1. Proportional representation - 'one vote, one value'

Introduction

1.1This final report follows the Joint Standing Committee on Electoral Matters’ (JSCEM’s) interim report on the conduct of the 2022 election, tabled in June 2023. The interim report focused on Terms of Reference a), b) and c) (broadly, political donations, electoral funding and ‘truth in political advertising’, respectively), with early consideration of d) (encouraging electoral participation and enfranchisement of First Nations People).

1.2The interim report’s recommendations can be found at Appendix C. Responding to the strong evidence received, the Committee made 15 recommendations, designed to strengthen and support Australia’s electoral system. In line with the focus of that report, the key recommendations:

• Prioritised increased transparency in the financial side of Australia’s electoral system, including by recommending a lowering of the donations disclosure threshold and the introduction of ‘real time’ disclosure requirements and donation caps;
• Sought to ensure that Australian elections remain a contest of ideas rather than money, by recommending the introduction of spending caps for elections and increased public funding to reduce parties’ and candidates’ reliance on donations;
• Addressed concerns around the rise in misinformation and disinformation by recommending the development of ‘truth in political advertising’ legislation and equipping the Australian Electoral Commission (AEC) to oversee these standards; and
• Recognised the need to increase Aboriginal and Torres Strait Islander people’s electoral enfranchisement and participation by recommending further resourcing for the AEC to work directly with communities to address this.
  3. This report therefore relates to the remaining Terms of Reference (see p. xi). As with the issues addressed in the interim report, the Committee received evidence suggesting that while Australia’s electoral system remains world-leading, there are areas where reform should be considered. This includes:
• The size of Australia’s federal parliament and the representation provided;
• Further barriers to participation and enfranchisement affecting Aboriginal and Torres Strait Islander people;
• Other groups facing barriers to electoral participation, including Australians with disability, Australians living overseas and older Australians, particularly those in aged care facilities; and
• Additional to the recommendations in the Committee’s interim report, Australia’s system for regulating electoral spending requires further amendment; election media blackout laws require updating and there is clear community sentiment in favour of revising Australia’s postal vote application process.

Conduct of the inquiry and structure of this report

1.4The interim report included information on the inquiry to that point, and background information on the 2022 federal election.

1.5Overall, the Committee received nearly 1500 submissions (listed in Appendix A) and held 12 public hearings (Appendix B). The Committee again thanks the many Australians who contributed to the inquiry in either of those ways and recognises that this level of engagement demonstrates the importance with which Australians hold their electoral system.

1.6This report consists of five chapters:

• Chapter 1: Proportional representation and ‘one vote, one value’
• Chapter 2: Aboriginal and Torres Strait Islander participation in elections
• Chapter 3: A single national electoral roll
• Chapter 4: Electoral participation and supporting enfranchisement
• Chapter 5: Strengthening Australia’s electoral system

Proportional representation and ‘one vote, one value’

1.7As part of its inquiry, the Committee was asked to consider:

proportional representation of the states and territories in the Parliament, in the context of the democratic principle of 'one vote, one value.'

1.8A discussion of this term of reference involves six variables, the first two of which are proportional representation and one vote, one value. While proportional representation and one vote, one value are often discussed together in Australia, they do not mean the same thing. Proportional representation is a voting method and one vote, one value is an objective, and as this chapter will demonstrate, it is possible to have some form of one without the other.

1.9The different electoral systems used in House of Representatives elections and Senate elections are another set of variables to consider. The Australian Senate is elected using a type of proportional representation in which a whole state or territory is the electorate, but is intentionally structured to prevent one vote, one value across Australia.[1] On the other hand, House of Representatives Electoral Divisions (divisions) are distributed so as to get as close as possible to one vote, one value for each division within a state or territory. However, divisions are single member electorates, which disadvantage candidates and smaller political parties with widely distributed support, such as the Greens or One Nation.[2]

1.10The final two variables concern the legal framework under which federal elections are held: part of the legal framework for Senate and House of Representatives elections is in the Constitution, and part in the Commonwealth Electoral Act 1918 (the Electoral Act). The part of the legal framework set out in the Constitution can only be changed by referendum, while the part set out in the Electoral Act can be changed through legislation.[3]

1.11This chapter discusses proportional representation and one vote, one value, first in relation to House of Representatives elections and then in relation to Senate elections.

House of Representatives elections

1.12A discussion about representation in the House of Representatives must start with an explanation of the legal framework for House of Representatives elections to provide context to the discussion of this issue.

House of Representatives elections legal framework

1.13The process for electing members of the House of Representatives (MPs) involves a combination of provisions from the Constitution and the Electoral Act.

Constitutional provisions

1.14The Constitution’s provisions in relation to the House of Representatives mandate the direct election of MPs and set out a mechanism for ensuring that each state[4] elects members proportionate to its population. In brief the provisions are:

• MPs must be ‘directly chosen’ by the people of the Commonwealth
• the number of MPs shall be as nearly as possible twice the number of senators
• the number of MPs elected in each state shall be ‘in proportion’ to the number of people in each state.[5]
  15. The number of MPs for each state is determined by a calculation, part of which is detailed in section 24 of the Constitution, and part of which is in the Electoral Act.[6] The calculation as set out in the Constitution is as follows:
• using the latest available statistics, the population of the Commonwealth[7] is divided by twice the number of senators to obtain a quota for the number of people each MP will represent
• the population of each state is then divided by the quota to determine the number of MPs each state is entitled to
• in the event the calculation results in a state with a remaining partial quota that is greater than one half of a quota, one more MP will be chosen in the state.[8]
  16. Notwithstanding this calculation, the Constitution mandates that no state shall choose less than five MPs.[9]
  17. Section 27 of the Constitution states that, subject to the Constitution’s provisions, the Parliament may make laws for increasing or diminishing the number of MPs.[10]

Commonwealth Electoral Act

1.18Section 24 of the Constitution specifically permits the Parliament to change the calculation used to determine the number of MPs each state is entitled to.[11] However the Electoral Act augments and clarifies the Constitution’s provisions, rather than replacing them.

