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Senate
45th Parliament
Coat of arms or logo
Type
Type
Leadership
Scott Ryan, Liberal
since 13 November 2017
Mathias Cormann, Liberal
since 28 August 2018
Mitch Fifield, Liberal
since 26 August 2018
Penny Wong, Labor
since 18 September 2013
Structure
Seats76
Political groups
Government (31)

Coalition
  Liberal (25)[a]
  National (6)[b]

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 Nationals (1)
  Independent (1)[c]
Elections
Single transferable vote
Last election
2 July 2016
(double dissolution election)
Next election
18 May 2019
(half-Senate election)
Meeting place
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 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 states regardless of population and 2 from each of the two autonomous internal territories (the Australian Capital Territory and the Northern Territory). Senators are popularly elected under the single transferable vote system of proportional representation.

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 2005–2008 (and before that since 1981) and usually needs to negotiate with other parties and independents to get legislation passed.[2]

Origins and role

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 modelled solely after the House of Lords, as the Canadian Senate was, the Australian Senate was in part modelled after the United States Senate, by giving equal representation to each state and equal powers.[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.

Although the Prime Minister and Treasurer, 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 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 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.

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.

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

Electoral system

See also: Electoral system of Australia

The system for electing senators has changed several times since Federation. The original arrangement involved a first-past-the-post 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 Labor Party held all but three.

In 1948, single transferable vote 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, 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 High Court Challenge 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

To vote correctly, electors must either:

  • Vote for at least six parties above the thick black line, by writing the numbers 1-6 in party boxes. Votes with less than six boxes numbered are still admitted to the count through savings provisions.
  • Vote for at least twelve candidates below the thick black line, by writing the numbers 1-12 in the individual candidates' boxes. Votes with between six and twelve boxes numbered are still admitted to the count through savings provisions.

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 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]

  • The Senate must comprise an equal number of senators from each original state,
  • each original state shall have at least six senators, and
  • the Senate must be elected in a way that is not discriminatory among the states.

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. These are a desire to maintain a constant influence for the smaller states and maintain a constant balance of the two Houses in case of a joint sitting after a double dissolution. A referendum held in 1967 to eliminate the nexus failed to pass.

The size of the Senate has changed over the years. The Constitution originally provided for 6 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 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 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 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 (slightly less than three years) and the rest serve a six year term. The term of Senators representing a territory expires at the same time as there is an election for the 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.

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 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 (slightly less than three years) and the rest serve a six year term. 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.

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".[12] 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.[13][14][15] 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.[16]

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

See also: List of Australian Senate appointments

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

Work

The Australian Senate typically sits for 50 to 60 days a year.[d] 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.[17]

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.[18]

The Senate has detailed rules in its standing orders that govern how a bill is considered at each stage.[19] 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

Main article: Australian Senate committees
A meeting room containing a large horseshoe-shaped desk, with red leather office chairs surrounding its outside edge, a microphone mounted in the desk in front of each chair
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.[20]

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."[21][20]

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.[22] Other powers include the ability to meet throughout Australia, to establish subcommittees and to take evidence in both public and private hearings.[20]

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.[22][20]

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.[23] The Opposition leader in the Senate suggested that the government had attenuated the scrutinising activities of the Senate.[24] 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.[25]

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).[26]

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.[27]

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.[28] This period saw the first instances of crossing the floor by senators since the conservative government took office in 1996:[29] Gary Humphries on civil unions in the Australian Capital Territory, and Barnaby Joyce on voluntary student unionism.[30] 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.[31] 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.[32]

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':

  • "elected-order" method, where the Senators elected first attain a six-year term. This approach tends to favour minor party candidates as it gives greater weight to their first preference votes;[33] or
  • re-count method, where the long terms are allocated to those Senators who would have been elected first if the election had been a standard half-Senate election.[34] This method is likely to be preferred by the major parties in the Senate where it would deliver more six-year terms to their members.[33]

The Senate applied the "elected-order" method following the 1987 double dissolution election.[34] 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.[34] 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.[35]

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)[36]

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.[36] 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.[37]

