Does the Senate need reform?

It was well worth venturing out last week to hear the first ever Alfred Deakin Lecture double header, with back-to-back lectures by Tony Smith, the Speaker of the House of Representatives, and Scott Ryan, the President of the Senate. (I can’t find the first online anywhere, but the second is here. Laura Tingle also reported on it yesterday.)

Given the sort of display their party had put on the previous week in Canberra, both men would have been justified in lying low for a while. Instead they both gave thoughtful presentations on some of the problems of parliamentary government – Smith with a more historical perspective, comparing Deakin’s times with our own, and Ryan with a somewhat more philosophical approach.

Both, inevitably, talked about the Senate: Australia’s upper house is indeed a distinctive institution. In Ryan’s words, “The constitutional strength of our Senate is a defining feature of our democracy.” But it has also for most of its history been a political punching-bag for one side or the other, and the last few years are no exception. Many have laid the blame for the chaotic nature of recent politics at the door of the Senate.

Since the Coalition returned to power in 2013, its complaints in that direction have been insistent. A surprising number of Coalition MPs and supporters seem to think that they would be in a far better position if the Senate had been more willing to pass their legislation.

Smith and Ryan both paid lip service to this idea, but neither produced any evidence for it. I confess I find it implausible. No doubt the Senate has often been frustrating for the government, but it’s hard to see where it has done actual harm.

The Abbott government’s first budget, for example, was fearsomely unpopular: would it really have been better off politically if it had passed the Senate unscathed? More likely the Senate did it a favor by rejecting some of the measures. And while Malcolm Turnbull more recently might have worried about getting an energy policy through the Senate, his real problem, as events showed, was devising one that could get through his own party room.

It’s also probably not coincidental that in the last period of Coalition government, under John Howard, the wheels really fell off precisely at the time when it had a Senate majority. There was no longer any barrier to it passing cherished but unpopular legislation, which it duly did – WorkChoices being the salient example.

Ryan told us, however, that “as long as the Senate is a forum or a stage for the expression of demands that make compromise more difficult, our legislative process will not function as it needs to.” He admitted that the public showed no sign of sharing the executive’s frustration, but nonetheless argued that “Governments need to be able to legislate the agenda they take to elections.”

What he proposed was a version of what is known in Britain as the Salisbury doctrine: that the upper house will not reject legislation that embodies policies on which the government was elected.

Since, as Ryan acknowledged, the British House of Lords is constitutionally a very different beast, having no democratic mandate, it is hard to see why our very democratic Senate should want to fetter itself in the same way. But it is also hard to see what practical difference it would make.

Much better, in my view, to take up Ryan’s suggestions about rediscovering the value of compromise and negotiation. It was an implicit rebuke to his colleagues, but no less true for that, to say that “the parliamentary process that sees broad support for an initiative is not a sign of compromise going too far, but can develop a national consensus.”

Smith, with less professional interest in the Senate’s powers, was more radical. He suggested changing the basis on which senators are elected, by dividing each state into six districts, each of which would elect a single senator at each half-Senate election. Andrew Robb floated the same idea back in 2005.

To evaluate it, we need to think why it is that the Senate should so often take on a different political complexion from the House of Representatives. There are four reasons why the two may differ:

  1. Some people vote differently for the two houses (generally minor parties attract more votes for the Senate)
  2. Senators serve six-year terms, with elections being staggered, rather than the three-year maximum of the lower house
  3. Each state has equal representation in the Senate, whereas seats in the House of Representatives are allocated by population
  4. The Senate is elected by proportional representation instead of the single-member districts used in the House

No government can do much about the first point, and the next two are both set by the constitution. The fourth is the only one that parliament can change by ordinary legislation, so that is where Smith set his sights.

But point four is also the one that unequivocally contributes to making the Senate more democratic than the lower house. Single-member districts deliver lopsided majorities, favor sectional interests, discriminate against broadly-based minor parties and produce random unfairnesses. Proportional representation avoids all these problems.

