Australian Senate

Last updated

Senate
45th Parliament
Coat of Arms of Australia.svg
Type
Type
Leadership
Scott Ryan, Liberal
since 13 November 2017
Mathias Cormann, Liberal
since 28 August 2018
Anne Ruston, Liberal
since 26 May 2019
Penny Wong, Labor
since 18 September 2013
Structure
Seats76
Australian Senate (current composition).svg
Political groups
Government (31)

Coalition
     Liberal (25) [lower-alpha 1]
     National (6) [lower-alpha 2]

Contents

Opposition (26)
     Labor (26)

Crossbench (19)
     Greens (9)
     Centre Alliance (2)
     One Nation (2)
     Hinch's Justice (1)
     Conservatives (1)
     Liberal Democrat (1)
     United Australia (1)
     Conservative National (1)
     Storer Independent (1) [lower-alpha 3]
Elections
Single transferable vote
Last election
18 May 2019
(half-Senate election)
Meeting place
Australian Senate - Parliament of Australia.jpg
Senate Chamber
Parliament House
Canberra, Australian Capital Territory,
Australia
Website
Senate
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The Senate is the upper house of the bicameral Parliament of Australia, the lower house being the Australian House of Representatives. The composition and powers of the Senate are established in Chapter I of the Constitution of Australia. There are a total of 76 Senators: 12 are elected from each of the six Australian states regardless of population and 2 from each of the two autonomous internal Australian territories (the Australian Capital Territory and the Northern Territory). Senators are popularly elected under the single transferable vote system of proportional representation.

An upper house is one of two chambers of a bicameral legislature, the other chamber being the lower house. The house formally designated as the upper house is usually smaller and often has more restricted power than the lower house. Examples of upper houses in countries include the Australian Senate, Brazil's Senado Federal, the Canadian Senate, France's Sénat, Germany's Bundesrat, India's Rajya Sabha, Ireland's Seanad, Malaysia's Dewan Negara, the Netherlands' Eerste Kamer, Pakistan's Senate of Pakistan, Russia's Federation Council, Switzerland's Council of States, United Kingdom's House of Lords and the United States Senate.

Parliament of Australia legislative branch of the Commonwealth of Australia

The Parliament of Australia is the legislative branch of the government of Australia. It consists of three elements: the Crown, the Senate and the House of Representatives. The combination of two elected chambers, in which the members of the Senate represent the states and territories while the members of the House represent electoral divisions according to population, is modelled on the United States Congress. Through both chambers, however, there is a fused executive, drawn from the Westminster system.

A lower house is one of two chambers of a bicameral legislature, the other chamber being the upper house.

Unlike upper houses in other Westminster-style parliamentary systems, the Senate is vested with significant powers, including the capacity to reject all bills, including budget and appropriation bills, initiated by the government in the House of Representatives, making it a distinctive hybrid of British Westminster bicameralism and United States-style bicameralism. As a result of proportional representation, the chamber features a multitude of parties vying for power. The governing party or coalition, which has to maintain the confidence of the lower house, has not held a majority in the Senate since 2005-08 (and before that since 1981) and usually needs to negotiate with other parties and independents to get legislation passed. [2]

Westminster system democratic parliamentary system of government

The Westminster system is a parliamentary system of government developed in England, now a constituent country within the United Kingdom. This term comes from the Palace of Westminster, the seat of the British Parliament. The system is a series of procedures for operating a legislature. It is used, or was once used, in the national and subnational legislatures of most former British Empire colonies upon gaining responsible government, beginning with the first of the Canadian provinces in 1848 and the six Australian colonies between 1855 and 1890. However, some former colonies have since adopted either the presidential system or a hybrid system as their form of government.

A bicameral legislature has legislators in two separate assemblies, chambers, or houses. Bicameralism is distinguished from unicameralism, in which all members deliberate and vote as a single group, and from some legislatures that have three or more separate assemblies, chambers, or houses. As of 2015, fewer than half the world's national legislatures are bicameral.

Origins and role

The Australian Senate in 1923 Australian Senate 1923.jpg
The Australian Senate in 1923

The Commonwealth of Australia Constitution Act (Imp.) of 1900 established the Senate as part of the new system of dominion government in newly federated Australia. From a comparative governmental perspective, the Australian Senate exhibits distinctive characteristics. Unlike upper Houses in other Westminster system governments, the Senate is not a vestigial body with limited legislative power. Rather it was intended to play – and does play – an active role in legislation. Rather than being modeled solely after the House of Lords, as the Senate of Canada was, the Australian Senate was in part modeled after the United States Senate, by giving equal representation to each state and equal powers with the lower house. [3] The Constitution intended to give less populous states added voice in a Federal legislature, while also providing for the revising role of an upper house in the Westminster system.

Constitution of Australia the supreme law of Australia

The Constitution of Australia is the supreme law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia, which is referred to as the "Constitution" in the remainder of this article. The Constitution was approved in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.

The Dominions were the semi-independent polities under the British Crown that constituted the British Empire, beginning with Canadian Confederation in 1867. "Dominion status" was a constitutional term of art used to signify an independent Commonwealth realm; they included Canada, Australia, New Zealand, Newfoundland, South Africa, and the Irish Free State, and then from the late 1940s also India, Pakistan, and Ceylon. The Balfour Declaration of 1926 recognised the Dominions as "autonomous Communities within the British Empire", and the 1931 Statute of Westminster confirmed their full legislative independence.

