Referral and conduct of the inquiry
On 11 June 2020, Senator for the Northern Territory (NT) Malarndirri McCarthy and Senator Don Farrell, the Shadow Special Minister of State, introduced a private Senators’ Bill. The Commonwealth Electoral Amendment (Ensuring Fair Representation of the Northern Territory) Bill 2020 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) to provide for a minimum of two divisions in the NT in the House of Representatives.
On 12 June 2020, Senator the Hon Mathias Cormann, Minister for Finance referred the Bill to the Joint Standing Committee on Electoral Matters (JSCEM) for inquiry and report. The Minister observed that referral of the Bill for a public inquiry would provide the best possible prospect for building cross-chamber support for legislative reform, consistent with the intent of the Bill. Indeed the previous laws related to Northern Territory representation similarly came about following a private member’s bill that was introduced in 2003 and was referred to the JSCEM. The JSCEM recommendations were subsequently reflected in a Government Bill that was passed in 2004. Minister Cormann observed that:
The bill makes important amendments to the Commonwealth Electoral Act 1918, for which I am the responsible Minister. It has been an important and longstanding convention that electoral legislation should generally be changed on the basis of bipartisan consensus and after appropriate opportunity for scrutiny of legislation, which is usually achieved through the work of JSCEM. The proposals in this bill have not been formulated with the benefit of advice from the Australian Electoral Commission or the electoral policy specialists in the Department of Finance, so it is important that Senators hear from appropriate experts on the administrative and legal efficacy of the bill as it is presently drafted.
In her speech on the Bill’s second reading, Senator McCarthy, elaborated on the intent of the Bill, stating:
This Bill is necessary, because, based on Parliamentary Library projections, the Northern Territory's representation in the House is set to halve after an electoral boundary redistribution process which is due to start next month. This is because the Territory's population, although nearly 250,000, is below the entitlement quota for two seats.
The Committee advertised the inquiry on its website; issued a media release on 17 June 2020; and invited an array of stakeholders, groups and individuals to submit to the inquiry including political parties, relevant Federal and State and Territory government departments, peak bodies, and industry groups and academics.
The Committee received 66 submissions from a range of organisations including advocacy groups, academics and concerned citizens. The Committee also heard evidence from organisations and individuals at a public hearing held via teleconference. A large proportion of the submissions came from groups that were representative of various parts of the Northern Territory and organisations that delivered services in the Territory. Several submissions also provided perspectives from Christmas Island.
The Committee thanks those individuals and organisations who contributed to the inquiry.
Purpose of the Bill
The Bill consists of six clauses. The provisions of the Bill include:
amend subsection 48(1)(b) of the Electoral Act by inserting a reference to a new subsection (2BAA);
amend subsection 48(2A) of the Electoral Act by inserting a reference to a new subsection (2BAA);
omit the words ‘and in the Northern Territory’ from subsection 48(2B), leaving the old subsection to deal solely with the Australian Capital Territory, as the Northern Territory’s membership entitlement will be covered by proposed subsection 48(2BAA);
proposed subsection 48(2BAA) inserted by this item specifies that at least two members of the House of Representatives must be chosen in the Northern Territory at a general election;
proposed subsection 48(2BAB) provides that if the Electoral Commissioner has determined that the number of members of the House of Representatives to be elected for the Northern Territory is inconsistent with subsection (2BAA), then that determination is to be set aside; and that if a general election is held before the Commissioner has made a determination, the number of members of the House of Representatives to be elected for the Northern Territory will be in accordance with the Commissioner's determination of 31 August 2017, that is, two; and
proposed paragraph (c) of subsection 48(2BAB) clarifies the effect on section 86 of the Electoral Act which provides that new rolls will be created for new Divisions. Paragraph (c) states that two new Divisions are taken to be created for the Northern Territory.
History of Territory Representation in the Commonwealth Parliament
From 1863 until 1911, Territorians had ‘the same voting rights for representatives in both Houses of the South Australian Parliament as people living in South Australia [SA]’ which also ‘enabled them to qualify as South Australian voters in elections for both Houses of the Commonwealth Parliament after 1901.’
In 1911, Territorians lost all political representation for the next 11 years when the NT was transferred to the Commonwealth. In 1922 the NT gained its first representative in the House of Representatives – although this was for a non-voting seat. The single NT member received full voting rights in 1968.
On 21 December 2000, the Australian Electoral Commissioner determined that the NT electorate would be divided into two seats: Solomon (which covers the Darwin area; and Lingiari (which covers the remainder of the NT), as well as the Territories of Christmas Island and Cocos (Keeling) Islands). This expansion of representation was achieved because of relative population growth in the Northern Territory. The extra seat was assigned through the ordinary methods for allocating seats in the House of Representatives, according to the populations of the States and Territories.
However, just a few years later a 2003 determination by the Australian Electoral Commission (AEC) removed this second seat, because of further changes in relative population sizes between the States and Territories.
Following the 2003 determination, during the 40th Parliament, JSCEM conducted an inquiry into representation of the Territories in the House of Representatives upon a reference by then Special Minister of State Senator the Hon Eric Abetz.
Chapter 2 of that report contains a thorough background on the provisions governing the representation of the Territories in the Constitution; the legislative provisions governing the representation of the NT and the Australian Capital Territory (ACT) in the Commonwealth Parliament; and the formula for determining the entitlement of each of the States to seats in the House of Representatives.
At that time JSCEM concluded that it did ‘not support a legislative guarantee of two seats for each of the Territories without regard to the size of their populations relative to those of the States.’
The 2003 determination was however set aside as recommended by JSCEM by the passage of the Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004, which restored the second NT seat but only for the October 2004 election.
The NT continued to maintain two divisions beyond the 2004 election. The Electoral Commissioner made determinations regarding the seats of Solomon and Lingiari, their names and boundaries on 19 September 2008 and 7 February 2017. These determinations were made using the modified 2004 formula recommended by JSCEM for the Territories, which allowed for a margin of error when ascertaining the relevant populations.
