Sunday, February 23, 2020

It's a Joyce Joke: Barnaby's Senate Mutilation Madness

This article includes ideas for one I was working on last year but didn't get around to finishing off then.  I've been provoked to now do so by the news (tweeted by the AFR's Tom McIlroy) that Barnaby Joyce will on 24 Feb "present" a Bill to "amend the Representation Act 1983 - proposing six regions per state and two senators per region".  The exact form of the Bill has not been seen, and perhaps the proposal has been shorn of its more patently offensive and wrong aspects prior to tabling, so for the time being I comment on the history of Joyce's 2019 comments on this issue.  [EDIT: Nope, it's got even worse, see updates at the bottom.] The article should also cover ground that is useful if Joyce has modified his proposal.  I will add more comments when I have seen the actual Bill, which I assume will go nowhere.

General Background and non-malapportioned version

The concept of Senate districts is an old chestnut that takes its inspiration from Section 7 of the Constitution.  The Constitution only says the people of each state vote as a single electorate until the Parliament otherwise provides, which in theory allows the Parliament to come up with some other arrangement without needing to change the Constitution.  Furthermore, the Constitution explicitly canvassed that Queensland could be split into Senate divisions by its state parliament, until the Commonwealth parliament decided otherwise.  

Barnaby Joyce is not the only MP to have proposed the use of Senate districts recently - the idea has also been proposed by new JSCEM chair James McGrath.  However, McGrath's quoted comments on the idea, referring simply to "having two senators elected across six provinces within each state", do not contain any malapportionment element.  

It is worth considering what effect a split of each state into six Senate districts would have assuming the split was fairly done with a more or less equal distribution of voters into districts within each State.  At a double dissolution, the Senate would be formed of 38 two-seat contests similar to (and including) those that now occur at every Senate election in the ACT and the NT. 

The quota for a two-seat contest is one-third of the vote, and currently nearly everywhere in the country both major parties would reach that quota, if not on primary votes then after preferences.  However there are some possible exceptions, roughly including:

* A division centred around inner Melbourne would be very likely to return one Labor and one Greens Senator and no Liberals.

* A division centred around rural NSW would be likely based on House of Reps voting patterns to return two Coalition Senators.  However, in practice there would be a good prospect of a rural independent or minor right party winning one of the seats.

* In very strong elections for the Coalition, it might win two seats in a rural Western Australian district.

* It's plausible a rural Victorian district would split Coalition-Independent.

* A district covering most of Clark (Tas) would frequently return two left-wing seats.  Based on House of Reps voting patterns it could in theory return two Wilkie-style independents, but in practice one Labor and one Wilkie-style independent or Green would probably be more likely.

* There might be prospects for One Nation to take a Labor seat in Queensland in a good year for the Coalition.

* There would be some potential for non-classic results (eg Liberal-Green or Liberal-Ind) in a district in northern Sydney.  

Perhaps the system would encourage something new, such as regional parties rising up to nab Senate seats.  However the failure of small states to develop their own distinct Senate identities in this manner (beyond the odd Harradine or Xenophon) isn't promising for that happening.

The system would greatly reduce the number of Greens Senators, to Labor's obvious benefit.  However, it would tend to lead to very close numbers in the Senate.  It would also be poorly responsive to the national mood, because it would draw no distinction between districts where the major party 2PP vote split 65-35 to Coalition, 50-50 or 65-35 to Labor.  The balance of power would be more responsive to the exceptions (the few localised cases where the left or right had concentrated enough support to win both seats, or a centrist crossbencher won one seat) and for this reason alone it is a very bad idea.  A government might handily win a double dissolution but find the other side controlled the Senate, and have to force another double dissolution to pass anything.

The other issue with this system is what to do with half-Senate elections.  In the event that they see every district elect one Senator, then each would tend to simply echo the Lower House result in a crude form distorted by the Senate's existing state-based malapportionment.  All else being equal, a new government coming to office with a smaller majority than the outgoing government had (not a situation that has arisen often, but it could!) could well face an impossible Senate and need to quickly go to a DD.  An alternative would be a rotation system in which only half the districts in a state were up at once, which would make the issue of dependence upon locally extreme results (discussed for DDs above) more permanent.

