Unelected 'swill': how Australia's upper houses could be more democratic

A casual vacancy in the Victorian Legislative Council has now been filled. The replacement member for the Western Metropolitan Region in the upper house, union official Cesar Melhem, enters Victorian parliament following the resignation of Martin Pakula after Pakula’s election to the lower house in the recent Lyndhurst by-election.

Meanwhile in Canberra, the search to replace Western Australian ALP senator Chris Evans continues after the former cabinet minister officially resigned from the Senate last month.

The voters have no say in such decisions. There is not even a requirement for these appointments of people - who do not need to have any prior public profile or scrutiny - to be publicised. This isn’t best practice democracy, and it can be improved.

Current context

Most people believe that both federal and state parliaments since federation have been elected by the voters at general elections. However, since 1903 in the Senate - and more recently in state upper houses - there have been non-elected MPs, owing to the rules for filling casual vacancies.

There are now six unelected senators, and one casual vacancy waiting to be filled. Two of these, together with the yet-to-be-appointed replacement for Chris Evans, will serve until June 2017 before facing election. The most prominent is foreign minister Bob Carr, but also included is Dean Smith, appointed after Western Australian senator Judith Adams died in March 2012. Smith will be entitled to sit in the Senate for five years and two months before facing his first election.

Of the 76 present senators, 26 (more than one-third) were first appointed, rather than being elected. Of those, 19 have since faced election and been re-elected. The unelected component of the Senate varies, but in 1997 it had reached a record 20%.

As mentioned, most of the senators appointed in this way have gone on to be re-elected, but sometimes they are not. Consider Jacinta Collins, who was appointed to the Senate in 1995, then elected in 1998, defeated in 2004, then appointed again in 2005, and re-elected again in 2008.

Among those originally appointed in this way - and still serving - are communications minister Stephen Conroy, and former Labor and Liberal ministers such as John Faulkner, Kim Carr, Eric Abetz and George Brandis.

So why does this anomaly happen?

Some might ask why there is no by-election, as there would be to replace a House of Representatives or Legislative Assembly MP, each of whom represents a single member electorate.

Senators and all mainland Legislative Councillors are elected in multi-member districts by the quota-preferential form of proportional representation (PR). For example, in a Senate election six senators are elected from each state, the quota being one-seventh of the valid votes plus one: a quota that can only be reached six times in a single state.

Both in the Senate and the state upper houses, voters must vote for candidates in order of preference, having to mark virtually all preferences for the Senate, and at least five in Victoria’s Legislative Council.

The system of multi-member electoral districts with PR has three great advantages. Of all the contested ideas in the polity that is Australia, a wider range of those ideas is represented in the upper houses elected by PR; those ideas are represented in the parliament in close to the same proportion as they are held by the general public; and there are representatives of different ideas - or parties - in all the locations where those ideas have support.

For example, the 40 members of the Victorian Legislative Council represent eight regions. There are both Labor and Liberal MLCs in each of those eight, National MLCs in three of them, and Greens MLCs in another three. Now that the Legislative Council is elected by PR, those Liberal voters in Melbourne’s western and northern suburbs, or Labor voters in the remote rural areas and the inner east and south east of Melbourne, all have - for the first time in history - representatives from the party they support.

Casual vacancies and countback

The polite convention developed that any casual vacancy would be filled by appointing a candidate of the same party as the vacating senator. That convention was observed until the 1970s. The Whitlam ALP government antagonised the coalition when it attempted in 1974 to create a Senate casual vacancy for party political advantage that was dubbed the Gair Affair.

In February 1975, NSW Liberal premier Tom Lewis retaliated in kind, departing from the convention and appointing an independent, Cleaver Bunton, to fill the seat vacated by ALP senator Lionel Murphy. In September 1975, Queensland’s National Party premier Joh Bjelke-Petersen also ignored the convention as his advice led to another independent, Albert Field, being appointed to fill the seat vacated when ALP senator Bertie Milliner died.

The decrease in the number of ALP senators allowed the coalition precipitate the impasse that led to the Whitlam government’s dismissal and the subsequent election. The Fraser coalition government - who won that election - initiated a referendum to alter Section 15 of the constitution to require that persons appointed to fill Senate casual vacancies must be a member of the same political party as the vacating senator. This referendum was passed, and the new version of Section 15 is by far the longest section in the constitution now.

The filling of casual vacancies by more democratic means in houses elected by proportional representation presents a problem. Since the vacating MP is elected by a quota and not the whole voting population, a by-election of the whole state or region would distort the result by including the votes of those who voted for other successful candidates still in parliament.

This problem was solved 95 years ago for Tasmania’s House of Assembly by the elegant innovation of countback, in which, if a vacancy occurs, the ballot papers forming the quota of votes that elected the vacating member are recounted.

The main feature of countback is that the name of the person that fills the casual vacancy was on a ballot paper, and that person was the next choice of the people who elected the retiring MP. This will usually be a member of the same party, but if the voters’ preferences did not follow party lines, it may be another person.

Voters chose that path when Bob Brown was first elected to Tasmania’s House of Assembly in 1983 in a countback to replace Norm Sanders, former Australian Democrats MHA and Tasmanian Wilderness Society head, who had resigned.

Countback fulfils the democratic requirement that our representatives are actually elected by the people. It is also used to fill casual vacancies in the ACT Legislative Assembly, and most Victorian municipal councils. A related procedure applies for WA’s Legislative Council, but countback has not been adopted yet by either the federal parliament or the three other mainland state parliaments that use PR.

Instead of voter-controlled countback, the power to select replacements is effectively given to the relevant party organisations, but this process has serious weaknesses.

In the Senate’s case, the larger parties are national organisations, which usually delegate that power to the section of their party organisation in the particular state from which the vacating senator was elected, or appointed, but they are not bound to do that.

In contrast to countback, it will be the ALP National Executive - and not the voters that elected the vacating senator – that will decide who the next unelected senator will be, and WA’s parliament will merely rubber stamp that.

What does it say about Australian democracy when the parliamentarians who are meant to represent our interests are appointed by party elders rather than voted on by the people?

The authors would like to thank Geoffrey Goode, the president of the Proportional Representation Society of Australia (Victoria-Tasmania), for his valuable input in and contributions to this article.

Stephen Morey is the Secretary of the Proportional Representation Society of Australia (Victoria-Tasmania) branch.

Lee Naish is vice president of the Proportional Representation Society of Australia (Victoria-Tasmania) branch.