Number of divisions for each state and territory

1.19The Electoral Act sets out the following in relation to determining the number of MPs for each state and territory:

• the process for determining the number of MPs for each state and territory occurs once a Parliament, taking place twelve months after the first sitting day of a new House of Representatives following an election[12]
• on that day, the Australian Electoral Commissioner (the Electoral Commissioner) ascertains the populations of each state and territory using the most up to date population statistics published by the Australian Bureau of Statistics[13]
  20. Subsection 48(2) of the Electoral Act requires the Electoral Commissioner to determine the number of MPs for each state using the method set out in the Constitution.[14]
  21. Determining the number of MPs for the territories is more complex:
• both the Northern Territory (NT) and the Australian Capital Territory (ACT) are entitled to at least one MP each[15]
• the Electoral Commissioner determines the number of MPs for each territory using the same calculation used for the states[16]
• for territories that are not the NT or the ACT, if the result of the calculation for a territory is less than or equal to half a quota, then that territory is not entitled to a MP.[17]
  22. The result is that the NT and ACT have at least one MP, and Australia’s other territories do not. The Electoral Act requires that the populations of unrepresented territories are allocated to either the NT or the ACT for the purposes of determining the number of MPs the NT and the ACT are entitled to.[18]
  23. For the ACT and the NT, there may be another step in the process of determining how many MPs each territory will elect to the House of Representatives. If the number of MPs for either territory is determined to be more than one and less than three, then the number of MPs each territory will have is calculated using formula called the ‘harmonic mean.’[19]
  24. If the determination of the number of MP for either the ACT or the NT requires the use of the harmonic mean, the following outcomes are possible:
• up to and including 1.3332 quotas – 1 MP
• from 1.3333 up to and including 2.39 quotas – 2 MPs
• from 2.40 quotas and higher – 3 MPs.[20]

Electoral divisions

1.25From this point on, the process of establishing single member electoral divisions is set out in the Electoral Act only. Because the Electoral Act postdates the Constitution, the Act is drafted on the basis that divisions within each state and territory already exist.

1.26If the Electoral Commissioner determines under section 48(1) of the Electoral Act that it is necessary to alter the number of MPs for a state or territory, then that state or territory will undergo a redistribution of divisions.[21] In addition, the Electoral Act sets out two other triggers for a redistribution:

• When it appears to the Electoral Commissioner that one third of a state or territory’s divisions have been malapportioned for more than two months.[22] A malapportioned division is defined in subsection 59(10) of the Electoral Act as a division in which the number of enrolled electors differs by more than one tenth from the average enrolment for a division in that state or territory.[23]
• When seven years have elapsed since the previous redistribution of a state or territory.[24]
  27. When a redistribution is triggered, the Electoral Commissioner calculates the ‘redistribution quota’ for the relevant state or territory. The redistribution quota is the sum of electors of the state or territory on the day the redistribution is called divided by the new number of MPs to be elected by the state or territory.[25]
  28. It is important to note that the redistribution of divisions in the Electoral Act uses enrolled elector statistics (that is, the number of people entitled to vote) for redistribution calculations rather than population statistics, which are used to determine the number of MPs each state and territory are entitled to.
  29. The process for redistributing the divisions of a state or territory from this point is complex and takes many factors into consideration, but for the purposes of determining the number of electors in each division, only one of the factors is important. The redistribution is required to, as far as practicable, redistribute the divisions so that, three years and six months after the redistribution, the number of electors in each redistributed division will not be less than 96.5 per cent or more than 103.5 per cent of the redistribution quota for the state or territory.[26]
  30. In other words, the Electoral Act requires that when a state or territory is redistributed, the number of electors in each new division is as near as possible to the redistribution quota at a time in the future within one or two electoral cycles.

One vote, one value in the House of Representatives

1.31The mechanism for determining each state and territory’s representation in the House of Representatives results in a limited form of one vote, one value – each elector within a given state or territory can in principle be assured their vote is worth about the same as any other elector in the state or territory at any given time.[27] It follows that discussions about the mechanism for determining each state and territory’s representation in the House of Representatives focus on the limitations suggested in that statement. Inquiry participants discussed two limitations in particular: malapportionment between the states and territories; and the implications of the steady increase in the number of electors in each division.

Malapportionment

1.32Table 4.1 demonstrates the degree of malapportionment across the states and territories using the average number of electors per division in each state and territory at the 2022 election.

* In accordance with section 24 of the Constitution, Tasmania, as an originating State, is entitled to five members of the House of Representatives if the determination of the number of members to be chosen in Tasmania under section 24 is five or less.

** Under section 48A of the Electoral Act, two members were to be chosen by the Northern Territory at the 2022 federal election.

Source: Calculated using statistics from Parliament of Australia, ‘Infosheet 8 – Elections for the House of Representatives,’ www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/00_-_Infosheets/Infosheet_8_-_Elections_for_the_House_of_Representatives, viewed 23 August 2023; and Australian Electoral Commission, ‘Size of electoral roll and enrolment rate for the 2022 federal election, www.aec.gov.au/Enrolling_to_vote/Enrolment_stats/national/2022.htm, viewed 23 August 2023.