Federation of Australia process by which six separate British self-governing colonies became the country of Australia

The Federation of Australia was the process by which the six separate British self-governing colonies of Queensland, New South Wales, Victoria, Tasmania, South Australia, and Western Australia agreed to unite and form the Commonwealth of Australia, establishing a system of federalism in Australia. Fiji and New Zealand were originally part of this process, but they decided not to join the federation. Following federation, the six colonies that united to form the Commonwealth of Australia as states kept the systems of government that they had developed as separate colonies, but they also agreed to have a federal government that was responsible for matters concerning the whole nation. When the Constitution of Australia came into force, on 1 January 1901, the colonies collectively became states of the Commonwealth of Australia.

Although the Prime Minister of Australia and Treasurer of Australia, by convention, are members of the House of Representatives (after John Gorton was appointed prime minister in 1968, he resigned from the Senate and was elected to the House), other members of the Cabinet of Australia may come from either house, [4] and the two Houses have almost equal legislative power. [3] As with most upper chambers in bicameral parliaments, the Senate cannot introduce or amend appropriation bills (bills that authorise government expenditure of public revenue) or bills that impose taxation, that role being reserved for the lower house; it can only approve, reject or defer them. That degree of equality between the Senate and House of Representatives reflects the desire of the Constitution's authors to address smaller states' desire for strong powers for the Senate as a way of ensuring that the interests of more populous states as represented in the House of Representatives did not totally dominate the government. This situation was also partly due to the age of the Australian constitution  it was enacted before the confrontation in 1909 in Britain between the House of Commons of the United Kingdom and the House of Lords, which ultimately resulted in the restrictions placed on the powers of the House of Lords by the Parliament Acts 1911 and 1949.

Prime Minister of Australia executive head of the Government of Australia

The Prime Minister of Australia is the head of government of Australia. The individual who holds the office is the most senior Minister of State, the leader of the Federal Cabinet. The Prime Minister also has the responsibility of administering the Department of the Prime Minister and Cabinet, and is the chair of the National Security Committee and the Council of Australian Governments. The office of Prime Minister is not mentioned in the Constitution of Australia but exists through Westminster political convention. The individual who holds the office is commissioned by the Governor-General of Australia and at the Governor-General's pleasure subject to the Constitution of Australia and constitutional conventions.

Treasurer of Australia Australian government minister in charge of economic policy

The Treasurer of Australia is the minister in the Government of Australia responsible for government expenditure and revenue raising. The Treasurer plays a key role in the economic policy of the government. The current holder of the position is Josh Frydenberg, whose term began on 24 August 2018.

John Gorton Australian politician, 19th Prime Minister of Australia

Sir John Grey Gorton was the nineteenth Prime Minister of Australia, in office from 1968-71. He led the Liberal Party during that time, having previously been a long-serving government minister.

In practice, however, most legislation (except for private member's bills) in the Australian Parliament is initiated by the Government, which has control over the lower house. It is then passed to the Senate, which has the opportunity to amend the bill, pass or reject it. In the majority of cases, voting takes place along party lines, although there are occasional conscience votes.

A private member's bill in a parliamentary system of government is a bill introduced into a legislature by a legislator who is not acting on behalf of the executive branch. The designation "private member's bill" is used in most Westminster System jurisdictions, in which a "private member" is any member of parliament (MP) who is not a member of the cabinet (executive). Other labels may be used for the concept in other parliamentary systems; for example, the label member's bill is used in the Scottish Parliament and in the Parliament of New Zealand. In presidential systems with a separation of the executive from the legislature, the concept does not arise since the executive cannot initiate legislation, and bills are introduced by individual legislators.

In politics, the line or the party line is an idiom for a political party or social movement's canon agenda, as well as ideological elements specific to the organization's partisanship. The common phrase toeing the party line describes a person who speaks in a manner that conforms to his political party's agenda. Likewise, a party-line vote is one in which most or all of the legislators from each political party voted in accordance with that party's policies. In several countries, a whip attempts to ensure this.

A conscience vote or free vote is a type of vote in a legislative body where legislators are allowed to vote according to their own personal conscience rather than according to an official line set down by their political party. In a parliamentary system, especially within the Westminster system, it can also be used to indicate crossbench members of a hung parliament where confidence and supply is provided to allow formation of a minority government but the right to vote on conscience is retained. Free votes are found in Canadian and some British legislative bodies; conscience votes are used in Australian and New Zealand legislative bodies.

The Senate chamber at Old Parliament House, Canberra, where the Parliament met between 1927 and 1988. Senate, Old Parliament House, Canberra.JPG
The Senate chamber at Old Parliament House, Canberra, where the Parliament met between 1927 and 1988.

Electoral system

The system for electing senators has changed several times since Federation. The original arrangement involved a first-past-the-post and block voting or "winner takes all" system, on a state-by-state basis. This was replaced in 1919 by preferential block voting. Block voting tended to produce landslide majorities and even "wipe-outs". For instance, from 1920 to 1923 the Nationalist Party held all but one of the 36 seats, and from 1947 to 1950, the Australian Labor Party held all but three.

First-past-the-post voting voting system in which voters select one candidate, and the candidate who receives more votes than any other candidate wins

A first-past-the-post electoral system is one in which voters indicate on a ballot the candidate of their choice, and the candidate who receives the most votes wins. This is sometimes described as winner takes all. First-past-the-post voting is a plurality voting method. FPTP is a common, but not universal, feature of electoral systems with single-member electoral divisions, and is practised in close to one third of countries. Notable examples include Canada, India, the United Kingdom, and the United States, as well as most of their current or former colonies and protectorates.

Plurality-at-large voting, also known as block vote or multiple non-transferable vote (MNTV), is a non-proportional voting system for electing several representatives from a single multimember electoral district using a series of check boxes and tallying votes similar to a plurality election. Multiple winners are elected simultaneously to serve the district. Block voting is not a system for obtaining proportional representation; instead the usual result is that where the candidates divide into definitive parties the most popular party in the district sees its full slate of candidates elected, resulting in a landslide.

