to artificial manipulation, but, even more so, if single-member electorates were to be introduced, for it is in addressing the inadequacies of an electoral system on the single-member basis as used for the House of Representatives that the Senate is able to strengthen the representativeness of the Parliament as a whole. In this respect the compositional structure of the Australian Senate is, by design, superior to that of the United States Senate where, in the normal course, only one senator is elected in a state on each occasion.

The Constitution also states that, until the Commonwealth Parliament decides otherwise, the Queensland Parliament “may make laws dividing the State into divisions and determining the number of senators to be chosen for each division” (s. 7). This provision has never been used. In 1982 the Commonwealth Parliament passed a private senator’s bill, the Senate Elections (Queensland) Bill 1981, removing from the Queensland State Parliament the right to divide Queensland for the purpose of electing senators.

When it was decided, in accordance with section 122 of the Constitution, to include senators elected by the Australian Capital Territory and the Northern Territory, the principle of proportional representation was retained by providing for election of two senators by each territory voting as a whole. Territory representation in the Senate accordingly recognises both majority and minority electoral strength. In the case of the ACT, for instance, since 1980 all House of Representatives members have usually been from the Australian Labor Party; in the Senate, however, one senator has been from each major party.

20. Attorney-General (NSW) ex rel McKellar v Commonwealth (1977) 139 CLR 527.