On 3 July 2020, whilst evidence for this bills inquiry was being taken, the Electoral Commissioner made a determination that from the next Federal election the NT is to have a single division in the House of Representatives.
Calculating the representation entitlements of States and Territories
For the House of Representatives, each State and Territory is divided into Federal electoral divisions (or seats). Section 122 of the Australian Constitution provides the Commonwealth Parliament authority to determine the terms on which the Territories are represented in the Parliament. The number of members of the House of Representatives in the NT is a product of population statistics and calculations that are made in accordance with the Commonwealth Electoral Act 1918.
Section 46 of the Electoral Act sets out what data the Electoral Commissioner can use to make a determination. The AEC explains on its website:
…the Electoral Commissioner is required to use the latest official published statistics of the Commonwealth to ascertain the Australian population on the day after the one-year anniversary of the first meeting of the House of Representatives … the Electoral Commissioner then makes a determination of the number of members of the House of Representatives each state is entitled to. A similar exercise is used to calculate the entitlements of the territories.
Section 73 of the Electoral Act sets out the requirements when determining Federal electoral divisions for the States and Territories. The AEC website highlights how the Electoral Commissioner calculates the number of members of the House of Representatives:
To calculate the number of members of the House of Representatives for a territory, the ascertained number of people of the territory is divided by the population quota, and the result rounded to the nearest whole number.
Depending on the calculation, the number of members is then either rounded up or down:
In calculating the number of members of the House of Representatives for a territory, if the remainder is more than 0.5, the figure for the number of members is rounded up. If the remainder is less than or equal to 0.5, the figure is rounded down (i.e. 2.5 = 2 members, and 2.52 = 3 members).
The above notwithstanding, the Electoral Act has a requirement that at least one member of the House of Representatives be chosen in the ACT and in the NT at a general election.
The boundaries of these divisions are reviewed from time to time. Section 59 of the Electoral Act requires that a redistribution process to determine the boundaries of divisions should be undertaken when:
the number of members of the House of Representatives to which a State or Australian Capital Territory is entitled has changed;
the number of electors is more than one-third of the electoral divisions in a State (or one of the electoral divisions in the Australian Capital Territory) deviates from the average divisional enrolment by over ten per cent for a period of more than two months; or
a period of 7 years has elapsed since the last redistribution process was determined.
Pursuant to section 55A of the Electoral Act, the Northern Territory may be treated as a ‘State’ for the purposes of a redistribution under section 59. However the present Bill could mean that section 55A is not effective in ensuring that the Northern Territory undergoes redistributions. This issue is discussed further below.
On 3 July 2020, on the basis of relative population changes, the Australian Electoral Commissioner determined that at the next Federal election Victoria will gain an additional House of Representatives seat, and Western Australia (WA) and the NT will each lose one seat. For the NT, this means that its entitlement in the House of Representatives will be reduced from two seats to one.
The determination by the Electoral Commissioner was ‘based on the most recent official population figures for the Commonwealth published and provided to him by the Australian Statistician.’
The determination by the Electoral Commissioner is an independent process, separate to the work of JSCEM. This bill seeks to legislate that there be a minimum of two divisions for the NT in the future.
The Committee received mixed evidence regarding population projections for the NT. Evidence was provided by the Australian Bureau of Statistics (ABS) and AEC regarding population numbers – however some submitters raised concerns about the methodology used to reach these projections and noted that the NT Government’s own population projections differed.
Submitters also highlighted the shortfall to secure the second division, demonstrating concern over accuracy in population projections.
The Electoral Commissioner’s determination (that reduces the NT to having one division) was ‘based on the most recent official population figures for the Commonwealth published, and provided to him, by the Australian Statistician’.
The population figures of 247,280 referred to population as at 31 December 2019 and were published on 18 June 2020.
The Committee scrutinised ABS projections and methodology at a public hearing on 21 July 2020.
The ABS produce quarterly population statistics – using the census as a base, and the Post Enumeration Survey (PES). The ABS explained that the PES:
… makes adjustments for undercount in the census and gets administrative data to measure population growth on a quarterly basis in between censuses—that's your births and deaths for natural increase, your net overseas migration and also your interstate migration to determine state and territory populations.
The ABS added that under the Electoral Act two standard errors are allowed when calculating entitlements and that ‘the margin of error in 2016, or the last PES that we ran, Post Enumeration Survey, was 7,440 people’.
Whilst the ABS data ascertained the NT population at 247,280 (as at 31 December 2019) the Committee took evidence that the NT Department of Treasury and Finance projects the population to reach 251,727 by 2021.
The Committee heard that the population numbers in the NT fluctuate. Reflecting on the past 30 years, Member for Lingiari, Mr Warren Snowdon MP, said:
On the one hand, we’ve got a problem with migration. On the other hand we have a very young population, a very high birth rate, lower mortality rates. Life expectancy is changing. In terms of natural population we’ve now got the highest increase in the country […] it does go in cycles. It is true to say that the population has been very much driven by economic activity in the Top End here. We lost the 4,000 last year largely because of the completion of the Inpex project…
Additional capital works investments in the NT are expected to lead to an increase in population. The Australian Government has committed to capital works projects – mostly relating to defence infrastructure around Darwin and Katherine. The Committee heard evidence positing that investment in large scale projects impacts positively on population and population growth:
We’ve seen – and I’ve observed since the cyclone in the mid-1970s – that, when you have episodes of investment like after the cyclone and like with INPEX, you have a draw on the community from elsewhere in the country because we don’t have the skill base sufficient to meet the skills requirement of that infrastructure investment. The same will be true for this Defence investment. We’ll see people coming from interstate to work on these jobs. I can’t speculate as to how many jobs there will be, but it will make a dramatic difference to the total population in the north, absolutely.
Geographic size and conditions
Spanning 1.42 million square kilometres, the Northern Territory is a vast and diverse area. For the purposes of the Electoral Act, the Northern Territory also includes Christmas Island and Cocos (Keeling) Islands.
At the public hearing, Senators and Members highlighted the challenges they faced in connecting with constituents in their State or electorates face-to-face.
