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Chapter 1 - The
Senate and its constitutional role
The Senate and representation
The framers of the
Constitution determined that the Senate would best operate if it were directly
elected by the people of the states. It was suggested at that time that the
best method of election would be proportional representation, which is designed
to ensure that representatives are elected in proportion to their support among
the electors. This system was not written into the Constitution, however;
instead it was left to the Commonwealth Parliament to determine the actual
method of election. The system of proportional representation, which, as was
suggested when the Constitution was drawn up, is the logical method for
electing representatives of a large area such as a state, was not adopted until
1948, taking effect in the elections of 1949 (see Chapter 4, Elections for the
Senate).
The Senate by its
constitutional design enlarges the Parliament’s capacity to represent the
diversity of the Australian people by providing a balance to the numerical
preponderance of the more populous states in the House of Representatives. As a
consequence of the 1948 proportional method of electing senators, it does so in
a fashion which more accurately reflects the state of electoral opinion in the
nation. It corrects dysfunctions of the single member electoral system used for
choosing the House of Representatives and thereby provides parliamentary
representation for individuals and parties with significant voter support,
which would be otherwise unrecognised in parliamentary terms except where such
support is geographically concentrated.
The important role which the method of electing senators has in
enhancing the representative capacity of the Commonwealth Parliament may be
seen in the information in Table 1, which demonstrates that the party composition
of the Senate almost invariably reflects the party disposition of voting in the
electorate more closely than does the House of Representatives. As already
observed, one effect of the Senate method is to remedy explicit deficiencies in
the single member electorate system used for electing members of the House of
Representatives.
Table 1 sets out, in abridged form, information concerning the
relationship of percentage of the vote to percentage of seats in the Senate and
the House of Representatives respectively for elections since 1949. While a
direct correspondence between percentage of the vote and percentage of seats is
rare, it is clearly the case, for almost all elections, that the correspondence
between percentages of votes and of seats is closer in the Senate than in the
House of Representatives. Moreover, it is almost never the case that the
correspondence in the House of Representatives is closer than in the Senate.
The electoral system of the House of Representatives regularly awards a
majority of seats, and government, to parties which secure only a minority of
electors’ votes, occasionally less than 40 percent, and on several
occasions less than those of the major losing parties.
Table 1 suggests that, in a House of Representatives election, the
imbalance between percentage of votes and seats is most marked in what is known
as a “landslide” victory. In 1958, for instance, the Australian Labor Party
(ALP) received 42.8 percent of the vote in the Senate election and 42.9 percent
in the House election. In that election, the ALP secured 46.9 percent of the
Senate places at issue, but only 37.9 percent in the House. Again, in 1975,
40.9 percent of the Senate vote secured 42.2 percent of the Senate places for
the ALP; a higher percentage of the vote in the House of Representatives, 42.8
percent, brought the ALP only 28.4 percent of seats in the House. Confirming
the propensity of the House of Representatives method of election to exaggerate
majorities, in 1983 a 49.5 percent share of the House vote yielded
60 percent of the seats for the ALP; in the same election, 43.6 percent of
the vote for the Liberal and National parties brought a 40 percent share of the
seats in the House. In the Senate, an ALP share of 46.9 percent of places in
the Senate reflected a 45.5 percent of the vote; in this case, the Liberal and
National parties’ 39.9 percent of the vote brought 43.8 percent share of places
in the Senate. In their “landslide” victory of 1996, the Liberal and National
parties secured 63.6 percent of the seats in the House with 47.3 percent of the
vote; in the Senate their 44 percent of the vote delivered 50 percent of seats.
In 1998 the Liberal and National parties secured a majority in the House with
less than 40 percent of the votes and fewer votes than the Labor Party; in the
Senate their votes were more accurately reflected.
Complaints by governments that proportional representation makes it
impossible for the winning party to secure a majority in the Senate were
refuted by the 2004 election, in which the Liberal and National parties secured
a Senate majority of one with 45 percent of votes, while their majority in the
House was again exaggerated. Those majorities were lost in the 2007 election,
when the Senate results again produced a more balanced outcome.