Current Senate

See also: Results of the 2016 Australian federal election (Senate) and Members of the Australian Senate, 2016–2019

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.[38][39][40] 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.[41][42][43][44]

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.[45] 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.[46] The court announced that Lucy Gichuhi was elected in his place on 19 April 2017.[47][48] 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.[49]

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.[50]

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.[51] Following that recount, on 10 March 2017 the High Court named Peter Georgiou as his replacement, returning One Nation to 4 seats.[52]

On 7 February 2017, South Australian Senator Cory Bernardi resigned from the Liberal Party, to form a new party called the Australian Conservatives.[53]

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.[54] 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.[55] Recounts of the 2016 election results respectively in Western Australia and Queensland saw Jordon Steele-John replace Ludlam and Andrew Bartlett replace Waters.[56]

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.

This list is complete and up to date as of August 2018.
Constituency Before Change After
Member Party Type Date Member Party
Vic Stephen Conroy Labor Resignation 30 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 party 18 December 2016 Rod Culleton Independent
Independent Disqualification 11 January 2017 Peter Georgiou One Nation
SA Cory Bernardi Liberal Formation of new party 7 February 2017 Cory Bernardi Conservatives
SA Lucy Gichuhi Family First Refusal to join party merger 3 May 2017 Lucy 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 Resignation 31 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 Resignation 31 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 party 15 January 2018 Fraser Anning Independent
NSW Sam Dastyari Labor Resignation 25 January 2018 Kristina Keneally Labor
SA Lucy Gichuhi Independent Party membership 2 February 2018 Lucy Gichuhi Liberal
Qld George Brandis style="background-color:Template:Liberal National Party of Queensland/meta/color" | LNP Resignation 8 February 2018 Amanda Stoker style="background-color:Template:Liberal National Party of Queensland/meta/color" | LNP
ACT Katy Gallagher Labor Disqualification 9 May 2018 David Smith Labor
Tas Steve Martin Independent Party membership 28 May 2018 Steve Martin National
Qld Fraser Anning Independent Party membership 4 June 2018 Fraser Anning Katter's Australian
NSW Brian Burston One Nation Departure from party 14 June 2018 Brian Burston Independent
Independent Party membership 18 June 2018 United Australia
NSW Lee Rhiannon Greens Resignation 15 August 2018 Mehreen Faruqi Greens
Qld Andrew Bartlett Greens Resignation 27 August 2018 Larissa Waters Greens
Qld Fraser Anning Katter's Australian Expulsion from party 25 October 2018 Fraser Anning Independent
Tas David Bushby Liberal Resignation 21 January 2019 Liberal
Vic Jacinta Collins Labor Resignation 15 February 2019 Labor
NSW David Leyonhjelm Liberal Democratic Party Resignation 1 March 2019 (resignation), 20 March 2019 (appointment) Duncan Spender Liberal Democratic Party

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.[57]