Preferential block voting is a majoritarian voting system for electing several representatives from a single multimember constituency. Unlike the single transferable vote, preferential block voting is not a method for obtaining proportional representation, and instead produces similar results to plurality block voting, of which it can be seen as the instant-runoff version. Under both systems, a single group of like-minded voters can win every seat, making both forms of block voting nonproportional.

In 1948, single transferable vote with proportional representation on a state-by-state basis became the method for electing Senators. This had the effect of limiting the government's ability to control the chamber, and has helped the rise of Australian minor parties. From the 1984 election onwards, group ticket voting was introduced, in order to reduce a high rate of informal voting that arose from the requirement that each candidate be given a preference, and to allow small parties and independent candidates a reasonable chance of winning a seat. This allowed voters to select a single party "Above the Line" to distribute their preferences on their behalf, but voters were still able to vote directly for individual candidates and distribute their own preferences if they wished "Below the Line" by numbering every box.

In 2016, group tickets were abolished to avoid undue influence of preference deals amongst parties that were seen as distorting election results [5] and a form of optional preferential voting was introduced. As a result of the changes, voters may assign their preferences for parties above the line (numbering as many boxes as they wish), or individual candidates below the line, and are not required to fill all of the boxes. Both above and below the line voting now use optional preferential voting. For above the line, voters are instructed to number at least their first six preferences; however, a "savings provision" is in place to ensure that ballots will still be counted if less than six are given. For below the line, voters are required to number at least their first 12 preferences. Voters are free to continue numbering as many preferences as they like beyond the minimum number specified. Another savings provision allows ballot papers with at least 6 below the line preferences to be formal. The voting changes make it more difficult for new small parties and independent candidates to be elected to the Senate, but also allow a voter to voluntarily "exhaust" preferences — that is, to ensure their vote cannot flow to specific candidates or Parties — in the event that none of the voter's candidates preferences are elected.

The changes were subject to a challenge in front of High Court of Australia by sitting South Australian Senator Bob Day of the Family First Party. The senator argued that the changes meant the senators would not be "directly chosen by the people" as required by the constitution. The High Court decided that both above the line and below the line voting were valid methods for the people to choose their Senators. [6]

Ballot paper

The Australian Senate voting paper under the single transferable vote proportional representation system resembles the following example (shown in two parts), which shows the candidates for Victorian senate representation in the 2016 federal election.

Senate ballot paper used in Victoria for 2016 Victorian-senate-paper-folded-01.png
Senate ballot paper used in Victoria for 2016

To vote correctly, electors must either:

Because each state elects six senators at each half-Senate election, the quota for election is only one-seventh or 14.3% (one third or 33.3% for territories, where only two senators are elected). Once a candidate has been elected with votes reaching the quota amount, any votes they receive in addition to this may be distributed to other candidates as preferences.

With an odd number of seats in a half-Senate election (3 or 5), 50.1% of the vote wins a majority (2/3) or (3/5).

With an even number of seats in a half-Senate election (6), 57.1% of the vote is needed to win a majority of seats (4/6).

The ungrouped candidates in the far right column do not have a box above the line. Therefore, they can only get a primary (number 1) vote from electors who vote below the line. For this reason, some independents register as a group, either with other independents or by themselves, such as group B in the above example.

Names of parties can be shown only if the parties are registered, which requires, among other things, a minimum of 500 members.

Order of parties

The order of parties on the ballot papers and the order of ungrouped candidates are determined by a random ballot conducted by the Electoral Commission.

Deposit

Candidates, parties and groups pay a deposit of $2000 per candidate, which is forfeited if they fail to achieve 4% of the primary vote.

Public subsidy

Candidates, parties and groups earn a public subsidy if they gain at least 4% of the primary vote. At the 2013 federal election, funding was $2.488 per formal first preference vote.

Membership

Under sections 7 and 8 of the Australian Constitution: [7]

These conditions have periodically been the source of debate, and within these conditions, the composition and rules of the Senate have varied significantly since federation.

Size and nexus

Under Section 24 of the Constitution, the number of members of the House of Representatives has to be "as nearly as practicable" double the number of Senators.

The reasons for the nexus are twofold: a desire to maintain a constant influence for the smaller states, and maintain a constant balance of the two Houses in the event of a joint sitting after a double dissolution. A referendum in 1967 to eliminate the nexus was rejected.

The size of the Senate has changed over the years. The Constitution originally provided for six senators for each state, resulting in a total of 36 senators.

The Constitution permits the Parliament to increase the number of senators, provided that equal numbers of senators from each original state are maintained; accordingly, in 1948, Senate representation was increased from 6 to 10 senators for each state, increasing the total to 60.

In 1975, the two territories, the Northern Territory and the Australian Capital Territory, were given an entitlement to elect two senators each for the first time, bringing the number to 64. [8] The senators from the Northern Territory also represent constituents from Australia's Indian Ocean Territories (Christmas Island and the Cocos (Keeling) Islands), while the senators from the Australian Capital Territory also represent voters from the Jervis Bay Territory and since 1 July 2016, Norfolk Island. [9]

The latest expansion in Senate numbers took place in 1984, when the number of senators from each state was increased from 10 to 12, resulting in a total of 76 senators. [10]

Term

Senators normally serve fixed six-year terms (from 1 July to 30 June). At most federal elections, the seats of 40 of the 76 Senators (half of the 72 Senators from the six states and all four of the Senators from the territories) are contested, along with the entire House of Representatives; such an election is sometimes known as a half-Senate election. The seats of Senators elected at a half-Senate election are not contested at the next election, provided it is a half-Senate election. However, under some circumstances, the entire Senate (and the House of Representatives) is dissolved early, in what is known as a double dissolution. Following a double dissolution, half the Senators representing states serve terms ending on the third 30 June following the election (two to three years) and the rest serve a five to six year term. Section 13 of the Constitution requires the Senate to allocate long and short terms amongst its members. The term of Senators representing a territory expires at the same time as there is an election for the House of Representatives. While there is no constitutional requirement for the election of Senators to take place at the same time as those for members of the House of Representatives, the government usually synchronises the dates of elections for the Senate and House of Representatives.