It’s true that conflict between the houses is accentuated when the house of review has as much – or more – claim to a democratic mandate as the so-called “people’s house”. But surely the solution to that is not to cut back on democracy, but to expand it.

That’s just what Peter Brent suggested a couple of years ago when he looked at the Senate:

But keeping minority voices out of parliament would, in the context of declining major party support, contribute further to widespread alienation from the political process. …

Proportional representation in the lower house could, by delivering responsibility to crossbench members in both chambers, rectify our rolling parliamentary logjam.

With a genuinely democratic House of Representatives, along the lines of New Zealand, Sweden or the Netherlands, Smith’s plan for the Senate would make complete sense. Without it, it would just make our system even further removed from what the voters ask for.


14 thoughts on “Does the Senate need reform?

  1. All good points. The other reform often mentioned but again never enacted (does it require constitutional change?) is a threshold vote of about 5%, under which threshold the candidate is eliminated (before distribution of preferences). But really we haven’t yet seen the impact of the last reforms in a standard half-senate election when most of the rogue Senators will be blown away (those who haven’t already been!). The last reforms improved things but only continued to highlight the ridiculous fix of allowing voting above-the-line, but the major parties won’t give up that lurk (that allows them to hand out rewards to undeserving and often unelectable party timeservers–a mini-me version of the Lords!).

    In an OpEd last week (The Australian, 27 Aug) Stephen Loosley also discussed the convention in the Brit House of Lords that passes anything in the winning lower house party’s election manifesto:

    The parties need to embrace the doctrine of the mandate, as enshrined in the Salisbury-Addison convention between the British House of Commons and Lords which has guaranteed legislative certainty in London since 1945. In short, if the winning party is committed to an initiative in its manifesto and this has been endorsed at the ballot box then the Lords will not oppose the resulting legislation. Imagine this basic principle applying in our Senate.

    Like you, I immediately reject anything that employs the Lords as a “solution” to a democratic conundrum! More than that, other than being unenforceable (imagine a Tony Abbott’s party adhering to this convention!), I reckon it would be counter-productive as some parties would create gigantic manifestos that no one reads and which contains all kinds of time-bombs within them. Plus, things change. No, it is unworkable and undesirable.

    Another thing that Loosley and John Ruddick (today’s The Australian) suggest is Primary elections supervised by the AEC to democratise candidate selection. This too would be useful for the Senate to stop parties foisting unwanted candidates on them.

    But really no one seems to be addressing the main cause of instability which is the internal factions of two-party systems, manifesting itself everywhere in the world it exists. Though you mentioned it in passing in your last para: PR in the lower house. In fact a system such as in NZ shows that with such a system the upper house becomes redundant.


    1. Thresholds are a retrograde idea. Quotas already serve as a natural threshold. Reaching a quota of 14.3% – or 7.7% in DD – is no mean feat; no matter what the proportion of primary votes vs preference voters. Indeed, if you support preferential voting, the primary/preference distinction is not important.

      Thresholds are only used in systems where seats-per-district number much greater than 6 or 12. In the Australian context they would only serve to shut out the minor parties to the benefit of the major parties.


      1. Quotas most obviously do no just thing. That “Final Solutions” senator began with 19 votes.
        One could agree if it were not for the mechanism resulting in these silly results: above-the-line voting. They need to abolish it (over the dead bodies of all major parties) and make voting BTL only obligatory up to say 12.
        Also I might agree that 5% could be a bit high. Even 1% would do the job.


      2. Thresholds made some sense as a quick and dirty fix when we had group ticket preferencing; they would have prevented things like Ricky Muir winning a seat via lottery. But much better and fairer to just abolish group ticket preferencing, which was eventually done. A threshold wouldn’t do anything to stop Fraser Anning getting up, unless it was applied to individual candidates, not parties, and I’m not aware of any country that does that.