1.33The table shows that malapportionment in the House of Representatives is not significant between New South Wales (NSW), Victoria, Queensland, Western Australia and to a lesser extent the Australian Capital Territory (ACT). However, divisions in Tasmania and the Northern Territory have significantly smaller enrolment numbers, which results in electors in Tasmania and the NT being overrepresented in the House of Representatives, while divisions in South Australia are larger than average, resulting in South Australian being somewhat underrepresented.[28]

1.34In Tasmania, the enrolment numbers for each division at the 2022 federal election were 74,697 for Clark, 79,322 for Bass, 80,243 for Franklin, 82,424 for Braddon and 85,166 for Lyons.[29] According to Malcolm Baalman, absent the constitutionally mandated minimum number of divisions, the number of enrolled electors in Tasmania would entitle the State to 3.3 divisions.[30]

1.35The Northern Territory’s two divisions had the lowest number of enrolled electors in the country at the 2022 federal election. Solomon had 71,843 enrolled electors while Lingiari had 74,008.[31]

1.36The malapportionment of the Northern Territory in the 2022 election was the result of the Electoral Act being amended in 2020 to prevent the Northern Territory losing its second division, despite the Electoral Commissioner’s calculation under section 48(2) of the Electoral Act following the 2019 federal election for the Northern Territory resulting in an entitlement to a single division.[32]

Increase in electors per division

1.37An increase in the number of electors in a division over time incrementally reduces the value of each elector’s vote and capacity to engage in the political process. The extent to which an elector can actively engage in the political process is a measure of the health of a democracy, and one of the best avenues for engagement is through their elected representative. The elector’s ability to do so is in part determined by the simple arithmetic of the ratio of electors to MPs. As the number of electors in a division increases over time, an MP’s capacity to effectively engage with their electors diminishes.

1.38The increase in the ratio of electors to MPs in Australia has been ameliorated twice in the past by increasing the number of House of Representatives divisions, prior to the 1949 federal election (to 123 divisions), and the 1984 federal election (to 148 divisions).[33] Table 4.2 details the history of both the increase in the number of divisions and the average number of electors in each division for selected years since federation.

Source: Ben Raue, Submission 265, p. 7; AEC, ‘Size of electoral roll and enrolment rate 2022,’ viewed 11 September 2023; <www.aec.gov.au/Enrolling_to_vote/Enrolment_stats/national/2022.htm>.

1.39Ben Raue pointed out that it has been almost four decades since the size of the House of Representatives increased.[34] In that time, the number of electors has increased from 9.9 million to 17.2 million – an increase of 74%. Small changes resulting from the vagaries of the redistribution process aside, the number of divisions has remained roughly the same, while the average number of electors per division has increased from 66,664 in 1984 to 113,996 in 2022.[35]

1.40Even with the best of intentions and hard work, an MP and their staff would be hard pressed to effectively engage with electors in divisions with roughly 114,000 electors, let alone the residents who are not entitled to enrol.[36] MPs in regional, rural and remote divisions face the added burden of the size of electorates impeding political engagement.[37]

1.41This Committee’s immediate predecessor discussed the problem of the ratio of electors to MPs in its Report on the conduct of the 2019 federal election and matters related thereto, tabled in December 2020. The Committee found that:

The number of voters per Member of Parliament is growing to an extent where it is challenging for members to service constituent workloads.[38]

1.42The ratio of electors to MPs in Australia compares unfavourably with similarly sized democracies. Amongst countries within the Organisation for Economic Co-operation and Development (OECD), Poland and Canada, with 37-38 million people as of 2019, had lower houses with 460 and 338 members respectively. On the other hand, countries less populous than Australia, like Chile, Netherlands and Belgium all had lower houses of 150-155 members.[39]

1.43Table 4.3 compares the ratio of electors to MPs in Australia, with similar Commonwealth countries – the United Kingdom, Canada and New Zealand.

Source: Malcolm Mackerras AO, Supplementary Submission 5.1, p. 4.

1.44Evidence that the ratio of electors to MPs is having an impact on political engagement in Australia was provided in the form of a national poll conducted by The Australia Institute. The poll demonstrated that only a very small proportion of electors had any direct engagement with their MP. The survey results indicated that:

• Fifteen per cent of electors had spoken to their MP either directly or on the phone in the past, while 17 per cent of electors had written to their MP;
• Only 27 per cent of electors felt confident that they could raise a concern about a political issue with their MP; and
• Only 37 per cent of electors could name their MP.[40]
  45. Without some change to the ratio of electors to MPs, the capacity of MPs to engage effectively with electors, and the extent of political engagement, is likely to continue to decline, with detrimental impacts on the health of democracy in Australia.

Options for reform

1.46Malapportionment and the ratio of electors to MPs in Australia could be resolved using either constitutional change through a referendum, or though legislative change by amending the Electoral Act. The Committee has limited its consideration of options to those that can be made by amending the Electoral Act because the barriers to change using this method are lower than those that would involve a constitutional change. Participants in the inquiry explored two avenues for using legislation to change the House of Representatives election process to improve one vote, one value. The suggested changes are:

• using proportional representation to elect multiple member divisions
• expanding the number of members of the House of Representatives.

Proportional representation

1.47The House of Representatives has, with the exception of Australia’s first federal election, been elected using single members divisions,[41] which has been legislated for in section 57 of the Electoral Act.[42]

1.48Nothing in the Constitution specifically precludes the use of proportional representation in the House of Representatives.[43] In fact, section 29 of the Constitution states that in the absence of a state making a law about how MPs were chosen before the Commonwealth Parliament made its own laws for electing MPs, that state ‘shall be one electorate.’[44]

1.49Changes to introduce proportional representation as the mechanism for electing members of the House of Representatives have been considered and recommended on a number of occasions. For example, the 1973-85 Constitutional Convention proposed that the House of Representatives be elected using proportional representation.[45]

1.50While no inquiry participant put forward a full proposal for how proportional representation in the House of Representatives might work, the Proportional Representation Society of Australia suggested that:

Without altering the Constitution, proportional representation (PR) could be provided for in the House of Representatives by using mostly 5-member divisions, although certain provisions in the Constitution would require a few divisions to have a slightly different district magnitude.[46]

1.51Ben Raue and Malcolm Baalman both argued that a proportional representation-based electoral system for House of Representative elections would bring the House more in line with one-vote, one-value principles, including:

• reducing the over-representation of major political parties in the House of Representatives that is a consequence of single member divisions[47]
• enabling the representation of developing political movements[48]
• enabling candidates with significant minority support to be elected, and for that candidate’s supporters to be represented in the House of Representatives.[49]
• reducing the difference in the value of votes between ‘safe’ and ‘marginal’ divisions.[50]
• enabling the composition of the decision making and policy formulation bodies of political parties to be more geographically representative.[51]

Increasing the size of House of Representatives

1.52As discussed above, increasing the number of divisions in the House of Representatives was discussed in the Committee’s Report on the conduct of the 2019 federal election and matters related thereto, including a recommendation that:

The Committee recommends that the Government consider asking the Committee to inquire into the size of the House of Representatives, with consideration to the growing average size of electorates and growing demands of the electorate.[52]

1.53The Committee did not receive a Government Response to that report.

1.54The process for increasing the number of MPs in the House of Representatives is set out in the Constitution. Section 27 of the Constitution permits the Parliament to change the number of MPs, while section 24 of the Constitution states that the number of MPs be as nearly as possible twice the number of senators.[53] In relation to the number of senators elected, section 7 of the Constitution states that:

Until the Parliament otherwise provides there shall be six senators for each Original State. The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators.[54]

1.55In other words, using legislation alone, the number of MPs in the House of Representatives can be increased by increasing the representation of the states in the Senate. Increasing the number of MPs in the House of Representatives without increasing the number of senators would require a referendum to remove the link between the number of senators and the number of MPs in section 24 of the Constitution. This constitutional amendment was put to a referendum in 1967 and was not successful.[55]

1.56Increasing the size of the House of Representatives could reduce or resolve the malapportionment between the states and territories by ensuring every state and territory would have the number of MPs which its population entitles it to.[56] For the first time since Federation, every state and territory could have the number of MPs which its population entitles it to, and the House of Representatives could meet at least one of the definitions of one-vote, one value every federal seat would have roughly the same number of electors.[57]

1.57Governments could also benefit from an increase in the size of the House of Representatives because a government would have a larger pool of MPs from which ministers and parliamentary secretaries can be drawn.[58]

Extent of increase

1.58Inquiry participants held a range of views as to how many additional divisions would be desirable. Opinions generally ranged between the House of Representatives having between 175 and 200 divisions, which would require an increase in the number of Senators per state of between 12 or 16.[59] Table 4.4 sets out the number of divisions and the average number of electors per division for each state and territory if the size of the House of Representatives were to increase to 175 divisions and 200 divisions.

* State and territory division entitlement calculated using the population statistics contained in the Notification of Determination: section 49 Certificate - Commonwealth Electoral Act 1918 of 3 July 2020, which, with the exception of the amendment to section 48A of the Electoral Act by the Electoral Amendment (Territory Representation) Act 2020, which gave the NT an additional division, determined the number of divisions for each state and territory at the 2022 Federal Election.

** Tasmania’s calculated entitlement in a 175 and 200 seat House of Representatives would be 4.

Source: AEC, ‘Size of electoral roll and enrolment rate 2022,’ viewed 11 September 2023, <www.aec.gov.au/Enrolling_to_vote/Enrolment_stats/national/2022.htm>; Australian Electoral Commissioner, Notification of Determination: section 49 Certificate - Commonwealth Electoral Act 1918, 3 July 2020.

1.59The Table shows that a significant increase in the size of the House of Representatives, to something like 200 MPs would be needed bring the ratio of electors to MPs down to a level equivalent to the international comparisons listed in paragraph 4.36 above.

1.60A less substantial increase to 175 MPs would not quite reflect one vote, one value and the number of electors in each division could still be a factor in inhibiting political engagement.

Committee comment

1.61The Committee was fortunate in attracting a range of considered opinions on the subject of malapportionment in the House of Representatives and the impact of the growth in the number of electors has on the political engagement.

1.62The Committee recognises that introducing proportional representation would bring House of Representatives elections closer to one vote, one value principles. However, absent an increase in the number of MPs in the House of Representatives, proportional representation would not resolve the existing malapportionment of the House, nor improve the ratio of electors to MPs.

1.63The Committee notes that introducing such a system would be a significant departure from established practice in Australia. Great care would be necessary in its introduction to avoid a substantial increase in informal voting and voter confusion. The Committee concurs with Bill Browne of The Australia Institute, who noted:

… any switch to proportional representation would require extensive consultation and consideration …[60]

1.64Increasing the size of the House of Representatives, unlike the introduction of proportional representation into the method of electing the House, would have the immediate effect of aligning the House with the principle of ‘one vote, one value’. It would also bring Australia into line with similar countries in terms of the ratio of MPs to electors. As multiple witnesses noted, Australians’ representation in the House of Representatives has fallen significantly in the past few decades, with no significant change in the number of representatives over a period in which the number of enrolled voters has almost doubled.

1.65However, consideration of increasing the size of the House of Representatives is not amendable to a discreet part of a bigger inquiry, attracting a small but high-quality base of evidence. Rather, what the evidence before the Committee has demonstrated is the complexity of the issues involved.

1.66Therefore, noting the significance of the issue, and the importance of encouraging public debate, the question of whether the size of the House of Representatives should be increased to reduce malapportionment and improve the ratio of electors to MPs should be considered in a stand-alone inquiry that garners a greater degree of attention and enables a greater sampling of the views of the Australian public.

