JSCEM post-election report: territory Senators, expansion of parliament and more

The Joint Standing Committee on Electoral Matters concludes its inquiry into the 2022 election with a second tranche of recommendations, few of which find bipartisan support.

The Joint Standing Committee on Electoral Matters has completed its inquiry into the 2022 federal election with a final report that addresses matters not covered in an interim report in June, and expands on some of its conclusions relating to campaign finance, truth-in-advertising laws and Indigenous enrolment. Highlights and observations:

• The most interesting recommendation is that Senate representation for the two territories should be doubled from two seats to four. In terms of representation per capita, this would elevate the Australian Capital Territory from the fourth-best represented jurisdiction to third, overtaking South Australia, without disturbing the Northern Territory’s second place behind Tasmania. The justification for having the territories at the top end of the scale is the federal parliament’s power to overrule territory legislation, as was done in past times in relation to euthanasia and same-sex civil union laws. The report quotes Kevin Bonham identifying the realpolitik of the situation in pointing to the high probability that four ACT seats would go three left and one right (it does not seem to have been suggested that the four Senators should be worked into the system of six-year staggered terms applying to the rest of the Senate, in which case only two would be elected at a time, except at double dissolutions). Naturally, the Coalition’s dissenting report gives this recommendation the thumbs down.

• A section curiously named “Proportional Representation – ‘One Vote, One Value'” ends with a recommendation about the tangentially related matter of the size of parliament, which it says should be considered by a separate stand-alone inquiry. Whereas folk wisdom would have it that parliament is a sty with too many snots in the trough, the committee prefers to think that “an increase in the number of electors in a division over time incrementally reduces the value of each elector’s vote and capacity to engage in the political process”. A bigger parliament would count as “one vote, one value” to the extent of ameliorating the over-representation of Tasmania (which has five seats due to the constitutional minimum for the original states) and the Northern Territory (which has two because that’s the way it goes). Here too the Coalition is opposed, noting the lack of a government mandate and the existence of a “cost-of-living crisis”.

• The committee has at last recommended ending the practice of parties mailing out postal vote applications with their own offices as the return address, allowing them to harvest data before passing the applications on to the Electoral Commission. This has long been held in low regard by everyone but the major parties, but the committee had always found spurious reasons for continuing it. To its great discredit, the Coalition dissenting report objects that the practice is in fact “an extremely useful part of supporting voter turnout”, for which one naively hopes it will cop a bollocking over the coming days in more consequential media outlets than this one.

• The majority report recommends removing the archaic three-day blackout on television and radio at the end of the campaign — but only as an extension of the truth-in-advertising laws recommended by the interim report, presumably on the basis that these would substitute for the blackout’s aim of scotching last-minute misinformation campaigns. The Coalition opposes the former by virtue of opposing the latter.

• Specifically with a view to improving Indigenous enrolment, it is recommended that voters be allowed to enrol at polling booths on election day, as can be done at state level in New South Wales and Victoria. The Coalition dissenting report opposes the idea without troubling to point out any problems with it.

• It is recommended that telephone voting, which is currently provided for blind and low-vision voters, be expanded to encompass those with disabilities or who are located overseas or in remote communities. The Coalition dissenting report seems surprisingly animated in its opposition, arguing the system is insecure and expanding it would impose undue burdens on the AEC.

• In revisiting the recommendations of the interim report, it is recommended that registered charities be exempt from a proposal for caps on donations to anyone involving themselves in the election campaign process. The Coalition protests that this would create “an uneven regulatory playing field” and “a partisan approach to electoral reform”, which I take as an acknowledgement that charities’ campaigns tend to be unhelpful to it.

• The Coalition’s dissenting report says the redistribution process that starts with the determination of state and territory seat entitlements should start three months rather than a year into the parliamentary term, which sounds like a good idea to me but apparently did not find further support.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

45 comments on “JSCEM post-election report: territory Senators, expansion of parliament and more”

  1. Sounds like the LNP are heading down the USStyle voter suppression path.

    Too hard to be better to get votes, better to make it harder to vote.

    How could anyone be opposed to truth in political advertising?

    Dog help us all!

