There was a lot of discussion yesterday after Senator Don Farrell, the Special Minister of State, indicated the government is still intending to expand the number of senators representing the Northern Territory, and presumably the ACT too.
This is not a surprise. The government has previously suggested they are open both to expanding the number of senators per state (which would produce a knock-on increase in the size of the House) and increasing the number of territory senators (which would not affect the size of the House). When I testified before the Joint Standing Committee on Electoral Matters in June, that was the main topic of the hearing.
The former would force redistributions in five states, and thus we are running out of time to implement that change in this term. I assume the government will pursue the issue after the next election. But it is possible for them to simply increase the number of territory senators without such significant knock-on effects requiring complex implementation.
In this post I want to lay out my thinking about increasing the number of territory senators. I think an increase to four senators would be quite reasonable, and I don’t think it make sense to analyse two small territories as being “overrepresented” as long as the constitutionally-entrenched malapportionment remains.
A number of other psephologists who I respect have been opposed to an expansion, all arguing that the territories already hold a larger proportion of the Senate than their share of the population, and thus an increase in territory representation would worsen this “over-representation”.
I don’t agree with this approach. I don’t think you can judge the representation levels of the territories in isolation from the severe and constitutionally-entrenched malapportionment between the states.
There is no doubt that the Senate is severely malapportioned. If I was to design a federal parliament myself, I wouldn’t build it that way. I would prefer to see a single national chamber sitting alongside a lower house elected through low-magnitude PR districts. But there is pretty much no prospect of a change to the constitutional requirement that all of the six original states have the same number of senators.
I want to pause on this point. We all know that it’s very hard to change the constitution typically. But a change to Senate proportions would need to meet a higher standard. Section 128 of the constitution requires that any alteration that would reduce a state’s proportionate representation needs to be supported by the voters of that state.
So if you wanted to equalise each state’s share in the Senate, you’d need the voters of Western Australia, South Australia and Tasmania to vote yes.
Short of severe political change or a break-up of the Commonwealth, this will not happen. So we’ve got to determine what is fair within those limitations.
The argument of this post is that we shouldn’t hold the territories to a standard that the Constitution prohibits us from applying to the small states.
The political balance between the small and big states was a critical debate in the lead-up to Federation. The Constitution is full of balances between big and small states. The House is proportional to population and dominated by the more populous states, but with a minimum floor of five seats for each original state. The Senate has equal representation per state.
The House has a monopoly on originating money bills, and has some other rights that can help it get its way over the Senate. The House can force a constitutional referendum onto the ballot without the Senate’s consent (although in practice now we know such a referendum would have no chance of success), and the party controlling the House can ultimately use a double dissolution to clear out the Senate.
Often when there is discussion of the nature of the Senate, it is discussed as having deviated from the original intention of the chamber as a “states’ house”, but I’m not so sure. Yes, it is dominated by national political parties, and Senators primarily represent those parties, not the distinct positions of their home states. But I don’t think this would have been a surprise to the framers of the constitution. Political parties had developed in the larger colonies by the 1890s, and proportional representation for the Senate was already being proposed in the late 1890s.
Even though senators represent national parties, that doesn’t mean that their identity and interests as representatives of their state do not have any significance.
The greater value of the vote of a small state voter in the Senate increases their importance when a party is weighing up where to devote its promises of how government resources are allocated, and the distribution of ministries is influenced by that increased number of small state senators. Tasmania’s interests are boosted by having more votes within a party’s federal caucus than they would have if the Senate was proportional to national population. Even if parties vote as a bloc in parliament, the senators for a state can influence that party’s direction internally to ensure their state receives as much of the pie as they can manage.
And of course there is the potential for states to elect independents who represent that state’s interests more parochially – look at Brian Harradine, Nick Xenophon or Jacqui Lambie.
