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Chapter 1 - The
Senate and its constitutional role
Composition of the Senate
The Senate consists of 76 senators, 72
of whom are elected by the people of the six states, 12 from each. The people
of the Australian
Capital Territory and the Northern Territory each elect two senators.
The Constitution,
s. 24, authorises the Parliament to change the sizes of the two Houses, but
they are linked by the provision that the number of members of the House “shall
be, as nearly as practicable, twice the number of the senators”. For this purpose,
senators for the territories are not counted (Attorney-General for NSW v
Commonwealth 1977 139 CLR 527).
The effect of this provision is to maintain the role of the Senate of ensuring
that the Commonwealth Parliament is broadly representative of the nation as a
whole and not subject to excessive domination by members from the more populous
states. This is of considerable practical importance if, following simultaneous
dissolution of the two Houses, they remain in dispute over legislation and a
joint sitting is required (see Chapter 21 for further consideration of this
matter). Section 122 of the Constitution authorises the Parliament to grant
representation to the territories.
From 1901 until 1949, the size of the Senate was 36, six from each
state. From 1949 until 1975, it was 60, ten from each state. In 1975 the size
of the Senate was increased to 64 by addition of four senators elected by the
two major territories (two each). The size of the Senate was again increased in
1984 by increasing the number of senators from each state from ten to twelve. (The changes in the
sizes of the Houses were accomplished by the Representation Acts; the
provisions for territory senators are now in the Commonwealth Electoral Act, ss
40-44.)
The Constitution provides that in deciding the size of the Senate, “equal representation of the several Original States shall be maintained and
that no Original State shall have less
than six senators” (s. 7). A state cannot be deprived of its equal
representation in the Senate without the consent of its people (s. 128).
The Constitution states that senators shall be “directly chosen by the
people of the State, voting, until the Parliament otherwise provides, as one
electorate” (s. 7). No use has been
made of the possibility of departing from the principle of each state voting as
one electorate. Because of the improved representation of electors by the
proportional method of election of senators instituted in 1948, the principle
of each state voting as one electorate is now essential to the Senate’s, and
the Parliament’s, effectiveness and should be retained. This principle is a
protection against “localism” in the election of senators. It also strengthens
the bicameral quality of the Commonwealth Parliament by giving each House a
distinctive system of election. The
representational value of the Senate would be diminished not only if the representative
base were to be subject to artificial manipulation, but, even more so, if
single-member electorates were to be introduced, for it is in addressing the
inadequacies of an electoral system on the single-member basis as used for the House of
Representatives that the Senate is able to strengthen the representativeness of
the Parliament as a whole. In this respect the compositional structure of the
Australian Senate is, by design, superior to that of the United States Senate
where, in the normal course, only one senator is elected in a state on each
occasion.
The Constitution also states that, until the Commonwealth Parliament
decides otherwise, the Queensland Parliament “may make laws dividing the State
into divisions and determining the number of senators to be chosen for each
division” (s. 7). This
provision has never been used. In 1982 the Commonwealth Parliament passed a
private senator’s bill, the Senate Elections (Queensland) Bill 1981, removing
from the Queensland State Parliament the right to divide Queensland for the purpose of
electing senators.
When it was decided, in accordance with section 122 of the
Constitution, to include senators elected by the Australian Capital Territory
and the Northern Territory, the principle of proportional representation was
retained by providing for election of two senators by each territory voting as
a whole. Territory representation in the Senate accordingly recognises both
majority and minority electoral strength. In the case of the ACT, for instance,
since 1980 all House of Representatives members have usually been from the
Australian Labor Party; in the Senate, however, one senator has been from each
major party.
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