Societal Reform

Political Reform

By Bruce Barbour - Modified April & October 2021, January 2022 and July 2022

I recognise that some of these suggestions require constitutional reform. I also acknowledge the difficulty of achieving constitutional reform in Australia. Very few referendums on constitutional reform have been successful in Australia. However I will put the ideas out there.

Senate - The Issues

The Senate in Australia is meant to operate as the house of review, reviewing legislation that has been passed by the House of Representative prior to accepting or rejecting or proposing amendments to the legislation. However there are various factors that mean that the Senate is does not operate well in performing this legislation review function.

The Senate was originally set up at the time of Federation as the State's house to get the smaller states to agree to join the Federation - to overcome their fear of being swamped by the larger more populous States. Consequently each State has been allocated 12 Senators (currently - lesser numbers in earlier times), and the two mainland territories 2 Senators, regardless of their population. This means that Tasmania with a population of 0.5 million has the same number of Senators as Victoria with a population of 6.2 million. Because of this "gerrymandering" the Senate does not conform to the democratic principle of one vote one value. One Prime Minister infamously called the Senators "unrepresentative swill". Harsh but not entirely without substance. The current set up of the Senate is an historical anachronism and for this reason alone it needs reform.

There are three further issues that limit the Senate from performing its function as a house of review:

• The Senate is still dominated by the same parties that dominate the lower house - with a few more minor party politicians thrown in. Consequently it is unlikely that a Senator from the party that is in majority in the lower house is going to vote against a piece of legislation that their party in the lower house has supported. Similarly for Senators in the opposition party - they will not support legislation their lower house colleagues do not support. So a large proportion of the people in the Senate are not actually carrying out any real legislation review - mainly towing the party line.
• Because there are 12 Senators allocated for each State it gives people from minor parties a greater opportunity to be elected to the Senate. Consequently the current (2020) Senate has 35 members from the Government, 26 from the Opposition and 15 from minor parties and independents (inc. 9 Greens and 1 independent - 19.7% of total members).  This compares to the House of Representatives - 77 Government, 68 Opposition and 6 Minor party or independent - 4% for total members.
  Depending on how the numbers fall this can give the minor parties a huge amount of power. Sometimes a minor party Senator can use their position to do deals on which legislation they will agree to based not on the merits of the legislation being voted on but on what side deal they can make to extract some other benefit for their State or party.
  If the Government party actually holds a majority of the seats in the Senate - which happens rarely - the Government has unfettered capacity to pass whatever legislation that has passed the lower house that it wants - without real review. The Government Senate members are not going to vote against their lower house colleagues.
• Recent elections have shown that the Senate voting system is open to manipulation that can see a person who gets few direct votes (No. 1 votes) be elected due to deals on preferences between the smaller parties. This is only possible due to the "above the line" voting system (for more detail see Proposal 1 below) and the effectively hidden preference flows resulting from that system.
  

The way the Senate is set up at the moment it is a house of politics and not a house of review.

However one of the functions of the Senate is to establish committees to conduct hearings to examine the government's budget and operations. These committees do carryout proper review work, holding the Government administration and the public service/servants to account. The Senate committee process is worthwhile and needs to continue into the future under the same or similar rules.

These are the issues in outline. However the idea of a house of review that does genuinely review legislation is worthwhile as a brake on the possible excesses of Government. It is just a matter of how this is achieved.

I will suggest a number of approaches to reform. Even if it was decided that they were worthwhile how achievable they actually are is another matter.

Proposal 1 - Changes to the Senate Voting System

One of the issues with the current voting system is the size of the voting sheet and how voter preferences are expressed.

Currently (2019 election)* a voter for the Senate has the option of voting "above the line" or "below the line". If voting "above the line" the voter just needs to put the number "1" in the box for their first preference party. The second, third, forth etc preferences associated with that vote will be allocated according to the preferences chosen by the party that received the "1" vote. How those preferences are allocated is not at all transparent. If the voter wants to know where the preferences from their vote will flow they have to look it up on a website before they go to the polling station. In effect the preferences are no longer the voter’s preferences but are given away by the voter to the party that receives their number 1 vote. This concerns me.

*July 2022 Update: This has now changed so this non-transparent allocation of preferences is no longer an issue - except in Victoria where the non-transparent allocation of preferences still occurs. See the second paragraph below for further details. The new senate voting is basically in line with what was suggested as the solution. Hopefully Victoria will also change this system prior to their next election.