Section 13 of the Constitution requires that in half-Senate elections, the election of State senators shall take place within one year before the places become vacant. The actual election date is determined by the Governor of each State, who acts on the advice of the State Premier. The Governors almost always act on the recommendation of the Governor-General, with the last independent Senate election writ being issued by the Governor of Queensland during the Gair Affair in 1974.

Slightly more than half of the Senate is contested at each general election (half of the 72 state senators, and all four of the territory senators), along with the entire House of Representatives. Except in the case of a double dissolution, senators for the states are elected for fixed terms of six years, commencing on 1 July following the election, and ceasing on 30 June six years later.

The term of the four senators from the territories is not fixed, but is defined by the dates of the general elections for the House of Representatives, the period between which can vary greatly, to a maximum of three years and three months. Territory senators commence their terms on the day that they are elected. Their terms expire the day prior to the following general election day. [11]

While there is no constitutional requirement for the election of Senators to take place at the same time as those for members of the House of Representatives, the government usually synchronises the dates of elections for the Senate and House of Representatives. However, because their terms do not coincide, the incoming Parliament will for some time comprise the new House of Representatives and the old Senate, except for the senators representing the territories, until the new senators start their term on the next 1 July.

Following a double dissolution, all 76 senators face re-election. If there is an early House election outside the 12-month period in which Senate elections can occur, the synchronisation of the election will be disrupted, and there can be half-Senate elections without a concurrent House election. The last time this occurred was on 21 November 1970.

Quota Size

The number of votes that a candidate must receive to be elected to the senate is referred to as a 'Quota'. The quota is worked out by dividing the number of formal votes by one more than the number of vacancies to be filled and then adding one to the result. [12] . The 2019 senate election was a half senate election, so 6 senate vacancies were contested in each state. As the final quota value depends on the number of valid senate ballot papers, the quota value is provisional until the final number of valid senate voting papers in known. At this election, the provisional quotas as of May 23 2019 in each state were:

State2019 (Provisional) Quota% of the NSW 2019 Quota2016 Quota [13]
NSW483,704100%345,554
VIC330,03568%269,250
Qld273,59457%209,475
WA150,11931%105,091
SA112,99723%81,629
Tas38,4318%26,090

Issues with equal representation

Each state elects the same number of senators, meaning there is equal representation for each of the Australian states, regardless of population, so the Senate, like many upper Houses, does not adhere to the principle of "one vote one value". Tasmania, with a population of around 500,000, elects the same number of senators as New South Wales, which has a population of over 7 million. Because of this imbalance, governments favoured by the more populous states are occasionally frustrated by the extra power the smaller states have in the Senate, to the degree that former Prime Minister Paul Keating famously referred to the Senate's members as "unrepresentative swill". [14] The proportional election system within each state ensures that the Senate incorporates more political diversity than the lower house, which is basically a two party body. The elected membership of the Senate more closely reflects the first voting preference of the electorate as a whole than does the composition of the House of Representatives, despite the large discrepancies from state to state in the ratio of voters to senators. [15] [16] [17] This often means that the composition of the Senate is different from that of the House of Representatives, contributing to the Senate's function as a house of review.

With proportional representation, and the small majorities in the Senate compared to the generally larger majorities in the House of Representatives, and the requirement that the number of members of the House be "nearly as practicable" twice that of the Senate, a joint sitting after a double dissolution is more likely than not to lead to a victory for the House over the Senate. When the Senate had an odd number of Senators retiring at an election (3 or 5), 51% of the vote would lead to a clear majority of 3 out of 5 per state. With an even number of Senators retiring at an election, it takes 57% of the vote to win 4 out of 6 seats, which may be insurmountable. This gives the House an unintended extra advantage in joint sittings but not in ordinary elections, where the Senate may be too evenly balanced to get House legislation through.

The Government does not need the support of the Senate to stay in office; however, the Senate can block or defer supply, an action that precipitated a constitutional crisis in 1975. However, if the governing party does not have a majority in the Senate, it can often find its agenda frustrated in the upper house. This can be the case even when the government has a large majority in the House.

Parties

The overwhelming majority of senators have always been elected as representatives of political parties. Parties which currently have representation in the Senate are:

Other parties that have achieved Senate representation in the past include the Jacqui Lambie Network, Family First Party, Australian Democrats, Palmer United Party, Australian Motoring Enthusiast Party, Nuclear Disarmament Party, Liberal Movement, the Democratic Labour Party and the related but separate Democratic Labor Party.

Due to the need to obtain votes statewide, independent candidates have difficulty getting elected. The exceptions in recent times have been elected in less populous States—the former Tasmanian Senator Brian Harradine and the former South Australian Senator Nick Xenophon. It is less uncommon for a senator initially elected representing a party to become an independent, most recently in the cases of Senator Lucy Gichuhi resigning from Family First, Senators Rod Culleton and Fraser Anning resigning from One Nation, and Senator Steve Martin being expelled from the Jacqui Lambie Network.