The Hon Warren Snowdon MP explained how difficult it was for a Federal member to traverse their electorate with flight schedules to Christmas and Cocos (Keeling) Island requiring a 10-day round-trip:
… there are only two flights a week. The rotation differs, so you can fly Perth-Christmas-Cocos-Perth or Perth-Cocos-Christmas-Perth. It just depends on the cycle which days they're flying. Obviously you've got to make the cycle twice to be able to get on a flight from Cocos to Christmas or Christmas to Cocos to be able to service both communities. You might spend three or four days on one, three or four days on the other, fly back to Perth, overnight in Perth and then fly via Adelaide. There are no longer any direct flights, in my case, between Alice Springs and Perth so I have to overnight in Perth and then fly via Adelaide to get back to Alice Springs. There are direct flights from Perth to Darwin.
The Committee heard evidence that the sheer geographic size of the Northern Territory, its diverse terrain of unsealed roads, limited amenities and monsoonal weather, also made access to remote communities extremely arduous.
Senator McCarthy put to the Committee there is not enough time for one member to service such a large area:
... it's the need to be able to sit down with the many hundreds if not thousands of clan groups of First Nations people across the Northern Territory that make up the seat of Lingiari. The constructive criticism that we often get is: 'We don't see you. You're not here long enough.' And this is now, when we have four representatives. Clearly, if that number goes down to one, that call and criticism will certainly be echoed even louder. They need to see us and they need to know that we are there…
Members of Parliament are expected to engage with their constituents by attending meetings and events. The Committee heard arguments that reducing representation would mean stakeholders and interest groups would have less access to their local member. Member for Solomon, Mr Luke Gosling OAM MP told the Committee:
As anyone who lives in a capital city would know, there are hundreds and hundreds of organisations—non-government organisations, not-for-profits, multicultural groups, associations, business groups and employee representatives. There are so many different communities' interests, all with headquarters in the capital. You would be familiar with that from the capital cities in your own jurisdictions. So a capital—even a small capital population-wise relative to, say, Sydney or Melbourne—still has an enormous number of organisations that have missions that they're trying to achieve on behalf of their memberships, and they need to be able to access their federal representatives. That means that representing Darwin and Palmerston, as with any other capital city, is very time intensive. In most weeks, I would be out at an event every night. It's a small electorate by land mass, but all those needs are there, and it would be an incredible disservice to all those organisations and all those communities of interest, as my NT colleagues have said, if their representation were diluted. I just ask the members of the committee to put themselves in our shoes. If your jurisdictions—Victoria, South Australia, Queensland or Tasmania—had a halving of their representation in the House of Representatives, it would be quite shocking. The Northern Territory deserves proper representation.
Many community and stakeholder groups echoed this sentiment claiming they would be disadvantaged in their advocacy work by only having one representative in the lower house. Bawinanga Aboriginal Corporation expressed that access to representation was already inadequate, submitting:
… we are lucky to receive one visit by a Federal politician per election year. We are not able to drive down the road to visit our Member of Parliament like it is possible to do in urban electorates.
Reduced access to Commonwealth support in the form of grants was also identified as a negative consequence of the NT only having one division in the lower house. Mr Luke Gosling OAM MP argued:
If there were to be just one seat in the Northern Territory it would also mean that the people in Solomon, like the people in Lingiari, would have less access to funds from the Commonwealth through various grant programs like the Stronger Communities Program, like Volunteer Grants. Anything that is apportioned to the people of the Northern Territory by virtue of a certain grant amount per electorate would automatically obviously be hard.
Impact on First Nations people
The Committee received evidence suggesting that halving the representation of the NT in the House of Representatives would unduly impact First Nations people who comprise of 25.5 per cent of the population of the NT (40.2 percent of the Lingiari population and 8.5 per cent of the Solomon population).
Senator McCarthy highlighted the link between closing the gap and adequate representation stating:
The fact is that we have not only the logistical and geographical differences of the Northern Territory but we also have the cultural differences, and it is incredibly significant that the First Nations people across the Lingiari electorate are represented in a way that lifts their voices to the federal level. We have heard from the First Nations people calling for a voice to federal parliament. The fact they are not heard means that if this removal of a seat from the Northern Territory does take place, it is certainly going to decrease the voices from First Nations people in particular being heard at the federal level.
The Northern Land Council emphasised that the needs of Aboriginal Australians living in the bush were different to those living in the cities – and that maintaining two divisions allowed voices from the bush to be heard.
… the Lingiari seat is unlike any other seat that you can see in federal parliament. I think Canberra recognises that Aboriginal people are an important part of this country, so we need to make sure we retain that seat to keep our voice in Canberra. We don't want that voice caught up with the issues in Darwin or Palmerston or Katherine—even Alice Springs. The bush has to be heard, and that's an important factor for not just Aboriginal men but also Aboriginal women and young people, otherwise we will see all of those views get diluted. You see the economy and all of the things that make the news sexy at seven o'clock, or whenever the news comes on, and Aboriginal issues often get left behind. I think it's really important for Canberra to recognise that Aboriginal people are important, and that their voice is important. Part of their voice is in retaining that seat.
Former Speaker of the NT Legislative Assembly, the Hon Jane Aagaard AM, reflected ‘to reduce the representation to one seat would be virtually impossible to service’, elaborating:
What does ‘Closing the Gap’ and the proposed referendum on Recognition of Indigenous people in the Constitution, including a ‘voice’ to parliament mean if before we even get to that point there is the possibility of the diminution of Indigenous and other Territorians rights by the removal of a Federal seat.
COVID-19 continues to have a significant impact on the way Australians access goods and services. This includes the Australian Parliament and the way it conducts its business. Whilst teleconference and videoconference technology has been used as a tool for parliamentary committees for some time, the Committee heard that these tools are not a substitute for face-to-face contact for members with constituents. Senator McCarthy said:
… COVID-19 has really pointed out for us the need to have the face-to-face interactions, to travel in those vehicles and to sit down with people out in the bush and listen to their concerns. There is no comparison with the way we communicate now. We can actually see, if we didn't realise it before, the importance of face-to-face communication.