  2. I’d be surprised if the A.L.P. increased the Senators in the Territories as all this will do is re-open the door for the Libs in the A.C.T. At the moment, the “left” has a lock on the Senate provided the A.C.T. returns two left aligned Senators and the rest of the country returns a 50-50 split.
    What would be better would be to make the Territory Senators sit for six years, with one going up for election each time the H.O.R. is elected. That would probably result in the A.L.P. picking up both A.C.T Senators which would be the end of Pocock.

  3. Nadia

    Putting that together, if the NT and ACT went to four senators, but with offset six year terms, the left would do evven better, and it would be more consistent with the States.

  4. @nadia – labor know what they’re doing.

    In the NT – 4 senators on 3 year terms would have given labor and the Libs a seat at first count, then the three parties closest to quota would have been greens, lib dems and labor. That’s a better outcome than 2x 6 year terms which would just split evenly – there’s a chance of getting 3 left in a good election, and having right wing x bench gives Labor more options than if the seat goes to the coalition.

    Labor have no hope of winning two ACT senators in a 2 candidate election, even if Pocock is out of the picture. Someone (the Canberra Times I think) ran the preference distribution again, but forcing pocock exclusion at count 1. The liberals won the 2nd seat. The greens were close. Labor were nowhere near. Going 6 year terms might get the left 4 seats, but it’s way more likely to get a 2-2 split.

    Going 4x 3 year terms gets the left a much safer senate.

    It should be pretty hard for labor and greens to do worse than 5/8, with a pretty good chance of it being 5 labor + greens + pocock, 1 right x bench and 2 coalition.

    Going 6 year terms would most likely get 4 labor + greens + pocock and 4 coalition. It would have a chance of doing better than that, up to 6:2. But the slight chance of 6 is not worth the huge chance of 4. Better to be safe.

  5. According to the comments on this blog, the prime or indeed only consideration on how to best arrange the senators from the territories is to give the most advantage the left in general and the ALP in particular.

    And there was I, naively thinking the objective was to produce the most democratic result. Silly old me.

  6. @eightES. It would be naive to expect anything different from ‘the Labor political party’.

    Fortunately, in this instance, Labor doing the selfish thing is also the right thing. Number of seats per capita a jurisdiction gets is not very important. What matters is which parties have a chance to change the number of seats they had. Until pocock, both Labor and the coalition neglected and abused the ACT because there was nothing to gain or losing from caring. Long term, 4 seats for 3 years means fewer complacent parties.

  7. The issue of Senate representation could be easily fixed by getting rid of the Senate. Plenty of parliaments operate without a house of review.

  8. Re mabwm @6:34. ”How could anyone be opposed to truth in political advertising?”

    The Liberal-National-Newscorp Coalition opposes it because it would destroy their business model.

  9. Do you really want the Government telling you what is truth in political advertising? Does the ALP want their Mediscare campaign killed off?

  10. I don’t think there is a place for partisan considerations when trying to determine the best democratic outcomes for our nation.
    Obviously, we need to accommodate the historical realities of our constitution, but still lots can be done.
    One thing I would do is incorporate the NT into South Australia (again).
    Even better, I would then extend the Eastern boundary of the new central state to run along the 142.5 degrees of longitude all the way from North to South.
    The NT will never be a viable statehood proposition on its own and we can have the added benefit of getting rid of two redundant senators (and a non-viable territorial government).
    Then I would reduce the Senate representation of ACT to one senator only bringing it back to a slightly more equitable representation compared with the States on a one vote one value basis. I believe the only reason the Territories were allocated two senators apiece was so that Labor and non-Labor could have one each(which I know does not always happen).
    Also, more than happy to go Hare-Clark in the House of Reps to deliver a significantly more representative federal parliament.
    You know it makes sense.

  11. egw

    Better still – the States are an anachronism of colonialism. They should be gotten rid of completely and we move to regional governments. Get rid of the current amateur hour local governments and move to a two tier Federal and Regional Government system. It would vastly improve the current shambles of local government and reduce the current wastes caused by double ups between States and Federal Governments.