Election
Year 		Labor Liberal[e] National[f] Democratic
Labor 		Democrats Greens CLP Independent Other
parties 		Total
seats 		Electoral
system
1st 1901 8 11[g] 17               36 Plurality-at-large voting
2nd 1903 8 12[g] 14           1 1 Revenue Tariff 36 Plurality-at-large voting
3rd 1906 15 6[g] 13           2   36 Plurality-at-large voting
4th 1910 22 14               36 Plurality-at-large voting
5th 1913 29 7               36 Plurality-at-large voting
6th 1914 31 5               36 Plurality-at-large voting
7th 1917 12 24               36 Plurality-at-large voting
8th 1919 1 35               36 Preferential block voting
9th 1922 12 24               36 Preferential block voting
10th 1925 8 25 3             36 Preferential block voting
11th 1928 7 24 5             36 Preferential block voting
12th 1931 10 21 5             36 Preferential block voting
13th 1934 3 26 7             36 Preferential block voting
14th 1937 16 16 4             36 Preferential block voting
15th 1940 17 15 4             36 Preferential block voting
16th 1943 22 12 2             36 Preferential block voting
17th 1946 33 2 1             36 Preferential block voting
18th 1949 34 21 5             60 Single transferable vote (Full preferential voting)
19th 1951 28 26 6             60 Single transferable vote
20th 1953 29 26 5             60 Single transferable vote
21st 1955 28 24 6 2           60 Single transferable vote
22nd 1958 26 25 7 2           60 Single transferable vote
23rd 1961 28 24 6 1       1   60 Single transferable vote
24th 1964 27 23 7 2       1   60 Single transferable vote
25th 1967 27 21 7 4       1   60 Single transferable vote
26th 1970 26 21 5 5       3   60 Single transferable vote
27th 1974 29 23 6         1 1 Liberal Movement 60 Single transferable vote
28th 1975 27 26 6       1 1 1 Liberal Movement 64 Single transferable vote
29th 1977 27 27 6   2   1 1   64 Single transferable vote
30th 1980 27 28 3   5   1 1   64 Single transferable vote
31st 1983 30 23 4   5   1 1   64 Single transferable vote
32nd 1984 34 27 5   7   1 1 1 Nuclear Disarmament 76 Single transferable vote (Group voting ticket)
33rd 1987 32 26 7   7   1 2 1 Nuclear Disarmament 76 Single transferable vote (Group voting ticket)
34th 1990 32 28 5   8   1 1 1 Greens (WA) 76 Single transferable vote (Group voting ticket)
35th 1993 30 29 6   7   1 1 2 Greens (WA) (2) 76 Single transferable vote (Group voting ticket)
36th 1996 29 31 5   7   1 1 2 Greens (WA), Greens (Tas) 76 Single transferable vote (Group voting ticket)
37th 1998 29 31 3   9 1 1 1 1 One Nation 76 Single transferable vote (Group voting ticket)
38th 2001 28 31 3   8 2 1 2 1 One Nation 76 Single transferable vote (Group voting ticket)
39th 2004 28 33 5   4 4 1   1 Family First 76 Single transferable vote (Group voting ticket)
40th 2007 32 32 4     5 1 1 1 Family First 76 Single transferable vote (Group voting ticket)
41st 2010 31 28 + (3 LNP) 2 1   9 1 1   76 Single transferable vote (Group voting ticket)
42nd 2013 25 23 + (5 LNP) 3 + (1 LNP) 1   10 1 1 6 Family First,
Liberal Democrats,
Motoring Enthusiast,
Palmer United (3) 		76 Single transferable vote (Group voting ticket)
43rd 2016 26 21 + (3 LNP) 3 + (2 LNP)   9 1 11 Family First,
Liberal Democrats,
Jacqui Lambie,
Justice Party,
Nick Xenophon Team (3),
One Nation (4) 		76 Single 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 independent 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. ^ Includes results for the Country Party for 1919—1974 and the National Country Party for 1975—1980.
  7. ^ a b c Protectionist Party