The Australian Senate serves as a model for some politicians in Canada, particularly in the Western provinces, who wish to reform the Canadian Senate so that it takes a more active legislative role. [18]

There are also small factions in the United Kingdom (both from the right and left) who wish to the see the House of Lords take on a structure similar to that of the Australian Senate.[ who? ]

Casual vacancies

Section 15 of the Constitution provides that a casual vacancy of a State senator shall be filled by the State Parliament. If the previous senator was a member of a particular political party the replacement must come from the same party, but the State Parliament may choose not to fill the vacancy, in which case Section 11 requires the Senate to proceed regardless. If the State Parliament happens to be in recess when the vacancy occurs, the Constitution provides that the State Governor can appoint someone to fill the place until fourteen days after the State Parliament resumes sitting.

Procedure

The Australian Senate Senate panorama.jpg
The Australian Senate

Work

The Australian Senate typically sits for 50 to 60 days a year. [lower-alpha 4] Most of those days are grouped into 'sitting fortnights' of two four-day weeks. These are in turn arranged in three periods: the autumn sittings, from February to April; the winter sittings, which commence with the delivery of the budget in the House of Representatives on the first sitting day of May and run through to June or July; and the spring sittings, which commence around August and continue until December, and which typically contain the largest number of the year's sitting days.

The senate has a regular schedule that structures its typical working week. [19]

Dealing with legislation

All bills must be passed by a majority in both the House of Representatives and the Senate before they become law. Most bills originate in the House of Representatives, and the great majority are introduced by the government.

The usual procedure is for notice to be given by a government minister the day before the bill is introduced into the Senate. Once introduced the bill goes through several stages of consideration. It is given a first reading, which represents the bill's formal introduction into the chamber.

The first reading is followed by debate on the principle or policy of the bill (the second reading debate). Agreement to the bill in principle is indicated by a second reading, after which the detailed provisions of the bill are considered by one of a number of methods (see below). Bills may also be referred by either House to their specialised standing or select committees. Agreement to the policy and the details is confirmed by a third and final reading. These processes ensure that a bill is systematically considered before being agreed to. [20]

The Senate has detailed rules in its standing orders that govern how a bill is considered at each stage. [21] This process of consideration can vary greatly in the amount of time taken. Consideration of some bills is completed in a single day, while complex or controversial legislation may take months to pass through all stages of Senate scrutiny. The Constitution provides that if the Senate vote is equal, the question shall pass in the negative.

Committees

A Senate committee room in Parliament House, Canberra AustralianSenateCommitteeRm.JPG
A Senate committee room in Parliament House, Canberra
A short video on Australian Parliamentary Committees

In addition to the work of the main chamber, the Senate also has a large number of committees which deal with matters referred to them by the Senate. These committees also conduct hearings three times a year in which the government's budget and operations are examined. These are known as estimates hearings. Traditionally dominated by scrutiny of government activities by non-government senators, they provide the opportunity for all senators to ask questions of ministers and public officials. This may occasionally include government senators examining activities of independent publicly funded bodies, or pursuing issues arising from previous governments' terms of office. There is however a convention that senators do not have access to the files and records of previous governments when there has been an election resulting in a change in the party in government. Once a particular inquiry is completed the members of the committee can then produce a report, to be tabled in Parliament, outlining what they have discovered as well as any recommendations that they have produced for the Government to consider. [22]

The ability of the Houses of Parliament to establish committees is referenced in Section 49 of the Constitution, which states that, "The powers, privileges, and immunities of the Senate and of the House of Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth." [23] [22]

Parliamentary committees can be given a wide range of powers. One of the most significant powers is the ability to summon people to attend hearings in order to give evidence and submit documents. Anyone who attempts to hinder the work of a Parliamentary committee may be found to be in contempt of Parliament. There are a number of ways that witnesses can be found in contempt, these include; refusing to appear before a committee when summoned, refusing to answer a question during a hearing or to produce a document, or later being found to have lied to or misled a committee. Anyone who attempts to influence a witness may also be found in contempt. [24] Other powers include the ability to meet throughout Australia, to establish subcommittees and to take evidence in both public and private hearings. [22]

Proceedings of committees are considered to have the same legal standing as proceedings of Parliament. They are recorded by Hansard, except for private hearings, and also operate under Parliamentary privilege. Every participant, including committee members and witnesses giving evidence, is protected from being prosecuted under any civil or criminal action for anything they may say during a hearing. Written evidence and documents received by a committee are also protected. [24] [22]

Holding governments to account

One of the functions of the Senate, both directly and through its committees, is to scrutinise government activity. The vigour of this scrutiny has been fuelled for many years by the fact that the party in government has seldom had a majority in the Senate. Whereas in the House of Representatives the government's majority has sometimes limited that chamber's capacity to implement executive scrutiny, the opposition and minor parties have been able to use their Senate numbers as a basis for conducting inquiries into government operations. When the Howard Government won control of the Senate in 2005, it sparked a debate about the effectiveness of the Senate in holding the government of the day accountable for its actions. Government members argued that the Senate continued to be a forum of vigorous debate, and its committees continued to be active. [25] The Opposition leader in the Senate suggested that the government had attenuated the scrutinising activities of the Senate. [26] The Australian Democrats, a minor party which frequently played mediating and negotiating roles in the Senate, expressed concern about a diminished role for the Senate's committees. [27]

Voting

Senators are called upon to vote on matters before the Senate. These votes are called divisions in the case of Senate business, or ballots where the vote is to choose a senator to fill an office of the Senate (such as the President). [28]

Party discipline in Australian politics is extremely tight, so divisions almost always are decided on party lines. Nevertheless, the existence of minor parties holding the balance of power in the Senate has made divisions in that chamber more important and occasionally more dramatic than in the House of Representatives.

When a division is to be held, bells ring throughout the parliament building for four minutes, during which time senators must go to the chamber. At the end of that period the doors are locked and a vote is taken, by identifying and counting senators according to the side of the chamber on which they sit (ayes to the right of the chair, noes to the left). The whole procedure takes around eight minutes. Senators with commitments that keep them from the chamber may make arrangements in advance to be 'paired' with a senator of the opposite political party, so that their absence does not affect the outcome of the vote.

