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Political Reform

I recognise that some of these suggestions require constitutional reform. I also acknowledge the difficulty of achieving constitutional reform in Australia. Very few referendums on constitutional reform have been successful in Australia. However I will put the ideas out there.

Senate - The Issues

The Senate in Australia is meant to operate as the house of review, reviewing legislation that has been passed by the House of Representative prior to accepting or rejecting or proposing amendments to the legislation. However there are various factors that mean that the Senate is does not operate well in performing this legislation review function.

The Senate was originally set up at the time of Federation as the State's house to get the smaller states to agree to join the Federation - to overcome their fear of being swamped by the larger more populous States. Consequently each State has been allocated 12 Senators (currently - lesser numbers in earlier times), and the two mainland territories 2 Senators, regardless of their population. This means that Tasmania with a population of 0.5 million has the same number of Senators as Victoria with a population of 6.2 million. Because of this unintentional  "gerrymandering" the Senate does not conform to the democratic principle of one vote one value. It is a historical anachronism and for this reason alone it needs reform.

There are three further issues that limit the Senate from performing its function as a house of review:

  • The Senate is still dominated by the same parties that dominate the lower house - with a few more minor party politicians thrown in. Consequently it is unlikely that a Senator from the party that is in majority in the lower house is going to vote against a piece of legislation that their party in the lower house has supported. Similarly for Senators in the opposition party - they will not support legislation their lower house colleagues do not support. So a large proportion of the people in the Senate are not actually carrying out any real legislation review - mainly towing the party line.
  • Because there are 12 Senators allocated for each State it gives people from minor parties a greater opportunity to be elected to the Senate. Consequently the current (2020) Senate has 35 members from the Government, 26 from the Opposition and 15 from minor parties and independents (inc. 9 Greens and 1 independent - 19.7% of total members).  (This compares to the House of Representatives - 77 Government, 68 Opposition and 6 Minor party or independent - 4% for total members.)
    Depending on how the numbers fall this can give the minor parties a huge amount of power. Sometimes a minor party Senator can use their position to do deals on which legislation they will agree to based not on the merits of the legislation being voted on but on what side deal they can make to extract some other benefit for their State or party.
    If the Government party actually holds a majority of the seats in the Senate - which happens rarely - the Government has unfettered capacity to pass whatever legislation that has passed the lower house that it wants - without review. The Government Senate member are not going to vote against their lower house colleagues.
  • Recent elections have shown that the Senate voting system is open to manipulation that can see a person who gets few direct votes (No. 1 votes) may be elected due to deals on preferences amongst the smaller parties. This is only possible due to the "above the line" voting system (for more detail see Proposal 1 below) and the effectively hidden preference flows resulting from that system.

The way the Senate is set up at the moment it is a house of politics and not a house of review.

However one of the functions of the Senate is to establish committees to conduct hearings to examine the government's budget and operations. These committees do carryout proper review work, holding the Government administration and the public service/servants to account. The Senate committee process is worthwhile and needs to continue into the future under the same or very similar rules.

These are the issues in outline. However the idea of a house of review that does genuinely review legislation is worthwhile as a brake on the possible excesses of Government. It is just a matter of how this is achieved.

I will suggest a number of approaches to reform. If decided they were worthwhile how achievable they actually are is another matter.

Proposal 1 - Changes to the Senate Voting System

One of the issues with the current voting system is the size of the voting sheet and how voter preferences are expressed.

Currently a voter for the Senate has the option of voting "above the line" or "below the line". If voting "above the line" the voter just needs to put the number "1" in the box for their first preference party. The second, third, forth etc preferences associated with that vote will be allocated according to the preferences chosen by the party that received the "1" vote. How those preferences are allocated is not at all transparent. If the voter wants to know where the preferences from their vote will flow they have to look it up on a website before they go to the polling station. In effect the preferences are no longer the voterís preferences but are given away by the voter to the party that receives their number 1 vote. This concerns me.

The other option is to vote "below the line". For this voting the voter has to number all candidate boxes below the line. In the case of Victoria at the last Federal election the voter has to number the candidates from 1 to 76 (from memory). If an error is made you have to start again. I understand that only between 5 and 10 percent of voters vote "below the line". With an increased number of candidates possible for the larger states under Proposal 2 the voter would have to number many more boxes, making the voting "below the line" option even more difficult.