References

  1. ^ "Tasmanian Steve Martin joins the Nationals, boosting Coalition Senate numbers". afr.com. 28 May 2018. Retrieved 9 August 2018.
  2. ^ Williams, George; Brennan, Sean; Lynch, Andrew (2014). Blackshield and Williams Australian constitutional law and theory : commentary and materials (6th ed.). Annandale, NSW: Federation Press. p. 415. ISBN 9781862879188.
  3. ^ a b "Part V - Powers of the Parliament". Retrieved 13 May 2017.
  4. ^ "No. 14 - Ministers in the Senate". Senate Briefs. Parliament of Australia. December 2016.
  5. ^ "Senate voting changes explained in AEC advertisements". abc.net.au. 26 April 2016. Retrieved 9 August 2018.
  6. ^ Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20
  7. ^ "Chapter 4, Odgers' Australian Senate Practice". Aph.gov.au. 2 February 2010. Archived from the original on 21 March 2011. Retrieved 17 July 2010. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)
  8. ^ "Senate (Representation of Territories) Act 1973. No. 39, 1974". Austlii.edu.au. Retrieved 22 March 2017.
  9. ^ "Norfolk Island Electors". Australian Electoral Commission. 2016. Retrieved 6 August 2016.
  10. ^ Department of the Senate, Senate Brief No. 1, 'Electing Australia's Senators' Archived 29 August 2007 at the Wayback Machine. Retrieved August 2007.
  11. ^ Section 6 of the Senate (Representation of Territories) Act 1973. Retrieved August 2010.
  12. ^ Question without Notice: Loan Council Arrangements House Hansard,
  13. ^ Lijphart, Arend (1 November 1999). "Australian Democracy: Modifying Majoritarianism?". Australian Journal of Political Science. 34 (3): 313–326. doi:10.1080/10361149950254. ISSN 1036-1146.
  14. ^ Sawer, Marian (1999). Overview: Institutional Design and the Role of the Senate (PDF). Representation and Institutional Change: 50 Years of Proportional Representation in the Senate. Vol. 34. pp. 1–12. Archived from the original (PDF) on 17 January 2011. {{cite conference}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help); Unknown parameter |editors= ignored (|editor= suggested) (help)
  15. ^ Trudgian, Tim. "Just how representative are the houses of parliament of how Australians vote?". The Conversation. Retrieved 30 May 2018.
  16. ^ Ted Morton, 'Senate Envy: Why Western Canada Wants What Australia Has' Archived 14 May 2013 at the Wayback Machine, Senate Envy and Other Lectures in the Senate Occasional Lecture Series, 2001–2002, Department of the Senate, Canberra.
  17. ^ "Senate weekly routine of business". Australian Senate. 7 November 2011. Archived from the original on 26 January 2012.
  18. ^ Australian Senate, 'The Senate and Legislation' Archived 24 September 2008 at the Wayback Machine, Senate Brief, No. 8, 2008, Department of the Senate, Canberra.
  19. ^ Australian Senate, 'Consideration of legislation' Archived 26 September 2008 at the Wayback Machine, Brief Guides to Senate Procedure, No. 9, Department of the Senate, Canberra.
  20. ^ a b c d "Odgers' Australian Senate Practice Fourteenth Edition Chapter 16 - Committees". 2017. Retrieved 19 March 2017.
  21. ^ Constitution of Australia, section 49.
  22. ^ a b "Infosheet 4 - Committees". aph.gov.au. Retrieved 22 February 2017.
  23. ^ "Media Release 43/2006 – Senate remains robust under Government majority". 30 June 2006. Archived from the original on 27 September 2007.
  24. ^ "Senator Chris Evans, The tyranny of the majority (speech)". 10 November 2005. Archived from the original on 12 November 2009. Labor has accused the Government of 'ramming' bills through the Senate – but Labor "guillotined" Parliamentary debate more than twice the number of times in their 13 years in Government than the Coalition has over the last decade. In the last six months, the Government has not sought to guillotine any bill through the Senate.
  25. ^ "Senator Andrew Murray: Australian Democrats Accountability Spokesperson Senate Statistics 1 July 2005 – 30 June 2006" (PDF). 4 July 2006. Archived from the original (PDF) on 5 August 2006.
  26. ^ Senate Standing Orders, numbers 7, 10, 98–105, 163
  27. ^ Deirdre McKeown, Rob Lundie and Greg Baker, 'Crossing the floor in the Federal Parliament 1950 – August 2004' Archived 3 October 2008 at the Wayback Machine, Research Note, No. 11, 2005–06, Department of Parliamentary Services, Canberra.
  28. ^ Uhr, John (June 2005). "How Democratic is Parliament? A case study in auditing the performance of Parliaments" (PDF). Democratic Audit of Australia, Discussion Paper. Archived from the original (PDF) on 14 May 2013.
