"Entrenching" Proportional Representation in the Constitution

by John Pyke, Queensland candidate for the Constitutional Convention

I suggest here that elections, not only of Senators but also of Members of the House of Representatives, should be by proportional representation (PR). For the Senate, each State would be, as it is at the moment, a single electorate. For the House of Representatives, I suggest five-member electoral districts. (This would mean that State boundaries would have to be ignored - in case that generates opposition for the proposal I suggest a method of dividing States into three-, five-, and seven-member districts as a second-best alternative below.)

Proportional representation is not suggested so that all sorts of minority parties or fringe groups can get represented in Parliament, and hold the balance of power. With only five members to be elected per district (a quota of 16.66% of the vote), there should be three main effects of using PR:

Most people (those who vote for either major party) can feel that they are actually "represented" by one or more of the members for their electorate. At present a Labor voter in a Liberal district, or a Liberal in a Labor district, can easily feel that s/he has no real representative. Under PR with 5 members, most districts will be represented by 2 members from one side of politics and 3 from the other - and in mixed urban/rural districts, there will probably be members from both Liberal and "National" (Country) Parties.
More women should be elected to Parliament, without the need for special women's seats. Any party that is expecting to have two or more members elected in a district will be foolish to run an all-male team; under modern conditions you would expect where two or three members are elected for a party that at least one of them would be female and at least one male.
Most elections will give a majority of seats to Labor or to the Liberals and "Nationals", but outsized majorities with almost no opposition members should no longer occur. With single-member electorates, there is a "majority-tripling" effect - a party or group with 55% of the vote tends to get about 65% of the seats and a 60% vote gets 80% of the seats. With PR, there is a much closer proportionality between the percentage of the vote and the percentage of seats obtained (by the major parties or groups anyway; of course a party that gets 5% of the vote, evenly spread across all districts, still gets no representation).

PR is sometimes opposed because it would mean that electoral districts in country areas would be even larger than they are now - for example, most of western Queensland would be one huge electorate. But it must not be forgotten that this electorate would be represented by just as many members as the same area does now. If a party was silly enough to nominate 5 candidates all from, say, Roma, that would be a good reason for many voters not to vote for that party. The electorate would probably end up with one Labor member from Mount Isa and maybe one from Charleville, and "National" Party members from, perhaps, the Toowoomba-Roma-Dalby area, Longreach and Richmond - not wildly different from what happens now. But each of them would be a member for the whole area - so a Labor voter in Longreach might feel happier to contact the members based on Mt Isa or Charleville than the more "local" one in Longreach, and a "National" voter in Mt Isa could choose between the "local" member or more congenial souls, not too far away, in Richmond or Longreach.

[And if, under my proposed section 48, the members wanted to argue that voters' phone calls to their offices and their plane travel round the electorate should be subsidised, I'd intervene to support them. Without PR this kind of assistance could give unfair help to the member for a single-member district when campaigning for re-election - but with PR this unfairness largely disappears.]

Possible Amendments to the Constitution

For the Senate [Chapter I, Part II]

6A. Eligible Territory.
In this Part "eligible Territory" means any territory referred to in section 122 in respect of which there is in force a law allowing its representation in the Senate.
[Some express reference to territories is necessary to make it clear that PR is to apply in both States and Territories. On principle, and to be consistent with my suggested sec 41 (see Guarantees of Voting Rights), it probably should be stronger, guaranteeing representation in both Houses for well-populated Territories and making provision for small Territories to be "lumped in" with a State or another Territory - but that is a separate issue from PR.]

7. The Senate.
The Senate shall be composed of senators for each State and eligible Territory, directly chosen by the people of the State, voting as one electorate.
[Amended by deleting "until the Parliament otherwise provides".]

[Delete 2nd paragraph and first sentence of third paragraph. Remainder of sec 7 to stand.]

[Delete sec 8, assuming the new sec 41, as suggested in Guarantees of Voting Rights, is adopted.]

9. Method of election of senators.
The senators for each State or eligible Territory shall be chosen by some form of the system of proportional representation known alternatively as Quota Preferential or the Single Transferable Vote, with optional expression of preferences. The Parliament of the Commonwealth may make laws, consistent with the principles stated in the previous sentence, for the counting of votes and declaration of successful candidates.
[Second paragraph (States can make laws for the time and place of Senate elections) is fairly pointless these days and could be logically deleted. But if the States still care about it, it would do no harm to leave it in.]

15. "Countback" for casual vacancies.
If the place of a senator becomes vacant before the expiration of his or her term of service, the votes from the election at which he or she was elected shall be recounted, and the place shall be filled by the next of the unsuccessful candidates who are still prepared to serve as a senator who would have been elected if the senator whose place has become vacant had not been a candidate. If no person can be selected by that method, the procedures in Schedule 3 shall apply.