While the federal government has become increasingly important through the 20th century, the states still perform a crucial role in Australian governance. The COVID-19 pandemic reminded us all that so much of Australian government is managed at the state level, often using money collected at the federal level. So the ability of those states to influence federal distribution of resources through the processes of federal government is crucial.
Now we get back to the territories. They are not states, and they certainly don’t have the status of “original states” which would now entitle them to 5 House seats and 12 senators each. But in many ways, their forms of government now resemble small states.
Self-government has been well and truly established in both jurisdictions. The federal parliament has the power to over-ride their laws or ultimately revoke self-government, but those powers are not available for the government to apply without federal legislation. In recent years we’ve seen a rollback of the small number of issues on which federal parliament had prohibited the territory parliaments from exercising powers available to the states.
They are not financially self-sufficient, but no state is. Our federation has left all six states dependent on federal revenue to do their jobs.
The ACT and NT are also usually grouped in with the states – their leaders sit on national cabinet and used to sit on COAG. The phrase “state or territory” is commonly used.
Like the small states, the ACT and NT have an incentive to achieve the best outcome for their people within the federation. They are independent jurisdictions in much the same way as Tasmania.
The federal government has been framing its consideration of an expansion of the parliament as being an attempt to get closer to “one vote one value”. I don’t think that is the reason for a change to either state or territory senate numbers. It would make absolutely no difference to the representation between the states, and a modest increase in the House would only slightly improve the proportional representation of each state. I have other arguments for why the House and the Senate in general should grow.
But I also think you can’t make an argument for “one vote one value” in opposition to an increase in territory representation in the Senate. There is no principle of per capita representation in the Senate.
We don’t have a problem in Australia of the interests of the NT and the ACT being too powerful. They both remain small jurisdictions with limited resources and a small share of the parliament. But increasing their senatorial representation would strengthen their presence in the Commonwealth. The small states made very sure to entrench their ability to stand up for their interests in the original constitution, and I think it’s entirely reasonable to extend some of the same privileges to these two self-governing jurisdictions.
I’m not necessarily arguing for the territories to have equal representation with the states, but I think an increase to four seats each would be quite reasonable.
We are stuck with the equal representation of the states in the Senate. So we need to think about how the territories fit into that structure. The ACT has been getting closer to Tasmania’s population over time. It is now over 80% of the population of Tasmania. But with one sixth of the senators, the ACT (and even the NT) have a significantly lower ratio of representation in the Senate than Tasmania. The ACT’s ratio is substantially more than South Australia, and roughly in line with Western Australia.
The whole conversation around senatorial representation for the territories has been arbitrary and divorced from any clear principle. If you only gave them their proportionate share of the total, each territory would only have one senator. But no-one is arguing for that. If you were to set their representation to have a similar ratio to Tasmania, the NT would have five senators and the ACT ten.
Federal parliament is not obligated to treat the territories equally with the states, but they are also not obligated to treat them differently. They are perfectly free to extend some of that same principle of equal representation of jurisdictions to these smaller and newer jurisdictions.
If we’re concerned about the massive imbalance in Senate representation, a more practical way to deal with the issue would be to talk about potentially breaking up some of the bigger states. I don’t think that will happen, but I think it’s more constructive than simply saying “we go this far, but no further” when it comes to the two smallest jurisdictions.
There is also a second argument in favour of increasing territorial representation. Regardless of the fair number of seats for a given population, two senators is the worst magnitude to elect. It tends to produce very safe seats that cancel each other out, even when there are significant differences in support.
There has never been the slightest doubt about who would win the two Northern Territory seats, with Labor and the CLP cancelling each other out. While I’m sure those two senators do other useful work for their constituents, they pretty much nullify each other from an electoral perspective.
The ACT has at least been a bit more interesting, with the Greens threatening the Liberal seat repeatedly over the last two decades, and David Pocock finally winning the second seat in 2022. But it’s still the case that for a long time the territory strongly voted to the left and yet produced an even 1-1 split.