The fix for this is quite simple. Voters should be able to vote "above the line" however they should be able to number the boxes above the line sequentially in accordance with their preferences for the parties listed. And if they stop at say 5 or 10 that should not invalidate their vote as their intention is clear (though this may impact on the calculation of "quota" under the voting system). The voters should be able to vote by a combination of "above the line" and "below the line" votes if they want to so long as their voting intention is clear.

Proposal 1b - Another simpler approach may be to just require the voter to vote "1" for a single party. The party would then be allocated Senators in accordance with the percentage of "1" votes they get. If the party gets 40% of the vote they get 40% of the Senators, if the party gets 12% of the vote they get 12% of the Senators, etc. This could be State based (with or without Proposal 2) or nationwide. Very simple. However the value of some people's vote will be lost if they vote for a small party that does not get sufficient numbers to get a Senator elected. Their second preference would not be known and would not flow on. 

The function of the Senate will be the same - running the Senate committee process and reviewing and voting on legislation.

Proposal 2 - Remove the Gerrymander

The number of Senators allocated to each State should be proportional to their population. Under this proposal if Tasmania has three Senators Victoria would be entitled to 36 Senators. This would be a boon to the smaller parties that would have a much higher chance of getting elected to the Senate in the larger states. It would also mean that the Senate would more accurately reflect the number of votes that each party received statewide/countrywide - much better than the House of Representatives.

For such a system to be feasible (certainly in the larger states) reform of the voting system as outlined in Proposal 1 would be necessary.

I would expect that such a reform would be vigorously opposed by the two major political parties - and the smaller States.

Proposal 3 - Secret Voting

To improve the effectiveness of the Senate's legislative review function how the Senators vote on each piece of legislation should be secret. They would effectively have a conscience vote on each piece of legislation. It would be illegal for their party or anyone else to require them to disclose how they vote. The obvious argument against this is that the voters have a right to know how their elected member votes. Countering this is that at least it would be a more genuine review process.

Again the larger parties would undoubtedly vote against this proposal.

Proposal 4 - Review by Appointed Members

There are a number of different ways that appointed members could be used to review legislation.

Let me address one argument that is sure to be made against any proposal to use appointed members - "but the appointed members are not democratically elected". You're right, they are not. As pointed out earlier look at the way the current Senate is elected - it is undemocratic - if by democratic you mean one vote one value. Tasmania gets one Senator for every 41,700 electors. Victoria gets one Senator for every 517,000 electors (2020). Look at the House of Representatives. It clearly does not proportionally reflect the community's vote for the minor parties*. If it did the Greens would have many more lower house Parliamentarians. We have even had occasions when the party that achieved the majority of votes across the country did not win Government. (It happens infrequently in Australia - unlike in the USA. When it happens it is undesirable and really should be addressed too.)

(*In the case of the House of Representatives there are benefits to stable Government for the house to be dominated by the two major parties provided there are adequate checks and balances in place. And because of the preferential voting system the voters for minor parties are still getting a say in the process by their preferential vote flow. Imagine the situation where there are 4 or 5 equally sized parties in the house. There would have to be coalitions made to be able to form government. Coalitions of genuinely separate parties can break apart more easily leading to the collapse of the Government. However that said there also has to be a place in the political process where the smaller parties, and their voters, can be given representation and a voice. In our system of Government that place is predominantly the Senate, regardless that it is imperfect in this function of representation.)

Our system has many undemocratic aspects. I don't think this proposal is as problematic as some of these other issues.

I now will outline the method that appointed members could be selected. And then how they could be used.

Appointed Members

The appointed members would Australian citizens from the general community with guidelines for appointment:

  • The number from each state will be proportional to the population of the state;
  • The number from country and metropolitan regions would also be proportional to population
  • Male / female proportion shall be 50:50 (plus or minus 1%).
  • The ages of the members will be from 30 to 75.

The total number would be say 400 (to be decided). The reason for so many is that the bigger the number the more likely they are to being a representative sample of the community. As they don't have to vote on every piece of legislation we need to ensure that enough are available to vote.

Within the guidelines people from the community would be invited at random to become an appointed member. The duties to be undertaken and commitment required would be explained to them in detail - the good and the bad. It would be up to them to decide whether or not to accept the appointment. If accepted they would be appointed for a year, with possible extensions up to three years. At least a third of appointed members would change over each year. (They will be able to withdraw earlier if they want so long as some notice is given. On going appointment may be assessed in accordance with the appointed member's participation and defined aspects of performance and also their preference.)

It is analogous to how the jury system impounds people from the community to sit on juries - except that it would not be compulsory. 