The Hon Warren Snowdon MP told the Committee that access and connectivity issues in the NT made reliance on telephonic and internet platforms ‘spasmodic’. He went on to elaborate that face-to-face interactions were particularly important to meeting the needs of indigenous constituents saying:
Sitting in a room with a group of people and having a yarn is a really effective way to communicate. With those same people on a telephone link it's very different, and often those people are really reticent to engage in that sort of communication, so you don't get the sorts of outcomes that you would otherwise get from sitting down, whether it's in the dirt or in a room, and having a yarn. It's really important to appreciate that difference. I'm fortunate in the sense that, because I've been doing this job for such a long period, I'm well known in the bush. If I am having a conversation with someone on the phone, people can visualise who I am, but they still are reticent about using that sort of communication. You would know of the nonverbal cues that people have when you're in a meeting; you don't get them over a telephone.
Support for two seats
The Committee received evidence from parliamentarians of all persuasions who supported the Bill.
In her second reading speech, Senator McCarthy (ALP) acknowledged the cross-party support for the Bill stating:
I want to make special mention of my Territory colleague in this place, Country Liberal Party Senator Sam McMahon. Senator McMahon understands the need for effective representation in the NT and I thank her for her public statements on this issue. I would also like to thank National Party Senators McKenzie, Canavan, Davey and McDonald for joining Senator McMahon in co-sponsoring the motion to introduce this Bill. I know also that there are other Senators from the crossbench who are supportive …
The Committee received a joint submission from sitting members and senators from the NT, including:
Senator Dr Sam McMahon (Country Liberal Party);
Senator Malarndirri McCarthy (ALP);
The Hon Warren Snowdon MP (ALP);
Mr Luke Gosling OAM MP (ALP).
Mr Luke Gosling OAM MP explained the bipartisan commitment to maintaining a minimum of two divisions was based on the shared goal of developing the NT.
We've had Minister Keith Pitt here over the last couple of days talking about developing the north as well as Minister David Littleproud at the moment. If we are all committed to developing the north and taking it seriously, then proper representation, no matter who holds these seats, for the Northern Territory is absolutely vital.
Support for maintaining a minimum of two divisions in the NT also came from the Northern Territory Chief Minister Michael Gunner and Ms Lia Finocchiaro, Leader of the Opposition, Legislative Assembly of the Northern Territory.
Chief Minister Michael Gunner submitted:
The challenges faced by two elected Members in representing this diverse and vast electorate are already significant; halving their capacity would likely make it impossible and would further disenfranchise many communities in the Territory who deserve to have their voices and views heard.
Ms Lia Finocchiaro echoed that sentiment put forward by the Chief Minister, writing:
The diversity of representative needs, interests and perspectives in the Territory requires more than a singular voice in the House of Representatives. As the title of the Bill suggests, it would be unfair and inefficient to attempt to require all the concerns of Territorians throughout our vast landscape to be voiced by a single person.
Proposals for changing the basis for determinations
The Committee took evidence on the proposed changes to the basis of how determinations are made, including amending the current formula used to calculate electoral seats.
Prominent psephologist and electoral commentator Mr Antony Green argued that the current formula used to calculate electoral seats is inadequate and does not result in proportionate representation, explaining:
The basic principle of section 24 is that allocation in the House of Representatives shall be 'in proportion to the respective numbers of their people'. My argument is that the current method used in section 24 doesn't produce a solution which is correctly in proportion.
Mr Green advocated that the method of how entitlements are calculated should change so that different rounding ratios would apply to each State and Territory depending on its relative size. In his submission, Mr Green argues for the adoption of Dean’s Method, which rather than using a fixed rounding point of 0.5 uses a harmonic mean. He explained:
By this proposed method, the rounding point varies depending on the value of the whole number of seats to be allocated, where it is fixed at 0.5 with the current method.
He went on to argue:
The current state-based formula is unnecessarily harsh in allocating seats to the two territories. Adopting Dean's formula will produce a fairer representation for both territories, ensuring the seats allocated produces an average population per member closer to the national average.
At a public hearing Mr Green said that the current formula does not ensure proportional representation stating:
… the Constitution says, in section 24, that the allocation of representatives 'shall be in proportion to the respective numbers of their people'. What I'm saying is the current formula, which rounds at 0.5, does not guarantee that, especially for small jurisdictions like the territories. If you adopt this formula which is based on averaging, if you allocate the seats based on putting the territory quota nearer to the national quota, it will be by definition a more proportional outcome than the current formula. The current formula cannot guarantee to allocate the number of seats so that it's near to the national quota, but the harmonic mean does.
Mr Green’s suggestions of the adoption of Dean’s Method were supported by the National Party of Australia, who submitted:
…the National Party of Australia supports the Bill currently before Parliament to retain a minimum of two divisions for the Northern Territory in the House of Representatives.
Alternatively, if the Bill was to fail, the National Party urges the adoption of the Dean method’s harmonic mean test in place of Section 24’s arithmetic mean to provide a fairer method of proportionality for our territories.
The Committee also took evidence that suggested fair representation could come from ‘an increase in the size of parliament’ over a period of successive parliaments. Mr Malcolm Mackerras told the Committee:
… that the current formula produces a closer match to the democratic principle of equal representation for equal numbers of people than would be the case if there were two in the Northern Territory. If there were two representatives of the House of Representatives, the number of representatives with a small R would increase to four and it would then be the second-most privileged—second only to Tasmania—which is the case in the present parliament.
Mr Mackerras did not agree with Mr Green’s suggestions to change the formula, saying:
I think it would be better to pass this bill than to start changing the formula yet again, which is what Antony Green seems to be suggesting. I wouldn't say I'm dead against this bill; I'm just saying I do think it's a bill prompted by a desire to grant privileged status to the Northern Territory.
… a single Northern Territory seat—my guess is that it would be the largest in population as well as being the largest in the number of electors.
When discussing potential changes to how the determination formula works the AEC made the distinction between enrolment rates and population, noting:
… the enrolment rate affects the distribution of boundaries. What it doesn't affect is the entitlement to seats. That's just a straight out population issue. There's sometimes a misconception about that. We would still be having this discussion no matter how many people were on the roll in the Northern Territory.
