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
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
voterís 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
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
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
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%);
- The ages of the members will be from 25 to 75 (when
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
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
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
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
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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