1.67The Committee recommends the Government consider asking the Committee to inquire into increasing the size of the House of Representatives to reduce malapportionment and improve the ratio of electors to MPs.

The Senate

The Senate currently

1.68Like the House of Representatives, elections to the Senate involve a combination of provisions from the Constitution and the Electoral Act.

The Constitution

1.69Constitutional provisions applying to Senate elections are as follows:

• Section 7 states that the Senate shall be composed of senators from each state and be directly elected by the people. Laws made by the Parliament of the Commonwealth for the election of Senators shall be uniform for all states[61]
• Until the Parliament of the Commonwealth changed the representation of states in the Senate, each state had six senators elected for a period of six years.[62]

The Commonwealth Electoral Act

1.70Proportional representation in Senate elections was introduced in 1949.[63] However, the Electoral Act contains no specific provision stating that Senate elections are conducted using proportional representation. Rather, the form of proportional representation for the Senate is set out in a number of places in the Electoral Act, including Part XIV (Nominations), Part XVI (The polling), and Part XVIII (The scrutiny).

1.71The mechanism for electing Senators using proportional representation has been complicated by various amendments since proportional representation was introduced. The current mechanism for electing Senators is summarised below to draw attention to how the process works, and so should not be considered a complete explanation of the Senate election process.

1.72There is a range of options for nominating as a candidate for a Senate election:

• sitting independent senators can be nominated by a single individual entitled to vote in the election[64]
• independent candidates for a Senate election must include the names and signatures of at least 100 eligible electors to nominate[65]
• two or more candidates for the Senate without party affiliations may make a joint request that their names be grouped on the ballot paper together and in a specified order[66]
• Senate candidates who have requested that they be grouped will have their names printed on the ballot paper in the order they have specified[67]
• a political party can request its candidates be grouped on the ballot paper in a requested order[68]
• grouped candidates will be printed on the ballot paper before the names of candidates who have not nominated to be part of a group[69]
• each nominated Senate candidate will have a box printed next to their name, and candidates who have nominated to be grouped will have a box printed above the line at the top of their group[70]
• where a group of Senate candidates has been nominated by a political party, the name or abbreviation of that political party will be placed next to the box above the line on the Senate ballot paper, along with the logo of the political party.[71]
  73. A voter in a Senate election must either:
• mark the ballot paper below the line by numbering the boxes next to candidates of their choice, at least numbering from 1 to 12[72]
• mark the ballot paper above the line by numbering the boxes next to the groups for which they intend to vote at least numbering from 1 to 6.[73]

One vote, one value in the Senate

1.74As noted above, while one vote, one value and proportional representation are often considered together, they do not mean the same thing. The Senate is a perfect example of the difference between these two concepts.

1.75It is not possible to apply the principle of one vote, one value to the Senate because all the original states were given the same number of Senators as a compromise to bring smaller states into the Federation at the time the Constitution was framed. According to James Bushell and others, the compromise permitted the Senate to balance the legislative power of the House of Representatives and implicitly also the Executive.[74] The Samuel Griffith Society noted that this compromise was an essential element of the federal compact embodied by the Constitution.[75]

1.76In other words, while there is an increasing disparity between the number of electors in more populous states compared to less populous states, making Senate elections increasingly malapportioned, the drafters of the Constitution had precisely this disparity in mind when deciding on the representative structure of the Senate.[76]

1.77Senator Pocock argued that this means that:

The fact that party loyalties trump State interest for many Senators should not alter the original purpose of the Senate, namely, to protect the interests of smaller jurisdictions.[77]

1.78Kevin Bonham pointed out that in reality the relatively high degree of malapportionment in the Senate has so far not had that much impact on the functioning of the Parliament.[78] The Accountability Round Table concurred with this point:

If voters in Senate elections voted on state lines or if there were significant differences in the votes for parties in large and small states, then this would be a real issue. However, Australia has remarkably homogeneous state electorates and show nothing of the regional variations found in UK, US, Canada and Italy (and, to a lesser extent, Germany and France).[79]

1.79Senator David Pocock also argued that the extent to which senators elected in a particular state represent the interests of that state in the Senate has diminished considerably over time as senators from major political parties prioritise party discipline rather than state representation. However, he also pointed out that in recent years that senators from micro-parties from a single state have been:

… voting in their State’s interest, for example Jacqui Lambie having Tasmania’s social housing debt waived in 2019.[80]

1.80The principle of one vote, one value could be applied to the Senate by using Australia as a single electorate with Senators elected by proportional representation. This mechanism would align proportional representation as a method of electing Senators with the goal of one vote, one value, resulting in a more representative system.[81]The Accountability Round Table argued that:

The fact that federation would not have been possible without equal numbers of senators for the states does not mean we should not reconsider this now.[82]

1.81However, the Committee considers that, because a constitutional change would be required, this proposal would be unlikely to succeed.[83]

Representation for the territories

1.82The question as to whether the territory representation in the Senate ought to be increased attracted a degree of attention from inquiry participants.