In considering Mr Green’s proposed formula, the AEC made two points; firstly that ‘it may not necessarily always result in the Northern Territory maintaining a second seat, moving into the future. I think there's an issue with the calculation itself’, and secondly, that while the current process is complex, ‘it can be understood by the average lay person, with a pencil and a bit of paper, working through.’
The AEC suggested that this delivers an important degree of transparency, and noting that there is a risk that this is lost with more complicated equations and formula.
It is noteworthy that, whenever the number of members in the House of Representatives for a particular State has fallen, those changes have been accepted with minimal contention. Most particularly, occasional losses for individual States has not led to claims that there is a fundamental error in the formula. There is a reasonable understanding that relative population sizes of the States can flux in all directions and a State that may lose a seat in one year could stand a chance to regain that seat in the future. The general understanding is that the issue is economic opportunity, migration and the age profile of State populations (the drivers of population change), not a defect in the formula.
Public acceptance of the present rounding formula can be credited to the ease with which it is understood and the obvious even-handedness of the formula.
The Northern Territory is the one jurisdiction where a loss of representation has resulted in a particularly strong debate. This is largely based on concerns about the logistical difficulty of a single MP travelling around such a sizable jurisdiction, in particular because it is so time consuming to visit its widely dispersed remote Indigenous and other rural communities. The expressed preference in Northern Territory politics, based on the submissions received, has been to have a di minimis policy setting that refers simply to two seats.
Even though the proposed Dean’s method has considerable merits and would resolve the Northern Territory’s issues in the foreseeable future, it could be challenging to foster understanding that this will be the case. It is not a very elegant public discussion, to argue the case for switching from an easily understood formula that aligns to a layperson understanding of ‘rounding’, to change to a ‘harmonic mean’ that involves a sliding scale with multiple rounding points.
Playing with the rounding formula to satisfy concerns in a single Territory could unnecessarily complicate public understanding and acceptance of the redistribution methodology in all the States. A new complicated formula could easily become a scapegoat when some States lose a seat in future.
It is neater and more targeted to address the concerns that arise from a one seat scenario, which is only credibly an issue at Territory level. The same issue does not arise for the States (all of which are ‘Original States’), because section 24 of the Australian Constitution provides them with their own minimum representation arrangement, stating that: ‘five members at least shall be chosen in each Original State.’ The principle is that Original States have a significant constitutional position that entitles them to a minimum level of representation in the House of Representatives. Significantly, this arrangement treats all Original States equally.
The under-representation that occurs where a jurisdiction is just below the population needed to secure two seats is relatively marked, in terms of the average number of citizens per MP, or average total voters per MP. However for jurisdictions with incrementally larger populations, a shortfall against achieving the quota for each extra House seat does not create such an extreme under-representation. The existing formula continues to serve the States fairly.
Structure of the Bill
Any Bill seeking to guarantee two seats for the Northern Territory should at least make two main changes:
Amend section 48(2B) of the Electoral Act, which currently guarantees at least one member of the House of Representatives for both the Northern Territory and the Australian Capital Territory.
Transition from previous arrangements, for instance by setting aside the Electoral Commissioner’s most recent determination, announced in July 2020, which reduced the Northern Territory’s entitlement to one member.
The private Senators’ Bill would do both those things. However, the Committee has identified other matters that should concurrently be addressed in the event of legislative change to increase the minimum representation of the Northern Territory in the House of Representatives.
Comparison in treatment of the Territories
The current provisions of the Electoral Act treat the Australian Capital Territory and the Northern Territory in the same manner, guaranteeing both territories a floor of one seat in the House of Representatives, with the same method of calculation of seat entitlement. The private Senators’ Bill would introduce a new minimum of two seats for the Northern Territory but would keep the Australian Capital Territory, uniquely, on the lower one seat floor.
This would institute a two-tier arrangement for minimum Territory representation, rather than modelling the section on the constitutional treatment of Original States whereby all Original States are treated with parity. It would also be a departure from existing electoral arrangements.
The Northern Territory and the Australian Capital Territory have been afforded equal treatment under the Electoral Act since the passage of the Electoral and Referendum Amendment Act 1989 (1989 Amendment Act).
The 1989 Amendment Act provided fixed formulae for the representation of the Territories in the Commonwealth Parliament, in line with the recommendations of the former Joint Select Committee on Electoral Reform (JSCER) in its November 1985 report relating to the representation of the Territories and new States in the Commonwealth Parliament. Relevantly, the 1989 Amendment Act provided the Northern Territory and the Australian Capital Territory at least one member in the House of Representatives, with representation thereafter in proportion to the population of each Territory using the same quota as for the States (the current approach in the Electoral Act).
In the Government’s second reading speech on the Electoral and Referendum Amendment Bill 1988, then Senator the Hon Robert Ray stated the rationale for this approach to Territory representation:
This Bill provides fixed formulae for the representation of Territories and new States in the Federal Parliament. The JSC examined this issue, following concern that it would be possible for a government, with a majority in both Houses, to increase the representation of the Australian Capital Territory and the Northern Territory out of proportion to their populations. The Government has accepted the Committee's conclusion that fixed formulae for the representation of Territories and new States should be prescribed.
Accordingly, this Bill provides for the Australian Capital Territory and the Northern Territory to be entitled to be represented by at least one member of the House of Representatives, and that representation thereafter be in proportion to its population. Other Commonwealth Territories will be entitled to separate representation when their population exceeds more than one-half of a quota as determined by section 48 of the Electoral Act.
By having separate minimum entitlement provisions treating each Territory differently, the Bill departs from this longstanding position, raising parity, equity and, conceivably, constitutional concerns.
If NT population were to continue to decline relative to the populations of other jurisdictions, its representation in the House of Representatives could be impugned as disproportionate (at least in the public arena), and could be more likely to raise constitutional concerns, should the matter be considered by the High Court.