The other option is to vote "below the line". For this voting the voter has to number all candidate boxes below the line. In the case of Victoria at the last Federal election the voter has to number the candidates from 1 to 76 (from memory). If an error is made you have to start again. I understand that only between 5 and 10 percent of voters vote "below the line". With an increased number of candidates possible for the larger states under Proposal 2 the voter would have to number many more boxes, making the voting "below the line" option even more difficult.

The fix for this is quite simple. Voters should be able to vote "above the line" however they should be able to number the boxes above the line sequentially in accordance with their preferences for the parties listed. For example Party A lists 10 candidates on the senate ticket and Party B lists 5. If a voter marks Party B with a "1" above the line and Party A with a "2" then the Party B candidates would get preferences 1, 2, 3, 4 and 5 down the list and Party A candidates would get 6, 7, 8, .....etc to 15 down their list. And so on for other parties that the voter marks a preference for above the line. And if the voter stops at numbering say 5 or 10 boxes above the line that should not invalidate their vote as their intention is clear (though this may impact on the calculation of "quota" under the voting system).

The voters should be able to vote by a combination of "above the line" and "below the line" votes if they want to so long as their voting intention is clear.
July 2022 Update - The suggestion in this paragraph was not implemented - you can either vote above the line or below it - not a combination. If you do this your vote may be declared invalid.

The function of the Senate will be the same - running the Senate committee process and reviewing and voting on legislation.

Proposal 2 - Remove the Senate Gerrymander

The number of Senators allocated to each State should be proportional to their population. Under this proposal if Tasmania has three Senators Victoria would be entitled to 36 Senators. This would be a boon to the smaller parties that would have a much higher chance of getting elected to the Senate in the larger states. It would also mean that the Senate would more accurately reflect the number of votes that each party received statewide/countrywide - much better than the House of Representatives. It would make the Senate a house of review that is more representative of the population.

For such a system to be feasible (certainly in the larger states) reform of the voting system as outlined in Proposal 1 would be necessary.

I would expect that such a reform would be vigorously opposed by the two major political parties - and the smaller States.

Proposal 3 - Appointed Members

The proposal is to have a group of citizens appointed to review and vote on legislation passed by the lower house - the House of Representatives. This is in addition to the elected Senators. This section provides details on this proposal.

Opposition parties do not just consider legislation on its merits, on whether it is of benefit to the country. It could be the case that they consider the legislation of benefit to the country but will still vote against it because of perceived political benefits to their party's re-election prospects from the obstruction of the government. This is one of the reasons politics and politicians have such a bad reputation. Appointed members would not be considering the politics of the legislation being considered, only its merits or otherwise and perhaps whether the government has a mandate for it from the last election.

Let me address one argument that is sure to be made against any proposal to use appointed members - "but the appointed members are not democratically elected". You're right, they are not. As pointed out earlier look at the way the current Senate is elected - it is undemocratic - if by democratic you mean one vote one value. Tasmania gets one Senator for every 41,700 electors. Victoria gets one Senator for every 517,000 electors (2020). Look at the House of Representatives. It clearly does not proportionally reflect the community's vote for the minor parties*. If it did the Greens would have many more lower house Parliamentarians. We have even had occasions when the party that achieved the majority of votes across the country did not win Government. It happens infrequently in Australia - unlike in the USA. When it happens it is undesirable and really should be addressed too.

Another argument why using appointing members in the Senate should be acceptable is that the Senate is a house of review. Government is formed in the lower house - the House of Representatives and, except for the issues noted elsewhere, the House of Representatives is elected directly and democratically by the voting public. The centrality and importance of the democratic election of Government is thus preserved. The function of review carried out by the Senate need not necessarily be carried out solely by elected representatives.

(*In the case of the House of Representatives there are some benefits to stable Government for the House to be dominated by the two major parties provided there are adequate checks and balances in place. Imagine the situation where there are 4 or 5 equally sized parties in the house. There would have to be coalitions made to be able to form government. Coalitions of genuinely separate parties can break apart more easily leading to the collapse of the Government. And perhaps one of the minor parties to the Coalition could negotiate the implementation of their pet policy - a policy which may not be supported by the majority of Australians if they had been given the opportunity to vote on it.