The Senate contains an even number of senators, so a tied vote is a real prospect (which regularly occurs when the party numbers in the chamber are finely balanced). Section 23 of the Constitution requires that in the event of a tied division, the question is resolved in the negative. The system is however different for ballots for offices such as the President. If such a ballot is tied, the Clerk of the Senate decides the outcome by the drawing of lots. In reality, conventions govern most ballots, so this situation does not arise.

Political parties and voting outcomes

The extent to which party discipline determines the outcome of parliamentary votes is highlighted by the rarity with which members of the same political party will find themselves on opposing sides of a vote. The exceptions are where a conscience vote is allowed by one or more of the political parties; and occasions where a member of a political party crosses the floor of the chamber to vote against the instructions of their party whip. Crossing the floor very rarely occurs, but is more likely in the Senate than in the House of Representatives. [29]

One feature of the government having a majority in both chambers between 1 July 2005 and the 2007 elections was the potential for an increased emphasis on internal differences between members of the government coalition parties. [30] This period saw the first instances of crossing the floor by senators since the conservative government took office in 1996: [31] Gary Humphries on civil unions in the Australian Capital Territory, and Barnaby Joyce on voluntary student unionism. [32] A more significant potential instance of floor crossing was averted when the government withdrew its Migration Amendment (Designated Unauthorised Arrivals) Bill, of which several government senators had been critical, and which would have been defeated had it proceeded to the vote. [33] The controversy that surrounded these examples demonstrated both the importance of backbenchers in party policy deliberations and the limitations to their power to influence outcomes in the Senate chamber.

In September 2008, Barnaby Joyce became leader of the Nationals in the Senate, and stated that his party in the upper house would no longer necessarily vote with their Liberal counterparts. [34]

Where the Houses disagree

If the Senate rejects or fails to pass a proposed law, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the Senate refuses to pass the same piece of legislation, the government may either abandon the bill or continue to revise it, or, in certain circumstances outlined in section 57 of the Constitution, the Prime Minister can advise the Governor-General to dissolve the entire parliament in a double dissolution. In such an event, the entirety of the Senate faces re-election, as does the House of Representatives, rather than only about half the chamber as is normally the case. After a double dissolution election, if the bills in question are reintroduced, and if they again fail to pass the Senate, the Governor-General may agree to a joint sitting of the two Houses in an attempt to pass the bills. Such a sitting has only occurred once, in 1974.

The double dissolution mechanism is not available for bills that originate in the Senate and are blocked in the lower house.

After a double dissolution election, section 13 of the Constitution requires the Senate to divide the senators into two classes, with the first class having a three-year "short term", and the second class a six-year "long term". The Senate may adopt any approach it wants to determine how to allocate the long and short terms, however two methods are currently 'on the table':

The Senate applied the "elected-order" method following the 1987 double dissolution election. [36] Since that time the Senate has passed resolutions on several occasions indicating its intention to use the re-count method to allocate seats at any future double dissolution, which Green describes as a fairer approach but notes could be ignored if a majority of Senators opted for the "elected-order" method instead. [36] In both double dissolution elections since 1987, the "elected order" method was used.

On 8 October 2003, the then Prime Minister John Howard initiated public discussion of whether the mechanism for the resolution of deadlocks between the Houses should be reformed. High levels of support for the existing mechanism, and a very low level of public interest in that discussion, resulted in the abandonment of these proposals. [37]

Blocking supply

Because of the federal nature of our Constitution and because of its provisions the Senate undoubtedly has constitutional power to refuse or defer supply to the Government. Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and indeed the duty under the Constitution to withdraw his Commission as Prime Minister. The position in Australia is quite different from a position in the United Kingdom. Here the confidence of both Houses on supply is necessary to ensure its provision. In United Kingdom the confidence of the House of Commons alone is necessary. But both here and in the United Kingdom the duty of the Prime Minister is the same in a most important aspect – if he cannot get supply he must resign or advise an election.

Governor-General Sir John Kerr, Statement (dated 11 November 1975) [38]

The constitutional text denies the Senate the power to originate or amend appropriation bills, in deference to the conventions of the classical Westminster system. Under a traditional Westminster system, the executive government is responsible for its use of public funds to the lower house, which has the power to bring down a government by blocking its access to supply  – i.e. revenue appropriated through taxation. The arrangement as expressed in the Australian Constitution, however, still leaves the Senate with the power to reject supply bills or defer their passage – undoubtedly one of the Senate's most powerful abilities.

The ability to block supply was exercised in the 1975 Australian constitutional crisis. The Opposition used its numbers in the Senate to defer supply bills, refusing to deal with them until an election was called for both Houses of Parliament, an election which it hoped to win. The Prime Minister of the day, Gough Whitlam, contested the legitimacy of the blocking and refused to resign. The crisis brought to a head two Westminster conventions that, under the Australian constitutional system, were in conflict – firstly, that a government may continue to govern for as long as it has the support of the lower house, and secondly, that a government that no longer has access to supply must either resign or be dismissed. The crisis was resolved in November 1975 when Governor-General Sir John Kerr dismissed Whitlam's government and appointed a caretaker government on condition that elections for both Houses of parliament be held. [38] This action in itself was a source of controversy and debate at that time on the proper usage of the Senate's ability to block supply.