  29. ^ Peter Veness, 'Crossing floor 'courageous, futile', news.com.au, 15 June 2006. Retrieved January 2008.
  30. ^ Neither of these instances resulted in the defeat of a government proposal, as in both cases Senator Steve Fielding voted with the government.
  31. ^ Prime Minister's press conference, 14 August 2006 "Archived copy". Archived from the original on 21 August 2006. Retrieved 21 August 2006. {{cite web}}: Unknown parameter |deadurl= ignored (|url-status= suggested) (help)CS1 maint: archived copy as title (link)
  32. ^ "Nationals won't toe Libs' line: Joyce – SMH 18/9/2008". News.smh.com.au. 18 September 2008. Retrieved 17 July 2010.
  33. ^ a b Uma Patel (6 July 2016). "Election 2016: How do we decide which senators are in for three years and which are in for six?". Australian Broadcasting Corporation.
  34. ^ a b c Antony Green (25 April 2016). "How Long and Short Senate Terms are Allocated After a Double Dissolution". Australian Broadcasting Corporation.
  35. ^ Consultative Group on Constitutional Change (March 2004). "Resolving Deadlocks: The Public Response" (PDF). p. 8.
  36. ^ a b Kerr, John. "Statement from John Kerr (dated 11 November 1975) explaining his decisions". WhitlamDismissal.com. Retrieved 11 January 2017.
  37. ^ Green, Antony. "An Early Double Dissolution? Don't Hold Your Breath!". Antony Green's Election Blog. ABC. Retrieved 1 August 2016.
  38. ^ AEC (21 February 1984). "AEC". Twitter. Retrieved 22 March 2017.
  39. ^ "Federal Election 2016: Senate Results". Australia Votes. Australian Broadcasting Corporation. 3 July 2016. Retrieved 4 July 2016.
  40. ^ "Senate photo finishes". Blogs.crikey.com.au. 12 July 2016. Retrieved 30 July 2016.
  41. ^ "Cormann raises 'first elected' plan to halve Senate terms for crossbenchers". The Australian. 12 August 2016. Retrieved 18 March 2017.
  42. ^ Hutchens, Gareth (12 August 2016). "Senate terms: Derryn Hinch and Greens' Lee Rhiannon given three years". Retrieved 3 February 2017 – via The Guardian.
  43. ^ "LP-LNP deal to force senators back to poll in three years". The Australian. 13 August 2016. Retrieved 18 March 2017.
  44. ^ Hunter, Fergus (12 August 2016). "Coalition and Labor team up to clear out crossbench senators in 2019". Sydney Morning Herald. Retrieved 3 February 2017.
  45. ^ "Court finds witnesses not enough to prove Bob Day breached constitution". ABC News. 27 January 2017. Retrieved 3 February 2017.
  46. ^ "Family First ex-senator Bob Day's election ruled invalid by High Court". ABC News. 5 April 2017.
  47. ^ Doran, Matthew; Belot, Henry; Crothers, Joanna (19 April 2017). "Family First senator Lucy Gichuhi survives ALP challenge over citizenship concerns". ABC News. Retrieved 19 April 2017.
  48. ^ Karp, Paul (20 April 2017). "Court rebuffs Labor challenge to Family First senator Lucy Gichuhi". The Guardian. Retrieved 20 April 2017.
  49. ^ Belot, Henry (26 April 2017). "Cory Bernardi unwilling to wait for Lucy Gichuhi to 'get her head around' things". ABC News. Retrieved 26 April 2017.
  50. ^ "Rod Culleton: Former One Nation senator loses appeal against court bankruptcy verdict". ABC News. 4 February 2017. Retrieved 10 February 2017.
  51. ^ Re Culleton [No 2] [2017] HCA 4 (3 February 2017).
  52. ^ "One Nation: Rod Culleton's brother-in-law Peter Georgiou confirmed as replacement". ABC News. Retrieved 10 March 2017.
  53. ^ Uhlmann, Chris; Norman, Jane (7 February 2017). "Cory Bernardi to split with Coalition to form Australian Conservatives party". ABC News Australia. Archived from the original on 7 February 2017. Retrieved 7 February 2017.
  54. ^ Strutt, J; Kagi, J (14 July 2017). "Greens senator Scott Ludlam resigns over failure to renounce dual citizenship". Australia: ABC News.
  55. ^ Belot, Henry (18 July 2017). "Larissa Waters, deputy Greens leader, quits in latest citizenship bungle". ABC News.
  56. ^ "Dual citizen senators' seats have been recounted — here are the replacements". ABC News. 10 November 2017. Retrieved 11 September 2018.
  57. ^ "A database of elections, governments, parties and representation for Australian state and federal parliaments since 1890". University of Western Australia. Retrieved 15 February 2009.

Further reading

Library resources about
Australian Senate
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