A report from ABC Darwin overnight again raises the question of whether the Albanese government will increase the number of territory Senators.
Special Minister of State, Senator Don Farrell, referred to a looming report of the Joint Standing Committee on Electoral Matters. The story was last reported around a month ago.
Both the ACT and NT currently elect two Senators. They are elected for maximum three year terms, with their terms tied to the electoral cycle of the House of Representatives.
This differs from state Senators who are elected for fixed six-year terms with each state having a constitutionally protected equal number of Senators.
Currently each state elects 12 Senators with half (six) elected every three years. (All 12 are elected at double dissolution elections.) The number of Senators per state was set at six in 1901, increased to 10 in 1949 and the current 12 in 1984. Two Senators for each territory were added in 1975.
The question I’m usually asked about an increase in territory Senators is whether this would cause an increase in the size of the House of Representatives.
The short answer is no, as I’ll explain in this post.
How can the number of Territory Senators be Increased?
The answer is by simple legislation. Territory representation in both houses of the Australian Parliament is allowed under Section 122 of the Constitution. The Parliament may allow representation in either House “to the extent and on the terms which it thinks fit”.
It was the Whitlam government that introduced territory Senators, the first to be elected at a half-Senate election due by mid-1976. The election of these new Senators, plus concerns that state Premiers would not agree to a request for a late 1975 half-Senate election, added another layer of complexity to the November 1975 constitutional crisis.
It is also Parliament’s legislation that determines that territory Senators serve maximum three year terms, and that the terms be variable and tied to House elections. When Territory Senate seats were introduced, there was on-going debate about amending the Constitution to tie the terms of state Senators to terms of the House. A referendum to achieve this was narrowly defeated in 1974. Two further attempts achieved a majority of the national vote in 1977 and 1984, but were defeated on both occasions for failing the majority of states test.
Senator Farrell has stated that any increase in Territory Senate representation could be easily legislated before the next election. That’s true, but the detail of any change would need to be resolved.
The most basic questions is whether extra Senators would be introduced by giving territory Senators alternating six-year terms, or whether to increase numbers and continue with three-year variable terms.
If representation were increased to four Senators with two elected every three years, it would increase representation without altering the existing two per election territory Senate contests. The quota for election would remain at 33.3%.
If the change was to four Senators elected every three years, it would change the quota for election. Instead of 33.3% for one Senator, the quota would become 20% for one Senator and 40% for two.
That has implications for breaking up the cosy one Labor one Coalition Senator elections for each territory that applied from 1975 to 2019.
The wild card, and why any increase will attract considerable attention, was the result of the 2022 ACT Senate contest. For the first time the Liberal Party did not win its traditional ACT Senate seat. Liberal Senator Zed Seselja was defeated by Independent David Pocock.
What would happen if four ACT Senators were elected at once? A quick estimate based on 2022 results is that Labor would have polled 1.67 quotas, Liberal 1.24, Pocock 1.06 and the Greens 0.51. The Liberal Party would recover its traditional seat, but Labor or possibly the Greens would have won the fourth and final seat.
Based on past Senate results, the Liberal Party would always win an ACT Senate seat if four were to be elected, but would struggle to ever elect a second Senator.
An increase in NT Senators would produce a more complex contest. Using 2022 Senate results, Labor polled 1.65 quotas, the Country Liberals 1.58, Greens 0.61, Liberal Democrats 0.46 and Legalise Cannabis 0.31.
On those numbers, Labor and the Greens would be competing for a second ‘left’ seat, the CLP and possibly the Liberal Democrats for a second ‘right’ seats. The lead Liberal Democrat candidate in 2022 was Sam McMahon, a sitting Senator who had been defeated in CLP pre-selection by Jacinta Nampijinpa Price.
For the Australian Electoral Commission, the change would be relatively straightforward. There would be no change to ballot paper instructions. Only the divisor in the formula for calculating the quota would change.
On a final note, there is nothing in the Constitution that requires the two territories to be treated equally. It is in the power of the parliament to increase ACT representation while leaving the NT unchanged.
How would the vote-value of the quota change?
