The Senate in an age of disruption

Institute for Government, London

3 October 2019

(Check against delivery)

Democracy disrupted is a term one reads about often at the moment. I don’t particularly like the term, as democracy is dynamic, one of its great strengths is to allow a society and policy to evolve.

And we shouldn’t mistake disruption for political parties as disruption for democracy itself, it can simply be challenging to political participants.

But it is true we are going through a period of unexpected results, and a potential realignment in traditional electoral coalitions, or as I saw it described earlier this week, the potential upending of political divisions, from class and economic interest to identity and place. Although personally I am not convinced, it is worthy of discussion.

Australia has experienced its fair share of unexpected political events this past decade, but these have mainly occurred within political parties.

Where there is so-called broader political disruption I contend our parliamentary arrangements provide a means to incorporate this and limit their impact.

This evening I want to explain how the Australian Senate in particular strengthens the ability of our democracy to facilitate and absorb evolving democratic expectations and pressures.

Second, I want to make some observations on proposals for change that have recently arisen, and explain how I think they would profoundly weaken Australian democracy.

Without regaling you with Australia’s constitutional history, I must first outline the key difference between parliamentary arrangements in Australia and here in the UK – and that is our Senate.

A detailed design by the authors of our constitution, supported at referenda that underpinned its adoption and passage in 1900, was to blend responsible government formed in the popular house with a Senate designed along US lines: popularly elected, on the same franchise as the House of Representatives; yet with staggered terms double that of the lower house; with equal legislative authority except for a restriction on initiating and amending money bills or bills imposing taxation; but with the ability to deny their passage or effectively insist on amendments; and, comprising equal numbers of senators from each state regardless of population.

It was not for the new Commonwealth a hereditary upper chamber, one appointed like Canada, or one elected on a restricted franchise that lacked direct democratic legitimacy.

The Australian Senate was to be a constitutional force, and its consent necessary for all legislative activity.

The fact that the constitution was designed before the great financial confrontation between the Lords and the Commons was undoubtedly a factor in these powers, but regardless of timing it was one of the most contentious and difficult aspects of constitutional negotiations, so it is difficult to see how Federation could have been achieved without it.

All these arrangements had little impact prior to 1949, when a majoritarian winner-take all electoral system in the Senate was replaced by proportional representation which has, with some changes, remained in place since then.

Since then, far more often than not, a governing majority in the lower house lacks a functioning majority in the Senate. In the last 50 years, the government of the day has only had a notional Senate majority for eight years.

This ensures negotiation, compromise and even occasional logrolling, to secure passage of government initiatives.

This is a defining feature of Australian politics – that while the formation of government remains strictly a matter for the House of Representatives, the implementation of a government’s legislative agenda, and notably even measures announced in an election manifesto or annual budget, are legislatively contested.

Their passage is in no way guaranteed.

Senate passage therefore usually requires the support of additional political parties or groups outside of government itself.

Why do I believe this is important?

Because these arrangements limit the power of a simple majority in one House of Parliament, usually formed solely by one side of politics.

The Senate guarantees the consideration of additional voices in the legislative process as, more often than not, the support of either the opposition or minor parties is necessary.

In an era where lower political party identification amongst voters appears to be a long term trend, this is important in maintaining democratic legitimacy and consent, and limiting the risk of interests and experiences not being heard, leading to further frustration and disenchantment with governing and democracy itself.

Voting patterns illustrate how the expectations of our citizens in this regard has changed, and how our Parliament has responded.

Every Australian receives two ballots: one for their House of Representatives constituency, and one for the statewide Senate election.

This second vote for the Senate is consciously used by a substantial number of Australians to vote differently in these two elections, and this has been the case for decades.

A simple way of considering this is the difference between the combined vote for the Liberal-National Coalition and Labor in the House and the Senate.

In 2019 the two major parties received 8% less of the vote in the Senate than they did in the House of Representatives. People voted differently.

Looking back, this is approximately the same percentage as when Bob Hawke came to power in 1983 (7.6%), and even as far back as 1972 (9.8%).

This difference in voting between the House of Representatives and the Senate has varied at particular elections, but remained along this trend over time, alongside the sustained increase in minor party vote share in both houses in recent years.

Again, a simple figure illustrates this – approximately one in five voters cast their Senate vote for a minor party in 2007, but in 2019, minor parties made up a third of all Senate votes.

This fragmentation is a long term trend, and our parliamentary system provides an outlet for it through these two ballots for two chambers.

Even very close elections see stable governments formed in the lower house, without independents or smaller parties holding the very existence of a government to ransom.

Yet the legislative activity of Governments is limited by the Senate even when they are secure in office. A role for other voices is guaranteed in the work of government while the voice of the majority forms it.

While this may frustrate some governments, with one Prime Minister quipping they were in office but not in power, it is also important to note the requirement for Senate consent can also be a means to hold government to a mandate: particularly holding governments to promises NOT to do things.

One historic criticism of the Senate has been that the population variation between states represents a major malapportionment and therefore unfairness, given the population of NSW receives the same number of senators as Tasmania with 15 times the population.

There’s no way around this – this is true. It was the historic compromise to deliver Federation of the colonies into the Commonwealth.

But, interestingly, through the electoral system employed, the Senate does a very good job of representing voting results when considered nationally.

It is a relatively proportional chamber when the national vote is considered absent state boundaries.

