Electoral Amendment (Territory Representation) Bill 2020

Twelve months after the 46th Parliament first sat, the Australian Electoral Commission (AEC) fulfilled its legislative requirements and determined how many members of the House of Representatives each state and territory was entitled to for the next election (the redistribution process is described in a 2017 Library paper). The application of the entitlement determination formula, which compares the populations of the states, resulted in the Northern Territory (NT) being reduced to one seat, from two. The Government has now introduced legislation which seeks to bring the representation of the NT back to two seats.

The Labor Member for Solomon, Luke Gosling, is quoted in a media report saying that the Bill would pass both Houses by Thursday 3 December (the day after it was introduced into the Senate), suggesting that Labor supports the speedy passage of the Bill.

The Electoral Amendment (Territory Representation) Bill 2020 was introduced into the Senate on 2 December 2020. The Bill, which would amend the Commonwealth Electoral Act 1918 (CEA), constituted the Government’s response to the recommendations of the Joint Standing Committee on Electoral Matters (JSCEM) arising from its consideration of the Commonwealth Electoral Amendment (Ensuring Fair Representation of the Northern Territory) Bill 2020, a private senator’s Bill introduced in June 2020 by Labor Senators Malarndirri McCarthy (NT) and Don Farrell (South Australia).

Senator McCarthy’s Bill proposed to legislate a minimum of two seats for the NT. The Committee recommended that, rather than passing Senator McCarthy’s Bill, the Government introduce legislation to set a minimum of two seats for both the NT and the Australian Capital Territory (ACT). The Committee recommended that, alternatively, the Government consider:

enacting a harmonic mean for allocating seats between States and Territories, with appropriate public explanation to build understanding for the reform

The proposal to use the harmonic mean arose from a submission by ABC election analyst Antony Green. Green has set out some background to the proposal in a series of blog posts, including one which outlines the logic behind the selection of the harmonic mean.

The current formula for the entitlement determination requires that the quota for each state or territory be rounded up to the next number if the fraction of the quota is over 0.5, and down to the previous number if it is under. In contrast, the harmonic mean is more forgiving for territories with fewer members and would result in rounding up to two seats if the quota is 1.33 or above, and up to three seats if it is 2.40 or above (see Antony Green’s blog post for how these values are calculated).

In a previous entitlement determination in 2003 the NT had also been reduced to a single seat. An inquiry at the time by the JSCEM recommended against setting a minimum number of seats for the territories.

Rather than a minimum number of seats, the Government instead legislated some additional accuracy allowances for determining the number of seats for the territories. Specifically, if the entitlement determination for a territory was subject to rounding down, it would be re-calculated after adding two standard errors worth of population (subsections 48(2E) and 48(2F) of the CEA). This meant that it was much more likely to be rounded up if it was very close. In practice the NT has rarely needed the adjustment since it was introduced. However the adjustment resulted in the ACT being assigned three seats, rather than two, in the determination following the 2016 federal election.

The provisions of the Electoral Amendment (Territory Representation) Bill 2020 commence on the earlier of a day fixed by proclamation, or two months after the Bill receives Royal Assent.

The Bill proposes a small number of changes to the CEA. The most significant of these are to require the use of the harmonic mean for rounding where the quota is calculated to be between one and three seats (item 21). This provision will only apply to calculations for the territories, not the states (which are constitutionally guaranteed a minimum of five seats—see section 24 of the Constitution).

The Bill would also remove the two standard error adjustment (item 31), as recommended by the JSCEM, and set aside the 2020 determination (item 39), returning the NT to its previous two seats.

Item 45 would require the operation of the new provisions be reviewed by the JSCEM (or another committee as determined by the Minister) as soon as practicable after the provision for the harmonic mean is first used for the entitlement determination for the ACT or NT. Based on current population projections, Library calculations suggest that the harmonic mean provision will be required for the entitlement determination for the NT following the next federal election, and that use of the harmonic mean will allow the NT to retain two seats into the foreseeable future (the ACT will remain comfortably above 2.5 quotas according to the same projections).

The Bill otherwise generally consists of consequential amendments resulting from the primary provisions. The CEA contains a number of specific provisions relating to redistributions of one or other of the territories, even though in practice they have tended to be treated the same as the states. Many of these consequential amendments follow from item 49, which would require that territories with at least two members generally be treated the same as the states for the purposes of redistributions.


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