Joyce's Version

Barnaby Joyce's version was set out last year in his JSCEM submission (PDF download):

"No region should be larger than 30% of the state and no capital city urban basin should be more than one region."

 It is unclear exactly how Joyce defines a "capital city urban basin", but in his submission generally he seems to be referring to most cities in the typical sense of their greater urban spread.  This means that Sydney and Melbourne, with around five million people each (21% and 20% of total population), would each be represented by 2/76 Senators (2.6%).  However, in Tasmania, removing Hobart would leave around 300,000 people to be represented by 10/76 Senators.  Assuming the populations of each of Tasmania's five remaining districts were equal, this would probably be most easily achieved by including most of the north-west of the state in one district and having four others radiating out of Launceston in peculiar shapes to avoid breaching the 30% rule.  More importantly, each district would have about 60,000 people (0.2% of population), giving small-town Tasmanian voters around 80 times more value for vote than their Melbourne and Sydney counterparts, up from the existing 13-times differential.  (Variation in proportions of voters who are too young to vote and/or non-citizens will affect these figures slightly, but not much.)  Alex Jago has noted that South Australian non-capital divisions could have even fewer voters than Tasmanian.  

The most important problem with Joyce's solution is of course the extreme bias in favour of the Coalition that would result from placing so many Senate districts in conservative rural areas at the expense of often left-wing capital cities.  This would greatly increase the scope for 2-0 splits in the right's favour in rural parts of most states, while eliminating any prospect of 2-0 splits to the left outside of possibly Hobart.  Joyce argues in his submission that this is a non-issue because of unrepresentative Senators like Ricky Muir and Fraser Anning.  Firstly, the system that elected Muir was abolished in part because it elected people like Muir, while Anning was elected as a One Nation candidate overwhelmingly on party votes for One Nation and preferences from Pauline Hanson voters and voters for other parties.  (He just more or less instantly quit the party on arrival).  But more importantly, while these people were unrepresentative Senators (in Muir's case because he owed his presence to preference harvesting and in Anning's because he quit his party), their presence did not systematically alter the partisan balance of the Senate in the way Joyce's suggestion would.  

The problems Joyce seeks to address

The calls for Senate districts from various Coalition and rural quarters (Matt Canavan, Perin Davey, Bob Katter are others involved) seek to address revelations that capital cities are over-represented in terms of where Senators have their offices even on a per-capita basis. Joyce also argues that some federal electorates are too large for effective representation, and implies a vicious spiral in which the bush is neglected because nobody lives there, so nobody wants to live there, so the bush is neglected some more, and so on.  

Joyce does not consider an alternative hypothesis, specifically that the bush gets neglected because the National Party is as hopeless as it is spineless and yet the bush keeps voting for it.  In any case, the solution is within rural voters' hands - if they refused to vote for parties that did not locate sufficient offices in rural towns, then major parties would quickly lift their game.  Clearly the location of political party Senate offices is not a significant driver of the rural vote.    As for overlarge Reps electorates, this matter can be, and to at least some degree is, addressed through staffing allowances (second offices, extra staff members etc).  Similarly, there is nothing to prevent the Parliament from providing incentives for more Senate offices to be rurally located. 

There are many other proposals that one could come up with to give more voice to voters in sparsely inhabited regions without violating the principle of one vote, one value within each state.  One of these would be simply to increase the size of both Houses of Parliament, with a proportional increase in the number of rural electorates.

It's also notable that Joyce continues to refer to New York having two Senators whereas eleven are based in Adelaide.  In fact it is New York the state that has two US Senators, though they may often be based in New York the city.  This is part of a general state-based malapportionment in the US in which every State has two Senators, as a result of which California with nearly 40 million people has no more Senate power than Wyoming with less than 700,000.  Australia's version of the same issue is less extreme because Australia has fewer States, and unlike the USA, there is not a clear partisan skew between larger and smaller states (small states tend to elect Republican Senators).  Joyce's proposal would import both negative features of the US system.  