The blocking of supply alone cannot force a double dissolution. There must be legislation repeatedly blocked by the Senate which the government can then choose to use as a trigger for a double dissolution. [39]

Current Senate

The 2 July 2016 double dissolution election Senate result was announced on 4 August: Liberal/National Coalition 30 seats (−3), Labor 26 seats (+1), Greens 9 seats (−1), One Nation 4 seats (+4) and Nick Xenophon Team 3 seats (+2). Derryn Hinch won a seat, while Liberal Democrat David Leyonhjelm, Family First's Bob Day, and Jacqui Lambie retained their seats. The number of crossbenchers increased by two to a record 20. The Liberal/National Coalition required at least nine additional votes to reach a Senate majority, an increase of three. [40] [41] [42] The Liberal/National Coalition and Labor parties agreed that the first elected six of twelve Senators in each state would serve a six-year term, while the last six elected in each state would serve a three-year term, despite two previous bipartisan senate resolutions to use an alternative method to allocate long and short term seats. By doing this, Labor and the Coalition each gained one Senate seat from 2019. [43] [44] [45] [46]

Bob Day, of the Family First Party, resigned from the Senate on 1 November 2016 following the collapse of his business. His eligibility to have stood in the 2016 election was referred by the Senate to the High Court, sitting as the Court of Disputed Returns. [47] In April 2017 the court found that Day was not validly elected at the 2016 election and ordered that a special recount of South Australian ballot papers be held in order to determine his replacement. [48] The court announced that Lucy Gichuhi was elected in his place on 19 April 2017. [49] [50] On 26 April 2017, Family First merged with the Australian Conservatives; however, Gichuhi declined to join the new party, announcing she would sit as an independent. [51]

Rodney Culleton, who had left Pauline Hanson's One Nation Party on 19 December 2016 to become an independent, had his eligibility to stand in the 2016 election challenged on two constitutional grounds. Among the grounds of ineligibility provided in Constitution section 44, a person cannot sit in either house of the Parliament if they are bankrupt or have been convicted of a criminal offence carrying a potential prison sentence of one year or more.

Culleton was declared bankrupt by the Federal Court on 23 December 2016. On 11 January 2017, after receiving an official copy of the judgment, the President of the Senate declared Culleton's seat vacant. Culleton's appeal against that judgment was dismissed by a full court of the Federal Court on 3 February 2017. [52]

This judgment was followed later on the same day by the High Court's decision that Culleton was ineligible owing to conviction for a criminal offence carrying a potential prison sentence of one year or more. This was a decision of the Court of Disputed Returns following a reference by the Senate at the same time as with Day. It was decided that, since Culleton's liability to a two-year sentence for larceny had been in place at the time of the 2016 election, he had been ineligible for election and that this was not affected by the subsequent annulment of that conviction; the Court also held that the resulting vacancy should be filled by a recount of the ballot, in a manner to be determined by a single Justice of the Court. [53] Following that recount, on 10 March 2017 the High Court named Peter Georgiou as his replacement, returning One Nation to 4 seats. [54]

On 7 February 2017, South Australian Senator Cory Bernardi resigned from the Liberal Party, to form a new party called the Australian Conservatives. [55]

In July 2017, a co-deputy leader of the Greens, Senator Scott Ludlam, resigned from the Senate on discovering that he was a dual citizen (born in New Zealand) and therefore, under Section 44 of the Constitution, had been ineligible to sit in the Parliament. [56] The revelation prompted Ludlam's fellow co-deputy leader of the Greens, Senator Larissa Waters, to examine her citizenship status and, on discovering that she too was a dual citizen (born in Canada), she also resigned. [57] Recounts of the 2016 election results respectively in Western Australia and Queensland saw Jordon Steele-John replace Ludlam and Andrew Bartlett replace Waters. [58]

On 2 February 2018, South Australian Senator Lucy Gichuhi joined the Liberal Party, ceasing to be an independent and strengthening the position of the government.

Composition changes since the last election

In the time elapsed between the 2016 election and the following federal election, many parliamentarians resigned from their seats, while some were disqualified by the High Court of Australia. The parliamentary eligibility crisis involving dual citizenship was responsible for a significant portion of these departures. Some individual parliamentarians also made an impact by changing their party membership or independent status.

ConstituencyBeforeChangeAfter
MemberPartyTypeDateMemberParty
Vic Stephen Conroy Labor Resignation30 September 2016 Kimberley Kitching Labor
SA Bob Day Family First Resignation 1 November 2016 Lucy Gichuhi Family First
WA Rod Culleton One Nation Departure from party18 December 2016Rod Culleton Independent
Independent Disqualification 11 January 2017 Peter Georgiou One Nation
SA Cory Bernardi Liberal Formation of new party7 February 2017Cory Bernardi Conservatives
SA Lucy Gichuhi Family First Refusal to join party merger3 May 2017Lucy Gichuhi Independent
WA Scott Ludlam Greens Resignation and disqualification 14 July 2017 Jordon Steele-John Greens
Qld Larissa Waters Greens 18 July 2017 Andrew Bartlett Greens
WA Chris Back Liberal Resignation31 July 2017 Slade Brockman Liberal
Qld Malcolm Roberts One Nation Disqualification 27 October 2017 Fraser Anning One Nation
NSW Fiona Nash National Jim Molan Liberal
SA Nick Xenophon Xenophon Team Resignation31 October 2017 Rex Patrick Xenophon Team
Tas Stephen Parry Liberal Resignation and disqualification 2 November 2017 Richard Colbeck Liberal
Tas Jacqui Lambie Lambie Network 14 November 2017 Steve Martin Independent
SA Skye Kakoschke-Moore Xenophon Team 22 November 2017 Tim Storer Independent
Qld Fraser Anning One Nation Departure from party15 January 2018Fraser Anning Independent
NSW Sam Dastyari Labor Resignation25 January 2018 Kristina Keneally Labor
SA Lucy Gichuhi Independent Party membership2 February 2018Lucy Gichuhi Liberal
Qld George Brandis LNP Resignation8 February 2018 Amanda Stoker LNP
ACT Katy Gallagher Labor Disqualification 9 May 2018 David Smith Labor
Tas Steve Martin Independent Party membership28 May 2018Steve Martin National
Qld Fraser Anning Independent Party membership4 June 2018 Fraser Anning Katter's Australian
NSW Brian Burston One Nation Departure from party14 June 2018Brian Burston Independent
IndependentParty membership18 June 2018 United Australia
NSW Lee Rhiannon Greens Resignation15 August 2018 Mehreen Faruqi Greens
Qld Andrew Bartlett Greens Resignation27 August 2018 Larissa Waters Greens
Qld Fraser Anning Katter's Australian Expulsion from party25 October 2018Fraser Anning Independent
Tas David Bushby Liberal Resignation21 January 2019 Liberal
Vic Jacinta Collins Labor Resignation15 February 2019 Labor
NSW David Leyonhjelm Liberal Democratic Party Resignation1 March 2019 (resignation), 20 March 2019 (appointment) Duncan Spender Liberal Democratic Party
Qld Fraser Anning Independent Formation of new party4 April 2019 Fraser Anning Fraser Anning's Conservative National
ACT David Smith LaborResignation11 April 2019TBDVacant