  12. “FUBARsays:
    Tuesday, November 28, 2023 at 10:18 am
    The issue of Senate representation could be easily fixed by getting rid of the Senate. Plenty of parliaments operate without a house of review”

    Yes, lets have a referendum, to ‘easily fix it’, we could have one with another one for a republic and another for a ‘Voice’.

  13. I look forward to hearing who will be deciding what this ‘truth’ in political advertising is, and how they will be deciding it, under what process.

    Perhaps some one could try to explain how the ‘Mediscare’ campaign would have been assessed for ‘truthiness’

    Or how about ‘we will increase real wages’ ?

  14. Truth in political advertising would work the same way it does in SA. And the same way fairness works in drawing electorate boundaries. Politicians would stay out of it and the work would be done by independent, qualified and capable public servants, with courts weighing in if necessary.

    I don’t think anyone can be certain how Medicare would have been treated. Anyone who claims certainty is lying.

    The IPA wanted to abolish Medicare. Many senior members of the Coalition are also members of the IPA.

    It hardly seems like that much of a stretch to assume that politicians will attempt to implement policies in a manifesto they’ve endorsed. My guess is that the core mediscare campaign would have continued just fine, with a couple of labor lawyers having final say on what the campaign team put out to tighten the language a bit and avoid issue.

    As for “we will increase real wages”, it’s an incomplete sentence and pretty hard for it to be true or false. Like how “bees are more” is neither true nor false. Increase real wages compared to where they are on the day the statement is made, compared to the day of the election, or compared to some theoretical scenario in which the Coalition gets in and continues union busting, stacking the FW commission etc

  15. Voice & Soc – you’ve misread my post.

    What I’m saying is this:

    * Leave it at 2 Senators per Territory.
    * Put one Senator up for election each time the HOR goes to the polls.
    * The other Territory Senator goes up for election next cycle.
    * This would leave, especially in the A.C.T, with an A.L.P. Senator elected each cycle – which equals 2 A.L.P Senators coming out of the A.C.T.

  16. If the last Senate election in the ACT had been for a single senator, the winner would have been David Pocock. Labor only got a third of the vote and Pocock finished ahead of the Liberal candidate after distribution of Greens preferences, which means he would have got Liberal preferences.

    He would’ve smashed it.

  17. Ah, it wouldn’t be a JSCEM discussion (or a general discussion of matters related to parliamentary representation or electoral legislation) without a poster or two alternatively suggesting we just simply change the constitution to fix something. 😆

  18. A small qualification to my previous post.

    A lot of Greens voted strategically for Pocock last time, which might not have happened if the election had been for a single senator and so they weren’t trying to knock off a Liberal.

    Nevertheless, with only a third of the vote, a Labor victory in a single senator contest would not be guaranteed. Especially if the Liberals decided to run dead and vote strategically themselves.

  19. Voice Endeavour @ #20 Tuesday, November 28th, 2023 – 12:21 pm

    Truth in political advertising would work the same way it does in SA.

    Which, in itself, had problems at the last election as there was some huge disagreement over what counts as misleading and what is just fair hyperbole. While the Electoral Commissioner was the umpire and his word was final, there was definitely some questionable calls. For instance, calling a claim that ambulance ramping is the “worst it’s ever been” misleading because, while it was really bad at the time, was technically untrue because it was worse a couple months prior seemed like pedantic nitpicking more than keeping an election honest. Especially when more outrageous claims about book-cooking and whatnot were allowed through without objection (I am not implying any bias or dodgy behaviour from the Commissioner, just to be clear.)

    And the same way fairness works in drawing electorate boundaries. Politicians would stay out of it and the work would be done by independent, qualified and capable public servants, with courts weighing in if necessary.

    If by fairness, you just mean the generic process of having an independent electoral commission draw up boundaries without interference from politicians (beyond submissions and appeals), then I agree and have nothing to add.

    If you’re talking about the now-defunct Fairness Clause in SA, that’s an example of something that was doomed to fail. It was a band-aid measure that failed to do what it intended to do because MPs are elected on a per electorate basis, not a popular vote one, so all you have is the EC desperately trying to put their thumb on the scale to get a particular result, which is clunky and does smell a little like a gerrymander (a word I use carefully because some took it to mean that ECSA rigged the 2018 state election) and it still manages to be foiled by some good marginal-targeting campaigns, and the presence of independents. If you want a result that reflects the popular vote, go Proportional Representation or go home. No half-measures.