I’m going to return to this topic in another blog post tomorrow, where I look at historical election results to get a sense of how three or four senators for each territory might have changed previous results.
The validity of territory senators was upheld in WA v Commonwealth in 1975 by a majority of 4 to 3.It is important to note these words in the judgement of Mason J:-
“25.Two matters remain to be mentioned. The first is the grim spectre conjured up by the plaintiffs of a Parliament swamping the Senate with senators from the Territories, thereby reducing the representation of the States disproportionately to that of an ineffective minority in the chamber. This exercise in imagination assumes the willing participation of the senators representing the States in such an enterprise, notwithstanding that it would hasten their journey into political oblivion. It disregards the assumption which the framers of the Constitution made, and which we should now make, that Parliament will act responsibly in the exercise of its powers. (at p271)
26. Furthermore, such significance as the plaintiffs’ argument may have is diminished when it is appreciated that the Constitution provides no safeguard against the pursuit by Parliament of a similar course at the expense of the original States in allowing for the representation of new States in the Senate. Although s. 7 provides that equal representation of the original States shall be maintained in that chamber, neither the section nor the remaining provisions of Pt II of Ch. I place any restriction on the number of senators which Parliament may accord to a new State as its representation in the Senate. Here, again, the assumption is that Parliament will act responsibly. (at p271)”
Assumptions that Parliament will act responsibly are ill founded-and any increase beyond 4 senators per territory would raise a constitutional challenge.
Ben
If the territories were to get an extra two seats, are you advocating a 3 year or 6 year term? If the latter, it would possibly build in a left wing bloc of four senators that could entrench a built in majority that may be hard to overcome in what is usually a fairly closely divided house.
Ben, for your next post, can you please clarify your intent – would four Senators per Territory mean electing two Senators in each normal election for six-year terms (retaining the typical 2 seat magnitude for a 1-1 split) or electing four Senators each normal election for three-year terms?
I certainly agree with your critique of the 1-1 split, but if you intend that Territory Senators be dissolved every normal election, I’m wondering on what merit they should be subject to shorter terms while the State Senators have the stability of longer terms?
Alternatively, would it be possible to fix single election terms for all Senators so that the entire Senate is dissolved every election, and there is no difference in term length between State and Territory Senators?
Peter
On your last paragraph – the Senate term for the states is fixed. Simultaneous elections was defeated in a referendum in 1977 if I recall.
I would prefer if the Territories electors were bound with another state for the purposes of Senate representation – so rather than each Territory getting one or 2 or however many Senators, they voted as if they were part of a State (ACT to vote in NSW, NT to vote in SA?). There is a reason that these are Territories not States, and while I do think the population deserve representation, I don’t think the political entities do.
It would make sense if the territories had four seats given that their could then be two seats up for election for a six-year-term every three years, like how each state elects six Senators for an six-year term every three years. Currently the ACT and the NT each have only two Senators in total and both are up for election every three years.
However, I still like our current system for the House of Representatives with single-member electorates that have preferential voting. I like preferential voting because unlike first-past-the-post voting, you can actually pick the order of each candidate instead of what usually happens in most constituencies using FPP voting where a candidate who more than half of voters didn’t vote for wins. I also like compulsory voting because it means everyone has a say in who runs the country/state/territory/LGA, which I think is very important.
So the way we fix Senate malapportionment is by excising the major cities out of their States and giving their new city-states a quantity of Senators in fitting with their population, right?
I think that the Territories should be allocated 3 Senators, and the 6 original states should be increased to 7 Senators. That way, besides allowing for the number of seats in the Reps to be increased to allow for population growth, would be more likely produce a Senate that would more closely reflect the actual result of each general election. That could be achieved without any constitutional referendum, which are usually impossible to win.
I don’t see any positive from splitting the territory senators up into two classes. The electoral process would work far better to elect four senators for a three year term. To take the example of the NT, they might actually have some competition.
