Inside Story

The long road to a hybrid Senate

How did Australia’s upper house evolve into a part-elected, part-nominated body?

Paul Rodan 20 February 2018 1956 words

Latest appointee: Labor senator Kristina Keneally at her swearing-in ceremony in the Senate last Thursday. Mick Tsikas/AAP Image

Of all the own goals in Australian politics, the federal Labor government’s introduction of proportional representation for Senate elections must rank as one of the greatest. Introduced in 1949 largely to preserve a vulnerable Labor majority in the upper house, the system imposed a heavy penalty, and continues to do so. Labor’s majority was lost in the double dissolution election of 1951, and over the next sixty-six years Labor never held a Senate majority. In the preceding fifty years, it had held majorities on several occasions.

Proportional representation was known to give minority parties and independents a chance of seats, though that factor must have seemed of merely academic interest in 1949. Australia had a solid two-party system (Labor, and the Liberal–Country Coalition) and the only minor party with any profile was the Communist Party, which stood little chance of securing a quota for the upper house. But the Labor split of 1955 changed all that. The breakaway Australian Labor Party (Anti-Communist) — later the Democratic Labor Party, or DLP — secured Senate seats right up to 1974, reaching a peak of five members in 1971. Minor parties and/or independents have been a constant in the Senate for more than six decades now.

The conservative parties have fared better than Labor has, securing Senate majorities under prime ministers Menzies, Fraser and Howard. But recent elections have confirmed that governments seem fated not to have a majority in the Senate, at least in the near to medium term.

Before 1949, the Senate electoral systems (there had been two since Federation) invariably produced a substantial majority for one side or the other, which meant that the protocols for replacing deceased or resigning senators were of limited importance. State governments did not always replace like with like, and on three occasions non-matching replacements were appointed to the Senate.

Once proportional representation more or less guaranteed finely balanced Senates, the system for replacing senators assumed critical importance. The Constitution stipulated that replacements were to be nominated by the relevant state parliament, but if such a process followed partisan lines then a state Liberal government could (for example) replace a deceased Labor senator with a Liberal, potentially upsetting the balance created by the voters at preceding elections. After 1951, a convention emerged whereby state parliaments would nominate a replacement senator from the same party as the deceased or resigning senator.

Neither before nor after 1949 did the replacement senator serve the full remainder of the departed senator’s term (which could be anything up to six years). The spot was theirs only until the next election — and in those days, when elections were not synchronised, this could be a separate House election or a half-Senate election (as happened between 1963 and 1972). This gave no guarantee that the departed senator would be replaced by a member of his or her party, but the principle was clear: replacement senators needed to seek electoral endorsement (and implicitly legitimacy) at the earliest opportunity. Resignation from the Senate was not done lightly.

The convention began to unravel in 1974, when Labor prime minister Gough Whitlam sought to manipulate the system by inducing the disillusioned former DLP leader, Queensland senator Vince Gair, to resign his position in return for the ambassadorship to Ireland. The casual vacancy would be filled at the looming half-Senate election (Gair’s position had another three years to run) and, with the quota down from 16.7 per cent to 14.3 per cent, Labor stood a good chance of securing an additional Senate position in Queensland.

In true Baldrick style, the cunning plan was foiled when Queensland premier Joh Bjelke-Petersen issued the writs for a “normal” half-Senate election (five vacancies, 16.7 per cent quota) before Gair had got round to tendering his resignation. In the event, the opposition’s moral outrage led to a double dissolution election in which Labor could only manage four out of ten Senate seats in Queensland. (For what it’s worth, it should be recorded that some conservative activists later cited Whitlam’s failed stratagem as the incident whose political immorality justified the Coalition’s own dramatic breach of conventions the following year.)

Two Senate vacancies in 1975 (ultimately) brought matters to a head. In February, Whitlam appointed his attorney-general, Lionel Murphy, to a High Court vacancy, creating a casual Senate vacancy in New South Wales. Party-political High Court appointments were hardly novel, but opposition outrage (confected or otherwise) ensued, with the Liberal premier Tom Lewis indicating his intention to ignore the convention on replacements and instead appoint to the vacancy the former mayor of Albury, Cleaver Bunton (whom he quaintly characterised as a “political neuter”).

At the end of June, Queensland Labor senator Bert Milliner died, which should automatically have resulted in his replacement by a Labor nominee. But Bjelke-Petersen had other ideas. He insisted that Labor provide a panel of three party members from whom he would choose (presumably the least “socialist”). When the party stood on its dignity and provided just one, the premier nominated his own, a right-wing unionist and (apparently) former Labor member named Albert Field, whose main claim to the position seemed to be a strong detestation of the Whitlam government. (In one of politics’ great ironies, after the rejected Labor nominee, Mal Colston, was eventually elected to the Senate he ratted on Labor by voting for the Coalition’s sale-of-Telstra legislation in return for appointment as Senate deputy president.)