  20. William, you seem to support the Coalition members’ proposal to bring forward the commencement of any redistributions after an election. There is, however, a sound reason for the current timing, which goes back to McKinlay’s Case in the 1970s, which turned on the requirement in s24 of the Constitution that “the number of members chosen in the several States shall be in proportion to the respective numbers of their people…”. It was a result of that case that State representation entitlements, which had been determined on the basis of census data, came to be determined according to “the latest statistics of the Commonwealth”. The date of the determination was fixed at twelve months into the life of a Parliament, as that was judged to be a date sufficiently in advance of the next election to enable a redistribution to be concluded to give effect to any changed representation entitlements, but not so far in advance as to give rise to an opportunity for a constitutional challenge on the basis that the statistics on which the determination was based had in the meantime been superseded. (Note that the latter issue could not, as the Commonwealth Electoral Act 1918 stands, be resolved by the conduct of a “mini-redistribution”. They arise when a valid determination has been made, but hasn’t been implemented via a full redistribution; they wouldn’t cover a situation in which the determination itself had been held by the High Court to be invalid.)

    The provisions regarding determinations of State representation entitlements and redistributions to give effect to them have been in place now for over 46 years, and have functioned well in an area of previous constitutional delicacy. In that context, the arguments put forward by the Coalition members seem rather weak (and don’t appear to have benefited from any attention to possible constitutional issues).

  21. I can’t see the bulk of these suggestion going anywhere in the current political environment.
    The extra senate seats would be a political unwise move as it could be seen as left wing power grab and would not be a vote winner in any of the states.
    Expansion of the HoR and Senate is probably a good idea but again it could be used against the government in Tasmania. Every expansion of parliament has been contentious and opposed by the Liberal party.
    The blackout makes no sense in the age of the internet but linking it to “truth” in advertising is a mistake.
    Enrolment on the day would result in more people voting and the Liberals response is “we can’t have that” – I am not sure it would affect just indigenous voters as it would cover a lot of other young people too.

  22. B.S.

    I am all for enrolment on the day – as long as you can prove your identity with a Drivers Licence, Passport or Birth Certificate or similar identity document (eg ADF Identity Card). And I think they should be required for all voters on polling day to prove their identity.

  23. Voter ID is dumb and unnecessary. Our current system works fine with basically 0 fraud.

    Of course ID for enrol on the day voters just like for regular enrolment. Enrol on the day is a great idea to boost youth turnout.

  24. I’m in support of expanding parliament. As the population increases, the seats should increase as well.

    I don’t think it would be favourable to be like the USA where they’ve stuck to a maximum of 435 seats and over the past century each seat has increased from 200,000 to 750,000 voters on average.

    Yeah there’s always the problem with the constitutional requirement that Tasmania would probably get 14 Senators for 5 HoR seats, but with a vote decided by proportional representation that’s not too big of an issue.

    In fact in the elections where there was an expansion of parliament in 1949 and 1984 the Coalition got big gains in seats so it’s odd how they would be so against it.

  25. Re “Mediscare”, the right-wing Coalition had “custody” of Medicare for 9 years, during which, through malign neglect, Medicare was left on the verge of collapse, with Bulk Billing mostly a thing of the past.

    Then consider to 2014 Budget. Does anything for a minute think that the “co-payment” wouldn’t have been ratcheted up year or year until the Coalition allowed private insurers to cover the “gap”.

    Then look at Tertiary education funding – what actually happened and what was attempted (2014 Budget again).

    Medicare wouldn’t have survived another Coalition term.

    The predictions of “Mediscare” proved to be an accurate assessment of future directions.

  26. “If the last Senate election in the ACT had been for a single senator, the winner would have been David Pocock. Labor only got a third of the vote and Pocock finished ahead of the Liberal candidate after distribution of Greens preferences, which means he would have got Liberal preferences.

    He would’ve smashed it.”