Indeed, in our current Senate no party has an overall majority, nearly a fifth of senators come from outside the two major parties, and all parties that received over 3% of the national vote have elected representatives.

To me, these features give the Senate a great deal of democratic legitimacy in the legislative process.

Similarly, the composition of the Senate has changed reflecting changing voting patterns, as various minor parties have come and gone in recent decades – notably the replacement of the Australian Democrats by the Greens as the largest minor party.

And in particular, by giving minority and emerging voices and non-major parties a direct role in the legislative process it contains the frustration that may see disenchantment or even anger when people feel they are not being heard or their interests and experiences are not being represented.

Now if I may turn to dealing with some proposed changes to the Senate.

Proposals to nobble the Senate are almost as old as the Constitution.

The Labor Party for many years wanted it abolished, or its powers restricted.

At one point even the Liberal Party floated the prospect of allowing the Senate to be effectively over-ridden by the House via a joint sitting without an intervening election.

However, both of these would require a referendum which, given it would have no chance whatsoever, have never been attempted.

Even those proposing it, usually frustrated executives in the House of Representatives I might add, realise the public would not support the removal or otherwise reduction in the importance of their second vote for the Senate, the one they use to hold governments accountable.

But recently another proposal has arisen – to remove the statewide election of senators, and therefore remove the proportionality of the Senate that has been so fundamental to it since 1949 and I contend, a reason for the Senate’s popular support as a check on government.

One of these proposals by a former Deputy Prime Minister goes as far as to suggest further mass malapportionment of the Senate by breaking states up into electoral regions geographically, providing capital cities of each state with 2 senators, and the other 10 to the regions, disregarding the population distribution within the state.

To be specific, it would mean that rather than just variances in populations between the states, it would also ensure massive variations in populations within states electing individual senators.

As I outlined earlier, the current Senate is actually very reflective of the national vote despite the differences in state populations.

But this proposal would destroy that.

Indeed the consequences would be the elimination of most minority voices and parties, as well as dramatically reducing the value of urban voters in the election of Senators.

In essence, if you live in regional or rural areas you would have a greater say in the formation of the Senate and therefore passage of legislation.

One justification by proponents is that we already have variations between states. But this can be disregarded by the figures outlined above, illustrating that the Senate is relatively reflective of the total national vote.

This proposal intends to eliminate that, on the basis that some voters should have a special claim based simply on where they live.

A stated justification for this is that too many senators are based in capital cities and the regions are under-represented.

Now before I tackle that assumption, it is important we note the numbers: while it is true 3 in 4 senators are based in capital cities, it turns out so are 3 in 5 Australians, so the imbalance is not nearly as severe as implied.

However this proposal is also based on a misconceived notion that the only criteria that matters is geography.

But that specific experience, attribute or perspective (which I do not at all dismiss) is also overlaid by others, such as personal interest, cultural and personal identity and employment, to name a few, just as in the past class or religion might have been more defining elements.

I don’t dismiss the notion that many Australians, and particularly regional areas that are feeling the brunt of natural disaster, economic adjustment or simple access to government services may feel disconnected from their politicians and government.

But why should an unemployed person on the peri-urban fringe be stripped of the value of their Senate vote at the expense of a business owner in a regional centre?

I cannot see the claim to fairness in this.

Disadvantages, lack of access to services, frustration at not being heard or disconnectedness is not solely defined by geography.

The idea that to deal with frustration and disenchantment we would strip some Australians of the value of their vote is not only wrong in principle but would be completely counterproductive in dealing with disenfranchisement and frustration by elevating some Australians over others.

Like most old democracies, Australia has had a history of the politicised design of electorates, but thankfully we have eliminated this in recent decades.

Australians will rightly not tolerate changes to electoral systems that are designed to achieve particular outcomes or favour particular voices or parties or interests

This proposal is explicitly intended to elevate some voters at the expense of others, and an unavoidable consequence is the elimination of minor parties whose support is geographically dispersed.

This will be seen for what it is: fiddling with an electoral system, a preference for certain interests and citizens over others, designed to deliver a specific electoral outcome favouring one or more parties and that will eliminate minority voices.

Specifically the proposal to limit our capital cities to 2 senators represents not just an attempt to deliver a particular electoral outcome, it says the issues of urban life are less valid than those of regional life.

And that would be immediately apparent further feeding frustrations amongst millions of Australians.

It would also inevitably impact the legitimacy of the Senate, and therefore the Parliament itself, by reducing its ability to incorporate the interests of minority voices as I described above.

The legitimate concern that geographic size increases the difficulty of representing constituents can and should be dealt with by extra resources, which we already do and, if appropriate, we can increase.

They’re not dealt with by saying a regional vote is worth more than an urban one.

In conclusion, having been in Opposition and Government, as a minister and a backbencher, I’ve experienced all aspects of the role of the Senate.

It can be frustrating to have proposals you firmly believe are in the national interest blocked; or you can stop a proposal you passionately believe is a poor one; it can provide opportunities for some to extract commitments on unrelated issues; it can require frustrating, imperfect compromise.

But it works by ensuring more voices than just my own, that a greater range of experiences and perspectives are taken into account in the legislative process.

This strengthens it, this delivers greater legitimacy and in my view assists with maintaining democratic consent.

It doesn’t need to be disrupted.