Notwithstanding whether this may give rise to legal issues, the Committee considers that on principle alone there ought to be parity in the treatment of the two Territories. By itself, a specific arrangement for one Territory could look like a political ‘fix’ rather than a solution that reflects similar treatment of similar jurisdictions. As Warren Snowdon MP observed during debate on the 2004 Bill about territory representation, a solution that singles out one territory not only has vulnerabilities on principle, but also risks undermining public confidence in the equity of electoral arrangements. He also argued that such piecemeal special deals can create a dangerous precedent for capricious changes under future Parliaments:
We do not want to be in a position … of passing a piece of legislation which would have been an absolute political fix, which would undermine the credibility of the Electoral Act and which would create a precedent for future governments to intervene in a very political and partisan way in determinations made by the Electoral Commission.
A minimum representation rule that offers an equivalent floor for both the Northern Territory and the Australian Capital Territory could avoid such concerns and – in the event that there are any legal concerns to constitutionality – demonstrate to the High Court that the arrangement had a principled basis rather than an arbitrary one designed to achieve preferential treatment for one Territory. The proposed solution for the Northern Territory would present as more principled and proportionate, if the same principles and treatment extend to the Australian Capital Territory, as has been the approach taken since the 1989 Amendment Act.
A two seat floor would have no immediate practical benefit for the Australian Capital Territory based on current population trends, but it would ensure parity if there were future relative population decline in that jurisdiction.
A two seat floor for both of the Territories can be legitimately justified on several policy grounds. It would permit representation in the House of Representatives of different regions within each of the two Territories (this is clearly of greater relevance to the Northern Territory). It would also provide for some diversity of views between the MPs representing each of those jurisdictions (this is relevant to both the Territories).
A common floor for both Territories would be consistent with the design of the protection provided to States under section 24 of the Australian Constitution, which guarantees each Original State a minimum representation of five MPs. Under the current law – including section 48(2B) of the Electoral Act which provides a one seat floor for the two Territories – the consistent principle is that equivalent jurisdictions have an equality of treatment.
If a legislated floor for territory representation continues to provide consistent treatment for both Territories, this would be strong evidence to the High Court that the arrangement is proportionate to its purposes. This would assist the High Court to look past some decline in the relative population of the NT against other jurisdictions, because the treatment would be general to both Territories and not a special arrangement for one that gives rise to an inequality.
It is important that a Bill dealing with these issues is drafted in a way that minimises the risk of constitutional challenge, or a loss of public confidence in the legitimacy of the change, as that would be detrimental to the interests of Northern Territorians.
The present Bill proposes to introduce a new provision into section 48 of the Electoral Act, rather than amending the existing provisions. This new provision (new 48(2BAA)) appears obviously unnecessary when the existing section 48B could simply be amended to read ‘two members’ rather than ‘one member’.
Consequential amendments to provisions for boundary changes
The Bill focuses only on the first step in the redistribution process, namely the step for assigning a total sum of House of Representatives seats to each State and Territory. However the Bill overlooks subsequent stages of the process for then drawing the boundaries between divisions within each State and Territory.
Where there are two or more divisions in a State or Territory, it is necessarily to periodically redraw the boundaries between those divisions to avoid ‘malapportionment’ (a significant disparity in the number of enrolled electors).
As drafted, the Bill may unintentionally create a break between the first part of the process relating to the number of seats and these subsequent stages related to boundaries. This disconnect would only arise under the Bill in relation to the Northern Territory and although the uncoupling of these parts of the process would have presumably not been contemplated and certainly not intended by the sponsors of the Bill, it can arise from the terms in which the Bill is drafted.
It also reflects the fact that the Electoral Act, as one of the oldest pieces of Commonwealth legislation, is a very lengthy Act that includes some complex rules that arise from previous amendments. Amending the Electoral Act can be challenging when done through private bills without the benefit of official advice.
Where there are multiple federal electoral divisions within a State or Territory, Part IV of the Electoral Act establishes methods to be used by the AEC to re-draw the maps that define the boundaries between those divisions. According to section 55A of the Electoral Act, this methodology only applies to the Northern Territory when the Electoral Commissioner ‘determines’ that the Territory is entitled to two seats based in its population. Section 55A deems the Northern Territory to be treated like a State in these circumstances.
The word ‘determines’ reflects the existing process in the Electoral Act, under which the Commissioner makes judgements about the population and the relevant rounding rule. The word ‘determines’ appears to suggest judgment and evaluation by the Commissioner. However if the Northern Territory were entitled to two seats on a different basis than an evaluation by the Commissioner (namely if the outcome is deemed to be an automatic one), potentially it could not be said that the Commissioner has ‘determined’ the result. Consequently if the Bill were passed, section 55A might not apply and the subsequent rules in Part IV about re-drawing the boundaries between seats might not apply to the Northern Territory at all.
This is not a major issue if population growth is evenly dispersed across the Northern Territory, but it could be a problem if one division grows faster than the other.
Under section 59(10) of the Electoral Act, a division is considered to be ‘malapportioned’ if the number of enrolled persons differs from the average enrolment in the relevant State or Territory by more than ten per cent.
Part IV contains a series of rules about the boundary allocation process. Those sections refer only to the ‘States’ and the ‘Australian Capital Territory’, excluding mention of the Northern Territory (section 58 onwards). For instance, section 60, regarding the composition of a Redistribution Committee, does not automatically provide for the representation of any Territorian except where section 55A is activated.
It is possible to generously interpret the interaction between the Bill and section 55A, by assuming that the Bill would force the Commissioner to ‘determine’ that the Northern Territory has two seats. This interpretation is however subject to uncertainty about the possible interpretation of the term ‘determines’ in section 55A.
This risk arises because the Bill omits to clarify how section 55A should operate. Consequently, passage of a Bill that omits to overtly apply section 55A, could exclude the Northern Territory from boundary adjustments. Over time, this may lead to one Northern Territory MP managing a considerably larger population and workload than the other MP.
The Bill also does not amend the numerous places in Part IV where the Northern Territory is conspicuously omitted. Part IV of the Electoral Act is presently written in a way that does not assume that the Northern Territory will enjoy a minimum of two seats on a permanent basis. If the Commonwealth Parliament’s intention were to provide two seats permanently to the Northern Territory, then all relevant sections should overtly align to that intention.