    Not correct. Based on the actual ballots, the 3CP is Gallagher 115910 Pocock 89738 Seselja 77345 then after Liberal preferences Gallagher wins 144486-128220. The split of ex-Seselja preferences isn’t that strong. Plenty of Liberal voters would have pegged Pocock as another Green and there’s also a fair bit of exhaust.

  27. There’s a cube root “law” of Parliamentary assemblies. It’s an observation in political science that the number of members of a unicameral legislature, or the lower house of a bicameral legislature, is about the cube root of the population being represented: https://en.wikipedia.org/wiki/Cube_root_law

    Australia’s population will reach 27 million early in 2024: https://www.abs.gov.au/statistics/people/population/population-clock-pyramid
    The cube root law says we need 300 MPs. I’m not saying that we should double the size of the House of Reps, but a modest increase, to about 180, might be in order. Trouble is, we would then need 90 Senators.

    P.S: USA, population 340 million, “needs” nearly 700 Congress(wo)men. It has 435. The House of Commons “should” have a bit over 400 members for the UK’s 68 million. It has 650.

  28. Expanding the House would reduce the size of electorates. This would be it easier for high profile locals, whether independents, minor party or even major party candidates, to get elected. It would reduce the power of party machines.

    The ‘duopoly’ would hate that.

  29. Steve777 at 9:47 pm

    If there were to be 90 Senators for the States, the quota for election at a double dissolution would 6.25%. Given the decline in the major parties’ votes, it’s hard to see how a double dissolution (let alone a joint sitting to pass “trigger” legislation) would be a feasible political option in the future for a government finding its legislative program being blocked in the Senate. Increasing the size of the Parliament therefore isn’t just a matter of how people will be represented: it could have a serious impact on the relative power of the two houses. (And that’s without going into the question of how the rotation of senators would work if there were an odd number of Senators for each State, like 15.)

  30. A ‘what if’ question for the boffins:

    What if each State returned 14 senators (so 7 at each of the last two elections 2019 and 2022), and the territories returned 4 (but to 3 year terms).

    What would the likely composition of the senate be today?

    I ask this, because it seems to me that increasing the senate by two per state, would allow an additional 24-26 members to the reps, as per the constitution and hence return a house of 174-176 MPs …

  31. @Andrew Earlwood

    Okay, I’ll have a go at calculating. For an election where there’s 7 senate positions per state available, the quota goes down from 14.3% to 12.5%.

    NSW: 3 Coalition, 2 Labor, 1 Green, 1 One Nation
    VIC: 3 Coalition, 3 Labor, 1 Green
    QLD: 3 Coalition, 2 Labor, 1 Green, 1 One Nation
    WA: 3 Coalition, 3 Labor, 1 Green
    SA: 3 Coalition, 3 Labor, 1 Green
    TAS: 3 Coalition, 2 Labor, 1 Green, 1 Lambie Network

    (Assuming no change to NT or ACT in which they have 2 Labor, 1 CLP and 1 Independent).

    So if the election in 2022 was held with 7 Senate seats up per state, the difference would be 19 Coalition seats (+4), 17 Labor seats (+2), 6 Green seats (no change), 2 One Nation seats (+1) and 1 Lambie Network seat (no change).

    So an expansion of the Senate in 2022 would have benefited the right, mainly because in states like Queensland, Victoria, WA and Tasmania where they lost out on the 6th seat, they would have probably easily been elected if there had been a 7th.

    However I’m not 100% certain of these calculations because it’s 11pm on a Tuesday night and bed awaits, but those are the calcs I could get the closest.