1.83As there were no territories at the time of Federation, the Constitution did not provide for their representation in the Australian Parliament.[84] The mechanisms for election of Senators for the territories was included in the Electoral Act as a result of the passage of the Senate (Representation of Territories) Act 1973, which allowed for two senators each from the Northern Territory and the ACT in the 1975 election and subsequent elections.[85]

1.84According to Professor Anne Twomey:

The current formula for providing representation of the territories in the House of Representatives is set out in s 48(2A) of the Commonwealth Electoral Act 1918 (Cth). The formula is based upon the quota applied to representation in the States (excluding the minimum guarantees set out in the Constitution for original States).[86]

1.85Section 40 of the Electoral Act states that the ACT and NT are to be represented in the Senate by two senators each, directly chosen by the people. Other territories are not entitled to representation in the Senate unless those territories gain representation in the House of Representatives.[87]

1.86Section 41 of the Electoral Act provides that sections 16 (qualifications of a senator), 19 (resignation of a senator), 20 (senator causes vacancy as a result of absence from the Senate), and 42-48 (rules concerning the entitlement of a person to be elected or remain elected) of the Constitution apply to senators elected by the territories.[88]

1.87Territory senators are elected for the life of a single parliament.[89]

Increasing territory Senate representation

1.88A number of inquiry participants argued that the increase in the populations of the territories since they were granted representation in 1974 warrants an increase in representation in the Senate. Ben Raue pointed out that the population of the ACT is now roughly 81.5% of the population of Tasmania, but Tasmania elects six times as many senators as the ACT.[90]

1.89The ACT Government also focussed on this difference in its argument that the ACT’s representation in the Senate be increased:

The state of Tasmania is represented in the Federal Parliament by five Members of the House of Representatives and 12 Senators at approximately 7.5% of overall representation of the Parliament, compared to the ACT’s three Members of the House of Representatives and 2 Senators, approximately 2.2% of the overall representation of the Parliament. Tasmania, as a consequence, has 3.4 times the representation in the Federal Parliament than that of the ACT, despite having a population which is only 1.2 times larger than that of the ACT.[91]

1.90Other inquiry participants opposed an increase in the number of territory Senators.[92]

1.91A number of these arguments are also based on population statistics – in this case, the size of each territory’s population as a proportion of the Australian population. Malcolm Baalman pointed out that territory representation in the Senate is already higher than the territories’ proportion of the Australian population would entitle them to,[93] or, as the Liberal Party of Australia put it:

It is false to present the consideration of extra senators for the territories in the context of 'one vote, one value'. To illustrate:

• The ACT currently has more senators per capita than three states, and approximately the same proportion as one state.
• The NT has more senators per capita than five states.
• Were NSW to have the same number of senators per capita as the ACT currently has, the number of senators from NSW would need to rise to 24.
• Were Victoria to have the same number of senators per capita as the ACT currently has, the number of senators from Victoria would need to increase to 20.
• Were Queensland to have the same number of senators per capita as the ACT currently has, the number of senators from Queensland would need to increase to 15.[94]
  92. Kevin Bonham argued that, in the case of the ACT:

The danger in increasing the number of Territory Senators … is that given the ACT’s strong leftward leaning, this could lead to routine 3-1 left-right results which would significantly skew the political balance of the Senate and could be seen as akin to deliberate malapportionment.[95]

1.93However, Senator Pocock pointed out that arguments concerning population were not at the forefront of the initial granting of territory representation in the Senate:

Rather than considering what baseline level of representation for the Territories should be in comparison to the existing small States, a political decision was made in 1975 granting the two major Territories two Senators each. The number of Senators had no real basis but was a political decision that effectively gave both major parties two additional Senators (one from each Territory) … The debate did not seek to answer the question: what is a baseline level of democracy that is appropriate for small (non-Original State) jurisdictions?[96]

1.94Similarly, as noted by the Samuel Griffith Society, the drafters of the Constitution specifically intended the Senate to act as a check on the power of the more populous states:

… the Senate exists to preserve the rights of the states – particularly the less populous states, whose interests are more vulnerable to majoritarianism. This compromise was an essential element of the federal compact embodied by the Constitution.[97]

1.95From this perspective, having already agreed that territories ought to be represented in the Senate, the question for the Commonwealth Parliament becomes the extent to which territorians deserve the same representation as the less populous states. As Ben Raue put it:

We don’t impose expectations of ‘one vote one value’ on the state Senators who make up the vast bulk of the Senate, and I don’t think we should apply that logic to the Territories …

This discrepancy – where “equal representation” applies as far as Tasmania, but no further – cannot be morally or politically justified. We know that Tasmania’s position is guaranteed under the Constitution, and the territories have no such guarantee, but that does not prevent the Parliament from bringing the territories closer to the states in terms of representation.[98]

1.96The question of whether territorian interests are vulnerable to the views of parliamentarians from other jurisdictions is not a theoretical one. In 1996, the Parliament passed the Euthanasia Laws Act 1996 to prevent the NT from implementing Rights of the Terminally Ill Act 1995 (NT) and prohibiting the ACT from passing similar legislation.[99] In 2006, the Federal Government overturned the ACT’s same sex civil union laws.[100] On 14 September 2023, Senator Michaelia Cash introduced the Australian Capital Territory Dangerous Drugs Bill 2023, which, if passed, would have the effect that the Drugs of Dependence (Personal Use) Amendment Act 2022 (ACT) ‘has no force or effect from the day after it receives the Royal Assent’.[101]

1.97Senator Pocock, Professor Kim Rubenstein and Dr Brendan Long argue for an increase in territory representation in the Senate on the basis that territory representation should reflect the principle that the Senate protects the rights of electors from smaller jurisdictions.[102]

1.98Views on the extent to which territory representation in the Senate should be increased varied amongst inquiry participants.The ACT Government argued that territory representation should be increased from two to four on the basis that:

It is important that smaller jurisdictions have critical mass in the Federal Parliament to represent their constituents, and jurisdiction, effectively.[103]

1.99Professor Kim Rubenstein argued in part that since territory representation was introduced, state representation in the Senate had grown by two from 10 to 12, and that consequently territory representation should be increased accordingly.[104]

1.100Senator Pocock argued that:

… a standard be established whereby the number of Territory Senators be maintained at a level that is more than one-third, but less than two-thirds of the number of State Senators. This maintains a level of flexibility between State and Territory numbers while ensuring a base level of representation for the Territories.[105]

Committee comment

1.101While the principle of ‘one vote, one value’ is an important concept in representative democracies, it should be noted that Australia’s Senate was explicitly not established on that basis. Rather, the House of Representatives reflects ‘one vote, one value’, whereas the Senate was designed as a States’ House and retains that function, while also serving as a House of Review whose composition differs from the House of Representatives through their different voting methods.