Their primary function is the review and voting on legislation from the House of Representatives. However the way they could be used in the review process could vary. I suggest two distinct approaches - Proposals 4a and 4b

Proposal 4a - Separate House of Review

Legislation would be debated and passed in the lower house, in accordance with current practice. It would then be sent to the upper house for review. In the upper house the legislation would be voted on by the elected members. If it passes that is fine their is no further review. However if it is blocked the Government would have the option of sending the legislation to the third house - the house of appointed members. They could elect to pass it. It would provide another avenue for Government to bypass an obstructionist Senate - if the legislation is considered worthwhile by the appointed members. Opposition parties do not just consider legislation on its merits, on whether it is of benefit to the country. It could be the case that they consider the legislation of benefit to the country but will still vote against it because of perceived political benefits to their party's re-election prospects from the obstruction of the government (this is one of the reasons politics has such a bad reputation). The appointed members would not be considering the politics of the process, only the merits of the legislation and perhaps whether the government has a mandate for it from the last election.

The operations and the information provided to the appointed members would be similar to aspects detailed in Proposal 4b - so I won't repeat them here.

Proposal 4b - Combined House of Review

Legislation would be debated and passed in the lower house, in accordance with current practice. It would then be sent to the upper house for review. In the upper house the legislation would be voted on by both the elected members and the appointed member. Elected Senators would have 50% of the total vote and the appointed members would have the other 50% of the vote (regardless of numbers of members).

Elected members would meet in Parliament House in Canberra to debate legislation and also to run the committee process. The appointed member would work from their homes, in their communities, to review legislation. Appointed members would not be involved in the Senate committee process. Most interaction would be online. For appointed members legislation discussion, review and voting would be online. There may be the occasional get together (statewide or nationwide) for training. These get togethers would not include elected members or other politicians in any significant capacity.

Legislation passes the lower house. It would be sent electronically to the appointed members along with a detailed description prepared by parliamentary officers on what the function of legislation would be if passed. They would be told how the members of the lower house voted on the legislation. They would also be provided with links (video and transcript) to the lower house debate associated with the legislation. The elected members could also send to the appointed members further arguments on their reasons the legislation should be passed or rejected - the benefit or otherwise to Australia. It would be sent to all appointed members, not individually. This could also include video highlights from the lower house debates. The elected members would also debate the legislation in the upper house, as per current practices, however the vote on the legislation would not occur straight away. A time for the vote would be set say a week (or two) away. This is to give the appointed members a further opportunity to consider the upper house debate and to ask questions and to discuss the legislation.

Questions and discussion would be via a forum type application. All appointed members and upper house elected members would be able to use the forum. Elected members would off course be trying to promote the view of their party - which is fine - and so will be motivated to answer the questions put - both for the yes case and the no case. No off forum or private discussion allowed. Discussion between members on the forum would also be encouraged - but not off line. It may be in view of the elected members or private between just the appointed members (two forums).

It would be forbidden for elected members or members of any political party to contact the appointed member individually - online or otherwise - to try to influence them individually. If it wasn't it would be quite likely that the elected members would profile the appointed members and then start using different arguments (possibly conflicting arguments) for different appointed members based on their profile. If an argument is considered good enough to be used it has to be seen and considered by all appointed members.

All members would submit their vote on the legislation by the nominated time. The appointed member's vote would be confidential. The elected member's vote public (as it is now).

There would be penalties for the appointed member if they have accepted any material gain - other than the wage associated with the position - due to their position.

Appointed members would not have to vote on all legislation but would be expected to vote on at least two thirds of the legislation. Appointed members would be instructed to consider the legislation on it merits and also on whether it has been part of the government's election promises and how well if fulfilled that promise.

I would anticipate that the appointed member would not have to spend all their time on carrying out the duties associated with the appointment. The Senate currently typically sits for 50 to 60 days per year (source: Wikipedia). Using that as a guide possibly the appointed member may be required full time for say 3 months of the year (in a number of month long sessions associated with when the upper house sits. Lesser time for Proposal 4a). Time requirements would have to be determined from a review of the workload. Hopefully the appointed members will be able to continue their current employment as well - with Government incentives to their employer to free up their time. Their wage for the appointment would need to be determined but could be based on the wages of the elected members pro-rata for the time needed to carry out the requirements of the appointment.

There would be a lot more detail required than I provided here but hopefully this outlines the idea. If implemented this approach would make the upper house a true house of review.

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