JSCEM's Strange Case For Extra Territory Senators

Yesterday saw the release of the final version of the Joint Standing Committee into Electoral Matters report into the 2022 election.  Following the somewhat lightweight and culture-war afflicted 2019 report it was good to see a return to substance, but that is not to say that everything is wonderful.  There are various welcome aspects of JSCEM's findings and proposals that I may comment on later but for now I wanted to deal with JSCEM's recommendation to increase the number of Senators for the ACT and Northern Territory from two to four apiece.  (I'm also considering a longer article about the current push for "truth in electoral advertising" laws, and the extent to which that movement is being fanned by naive support arising from the Voice failure and the rise of Donald Trump style candidates.)

Increasing the number of Territory Senators can be done by legislation and could in theory very well happen before the next election, while an increase in the House of Representatives is likely to be a second-term project for the Albanese Government, assuming that it gets a second term.   As the support of Labor, the Greens and David Pocock for expansion appears highly likely, the Government would only, for instance, need the support of either Lidia Thorpe or the Lambie Network (or even someone to abstain or be away) to pass the change.  In theory an expansion could be challenged in the High Court but the prospects for any challenge would seem dim.  The Constitution allows the Parliament to create Territory representation on whatever terms it likes and so long as there's some reasonable argument rather than it just being an out-and-out stack, it's hard to see on what basis the Court could say no. 

I've sometimes been thought (including by JSCEM via a footnote) to be opposed to more Territory Senators but it's more correct to say I am cautious about it. The current Senate accidentally maintains a good left-right balance depending on the will of voters of the day and I'm wary of anything that might disturb that and skew the Senate.  At the same time I think there are some sound arguments in favour of more Territory Senators.  What I am opposed to here is bad arguments for reform and this debate has been awash with them.  I first raised this here just after last year's election.  JSCEM in its majority comments has at least correctly grasped that increasing Territory Senators has nothing to do with - and cuts against - "one vote one value", but in the process it has misrepresented those who have worked to make that point, and made some findings that are not entirely factual.  

The JSCEM proposal and past results

JSCEM has proposed that the ACT and Northern Territory each receive four Senators and that the Senators be elected for three year terms.  This would mean Senate elections with a quota of 20% after preferences, though minor parties could sometimes win seats on primary votes in, say, the low teens.  This proposal is something of a relief as there was some speculation that the major parties might seek to expand Territory Senators to four but switch them to six-year terms thus retaining the current two-seat elections (except in a double dissolution).  That would not have addressed one of the best reasons for having more Territory Senators in the first place (what I call the "impoverished representation" argument resulting from only electing two Senators at a time) and could have led to 4-0 left-right shutouts in the ACT.  

As I note in the previous article, a four-seat ACT (all in all out) would have returned 3 left and 1 right Senators consistently if it had existed at all elections from 2007 onwards; before that it would have been a mix of 2 Labor 2 Liberal and 2 Labor 1 Liberal 1 Democrat results.  For 2022 the non-Labor left Senator would have been David Pocock instead of the Greens, but Pocock's presence is itself largely a product of the two-seat system.  For the Northern Territory it's 2 Labor 2 CLP all the way except that in 2022 Labor's second seat would have fallen to the Greens.

However it's entirely possible that the lower quota for the NT would lead to new entries into Territory Senate elections, though the 1500 member requirement for new parties might make it hard for Territory-specific parties or independent-centred front parties to get going.

JSCEM's arguments and my comments

A term of reference for the JSCEM enquiry was "proportional representation of the states and territories in the Parliament, in the context of the democratic principle of 'one vote, one value'."

Technically the terms of reference for JSCEM come from outside it, from the Special Minister of State (Don Farrell) but this seems to be a case where the wording has caused problems in terms of the committee being able to (with a straight face) make the finding that the government wants.  

Hence JSCEM launches into a disucssion of how "While proportional representation and one vote, one value are often discussed together in Australia, they do not mean the same thing."  Which is of course true, but the problem is that submitters have been asked to discuss one in the context of the other.  It also doesn't help that the term of reference is ambiguous, since it can refer to how proportionally the states and territories are represented relative to each other (malapportionment), but also to whether a given state's voters are represented more or less proportionally within that state (district magnitude).  This is especially relevant to Territory Senators, because adding more of them per election means the voters of each territory get to vote in a more internally proportional election, but also become more overrepresented compared to the average voter.

JSCEM accepts the fact that "one vote one value" cannot justify increasing Territory Senator numbers and argues that it is irrelevant.  "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"  "It 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."

As someone who thinks one vote, one value is a core democratic principle, I will apply it to analyse whatever systems I like and if I encounter a system that has been designed to frustrate it I will simply mark that system down.  Saying that we can't take into account the further degradation of one vote, one value when changes are proposed to the Senate is confusing a historic fact with a value.  

JSCEM goes on to present a pretty coherent argument for more Territory Senators, which can be summarised as follows:

* The intent of the Constitution is that big states be protected from being dominated by small states

* It is arbitrary to provide this protection to small states and not to Territories

* Territories especially need protection because they are at risk of having their laws overruled by the Commonwealth

I would say this argument is valid if one believes that it is intrinsically good that "small States" (which actually means less populous states) receive equal representation to large ones, but if one doesn't believe that one can ignore it.   One can also hold - as plenty enough of the Founding Fathers did - that it is a necessary evil entered into to secure Federation that the small States are equally represented, and that if it isn't necessary to increase malapportionment, then it isn't arbitrary to say no.  