There was a referendum in 1988 which primarily aimed to increase the parliamentary term to four years, but it also reduced Senate terms to four years also, thus making every election a double dissolution. I would’ve been a very keen supporter of this change even though I’m generally ambivalent about four-year terms, but alas I was a small child at the time.
Antony Green on his (old) site pointed out that any attempt to increase territorial senators would dilute the representation of the States and run into problems with the Constitution.
And just like with the original 1975 act granting the territories representation, i can think of the small states that would be happy to run to the High Court about this.
Still working on the follow-up blog post but won’t get it done today so I’ll have it up on Monday. Another blog post coming up today.
Another way to look at the ACT and NT is that as they came out of NSW and SA the original territory of the states that constituted NSW and SA now have 14 Senators and increasing the senators in NT and SA to 4 would increase SA and NSW’s 14 senators to 16.
Based on my understanding of the WA and Qld Senators cases (1975), the High Court (4:3) said ACT & NT Senators are ok but don’t get cute as we could revisit our decision.
Giving ACT & NT 4 Senators could be cute. I would suggest, splitting NSW up into 4 territories and asking for 3 new territories to get another two senators (and the bit around inner Sydney keeps its 12) would definitely be cute.
The Senate is intended to be malapportioned. It is a cost of Federation and based off the US system where California has two senators as does Alaska. Despite California having something like 50 times the population.
Also if anyone wants to have a vote that is worth more you just have to move to Tasmania. I used to live there and now live in Sydney. Despite my Senate vote now being 14 times less value and my reps vote being about half its value in Tasmania (due to the minimum 5 seats in the reps) I have no intention of enduring future Tasmanian winters (despite global warming making them less cold) so that I can increase the value of my vote.
Finally, Ben are your population numbers total population or voters? If just population, the figures might be misleading in that a good proportion of immigrants first live in Sydney and Melbourne. Given that they can’t vote until they are citizens (and for the approximately 1m NZ citizens who live here it is very very difficult to become an Australian citizen). Similarly, people under the age of 18 can’t vote. Tasmania’s average age is 42 whereas Victoria and NSW are 38 (ish) which presumably means that there are more people under 18 in Vic and NSW as a proportion of the population.
I thought that there were about 375k registered voters in Tasmania which is very different to the population of 572k listed above.
Cheers,
Pollster
PS: we should be particularly nice to old friend Kevin Bonham given his vote is worth so much more than our NSW votes!
Pollster it was very warm in Hobart today. Ben why do you say increasing the territory senators by 4 will not necessarily lead to an extra seven to 8 seats in the HR? s 24 is not confined to senators from original states?
Roger,
Because territory senators are not used for the formula. The quota is arrived at by dividing the total population of the states by the number of state senators. That quota is then applied to states and territories.
Pollster,
That would be a wrong way to look at it, because the ACT is not part of NSW and the NT is not part of SA. They are separate self-governing entities. Maybe we should break up some of the larger states and use that as a way to expand the House rather than increasing the number per state.
We’ve never grappled with how many senators you would give to new states if they were created. One formula would be to give them a number proportionate with the smallest original state. So a new state would have 12 senators if they have a larger population than Tasmania. Under that formula, NT would get 5 senators and ACT 10.
all states and territories should just be doubled problem solved. this would also double the HoR.
Increasing the representation of all jurisdictions doesn’t deal with the contradiction of Tasmania having 6x the representation of the ACT in the Senate.
The entire constitution needs to be thrown out and started again. Bad rules that screw over people in populous states shouldn’t be doubled down on. Two wrongs don’t make a right.
ACT self-government should be abolished and the GG should govern it by fiat.
The gripe regarding malapportionment stems from the divergence and disproportionate growth of state and territory populations over time. The constitution never accounted for uneven growth, especially in the territories. Tasmania will forever have the same number of senators as every other state plus at least five lower house MPs.