Even if the Bill can be interpreted generously as allowing section 55A to operate, the failure to make consequential amendments throughout Part IV would make it very easy for a future Parliament to reverse this Bill.
Consequential amendments to inconsistent provisions
The legislative reform to protect the second Northern Territory seat should repeal or amend the existing section 48A (which sets aside the Electoral Commissioner’s determination of 19 February 2003 relating to the Northern Territory) as this section should be regarded as redundant. It is unusual that the Bill does not remove this spent provision, as it could cause confusion about what section is the operative one that protects the second seat.
Introducing a new provision 48(2BAB) or amending the existing provision 48(2B) without repealing existing section 48A introduces unnecessary tension and complication into the Electoral Act.
The Committee acknowledges the unique features of the NT – its size, geographic diversity and the unique needs of a significant First Nations population – and how increased representation could help meet the needs of its population.
However, the Committee notes that there are many other electorates around Australia that have significant challenges for its elected representatives. The Northern Territory, as a single electorate, would not even be the geographically largest of the very large electorates, as Durack in Western Australia is 20.9 per cent larger.
The tyranny of distance, being able to communicate with each constituent and keep in touch in the electorates of Durack, Grey, O'Connor, Kennedy Maranoa and Parkes are similarly as challenging as the NT. Many of these seats also have remote Indigenous populations, other small rural communities, unsealed roads and extreme weather events that can limit access.
For a sense of comparison and perspective, the sizes of these seven federal electorates are shown below, alongside the seven largest countries in Europe. Russia is the only country larger than the three largest Australian federal electorates. But the five largest federal Australian electorates are each bigger than the second largest European country, which is Ukraine, and are each sizeably larger than all other remaining European countries.
Table 1.1: Comparative size of Australian Federal electorates and European countries
Source: Australian Electoral Commission, ‘Current federal electoral divisions’, viewed on 16 October 2020, < https://www.aec.gov.au/profiles/>; Wikipedia, ‘List of European countries by area’, viewed on 16 October 2020, < https://en.m.wikipedia.org/wiki/List_of_European_countries_by_area>
The extraordinary size of the seven largest electorates (those that exceed 350,000 square kilometres) is already recognised through the provision of Commonwealth resourcing to support the MPs with their resultant extra workload:
up to three electorate offices;
funding for an extra privately-leased satellite office;
additional staffing resources;
additional electoral allowance; and
an additional four wheel drive vehicle.
Since 2016, the Government has made a series of decisions to broaden the range of support and scale up resourcing for MPs in large electorates. More recent Government decisions have also ensured that there is targeted support for MPs who have electorates between 3,500km2 and 350,000km2. These successive decisions are summarised in Appendix C.
The total resourcing arrangements for the largest electorates are summarised at Appendix D. This shows the new configuration of available support, after recent successive additions to baseline resourcing. This table shows how the large electorates are now categorised into four tiers based on geographic size, with support scaling up for the largest tiers.
In relation to these additional resources, the electorate office and satellite office support enables MPs to service communities that are based in or around regional population centres. Further support for reaching very small communities across very widely dispersed locations is achieved through the provision of additional staffing resources and vehicle resources.
Even beyond these large electorates, there are many members of the Commonwealth Parliament that represent other significantly diverse electorates which include constituents from Culturally and Linguistically Diverse (CALD) backgrounds, or constituents who are disadvantaged economically, academically, socially or physically; all who have different needs and priorities.
Research conducted by the ANU Centre for Social Research and Methods highlights the significant challenges faced by some parliamentarians in a number of electorates across Australia:
The electorate in Australia with the highest rank for disadvantage is Hinkler in regional Queensland. Hinkler’s disadvantage is strong for the economic, health and education components. Other strongly disadvantaged areas include Spence (north of Adelaide), Braddon (West Tasmania), Cowper (Northern NSW) and Lyne (NSW Mid North Coast). Spence is economically and educationally disadvantaged while the remaining three listed are weakest electorates with respect to health (due to an older population).
Options for addressing Northern Territory representation
The Committee recognises that a population-based solution, such as the Dean formula, would have a number of conceptual strengths. It acknowledges that the Dean formula would ensure that seats allocated to each jurisdiction would produce an average population per MP closer to the national average. However it recognises that there are several problems with the potential for public acceptance of this approach.
While a more complex harmonic averaging has academic appeal, it could be difficult to explain to the public given that it depends on different rounding thresholds being used for each State and Territory. The present method has the benefit of simplicity, clarity, transparency and parity.
Moreover, mathematical solutions would not resolve the strong underlying concern, held by Northern Territory community leaders on all sides of politics, that future uncertainty over population growth could mean rounding changes will only defer the problem. The issue is whether the Northern Territory can have a sufficient voice in the Commonwealth Parliament for a diverse community. While the Northern Territory has slipped in its relative position against other jurisdictions, it nonetheless is sizeably larger today than when it first gained two seats.
While there was some criticism of ABS statistics, alternative data from the Northern Territory Government was little different. The Committee does not believe that it received adequate evidence to recommend that the determinations for commencing redistribution processes should be based on anything other than the population statistics provided by the ABS.
However, the Committee notes the debate about population projections for the NT and the challenges of measuring population numbers in remote communities. The Committee encourages the ABS to continue to improve its census and PES processes to ensure the best data is collected to accurately reflect population numbers.
The Committee notes the difference in population projections from the ABS and the NT Department of Treasury and Finance. The Committee encourages the ABS to collaborate with officials in the NT Government and Commonwealth agencies that hold data on territory residents, when designing population data collection programs.
Minimum representation for the NT and ACT
The Committee notes that there are technical issues in the Bill that warrant introduction of a new Bill that provides a two seat floor for both the Northern Territory and the Australian Capital Territory. It is preferable that a new Bill is drafted with the benefit of official advice to mitigate against drafting error, oversight or constitutional risk. Therefore it would be most appropriate for the Government to introduce such a Bill.