1973 And All That

Where things get deeply weird is in committee comment 1.102:

"The 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 grant territory 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."

I'd like to know who wrote this comment.

The idea that anyone was basing their use of population statistics on what the 1973 legislation intended falls as far as I'm aware in the "said no one, ever" category.  It's very obvious that the broad intent of the 1973 legislation was to grant Territories some representation in the Senate rather than none.  The 1973 legislation clearly didn't intend that that representation be granted based on then present day population, because if it did both the NT with 0.7% of Australia's population at the time and the ACT with 1.3% of Australia's population would have got only one Senator each.  (Labor did then, as it happens, use future population as an argument for giving the Territories Senators at all, and here its projections proved to be way off, expecting more people in both Territories by the mid-1990s to 2000 than those Territories actually have in 2023.)

In fact the use of population statistics by those concerned about the arguments being made has come about because the government, having been elected with a mandate for "one vote, one value" but none for more Territory Senators, sent JSCEM a reference that linked the two concepts and invited people to comment in that context.  At the same time, advocates for more Territory Senators were presenting cherrypicked comparisons with Tasmania to push the false claim that the Territories are under-represented at present. Furthermore, some people actually just really care about one vote, one value.

Some perspective here about the impact of terms of reference on what people put in their submissions would be good, instead of gaslighting and strawmanning submitters who addressed the terms of reference in good faith with the fiction quoted in bold above.  

JSCEM also approvingly quotes Senator Pocock as saying the following:

"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 [sic -KB] 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?"

Yes and no.  I've started reading the 1973 debates (I may add more on them later!) and the then Whitlam government did in fact discuss why it had opted for two Senators per territory rather than one.  It was stated that the reason for this was to provide for Territory representation in the Senate without the vagaries of single seat results in small populations affecting the power balance of the Senate.  It should be noted also that this was not a major party deal; the Coalition largely opposed the push and blocked it in the Senate causing it to become one of the triggers for the 1974 double dissolution; it was then passed through the joint sitting.  I quote from Fred Daly's second reading speech:

Two senators are suggested because it would be proper to have an even number representing the Territories. If only one senator alone represented a Territory, almost certainly the one party would be represented for long periods. It is probable that both senators would belong to the same party. It would appear then to be more democratic to have an even number elected each time for each Territory thus following the pattern of the major parties providing that each would have a representative in the Senate

Thus there clearly was a principled basis for the choice of two at the time.  Whether there was any basis for the choice not to go beyond two other than that going beyond two would have been playing with obvious fire (even two was only accepted 4-3 by the High Court as it was) is less clear.

The summoning of the 1973 ghost is all the more strange because the Parliament has since considered and addressed via legislation the question of when the Territories should be considered to deserve more Senators, but the existence of the standing legislation has been ignored in the current debate.  This was done by the Hawke government in its Electoral and Referendum Amendment Act 1989, the Act providing that:

when either the Australian Capital Territory or the Northern Territory becomes entitled to six or more House of Representatives members, that Territory shall be represented in the Senate by one senator for every two members; 

In proposing this the Hawke Government argued

The Joint Standing Committee [on Electoral Reform - KB] examined this issue, following concern that it would be possible for a government with a majority in both Houses to increase the representation of the Australian Capital Territory and the Northern Territory out of proportion to their populations. The Government has accepted the Committee's conclusion that fixed formulae for the representation of Territories should be prescribed.  

But, if the JSCEM proposal is accepted as it stands, not any more.

The truth of the matter is that the same charge Senator Pocock levels against the 1973 legislation (that it was a political decision without systematic basis) can be also levelled against JSCEM's recommendation for four Senators per Territory.  Because if neither an area's population nor the fact that the Territories were not in the original deal justifies restricting their numbers, on what basis is the ACT to be given only four Senators to Tasmania's twelve, and not twelve itself?  Indeed, given the Territories' vulnerability, perhaps the Territories should be given sixteen?

JSCEM even argues that "The 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. " then follows that with "Consequently, the Committee recommends that the representation of the territories in the Senate be increased to four Senators, elected for a period of three years."  In what mathematical system is four Senators similar to twelve?  How is this consequent?  Labor here is open to the charge that it really wants to go so far as will prevent a 1 Pocock 1 Liberal 0 Labor result should Pocock become even more popular, but not much further. 

Senator Pocock, indeed, prefers a principled formula-related approach and proposes six Territory Senators with six year terms, a proposal that could however greatly benefit the left in the Northern Territory.

Note

As noted at the top I am not necessarily against increasing Territory Senate representation.  I think that there is a valid argument that all Australians should ideally have access to a quality proportional voting experience in the Senate, and that this is a principle that should be weighted carefully alongside one vote, one value.  One might call it one vote, one quality.  A district magnitude of two is not a proper Senate electoral contest and expansion to four at a time would give the Territories more reliable access to a quality voting experience and to diverse representation.  If the expansion is passed, it may well distort the Senate, but it will also have meaningful benefits.  

However I think there should be rigorous debate about this proposal, and I consider that much of what we are being offered in defence of the proposed expansion is an insult to legitimate beliefs that "one vote, one value" matters.  It's not the first such insult we've seen lately, with the current Government expecting those who wanted an Indigenous Voice to Parliament to endorse it while the leading model on the table was severely malapportioned. 

More comments are likely to be added later.