The state basis of Senate elections does not significantly exaggerate
representation in the Senate. While there are cases where election of a single
senator brings a measure of exaggeration, it is usually the case that the share
of places secured by minor parties is less than their share of the vote. In the
case of the Australian Democrats, it was only in 1984 that the reverse was
conspicuously the case (a 7.6 percent share of the vote brought a 10.9 percent
share of seats). In 1975 a one percent share of the vote brought the Liberal
Movement one seat, that is, 1.67 percent of the places. In the 1990, 1993 and
1996 elections for the Senate, Green shares of the vote, 2.8, 2.9 and 2.4
percent respectively, brought 2.5, 2.5 and 2.5 percent shares of the seats
contested. In 1998, 2001, 2004 and 2007 the minor parties generally were
underrepresented, but still more accurately represented in the Senate than in
the House. It thus appears that even the divergence of the populations of the
various states and territories does not have a significant effect on the
national representivity of the Senate.
A very clear example of the capacity of the Senate system to improve
representation in the Commonwealth Parliament is party representation of
Tasmanians. In the period from the simultaneous dissolutions of 1975 to the
general election for the House and the Senate in 1987, notwithstanding a party
share of the vote of from 40.3 percent (1983) to 45.1 percent (1980), no
candidate endorsed by the Australian Labor Party for a House seat was
successful. In the same period there were 4 to 5 Labor senators from Tasmania. In 1998, 2001 and
2007, this situation was reversed, with Tasmanian Liberal Party voters
unrepresented in the House.
More generally, the
Senate has provided opportunity for parliamentary representation for parties,
groups and individuals enjoying significant voter support which goes
unrecognised in the single member electorate system by which members of the
House of Representatives are chosen. These include the Democratic Labor Party
from 1955 to 1974, the Liberal Movement (1974-81), the Australian Democrats
(1977-2008) and the Greens.
The effect of proportional representation on the representative
character of the Senate is also illustrated by Table 2, which shows party affiliations
in the Senate since 1901.
The representative
character of the Senate has enabled it to uphold the responsibility of governments
to Parliament. Much of the traditional doctrine on this question of
responsibility derives from a period before the emergence of rigid parties and
disciplined majorities within Parliament, most conspicuously in lower houses,
the control of which is the condition of a ministry taking and
maintaining office. In Australia this issue has added importance because there are few
other national legislatures in which party voting is so disciplined as it is in
the House of
Representatives. This being so the need for alternative parliamentary avenues
for holding a government to account is pronounced, and this need in Australia is supplied by its
elected Senate. Since 1949 there have been only four relatively short periods
(1951-56, 1959-62, 1976-81, 2005-07) in which a ministry has had a majority in
the Senate. Conversely, the
Opposition party in the House of Representatives, irrespective of its partisan
complexion, has not had a majority in the Senate (with the exception of 1949-51
and, in unusual circumstances, in 1974-75). Accordingly, it does not follow
that a ministry lacking a secure majority in the Senate is automatically
confronted by a hostile Opposition majority. Any attempt by an Opposition to
achieve its partisan ends by use of its numbers in the Senate must, to succeed,
have the support of other non-government senators. The Senate when
functioning as a repository of and forum for responsibility is thus more than a
mere venue for a clash between government and Opposition working on the basis
of pre-determined numbers. Governments have therefore been held to account in
the Senate more effectively than in a house where they are always supported by
a party majority.
A decline of accountability accompanying ministerial control of both
Houses of the Parliament may well in the long run be adverse to governments
themselves as well as to the country generally. This was the lesson that many
drew from the fall of the then government in 2007 after its period of majority
in the Senate gained in the 2004 elections.
All free systems of government need checks and balances
against any excessive concentration of power and, so far as the Australian
system is concerned, the Senate is the most important of the constitutional
checks and balances, the more so because it is an elected institution. Lack of
control of the Senate can no doubt be inconvenient to a government and at times
frustrating, but such considerations are secondary to the greater good of
responsible checks and balances exercised by a second chamber elected by
universal adult franchise and closely reflecting the diversity of electoral
opinion in the nation.
(For a
refutation of the often-made claim that proportional representation is
incompatible with “efficiency” (usually defined in economic terms), see Arend
Lijphart, ‘Australian Democracy: Modifying Majoritarianism?’, in Representation and Institutional Change: 50 Years of
Proportional Representation in the Senate,
Papers on Parliament No. 34, Department of
the Senate, 1999. It is not necessary to sacrifice accountability of government
to achieve “efficiency”.)
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