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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