I’m also in favour of increasing the territory senators as a partial remedy. At this stage, Labor will certainly support an increase to 3 or 4 seats up for grabs each election as they would be confident in winning a second seat. The ACT/NT Greens would support any increase as it betters their own chances, but they won’t support 2 Senate seats up for election every 6 years. Since David Pocock won his Senate seat, the ACT Liberals may be more in favour of a third seat, but not a fourth seat as they know either Labor/Greens will pick it up.
@votante really they should be grateful for 2. After all its the states house and they aren’t states.
@votante in the long run 4 seats is beneficial for the libs as pocock is one man the liberal party will outlast him. Labor will only support 4 as the 3rd will only ever fall to the greens in the long run and the libs in the short term. The fourth may even fall to the greens in the long run
Thinking the whole constitution will be thrown out is pure fantasy. Ditto for the idea that the states will vote for an amendment allowing the territories to be counted in the “double majority”. What the territories got in the 1977 referendum was pushing the limit even then for what state voters would tolerate and in today’s polarised and hyper partisan world, is not going to happen.
Likewise, the oath that federal MPs and Senators are required to take before taking their seats cannot be changed without a constitutional referendum – yes, the Schedule is part of the Constitution (as Senator Thorpe found out).
As for amending section 44: not going to happen either.
First cab off the rank for splitting states should be Queensland. Not that long ago it was the most decentralised state. Now South East Queensland contains the majority of the population and the power that goes with it.
The electorate of Ferny Grove is the midpoint for Qld with 45 electorates south of that and 45 north. Why worry about the regions when you don’t even have to leave Brisbane to hold government?
The recently released draft South East Queensland Regional Plan projects “almost 900,000 new homes by 2046 to accommodate 2.2 million new residents” at a time when the regions north of Gympie are struggling for basic services.
@MY – Not sure that the Qld Govt would want to give up all the coal royalties which pays for a truck load of infrastructure and civil service jobs (who tend to vote labor or green or Pocock).
Separately, it is also worth considering the context of Chapter VI – New States. In the early discussions it was thought that NZ and Fiji would be States as they were closer to Syndey / Melb / Bris than WA which was going to remain a separate colony (indeed section 26 of the Constitution contemplates WA not being an original state. Admitting new states was meant to be easy so that NZ could join if it changed its mind or WA if it remained a separate colony and then changed its mind. Indeed, Australia and NZ competed as Australasia at the 1908 and 1912 Olympics (winning a gold medal in rugby) and fought (together) as the ANZAC’s in WW1.
Indeed, WW1 probably increased NZ nationalism and the despite the 1989 ANZAC game against the Bristish Lions Australia and NZ have pretty much gone their own ways.
I might also cynically suggest that voters in areas like North Tasmania, New England in NSW or FNQ might be encouraged to vote for Federation because there was a provision in the Constitution that allowed for these areas to have their own states and remove themselves from the yoke of Hobart/Sydney/ Brisbane. But I might just be a little too cynical.
Clearly, a few more things have happened in the last 120 plus years with the Wright Brothers flying machines, a rail line to Perth (and Darwin) and the internet thing….. so probably aren’t going to get any new States. Although NZ is still beating Australia at Rugby.
Indeed southern Queensland voted strongly against Federation, it was only the centre and the north (which at the time had quite a strong secessionist movement) which voted for it.
@Pollster and Australia is still beating New Zealand at cricket, soccer and everything else.
ACT should not have ‘equal’ Senate representation because as a polity is suffers from an innate conflict of interest in that it profits from the expansion of federal power at the expense of the states.
@The Sherrif,
I have been trying to work out how to put this but in a more generic sense, a territory that is based on a particular profession/industry is inherently bound to end up captured by this – it is an obvious conflict of interest. I would also assume this is why the ACT was created in the first place, so Federal public servants were able to stay neutral without having to worry about who they vote for – it must be harder to work with the Coalition if you have actively campaigned against them at Territory/Federal elections.
Comments are closed.