Reforming Australia’s Senate means ensuring Indigenous people are represented

Before the 2016 federal election in July, Australia’s coalition government demonstrated a rare degree of collaboration with the Greens and passed changes to reform the electoral process for the Senate. Richard Reid explains the reform and its intentions – and its complete failure in the wake of Australia’s double dissolution election. He argues the debate about Senate reform should go much further than these changes, and the whole structure of the Senate’s composition should be opened up for debate in an effort to make it more representative of the Indigenous Australian population.

Australian indigenous groups call for policies to tackle climate change at Newcastle Port, May 2016. Photo: Break Free via a CC-BY-NC-SA 2.0 licence

So the major parties had a problem, and they sought to reduce the crossbench through reform prior to the 2016 election. Complicating matters was that the government chose to opt for a rare double dissolution election, the first since 1987 where all 76 senate spots would be contested – importantly halving the quota needed to win a Senate seat.

The 2016 federal election saw the government reduced to a one-seat majority in the House of Representatives, losing 14 seats. The picture in the Senate offered the government no consolation. In spite of the reform attempt to reduce the size of the crossbench, it instead grew to a new record of 20 senators.

The attempts at Senate reform can therefore be considered a complete failure in the short-term. The crossbench grew, adding two more senators to its number, rather than halving it – which it arguably would have done if the election had not been a double dissolution. The government now faces an immensely difficult challenge in both Houses, with all legislation going to have to be carefully negotiated through the legislative process.

In the debate around the reform prior to the announcement of the double dissolution election, John Dryzek argued that the changes would hurt Australian democracy:

The proposed reform will ensure the Senate is composed almost exclusively of career politicians, who are unrepresentative in the sense that they do not reflect the social composition of Australia, and also ensure that one of the last vestiges of reflection is purged from our parliamentary system.

In the wake of the double dissolution result, we shall have to postpone our judgment on the effects of the reform in the long term. However, the whole issue of Senate reform does raise important questions about Australian democracy and its future direction. Of course the process by which senators are elected is of central importance, but this focus on the party composition of the Senate ignores a much more important debate that Australia needs.

Indigenous Australians in the Senate

The two most significant Senate reforms that need to be considered, and debated, are the representation of Indigenous Australians and the continued undemocratic proportion of seats for the states. The latest statistics from the ABS of 2011 show that Indigenous Australians make up 3% of the Australian population, with 333,683 people. 2015 figures from the ABS show that there are 517 400 Tasmanians. However, Indigenous Australians are not entitled to reserved seats, as are the Indigenous Maori in New Zealand, whereas Tasmania has the right to elect 12 senators. The issues posed by the particular federal model adopted for Senate representation is of course not unique to Australia: the situation in the United States is even more exaggerated than it is in Australia.

The appetite for, and therefore the feasibility, of any serious change to the composition of the Senate is minimal. There are many factors which contribute to this apathy for Indigenous representation. First, Indigenous Australians have been able to secure seats in both Houses without reserved seats – although the number is lower than their proportion of the population. Second, Labor is perceived to stand to gain more from such a reform than the Coalition due to the voting habits of Indigenous Australians. Arguably, however, the most important factor is the tendency of many liberal democracies to resist the arguments for reserved seats on arguments of equal opportunity and merit – the same kind of argument put to oppose quotas for women in politics. These arguments have been dealt with comprehensively in the academic literature but arguably hold strong resonance amongst the broader community.

The equal representation of the six states is laid out in the Constitution, meaning that any change would need to be passed by the public through a referendum. This adds to the difficulty at securing fundamental reform. In Australia both an absolute majority of electors and a majority in a majority of states is required for a referendum to pass. As a result only 8 out of 44, or just over 18%, of referendums in Australia have been supported by the electorate – indeed a referendum has not been carried since 1977.

Whilst it is unclear whether serious support could be found, this is not an unmovable obstacle. The first step to serious reform of the Senate would be for a government to give the issue genuine attention. While this does not seem to be on the Coalition’s agenda, Jacqui Lambie has previously voiced her support for reserved seats for Australia’s Indigenous people. It is as yet unclear whether she will pursue her calls for a Senate committee to further consider proposals in the new parliament, although as a Tasmanian Senator her support would be less forthcoming for a reform to the equal representation of the states.

It is time Australia had a proper debate about Senate composition – and in particular the opportunity for systemic reform to Australia’s Constitution could provide for addressing the under-representation of Australia’s Indigenous population. In Australia constitutional reform is notoriously difficult, but often those reforms which seem the hardest are the most important. The new reforms to the Senate, while a failure in the short term, may prove to have the desired effect of reducing the proportion of minor parties represented in the Senate – but echoing John Dryzek, surely we should be moving towards, not away from, a more representative Senate.

This post represents the views of the author and not those of Democratic Audit. A similar version was first published on the PSA Parliaments and Legislatures Specialist Group blog and Pop Politics Aus.