      3. CR wrote: “But much better and fairer to just abolish group ticket preferencing, which was eventually done.”

        I must admit I don’t exactly understand since it hasn’t changed the real issue of the Senate voting system, which IMO is the option of ATL voting in the first place. The change may prevent parties dictating their non-party preference but (surely?) only after that party’s candidates have been exhausted. So really of secondary importance. It still fully supports a party’s factional fixes on which (of their) candidates get top position and thus preference from mindless voters. An overwhelming fraction of voters use ATL only. (I couldn’t find what, if any, difference the changes to optional preferential voting BTL made in the last election?) It takes exceptional circumstances for a candidate to overcome this “fix”. As it happens two such cases have been highlighted in today’s Oz:

        Senator dumped by factional deal urges rethink of industrial power in ALP
        Matthew Denholm, 10 Sept 2018.

        Labor’s biggest vote-winning Tasmanian senator, Lisa Singh, has urged a rethink of the power of union leaders within the party, after being dumped to a virtually unwinnable spot on its Senate ticket.
        A conference factional deal on the weekend saw the popular senator relegated to No 4 on the party’s Senate ticket, after she was voted to the No 2 spot in a ballot of all party members. …. The ticket will be led by the Left’s senator, Carol Brown, at No 1, and the Right’s senator, Catryna Bilyk, at No 2.
        At the 2016 federal election, when Senator Singh was also nobbled by a factional deal, she survived by securing 20,741 primary votes in a pitch for below-the-line votes, while Mr Short received just 1214.
        … The Tasmanian Liberal Party, meanwhile, avoided a potential preselection embarrassment by choosing sitting senator Richard Colbeck as its No 1 Senate candidate, despite speculation he might be bumped down the ticket.

        Both Singh and Colbeck overcame their own party’s fix (in Colbeck’s case it was the toxic manipulation by Eric Abetz, someone who may well not survive if he had to rely upon personal votes BTL) in the 2016 full-Senate election, but Singh says that this will be much harder in a half-Senate election. It is exactly this system that awards power to essentially unelected factional faceless candidates.
        Further mystery: today Larissa Waters re-takes her Senate position 14 months after s44 forced her out. I don’t understand how the rules allow this nor, in this case, why then she was forced out in the first place. I have no objection to her becoming a senator again, especially as Bartlett is going to contest Brisbane again (my electorate which is prime Greens territory).


      4. Sure, it depends what you think the problem is. Abolition of group voting tickets solved the problem of microparties winning election in a lottery, and I think that’s a good thing. If you want to stop parties being able to decide who gets their Senate spots, you’d need to do more than abolish above-the-line voting; you’d need to rotate names on the ballot paper and ban how-to-vote cards. That’s possible – they do it in Tasmania – but it’s a very drastic change.

        Larissa Waters was forced out because her election was declared invalid, because she was a dual citizen at the time she nominated. Once that’s been fixed – as it was, by renouncing the other citizenship – she becomes eligible to fill a vacancy whenever one occurs, which it did when Bartlett resigned. Whether parties should be able to just nominate people to fill any vacancy, caused for whatever reason (as distinct from, say, just death or ill health), is another question, but that’s how the system works.


  2. The Abbott government’s first budget, for example, was fearsomely unpopular: would it really have been better off politically if it had passed the Senate unscathed?

    Of course it wouldn’t/shouldn’t have passed anyway because it was blatantly opposite to all their explicit promises in their election manifesto.

    As to Smith’s and Andrew Robb’s radical ideas about the Senate, it would make the upper house even more unrepresentative. I’d bet their 6 districts would be geographic and not on equal population. The current state-based system is already approaching grotesque levels of inequality (Tasmania with the population of one tenth of Sydney has equal power to all of NSW), which is its point, but you’d end up with a district spanning the vastness and emptiness of WA and Qld which would be just too much for most of us to tolerate. We end up with 10/12 Senators of the likes of Katter or Hanson.


  3. Yes, because single-member electorates have proven so stunningly successful, haven’t they, in keeping extremist loons out of Australia’s lower houses (or, in Tasmania, out of the upper house)…


    1. Unfortunately, extremist loons will continue getting up as long as major parties keep endorsing them. But the ones who come from outside the major are more likely to be found in the Senate than the lower house.