The greed of crossbench-aversion

Proposals to carve the Senate into districts also appeal - whether they admit this is their motive or not - to those who think there are too many crossbenchers in the Senate.  Some Coalition supporters feel that it is wrong that the Coalition won the election yet from time to time needs the help of two out of One Nation, Jacqui Lambie or the Centre Alliance to get its Bills across the line.  

This sentiment has also been seen to drive some other proposals - for instance Peta Credlin has supported expanding the Senate to 14 seats per state because this would allow a party getting a majority of votes in a state to always get more than half that state's seats.  Credlin in fact had her numbers wrong, because the Coalition won 3/6 seats in five states in 2019 and all of those would become 3/7s in a 14-seat system.  Major parties have not been hitting the level required to get 4/7 seats (or 3/5 in the old 10-seat system) in more than the odd state now and then for some time.  

In fact, the Coalition did extremely well in converting primary votes to Senate seats in 2019 under the current system.  12 Senate seats per state proved to be a sweet spot for it because it won three-seat slates that would have mostly dropped to two in a 10-seat system and stayed at three in a 14-seat system.  Heaven forbid that a Coalition that 62% of the country did not vote 1 for in the Senate should have to negotiate with a few crossbenchers, the Greens or Labor to get any bills passed!  As it was the Coalition won 19 out of 40 seats up for grabs in the chamber of review off 38% of the primary vote - how can this not be enough?

Wiser heads know that a slightly frustrating Senate can be good for a government's longevity.  It means a government can fly kites for bad ideas that are popular with its base, and yet blame someone else for them never coming to fruition.  The Howard government's longevity was increased by having its more radical ideas curbed by the Senate.   When it took control of the place from mid-2005, it could no longer help itself and contributed to its own demise at the next election with Workchoices.

Introducing ... the Grand Gerry!

Normally at the end of each year I write a piece called the Ehrlich Awards in which I nominate the worst electoral predictions of the previous year.  I still haven't finished the 2019 edition and have been considering whether there should be an award for 2019 at all in view of the industry-wide predictive failure at the federal election.  But I did say that I would also introduce a new award, the Grand Gerry, which each year would go to the person or body who I thought had made the most obnoxious contribution to electoral debate (Australian where possible) in the previous year.  The Grand Gerry can be won based on:

* proposing a reform that would be bad
* failing to support a reform that is necessary or obviously good
* giving extremely bad arguments for or against a proposed reform, whatever its quality

For his commitment to further harming the representativeness of the Senate with a proposal which would create massive bias in favour of the Coalition, Barnaby Joyce is the 2019 inaugural Grand Gerry winner.  

More Reading

The Senate President Scott Ryan has already rebutted Joyce's proposal in a piece that I cannot praise highly enough.  

Graeme Orr drew my attention to Senate districts having been one of the possible subjects for a Governor-General's Prize for undergraduate students in 2018-9, and to the highest-ranked essay that chose this subject.  (The author, Edward Fowler, argued against Senate districts.)

Update: The Bill Is Even Worse!

The bill itself has managed the remarkable feat of being even worse than Joyce's JSCEM submission.  It largely retains two major features of that proposal:

 "the geographic area of the capital city of the State must be contained wholly within one division;"

"each division must take into account Indigenous first nation boundaries." and

"each division must be smaller than one third of the geographic area of the State;" [previously 30%]

but also adds:

"each division must be larger than one tenth of the geographic area of the State;"

This would have the effect of cramming still more people into the capital city districts leaving them still less represented per vote and the rural/regional districts still more over-represented.  Another thing of note is that Joyce's proposal uses the model where half the districts in each state would face election in each half-Senate election, so each half-Senate election would consist of 20 two-seat contests (eighteen in the states and two in the territories).

The bill (see video with thanks to Nic Egan) was moved by Joyce, seconded by Katter and added to the list of orders of the day, which presumably means that as with most private members' bills it will languish on the notice paper indefinitely unless the government chooses to select it for debate.  Joyce says that he does not choose to "suspend standing orders" now on the matter (meaning that he does not choose to move a motion to suspend standing orders, which would presumably fail.)

An excellent comment by Michael Maley pointing out numerous technical, democratic and other defects of the Bill has been added below.