  32. @Andrew_Earlwood
    Not going to do the full thing but the typical result in a half senate election for the six seats across most states is 2ALP, 1GRN, 3LNP. If there were 7 the “average” would probably land about the same but with an additional seat that either lands with the ALP or goes to a minor party on the right like One Nation or UAP edit: @Kirsdarke beat me, seems to line up with what I said 😉

    Personally I’m in favour of increasing the number of senators for the ACT/NT. Bur purely because I think STV doesn’t really work that well with 2 seats. You end up needing to have a fairly extreme vote for the end result to swing left or right

    For a similar reason I’d rather 14 seats per state rather than 12. When you have an odd number of seats in a STV election the end result is forced to lean “left” or “right”. Which, IMO, would be a good thing. “Left” states should elect a “left” leaning senate, and “right” states should elect “right”. 5 and 7 are probably the best number of seats for a STV election. 3 is…. ok…. 4 & 6 are… boring… 8 is getting a bit too big

  33. Ah right, something I just remembered, at the 1984 election where the Senate was expanded, 7 seats per state were put up for election, with the normal 5 seats left over to serve their 6-year terms from the pre-expanded Senate to make it an even 76 Senators. (It was a bit more complicated than usual since Fraser decided to make 1983 a double-dissolution).


    So if the Senate is expanded to 14 per state in this term, then in theory that would mean that there would be 8 Senators per state up for the next election, while the remaining 6 hold on until the election afterward, where it would resume a new pattern of 7 Senators per state.

    It’s pretty complicated, yes, but it goes by the sacred constitution after all and the processes in it can only be changed via referendum.

  34. Kevin Bonham at 9:34,

    Thanks for that. I stand corrected. It’s hard to believe so many Liberal voters would preference Labor ahead of an independent, but there you go.

  35. Re question by Andrew above, this can be computed exactly if assuming the same parties and candidates ran with the same votes cast (not necessarily a safe assumption!) and I did this in my JSCEM sub (more or less, didn’t add extra for territories)

    I’m assuming “the territories returned 4” means 4 per territory.

    The 2019 state seats (7 per state) are L-NP 19 ALP 13 Green 6 ON 3 JLN 1
    The 2022 state seats (7 per state) are L-NP 18 ALP 16 Green 6 ON 1 JLN 1
    The 2022 territory seats are L-NP 3 ALP 3 Green 1 Pocock 1
    The total Senate is L-NP 40 ALP 32 Green 13 ON 4 JLN 2 Pocock 1. Labor+Greens+JLN passes but Labor+Greens+Pocock only blocks.

    A caveat here is that Pocock may not have contested ACT (or at least not as successfully) if ACT had a four-MP system. 4 ACT without Pocock gives his seat to the Greens.

    Kirsdarke is correct re Vic 2022 – the extra seat puts both majors over Babet on surplus causing him to lose. However NSW 2022 does not produce a One Nation seat; One Nation misses out to Labor by about 16,000 votes and it goes 3-3-1

  36. I can also do 6/8 as suggested above because of the way the extra Senators are added and because I also simulated 8 per state.

    The 2019 state seats (6 per state) were L-NP 17 ALP 11 Green 6 ON 1 JLN 1
    The 2022 state seats (8 per state) are L-NP 18 ALP 17 Green 6 ON 4 JLN 1 UAP 1 LC 1
    The 2022 territory seats are L-NP 3 ALP 3 Green 1 Pocock 1
    The total Senate is L-NP 38 ALP 31 Green 13 ON 5 JLN 2 UAP 1 LC 1 Pocock 1. Labor+Green+JLN+(LC or Pocock) passes, Labor+Green+(JLN or (LC and Pocock)) blocks.

  37. Fargo61,

    “FUBAR says:
    Tuesday, November 28, 2023 at 10:18 am
    The issue of Senate representation could be easily fixed by getting rid of the Senate. Plenty of parliaments operate without a house of review”

    Yes, lets have a referendum, to ‘easily fix it’, we could have one with another one for a republic and another for a ‘Voice’.”

    I would like to remind the Australians that for a referendum to pass abolishing the Senate —- or even, doing away the equal representation of the equal Original States —- would require in my humble opinion a YES vote in every State pursuant to the Constitution of the Commonwealth of Australia, Chapter VIII — Alteration of the Constitution, Section 128 — Mode of Altering the Constitution’s fifth paragraph:

    “No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law.”

    Abolition would diminish the representation of all six Federated States in the Parliament of the Commonwealth of Australia.

    Also, I would like to remind Fubar that seven of the eight largest sovereign states (countries) in area have bicameral Parliaments.

    Source: https://www.legislation.gov.au/Details/C2013Q00005

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