    2. Extremist loons are not really the issue, except where they manage to get a controlling vote.
      The real issue is that, as you also imply, our current system is no longer representing us or the diversity in the electorate. In fact the real loons terrorising us are the quite tiny bunch of extremists within the LNP–who, for example, delayed SSM for years despite a big majority of their own voters supporting it.
      The advantage of Multi-Member systems is that this is much less likely. Much is written about the current uprising of extremists in some European countries such as AfD in Germany or Le Pen in France, but actually those parties are very unlikely to gain as much power as our tiny band of paleo-conservatives in the so-called Liberal party. Even if the far-Right succeeds in becoming the second largest party they still can’t rule by themselves even if neither can the others. And that’s democracy. Our problem is that our tiny bunch defy democracy to overthrow Prime Ministers.


  4. I know my comments are by no means timely to this post, but it occurs to me that if the government wanted a minor fix to the Problem of the Senate, they should do this:

    1. Change the rules so that double dissolution elections are held with two simultaneous elections of six members each. It would be nice if one could be an election of six members to long terms and six members to short terms. I think even Senators would find themselves compelled to follow the will of the people if the first ballot was advertised as “for long terms” and the second was advertised as “for short terms”. But I am a known optimist.

    2. Hold double dissolutions as standard. The risk is now substantially lessened; the six long and six short elections will likely produce almost equivalent outcomes. The outcome of a double dissolution election will depend mostly on the issues that it is fought on, and not on a different quota, since there won’t be a different quota.

    The result will be more frequent simultaneous elections and fewer minor party MPs, at a cost of more frequent elections, since they cannot happen within the last six months of the House of Representatives. It will increase both the power of the Representatives against the Senate, since they will have more power in the joint sitting; but it could also increase the power of Senate against the Representatives, since, being elected fully and promptly in response to an election with a democratic franchise, they have a strong claim to ministerial responsibility. I suspect those who remember the Dismissal will have to die before that can happen though.

    It is likely that if we did this for a few years, a referendum would pass to simplify the matter – I would say it’s the easiest way to get a four year simultaneous election referendum through. (Though I’d vote against it, since I’ll always vote against four year terms. If politicians can’t behave with three year cycles, how can they behave with four year cycles?)

    Liked by 1 person

    1. No. The whole point, or at least the intent, of staggered Senate elections was to avoid default election just mirroring of the lower-house majority. Because history shows that to be toxic.
      As I described in my earlier post, focussing on the few “loons” that hold the Senate to their whimsical ways is a big distraction. Seriously it is not they who are the problem (and is anyone imagining that any of them truly compare to party loons like Barnaby, Angus et al? The real problem is that Senators being held (whipped) to vote along party lines, astoundingly even when the majority of that party’s actual members hold a differing view. We see the extreme case in the US Senate today.

      Many have suggested that whipping be outlawed, ie. every vote must be a so-called “free” or “conscience” vote. This was one of A.C. Grayling’s key suggestions in how to fix our (Anglosphere) democracies in his recent book Democracy and Its Crisis. I can’t remember and I am not home a.t.m. so I can’t tell you if he had a realistic mechanism in bringing this about. Needless to say the major parties would fight against it to the death (with any luck, they would die in the process). Our system is being crippled by brainless partisanship, ie. where everything is faked up into a false binary choice so you get idiot positions on climate and coal etc on one side. The majority of a big party don’t necessarily agree with party position (or in the case of SSM, openly disagree) yet are shackled.

      Another mechanism to achieve more democratic or more representative outcomes is Citizens Assemblies and it will be interesting to follow the French experiment. Mostly CA have been local affairs and I believe this is the first time it has been applied at the national level:
      Citizens’ assembly ready to help Macron set French climate policies
      President backs democratic experiment handing power to 150 people chosen at random
      Angelique Chrisafis, 11 Jan 2020


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