  1. Pinochet mined the Chilean constitution with several devices to ensure the permanent dominance of the right. On of them was electoral districts of magnitude 2 on the idea that the right could usually win at least one seat in every district. I seriously doubt that Barnaby Joyce made a close study of the antidemocratic features of the Pinochet constitution to see what he could do to the senate, but Chileanising the senate is what he's come up with.

  2. Comment from Michael Maley sent by email:
    Some observations on Mr Joyce’s Bill.

    (1) The Bill fails to make the consequential amendments which would needed to the Commonwealth Electoral Act 1918, the provisions of which are based on having all people within a State voting as a single constituency for the same set of candidates. Just to give a few obvious examples, the current Senate ballot paper has no provision for a Senate division to be mentioned on it; there are no provisions for the existence of rolls for Senate divisions; and no processes specified to cover the case in which the certified list for a House division might include people from two different Senate divisions, who would have to be issued with the correct Senate ballot paper.

    (2) Mr Joyce’s Bill proposes no time constraint on the determination by the Minister of Senate division boundaries, in contrast to the situation applying to the House, where a redistribution cannot be initiated in the 12 months before the House expires. Nor does it prevent the Minister from changing boundaries as often as he or she likes.

    (3) Permitting a Minister to determine boundaries opens the door to gross partisan manipulation, overturning 100 years of practice for the House according to which boundaries are drawn by officials rather than politicians. The absence of significant binding criteria for the placement of boundaries open the door not just to malapportionment on a grand scale, but also to classical gerrymandering.

    (4) If Senate division boundaries can be changed, it is possible that electors in a particular place could be deprived of a Senate vote at several successive Senate elections.

    (5) Even if Senate division boundaries can’t be changed - which is not what the Bill proposes - an elector moving from one place to another in a State could be deprived of a Senate vote at several successive Senate elections.

    (6) Points (4) and (5) taken together might be of interest to constitutional lawyers reflecting on the question of whether a Senate elected in the manner proposed by Mr Joyce would meet the requirement of being “directly chosen by the people of the State”. A half-Senate election where only a small minority of the people of the State could actually vote would seem to struggle to satisfy that requirement.

    (7) While the Bill proposes that the three divisions in a State to vote at the first half-Senate election after commencement be determined by the Senate President by lot, that doesn’t override the constitutional power of the Senate to determine who gets short and long-term vacancies following a double dissolution. There would be nothing to stop the Senate in such a case from designating one Senator from each division to be the holder of a long vacancy. In fact, the Bill is silent on how rotation not just of senators but of Senate divisions would be established following a double dissolution.

    (8) Finally, it’s not clear from the proposed repeal of section 39 of the Commonwealth Electoral Act 1918 (which reproduced in substance the Senate Elections (Queensland) Act 1982) - whether Mr Joyce is hoping that the Parliament of Queensland will again be empowered to draw Senate division boundaries. If so, that could create the paradoxically situation of both the Minister and the Queensland Parliament having that power.

  3. I think this is just a superficial stunt designed to make it look like the Nationals are doing something. If rural voters want better representation, they should stop voting for the Nationals.

    The senate seems to have become a scapegoat for the failings of federal politics, but I really don't think it's to blame. The crossbenchers (particularly Jacqui Lambie and the Centre Alliance) are willing to negotiate. As you rightly point out, the senate saves governments from their worst impulses. Most of the legislation that gets blocked in the senate is unpopular - that's usually why the crossbenchers oppose it. I think the real problem with federal politics is that there's way too much proposed legislation motivated by niche ideological crusades.

    That said, one thing I *do* dislike about the senate is that people can get elected on a party ticket and then quit and stand as an independent or join another party. That just seems undemocratic to me.

  4. From the Scott Ryan article
    "But why should an unemployed person on the peri-urban fringe be stripped of the value of their Senate vote at the expense of a business owner in a regional centre?"

    Phwoar, that's not a sentence I expected from a senior elected member of the Liberal Party, especially in the past decade or so...

  5. Completely unrelated to the subject: I saw this today and immediately thought of the polls you run in your RHS Nav panels. Perhaps a future survey might canvas a broader take on the question, permitting an evaluation of what form of unethical behaviour voters consider most egregious!