A new Bill should include consequential amendments to clarify that the standard boundary redistribution processes in Part IV of the Electoral Act will apply to the Northern Territory, after it has a permanent statutory minimum of two members of the House of Representatives. Part IV should therefore be rewritten in relevant places, to insert the Northern Territory wherever it is omitted.
On a general principle of parity, both the Territories should have the same treatment to guarantee their minimum representation and to manage the consequential processes related to boundary-drawing. Although boundary-drawing rules can reasonably distinguish between the States and the Territories (given that States have considerably larger total populations), the Northern Territory and the Australian Capital Territory should be treated on the same basis in the boundary redistribution provisions, except where there are very compelling technical reasons for minor differences.
The 2004 legislative changes that provided for a margin of error treated both the Territories alike. It is similarly appropriate that the tradition of parity between these equivalent jurisdictions should be reflected in this next stage of statutory reform.
A new Bill should also remove the spent sections from 2004, given that they could give rise to confusion.
Legislation addressing Territory representation in the House of Representatives could also be simplified in places. For instance, in setting aside the most recent determination by the Electoral Commissioner, a future Bill could be simplified to say that the Northern Territory has a minimum of two seats, rather than artificially deeming the determination-before-last to still be in effect. In 2004 legislation was enacted which deemed that the preceding determination was still in effect, however that was necessary because at that time the AEC considered it did not have time to undertake a redistribution before the next election. Such a transitional rule may not be necessary today if the current Parliament passes legislation in a timely way.
If a two seat guarantee is entrenched, then a further related change is to remove the margin of error rules from section 48 of the Electoral Act (see subsections 48(2E) and 48(2F)). The margin of error would no longer be necessary to ensure that the two Territories each receive a minimum two seat entitlement, therefore they ought to be regarded as spent provisions.
These special rounding rules had, as a purpose, the intention of defending the second seat in the Northern Territory from statistical uncertainty in its population. However, in 2009, 2011, 2014 and 2017 the Territory was able to retain a second seat without relying on its population margin of error. Only in 2005 has the provision been utilised by the NT to retain its entitlement to two seats. As such, this margin of error has proven redundant in most years since 2004, and inadequate in 2020. The effect of these complex rules is ‘hit and miss’ and they have not provided the long-run certainty and stability that was intended.
The rules allowing a buffer for standard deviations in section 48 were intended to address the problems presented by accurately measuring migration, births and deaths in remote Northern Territory communities where government agencies sometimes have limited access and contact. The issues of geographic distance, diverse languages and cultural barriers that are major challenges are unique to the Northern Territory, and are not present to anywhere near the same extent in the Australian Capital Territory.
There are no doubts about the ability of the ABS to accurately measure the ACT population, and therefore no need for a special margin for error to the same extent. If anything, some States with remote Indigenous populations, like South Australia and Queensland, might face greater challenges with population measurement than the ACT.
The Committee has recommended that there should be additional effort by the relevant statisticians across government agencies and different tiers of government, to ascertain the most accurate population figures. Such efforts at improved coordination should reduce error to the smallest possible magnitude in the first place, and therefore make it unnecessary to have electorate allocations predicated on tolerance for wide errors that should no longer be present.
As a principle, the Committee is not comfortable overturning the determination of the AEC but acknowledges the submissions received during its inquiry and the supremacy of Parliament to change the minimum of NT and ACT seats from one to two.
For the same reasons that different rounding thresholds present problems for public understanding and acceptance of the entitlement formula, it makes sense for consistency with the approach for the States that the 2004 margin of error for the Territories should be removed in the event that the minimum NT and ACT representation is increased from one seat to two seats.
Resourcing for constituency work
The Committee notes the consistent evidence that the Commonwealth Parliamentary representatives from the Northern Territory have faced serious challenges getting around remote locations to provide adequate support to their constituents.
It also recognises that comparable challenges arise in the six other very large electorates. In the Committee’s judgement, these issues are best addressed through the provision of additional resourcing to the relevant MPs to assist them in serving their constituents.
The Committee notes that the existing resourcing framework does already provide additional resourcing for MPs in line with increasing geographic size. In this respect, it may be appropriate for the Government to review the existing provision of additional resourcing to MPs with large electorates, and consider whether further targeted resourcing would assist with representation by MPs of their constituents in these large electorates.
If the Parliament will not agree to an improved Bill to enact a two seat floor for each of the Territories, the Committee supports the proposal from the Nationals for enacting a harmonic mean as a fallback method for allocating numbers of seats in the House of Representatives. The Committee expects this could require complex legislative drafting, so would require a Government Bill. Under this scenario, the 2004 margin of error should also be removed.
Alternatively the Parliament could consider options for expanding the Senate representation for the Northern Territory. This could increase the total cohort of representation for the Northern Territory in the Commonwealth Parliament.
For example, to bring the Territories into line with the States, two Senators could be elected for six year terms every House of Representatives election.
The Committee also notes the last increase in the size of the Commonwealth Parliament was 36 years ago in 1984. While not a formal recommendation of this Inquiry, increasing the number of seats would assist Members in servicing the growing constituency workload and would encourage the Government to consider options in this area.
The Committee recommends that instead of the Senate proceeding with the Bill, the Government introduce a Bill to provide for a consistent floor of two seats for both the Northern Territory and the Australian Capital Territory. As a consequence, the 2004 margin of error rule for the Territories should be repealed to provide consistency with the formula applying to the States. It further recommends that as part of a new Bill, the two Territories should also be subject to the same rules as each other in the process of redistributing boundaries between electorates, under Part IV of the Commonwealth Electoral Act 1918.
The Committee recommends that the Government review the existing provision of additional resourcing to MPs with large electorates, and consider whether further targeted resourcing would assist with representation by MPs of their constituents in these large electorates.
The Committee recommends that if the Parliament does not enact a two seat floor for the Territories, it considers instead either:
enacting a harmonic mean for allocating seats between States and Territories, with appropriate public explanation to build understanding for the reform, or
developing options for JSCEM to consider for additional Senate representation for the Northern Territory.
Senator the Hon James McGrath