Historical party composition of the Senate

The Senate has included representatives from a range of political parties, including several parties that have seldom or never had representation in the House of Representatives, but which have consistently secured a small but significant level of electoral support, as the table shows.

Results represent the composition of the Senate after the elections. The full Senate has been contested on eight occasions; the inaugural election and seven double dissolutions. These are underlined and highlighted in puce. [59]

Election
Year
Labor Liberal [lower-alpha 5] National [lower-alpha 6] Democratic
Labor
Democrats Greens CLP Independent Other
parties
Total
seats
Electoral
system
1st 1901811 [lower-alpha 7] 17       36 Plurality-at-large voting
2nd 1903812 [lower-alpha 7] 14     11 Revenue Tariff 36Plurality-at-large voting
3rd 1906156 [lower-alpha 7] 13     2 36Plurality-at-large voting
4th 19102214       36Plurality-at-large voting
5th 1913297       36Plurality-at-large voting
6th 1914315       36Plurality-at-large voting
7th 19171224       36Plurality-at-large voting
8th 1919135       36 Preferential block voting
9th 19221224       36Preferential block voting
10th 19258253      36Preferential block voting
11th 19287245      36Preferential block voting
12th 193110215      36Preferential block voting
13th 19343267      36Preferential block voting
14th 193716164      36Preferential block voting
15th 194017154      36Preferential block voting
16th 194322122      36Preferential block voting
17th 19463321      36Preferential block voting
18th 194934215      60 Single transferable vote (Full preferential voting)
19th 195128266      60Single transferable vote
20th 195329265      60Single transferable vote
21st 1955282462     60Single transferable vote
22nd 1958262572     60Single transferable vote
23rd 1961282461   1 60Single transferable vote
24th 1964272372   1 60Single transferable vote
25th 1967272174   1 60Single transferable vote
26th 1970262155   3 60Single transferable vote
27th 197429236    11 Liberal Movement 60Single transferable vote
28th 197527266   111 Liberal Movement 64Single transferable vote
29th 197727276 2 11 64Single transferable vote
30th 198027283 5 11 64Single transferable vote
31st 198330234 5 11 64Single transferable vote
32nd 198434275 7 111 Nuclear Disarmament 76Single transferable vote (Group voting ticket)
33rd 198732267 7 121 Nuclear Disarmament 76Single transferable vote (Group voting ticket)
34th 199032285 8 111 Greens (WA) 76Single transferable vote (Group voting ticket)
35th 199330296 7 112 Greens (WA) (2)76Single transferable vote (Group voting ticket)
36th 199629315 7 112 Greens (WA), Greens (Tas) 76Single transferable vote (Group voting ticket)
37th 199829313 91111 One Nation 76Single transferable vote (Group voting ticket)
38th 200128313 82121 One Nation 76Single transferable vote (Group voting ticket)
39th 200428335 441 1 Family First 76Single transferable vote (Group voting ticket)
40th 200732324  5111 Family First 76Single transferable vote (Group voting ticket)
41st 20103128 + (3 LNP)21 911 76Single transferable vote (Group voting ticket)
42nd 20132523 + (5 LNP)3 + (1 LNP)1 10116 Family First,
Liberal Democrats,
Motoring Enthusiast,
Palmer United (3)
76Single transferable vote (Group voting ticket)
43rd 20162621 + (3 LNP)3 + (2 LNP) 9111 Family First,
Liberal Democrats,
Jacqui Lambie,
Justice Party,
Nick Xenophon Team (3),
One Nation (4)
76Single transferable vote (Optional preferential voting)

See also

Notes

  1. Three Liberal National Party of Queensland (LNP) senators sit in the Liberal party room.
  2. Two Liberal National Party of Queensland (LNP) senators and one Country Liberal Party (CLP) senator sit in the Nationals party room. Steve Martin, formerly an independent Senator for Tasmania, joined the Nationals on 28 May 2018. [1]
  3. The senator is Tim Storer (South Australia). He was declared elected by the High Court in place of Skye Kakoschke-Moore (Nick Xenophon Team). He did not sit with his original party.
  4. Figures are available for each year on the Senate StatsNet.
  5. Includes results for the Free Trade Party for 1901 and 1903, the Anti-Socialist Party for 1906, the Commonwealth Liberal Party for 1910—1914, the Nationalist Party for 1917—1929, and the United Australia Party for 1931—1943.
  6. Used the name Country Party for 1919—1974 and National Country Party for 1975—1980.
  7. 1 2 3 Protectionist Party

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Further reading