There are risks associated with a two party system as well. The main risk is that one or both parties become captured by special interest groups, most notably corporate donors but it could be other groups as well. Once captured it is difficult to get out of as the captured politicians will be prevented by the controlling special interest groups from changing the rules to fix the systems. The USA is an example of where both parties have been to greater or lesser extent captured by corporate donors. This leaves a section of the voting public with no electable alternative that reflects their views to vote for, thus effectively disenfranchising them. A supposed democracy where there is no-one to vote for that largely matches your - or a significant proportion of potential voters - philosophies is not a democracy at all. It is a country with a facade of democracy.

(Australia's voting system partially counters this by the preferential voting system. If a party swings to far away from its natural voter base a proportion of that voter base may have a choice of giving their first preference to a smaller party that does represent their views and there second preference to the larger party. Their vote would not be wasted. The minor party candidate could either get elected or if not the major party candidate could be elected but would see the extent of discontent with the major parties direction which may cause the party to rethink their position.)

Corporate capture could be countered by changes to political donation rules and funding of elections as discussed elsewhere on this site - and as argued this has to be done before the parties are completely compromised. There is also potential that a special interest group makes a deliberate decision to try to take over a party by getting all its members to join the party. This has been seen with some smaller parties and also the incursion of some right wing Christian sects into some parts of the Liberal party. Rules would have to be put in place to try to limit this and provide transparency of the process.

I would also like there to be systems in place to encourage more people to join political parties. The more genuine members the better - it is good for democracy. I suggest an apolitical advertising campaign - funded from Government sources - to encourage people to join a political party, any party that matches their beliefs. And provide greater financial assistance for political party members to cover the costs of membership. It is interesting that many parties don't seem to do more to encourage new membership themselves. Why don't they have membership drives? I have never seen either of the major parties advertising for more members. The political parties could for example have a free sausage sizzle (subject to AEC approval) to encourage people to come down and speak to existing party members and perhaps join. Perhaps all parties could be encouraged to do this annually on Australia Day - once the issue of the date of Australia day is sorted out - or on another appropriate date.)

Our system has many aspects which are in some way not democratic. I don't think the proposal for appointed members is as problematic as some of these other issues.

I will now outline the method that appointed members could be selected. And then how they could be used.

Requirements for Appointed Members

The appointed members would be Australian citizens from the general community with the following guidelines for appointment:

• The number from each state will be proportional to the population of the state;
• The number from country and metropolitan regions would also be proportional to population;
• Male / female proportion shall be 50:50 (plus or minus 1%); and
• The ages of the members will be from 25 to 75 (when appointed).

The total number would be say 400 (to be decided). The reason for so many is that the bigger the number the more likely they are to being a representative sample of the community. As they don't have to vote on every piece of legislation we need to ensure that enough are available to vote.

Within the guidelines people from the community would be invited at random to become an appointed member. The duties to be undertaken and commitment required would be explained to them in detail - the good and the bad. It would be up to them to decide whether or not to accept the appointment. If accepted they would be appointed for a year, with possible extensions up to three years. At least a third of appointed members would change over each year. (They will be able to withdraw earlier if they want so long as some notice is given. On going appointment may be assessed in accordance with the appointed member's participation and defined aspects of performance (e.g. percentage of times they vote, etc.) and also their preference for continuing or not.) The process would be managed by and independent body, possibly the Australia Electoral Commission.

It is analogous to how the jury system impounds people from the community to sit on juries - except that it would not be compulsory. 

Their primary function is the review and voting on legislation passed in the House of Representatives.

Appointed Member Review Processes

Legislation would be debated and passed in the lower house, in accordance with current practice.

Elected members would meet in Parliament House in Canberra to debate legislation and also to run the committee process. The appointed member would work from their homes, in their communities, to review legislation. Appointed members would not be involved in the Senate committee process. For the appointed members most interaction would be online, with legislation discussion, review and voting online. There may be the occasional get together (statewide or nationwide) for training. These get togethers would not include elected members or other politicians in any significant capacity.

Legislation passes the lower house. It would be sent electronically to the appointed members along with a detailed description prepared by parliamentary officers on what the function of legislation would be if passed. They would be told how the members of the lower house voted on the legislation. They would also be provided with links (video and transcript) to the lower house debate associated with the legislation. The elected members of the Senate could also send to the appointed members further arguments on their reasons the legislation should be passed or rejected - the benefit or otherwise to Australia. It would be sent to all appointed members, not individually. This could also include video highlights from the lower house debates. 

