Chapter 4 - Elections
for the Senate
Territory
senators
Until 1975 all
members of the Senate were elected to represent the people of the states. In the elections
in December 1975 following simultaneous dissolution of the two Houses on 11 November 1975 the Australian
Capital Territory and the Northern Territory each elected two senators for the
first time.
Legislation for election of territory senators was enacted in the Senate
(Representation of Territories) Act 1973. This legislation was based on the
Constitution,
section 122, which provides that, in relation to territories, the Parliament
“may allow the representation of such territory in either House of the
Parliament to the extent and on the terms which it thinks fit”. The provisions
for the representation of the territories in the Senate are now contained in
the Commonwealth
Electoral Act, ss 40-44.
The legislation was not enacted without controversy. Indeed, it was one
of the bills cited as a ground for the simultaneous dissolutions of 1974 and
was eventually passed into law at the joint sitting of that year. It was
subsequently twice challenged in the High Court, surviving the first challenge
by one vote, the second by three. (Western Australia v Commonwealth 1975 134 CLR 201; Queensland
v Commonwealth 1977 139 CLR 585.)
The principal issue in dispute was the contention that territory
senators would undermine the constitutional basis of the Senate as a house
representing the people by states and that territory representation would
disrupt the numerical balance between large and small states. Other questions
related to the voting rights of territory senators; the effect of territory
senators on the nexus between the sizes of the two Houses and on quorums in the
Senate; and applicable criteria in determining whether a territory should be
represented in the Senate. A full account of the matter is contained in ASP,
6th ed., pp 120-3. That edition concluded that “the broadest
possible representation of all the people of Australia best serves that
[the Senate’s] checks and balances role” (p. 123).
Territory senators’
terms commence on the date of their election and end on the day of the next
election. They therefore do not have the fixed six year terms commencing on 1
July of the senators elected to represent the states. Their terms are, however,
unbroken, which is important in ensuring that the Senate has a full complement
of members during an election period. Their elections coincide with general
elections for the House of Representatives.
Given that each
territory’s representation is currently limited to two senators, the practice
of electing both at the one election by proportional
representation preserves the Senate’s role as a House which enhances the
representative capacity of the Parliament and provides a remedy for the defects
in the electoral method used for the House of Representatives. As indicated in
Chapter 1, since the 1980 general election all members of the House of
Representatives for ACT electorates have usually been members of the Australian
Labor Party. Throughout this period, one senator has been a member of the ALP,
the other senator from the Liberal Party. One-party representation in the House
has also been usual for the Northern Territory, so that its two senators are also
essential to providing that territory with balanced representation.
The writ for
election of senators for a territory is issued by the Governor-General and is
addressed to the Australian Electoral Officer for that Territory; following
declaration of the result of a Senate election in a territory, the writ is
returned to the Governor-General.
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