Bunton played no role in the constitutional crisis of late 1975, indicating a willingness to support the government’s budget and declining to vote for the opposition’s deferral motions, which were aimed at securing an early election. For his part, Field was absent from the Senate while his eligibility was being challenged (under good old section 44). But the absence of a Labor replacement for Milliner left the government one vote short, allowing the opposition to defer a vote on the budget. The end result was Whitlam’s dismissal.

The departure from the post-1951 convention was short-lived. Whitlam’s vanquisher, Liberal leader Malcolm Fraser, may have benefited from the breach but he was sufficiently concerned about possible future chaos to seek a constitutional solution. In 1977, supported by Labor, his government proposed an amendment to section 15 of the Constitution that would require deceased or resigning senators be replaced by a nominee of the party in whose name they were elected.

Equally importantly, the new senator would serve the full balance of the former senator’s term: there would be no more casual vacancies filled at the next election. The proposal passed in all states with 73 per cent of the national vote. The problems exposed in 1974–75 had now been fixed and the Senate would reflect the balance in membership as elected by the voters for the full term.

As usual, the law of unintended consequences swung into operation. At the time of the 1977 referendum, some discussion took place about how deceased or resigning independent senators might be replaced — something that hasn’t happened in the intervening forty years. What could not have been envisaged was the emergence of personality- and grievance-based “parties” capable of the organisational mayhem we now see on a regular basis, but especially when elected members need to be replaced. The chaos was vividly described last week by Inside Story’s Jeremy Gans, who identified up to eight Senate positions that may end up being filled by people not originally elected. The implications for democracy are serious, but the problem doesn’t end there.

The less dramatic reason for the “unelected senator” problem is the high rate of resignation in recent years, possibly boosted by the constitutional certainty that each departing senator will be replaced by a member of his or her party. With replacement senators now serving the full remainder of the former senator’s term, there is no danger that the position will be lost in a casual vacancy election. Nor can a hostile premier do a Lewis or a Bjelke-Petersen and appoint other than a replacement from the relevant party. The constitutional amendment was undoubtedly desirable, but it means no deterrent exists for the sort of self-serving premature exit that treats the voters with contempt.

A few numbers illustrate the point. At the end of 1977, the year the casual vacancy referendum was carried, only one member of the Senate had filled a casual vacancy (in a Senate of sixty-four) and that had been caused by a death. Forty years later, at the time of the 2016 double dissolution election, there were eight casual vacancies, only one of them prompted by a death. That was a fairly average number for the first years of this century. The high point had been reached in mid 1999 when thirteen senators (17 per cent of the Senate) were sitting as a result of casual vacancies caused by resignation.

The current Senate already has four bona fide resignations (not connected to section 44). If these are added to the eight identified by Gans, this Senate could be 16 per cent unelected before it is two years old.

In the period between 1998 and today, only two vacancies were brought about by death, reflecting the increasing youthfulness of the upper house, a far cry from its earlier characterisation as a retirement home for ageing party hacks. There may still be a proportion of hacks, but they are rarely ageing. With younger membership can come (paradoxically) earlier resignations, with several senators seeking not retirement but new careers. Mark Arbib and Stephen Conroy come to mind.

The major beneficiary of the new system was probably Santo Santoro, a Queensland Liberal. Santoro was nominated to a Senate vacancy in 2002, became a minister in 2006 and resigned (from ministry and Senate) in 2007 over a failure to declare shares activity. He never faced the electors of Queensland.

Equally interesting was the case of former NSW premier Bob Carr. He was “drafted” to fill a casual vacancy in 2012 for the express purpose of becoming foreign minister in Julia Gillard’s government, a position he retained after she was replaced by Kevin Rudd in 2013. He resigned after the government’s defeat in October 2013, but only after having been elected to a full six-year Senate term, a term he never commenced. Indeed, he failed even to complete the term of the initial casual vacancy. His replacement, the Labor nominee Deborah O’Neil, was set to enjoy six and a half years as a senator without being elected, until the 2016 double dissolution — at which O’Neill was elected in her own right — intervened.

So it is no exaggeration to suggest that the Senate has become a part-elected, part-nominated body. Whether this is a desirable feature of a functioning democracy must at least be open to question. Certainly, the ghost of Gough Whitlam might be savaging its lack of legitimacy and Paul Keating (not yet a ghost) could be tempted to reprise his classic hit “Unrepresentative Swill.”

What is to be done? Probably not much. The Constitution was changed in 1977 and we are stuck with the consequences, although the now excessive resignation rate was never envisaged as a possible negative by-product. In addressing the section 44 problems, Jeremy Gans proposes that the parties exert pressure on the unelected replacements to resign to allow the nomination of those originally elected. This seems a tall order and the accidental windfall senators will probably just have to be washed through the system, as he indicates is likely.

It would be helpful, though, if Senate candidates could at least be shamed into committing to a full term (health permitting) prior to election. And where vacancies do arise, perhaps parties should nominate those who at least ran on the ticket. It might even become a “convention.” In a democracy, it seems reasonable that a parliamentarian’s name should appear on a ballot paper before it appears on a Parliament House office door. ●

This article was amended on 24 February 2018 to correct an inaccuracy concerning the length of Senator O’Neill’s term.