Questions and discussion would be via a forum type application. All appointed members and Senate elected members would be able to use the forum. Elected members would off course be trying to promote the view of their party - which is fine - and so will be motivated to answer the questions put - both for the yes case and the no case. No off forum or private discussion allowed. Discussion between members on the forum would also be encouraged - but not off line. It may be in view of the elected members or private between just the appointed members (two forums).

It would be forbidden for elected members or members of any political party to contact the appointed member individually - online or otherwise - to try to influence them individually. Similarly it would be banned for lobbyists to contact them individually - though perhaps lobbyists can make written submissions that will be available to all appointed members (and the public). If direct contact wasn't banned it would be quite likely that the elected members (and lobbyists) would profile the appointed members and then start using different arguments (possibly conflicting arguments) for different appointed members based on their profile. If an argument is considered good enough to be used it has to be seen and considered by all appointed members.

All members would submit their vote on the legislation by the nominated time. The appointed member's vote would be confidential. The elected member's vote public (as it is now).

There would be penalties for the appointed member if they have accepted any material gain - other than the wage associated with the position - due to their position.

Appointed members would not have to vote on all legislation but would be expected to vote on at least two thirds of the legislation put before them. Appointed members would be instructed to consider the legislation on it merits and also on whether it has been part of the government's election promises and how well if fulfilled that promise.

I would anticipate that the appointed member would not have to spend all their time on carrying out the duties associated with the appointment. The Senate currently typically sits for 50 to 60 days per year (source: Wikipedia). Using that as a guide possibly the appointed member may be required full time for say 3 months of the year (in a number of month long sessions associated with when the upper house sits for Proposal 3b. Lesser time for Proposal 3a). Time requirements would have to be determined from a review of the workload. Hopefully the appointed members will be able to continue their current employment as well - with Government incentives to their employer to free up sufficient of their time to carry out the duties. Their wage for the appointment would need to be determined but could be based on the wages of the elected senate members pro-rata for the time needed to carry out the requirements of the appointment.

Legislation would be debated and passed in the lower house, in accordance with current practice. It would then be sent to the upper house for review. The elected members would debate the legislation in the upper house, as per current practices, however the vote on the legislation would not occur straight away. A time for the vote would be set say a week (or two) away. This is to give the appointed members a further opportunity to consider the lower house debates and to ask questions and to discuss the legislation. At the appointed time both the elected and appointed members the legislation would vote on the legislation.

Elected Senators would have 50% of the total vote and the appointed members would have the other 50% of the vote (regardless of numbers of members). When combined > 50% would pass the legislation.

There would be a lot more detail required than I provided here but hopefully this outlines the idea. If implemented this approach would make the upper house a true house of review.

Appointed Member Legislation and Plebiscite Initiation 

I would allow appointed members to suggest new legislation. However any new legislation from the appointed members formally put to parliament would have to have a "super majority" of over 60% support from the appointed members that vote. (Of course "suggestions" could be made for consideration without out having the full 60% "super majority". Such suggestions may be adopted by some elected members or by a particular party to take forward as party policy.) The 60% super majority would hopefully mean that the legislation would address an issue that would have wide public support. Once supported it would go to the House of Representatives for consideration and then to the Senate. If rejected by the House of Representatives or Senate the appointed members will be able to choose to have a second vote on it and if they can get over 65% of the appointed members that vote to support the legislation again, it will go to a public referendum/plebiscite at the next election. The reason for this very high super majority is that it would be undesirable (due to cost and other factors) for a significant number of marginal proposals to be put to a public referendum/plebiscite. Historically it has been shown that referendums for constitutional reform that don't have support from both major parties they are unlikely to pass. In order for a proposal to have a chance of success at referendum/plebiscite where at least one party is against the change it would have to have mass appeal within the general populace. The probability of that mass appeal would be indicated by the "super majority" vote of the appointed members.

The type of legislation that could be proposed under this arrangement could be the establishment of a corruption watchdog with teeth, political funding reform, other political reform and real climate change action - issues that our current political system can't or won't deal with in a meaningful way. If the House of Representatives rejects the legislation it would show to the public what their real concerns were. They would loose skin over it. And they would have to consider the added "risk" of it being sent to a public referendum - especially if it already has over 65% support from the appointed members. And what possible approval at a referendum/plebiscite after they rejected it would mean for their party politically.

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