In votes, the two-seat Senate contest in 2022 had quotas of 95,073 for the ACT and 34,450 for the Northern Territory. If the number to be elected was increased to four, the quota would fall to 57,044 for the ACT and 20,724 for the NT.
This compares to 51,579 for Tasmania in 2022, 161,218 for South Australia, the other states higher rising to 685,818 for New South Wales.
Would the House Increase in size?
The answer is no.
Section 24 of the Constitution states that –
“The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.
The number of members chosen in the several States shall be in proportion to the respective numbers of their people …
The High Court ruled in 1977 that the above highlighted text meant Section 24 involved only state Senators and state populations in the calculation of House seats. Territory Senators and territory population are not included in the formula.
The number of House members from the states is independent of territory Senate representation. Any increase in the number of territory Senators leaves the number of House members unchanged.
If the number of state Senators increases, then the number of House members changes. For example, increasing the number of Senators per state from 12 to 14 would increase the Senate from 76 to 88 seats and increase the House of Representatives from 150 to 174.
The new numbers would be NSW 54 seats (+8), Victoria 44 (+6), Queensland 35 (+5), Western Australia 19 (+3) and South Australia 12 (+2). Tasmania would be unchanged with the minimum five seats guaranteed by the Constitution, while the ACT would remain on three and the Northern Territory two.
(Note: the above House numbers and changes are based on the 150 members that will be elected at the next election, not the current House of 151 members.)
(Further reading: I wrote a long post on Section 24 of the Constitution and how it allocates seats to states and territories in 2020.)
I have been doing some amateur psephology for the ACT Greens (yes, I’m biased). With the help of David Barry’s Senate Preference Explorer software, I sat down and mapped out all the preference flows as best I could to see what would happen if there were four Senate seats in the ACT rather than two. Labor would have quite cleanly won the fourth seat, mostly because of Liberal preferences flowing sufficiently strongly to Labor over the Greens, and almost no surplus preferences available to flow from David Pocock to wherever they might have previously gone.
David Pocock’s participation on the ballot is truly fascinating, as his participation dug into the primary votes of all of Labor, Liberal and Greens when compared to 2019. The ACT campaign narrative in 2022 included strong vibes of “only David can beat Zed” which evidently hit home. How that would change with lower quota requirements to re-elect David Pocock is anyone’s guess.
Some people seem to be talking about increasing the number of senators from two to four per territory, and others from two to six. Then there is the question of whether you elect them all at once for three year terms or stagger them for six year terms. (Then there is the question as to whether you keep their terms coincident with the House of Representatives as at present, or make them coincident with the rest of the senate. This matters from the perspective of governments ability to pass legislation, but doesn’t impact elections, so I will leave it for now).
So your options are:
Four senators elected two at once for staggered six year terms. The same situation as now, but for two different groups of senators. Probably two ALP and two CLP in the NT, and two ALP for ACT with the two other seats leaning to the Libs but being occasionally open for Pocock or a similar candidate.
Four senators elected at once for three year terms. Tim discusses this above. Probably you get two ALP, one Liberal, and one open seat in the ACT. In the NT, you get one ALP, one CLP, and things become interesting for the final two seats.
Six senators elected three at once for staggered six year terms. One ALP and one Lib/CLP almost certainly at each election, with the third seat being between the ALP and a minor party in the ACT and being completely up for grabs n the NT.
Six senators elected at once for three year terms. I don’t think anyone is actually proposing this, but if you do that we get all the patterns that we know and love from state half senate elections in the territories. Except that I dont think that the ALP in particular loves them, especially.
I reckon if the ALP was to amend the Electoral Act in their favour, they should leave it as 2 Senators for each Territory but stagger their terms. ie: One senator faces election every time the House goes up for election. That way they would wipe out Pocock (ACT) and gain an extra Senator, and most likely would wipe out the CLP Senator in the NT and gain an extra Senator there too. Just saying.
Paul, that would make it similar to the US Senate where only one senator is elected using a single member type system. It might run afoul of the constitution rule which requires the Senate elected using a multi member type system.
COMMENT: Section 7 of the Constitution states “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.” My emphasis added to make the point that the Constitution does not mandate multi-member Senate elections. The Parliament has the power to do otherwise.