1.102The Committee is of the view that the discussion about territory representation in the Senate based on population statistics is based on the assumption that the intent of the Senate (Representation of Territories) Act 1973 was to grantterritory representation based on population, and that this assumption sits at odds with the Senate’s role. State representation in the Senate is not based on population, and it is unconvincing to argue that territory representation in the Senate should be.

1.103The Committee considers that territory representation should reflect the intent of the Constitution such that territory representation should be considered on a similar basis to the representation of the smaller states in the Senate. The Federal Parliament’s ability to over-rule territory legislation further highlights the need for the two territories to be appropriately represented in the Parliament.

1.104Consequently, the Committee recommends that the representation of the territories in the Senate be increased to four Senators, elected for a period of three years.

1.105The Committee recommends that the representation of the territories in the Senate be increased from two to four Senators each.

Footnotes

[1]The Samuel Griffith Society, Submission 366, p. 3.

[2]Mr Malcolm Baalman, Submission 348, p. 10.

[3]The Constitution, Chapter I, Parts II and III.

[4]The legal framework for House of Representatives elections in the territories is contained in the Commonwealth Electoral Act 1918 only.

[5]The Constitution, section 24.

[6]The Constitution, section 24 and the Commonwealth Electoral Act 1918, Part IV.

[7]The reference in the Constitution to using ‘the latest available statistics’ means that the number of members each state is entitled to is calculated using the entire population, of which the number of electors is only a subset.

[8]The Constitution, subsections 24(i.) and 24(ii.).

[9]The Constitution, section 24.

[10]The Constitution, section 27.

[11]The Constitution, section 24.

[12]Commonwealth Electoral Act 1918, subsection 46(1).

[13]Commonwealth Electoral Act 1918, subsection 46(1B).

[14]Commonwealth Electoral Act 1918, subsection 48(2).

[15]Commonwealth Electoral Act 1918, subsection 48(2B).

[16]Commonwealth Electoral Act 1918, subsection 48(2A).

[17]Commonwealth Electoral Act 1918, subsection 48(2A).

[18]Commonwealth Electoral Act 1918, subsection 48(2C).

[19]Commonwealth Electoral Act 1918, paragraph 48(2A)(ba).

[20]Australian Electoral Commission, ‘Calculating the representation entitlements of states and territories,’ viewed 21 August 2023, <www.aec.gov.au/Electorates/Redistributions/calculating-entitlements.htm>.

[21]Commonwealth Electoral Act 1918, paragraph 59(2)(a) for states and paragraph 59(7)(aa) for territories.

[22]Commonwealth Electoral Act 1918, paragraph 59(2)(b) for states and paragraph 59(7)(a) for territories.

[23]Commonwealth Electoral Act 1918, subsection 59(10).

[24]Commonwealth Electoral Act 1918, paragraph 59(2)(c) for states and paragraph 59(7)(b) for territories.

[25]Commonwealth Electoral Act 1918, section 65.

[26]Commonwealth Electoral Act 1918, section 66.

[27]Mr Malcolm Baalman, Submission 348, p. 8; Mr Ben Raue, Submission 265, p. 8.

[28]Dr Kevin Bonham, Submission 405, p. 9; Mr Malcolm Mackerras AO, Submission 5.1, p. 2.

[29]Mr Malcolm Mackerras AO, Submission 5.1, p. 2.

[30]Mr Malcolm Baalman, Submission 348, p. 8. See also the Samuel Griffith Society, Submission 366, p. 5.

[31]Mr Malcolm Mackerras AO, Submission 5.1, p. 2.

[32]The Samuel Griffith Society, Submission 366, pp 5-6; Mr Malcolm Baalman, Submission 348, p. 8. This is at least the second time legislation has been used to guarantee the Northern Territory two members in the House of Representatives. The Commonwealth Electoral Amendment (Representation in the House of Representatives) Act 2004 set aside a 2003 Electoral Commissioner’s determination that the Northern Territory was entitled to one seat in the House of Representatives.

[33]Mr Jeffrey Waddell, Submission 297, p. 5; Mr Ben Raue, Submission 265, p. 7.

[34]Mr Ben Raue, Submission 265, p. 7.

[35]Mr Ben Raue, Submission 265, p. 7. See also Mr Jeffrey Waddell, Submission 297, p. 5. The end date for statistics contained in Ben Raue’s submission is 2022.

[36]Mr Geoffrey Robin, Submission 15 to the Joint Standing Committee on Electoral Matters’ Inquiry into the conduct of the 2019 federal election and matters related thereto, p. 2; Mr Jeffrey Waddell, Submission 297, p.5.

[37]The Australia Institute, Committee Hansard, 26 October 2022, p. 3.

[38]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 federal election and matters related thereto, December 2020, paragraph 8.60.

[39]Mr Ben Raue, Submission 265, p. 9.

[40]The Australia Institute, Submission 412, p. 43.

[41]Australian Parliament, ‘For peace, order and good governance: The first Parliament of the Commonwealth of Australia,’ viewed 25 August 2023, <www.exhibitions.senate.gov.au/pogg/election/first_election.htm>.

[42]Commonwealth Electoral Act 1918, section 57.

[43]The Australia Institute, Submission 412, p. 50.

[44]The Constitution, section 29.

[45]House of Representatives Standing Committee on Constitutional Change, Constitutional Change: Select sources on constitutional change in Australia 1901-1997, 24 March 1997, p. 16.

[46]Proportional Representation Society of Australia, Submission 323, p. 3.

[47]Mr Ben Raue, Submission 265, p. 11.

[48]Mr Malcolm Baalman, Submission 348, pp. 10; Mr Ben Raue, Submission 265, p. 12.

[49]Mr Malcolm Baalman, Submission 348, p. 9.

[50]Mr Malcolm Baalman, Submission 348, p. 9.

[51]Mr Malcolm Baalman, Submission 348, p. 9.

[52]Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 federal election and matters related thereto, December 2020, paragraphs 8.54-8.63 and 8.65.

[53]The Constitution, section 24.

[54]The Constitution, section 7.

[55]House of Representatives Standing Committee on Constitutional Change, Constitutional Change: Select sources on constitutional change in Australia 1901-1997, 24 March 1997, pp. 92-93.

[56]The Australia Institute, Submission 412, p. 42; Dr Kevin Bonham, Committee Hansard, 23 June 2023, p. 14; Mr Ben Raue, Submission 265, p. 8.

[57]The Australia Institute, Submission 412, p. 42.

[58]The Australia Institute, Submission 412, p. 42; Mr Ben Raue, Submission 265, p. 8.

[59]Mr Malcolm Baalman, Submission 348, pp 8-9, The Australia Institute, Submission 39 to the Joint Standing Committee on Electoral Matters’ Advisory report on the Commonwealth Electoral Amendment (Ensuring Fair Representation of the Northern Territory) Bill 2020, p. 12; Mr Jeffrey Waddell, Submission 297, p. 6; DrKevin Bonham, Submission 405, p. 9; Mr Ben Raue, Submission 265, p. 9.

[60]The Australia Institute, Committee Hansard, 26 October 2022, p. 1.

[61]The Constitution, section 7.

[62]The Constitution, section 7.

[63]The Australia Institute, Submission 412, p. 50.

[64]Commonwealth Electoral Act 1918, subsection 166(1C).

[65]Commonwealth Electoral Act 1918, subparagraph 166(1)(b)(i).

[66]Commonwealth Electoral Act 1918, subsection 168.

[67]Commonwealth Electoral Act 1918, paragraph 210(1)(a).

[68]Commonwealth Electoral Act 1918, section 169.

[69]Commonwealth Electoral Act 1918, paragraph 210(1)(a).

[70]Commonwealth Electoral Act 1918, paragraph 210(1)(f).

[71]Commonwealth Electoral Act 1918, subsection 210A(5) and subsection 214(2).

[72]If there are less than 12 candidates, then all candidates should be numbered consecutively in accordance with the voter’s intentions. See Commonwealth Electoral Act 1918, section 239.

[73]If there are less than six boxes above the line, then all boxes should be numbered consecutively in accordance with the voter’s intentions. see Commonwealth Electoral Act 1918, section 239.

[74]Mr James Bushell, Submission 270, p. 2; Dr Brendan Long, Submission 404, p. (4); Senator David Pocock, Submission 416, p. 8; and Mr Ben Raue, Submission 265, p. 10.

[75]The Samuel Griffith Society, Submission 366, p. 3.

[76]The Samuel Griffith Society, Submission 366, p. 7; FamilyVoice Australia, Submission 396, p. 6.

[77]Senator David Pocock, Submission 416, p. 9.

[78]Dr Kevin Bonham, Submission 405, p. 8; Mr Ben Raue, Committee Hansard, 26 June 2023, p. 17.

[79]Accountability Round Table, Submission 343, p. 13.

[80]Senator David Pocock, Submission 416, pp 8-9.

[81]Mr James Bushell, Submission 270, p. 6.

[82]Accountability Round Table, Submission 343, p. 13.

[83]Mr James Bushell, Submission 270, p. 6.

[84]Mr Patrick Corr, Submission 289, p. (1).

[85]Professor Kim Rubenstein, ‘The grass is greener in Ginninderra NSW,’ Canberra Times, 22 September 2022.

[86]Professor Anne Twomey, Submission 407, p. (7).

[87]Commonwealth Electoral Act 1918, section 40.

[88]Commonwealth Electoral Act 1918, section 41.

[89]Commonwealth Electoral Act 1918, section 42.

[90]Mr Ben Raue, Submission 265, p. 10. See also Professor Kim Rubenstein, ‘Mature, democratic ACT on a quest for electoral justice,’ Canberra Times, 3 August 2021.

[91]Australian Capital Territory Government, Submission 422, p. 9.

[92]Dr Kevin Bonham, Submission 405, p. 8; The Nationals, Submissions 361, p. (5); Dr Kevin Bonham, Committee Hansard, 23 June 2023, p. 14.

[93]Mr Malcolm Baalman, Submission 348, p. 8.

[94]Liberal Party of Australia, Submission 382, p. (8).

[95]Dr Kevin Bonham, Submission 405, p. 9.

[96]Senator David Pocock, Submission 416, p. 9.

[97]The Samuel Griffith Society, Submission 366, p 3.

[98]Mr Ben Raue, Submission 265, p. 10.

[99]Parliamentary Library, ‘Bills Digest: Euthanasia Laws Bill 1996,’ viewed 14 September 2023, <www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd005#_ftn10>.

[100]Senator David Pocock, Submission 416, p. 10.

[101]Australian Capital Territory Dangerous Drugs Bill 2023, Explanatory Memorandum, p. 2.

[102]Senator David Pocock, Submission 416, p. 10; Professor Kim Rubenstein, Committee Hansard, 2 August 2023, p. 4; and Dr Brendan Long, Submission 404, p. (5).

[103]Australian Capital Territory Government, Submission 422, p. 9.

[104]Professor Kim Rubenstein, Committee Hansard, 2 August 2023, p. 3.

[105]Senator David Pocock, Submission 416, p. 11.