Schedule 3

[These provisions could simply follow on within sec 15, but it would make for a more readable Constitution if the simple and usual method is in the body of the Constitution, and the more complex fall-back provisions are "parked" at the end, only to be read when necessary. The provisions below are a mixture of the pre- and post-1977 versions of sec 15 (original version in ordinary font, 1977 additions in italics, suggested new words in bold), designed to minimise the time that a State is represented by a non-elected senator and yet to preserve the restrictions on "choice" by a State Parliament that were inserted in 1977.]

Upon the President of the Senate or President notifying the Governor of the relevant State, or Administrator or Chief Minister of an eligible Territory, that the place of a senator has become vacant and that the vacancy cannot be filled by "countback", the Houses of Parliament of the State or Territory for which the former senator was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term, or until the election of a successor as provided below, whichever first happens. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, or Administrator or Chief Minister of the Territory, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or Territory, or until the election of a successor, or the expiration of the term, whichever first happens.

Where a vacancy is filled by either of the methods in the last preceding paragraph, and, at the time when the former senator was so chosen, he or she was publicly recognised by a particular political party as being an endorsed candidate of that party and publicly represented himself or herself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party.

Where--
(a)in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and
(b)before taking his or her seat he or she ceases to be a member of that party (otherwise than by reason of the party having ceased to exist),
he or she shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution.

At the next election of senators for the State a successor shall, if the term has not then expired, be chosen to hold the place from the date of his or her election until the expiration of the term.

The name of any senator chosen or appointed under the procedures in this Schedule shall be certified by the Governor of the State to the President.

21. Vacancy to be notified.
Whenever a vacancy happens in the Senate and it is found that it cannot be filled by the "countback" procedure in section 15, the President of the Senate or, if there no President of the Senate or if the President of the Senate is absent from the Commonwealth, the President of the Commonwealth shall notify the same to the Governor of the State in the representation of which the vacancy has happened.
[Amended so as to apply only when the "countback" procedure does not fill the vacancy.]

House of Representatives [Chapter I, Part III]

I have prepared two alternative sets of provisions here, as to the determination of electoral districts. The same revised version of section 31 follows in either case.

First Alternative, Disregarding State Boundaries

In this first set I have ignored the present stipulation that an electoral district shall not be formed out of parts of different States. The Senate is the "States' House"; the only way to implement the equal number of senators per (original) State is to have each State as a separate electorate. But the members of the House of Representatives represent us as "the people of the Commonwealth" (as section 24 says) - it seems to me that there is no reason why Albury and Wodonga cannot be in the one electorate - or Coolangatta and Tweed Heads, or even Darwin and Wyndham. In the first set of amendments below, I prescribe that Tasmania will be one electorate for two reasons:

it is, obviously, geographically separate, and
this would preserve the effect of the present requirement that each original State must have at least 5 members, which currently (and for the foreseeable future) has a real effect only on the representation of Tasmania,

but the mainland and any other islands which are represented in the House would be divided into 28 electorates without paying attention to State boundaries.

24. Constitution of House of Representatives.
[First paragraph to remain as it is; then:-]

The number of members chosen in Tasmania shall be, as nearly as practicable, the number that is twice the number of the senators multiplied by the ratio of the number of the people of Tasmania to the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, but it shall not be less than five.

The number of members chosen in the rest of the Commonwealth shall be a multiple of five such that the total number of members is an odd number that is, as nearly as practicable, twice the number of the senators.
[While the number of senators remains as it is, this would mean that the number of members for the rest of the Commonwealth would be 140, giving a total of 145. The rest of the Commonwealth would be divided into 28 districts, according to section 29, immediately below.]

29. Electoral divisions
(1) Tasmania shall be one division.
[I could include a provision here for division of Tasmania into electorates if it is ever entitled to more than five members, but that's hardly likely to happen in the next century.]

(2) The rest of the Commonwealth shall be divided into divisions, each to return five members, according to the following principles:

(a) Each division shall be a contiguous area, and shall not be unnecessarily extended in any one direction compared with its extent in other directions;
(b) the numbers formed in respect of each division by dividing the numbers of voters expected to be on the rolls at the next election by the number of members to be elected shall all be within five percent of the average of such numbers;
(c) on the basis of previous voting figures and reasonable predictions about changes in voting patterns, it shall seem probable that if any party, or group of parties likely to form a coalition, obtains more than one half of the effective preferences of the voters of the Commonwealth, then one half or more than one half of the members elected for the Commonwealth will be from that party or those parties.
[The majority government or "pendulum awareness" principle.]

(3) The Commonwealth, other than Tasmania, shall be redistributed into electoral divisions whenever the number of divisions in which the number of enrolled electors differs from the average of such numbers by more than five per cent is more than one third of the number of divisions, and seems likely to remain so.

(4) The Parliament of the Commonwealth may make laws, consistent with the principles stated in this section, for the division of the Commonwealth, other than Tasmania, into electoral divisions. Such laws may include provision for redistributions in addition to those provided for by sub-section (3).

Second Alternative, Respecting State Boundaries

This alternative is included in case State politicians oppose the above proposal, and manage to get some support - though I can think of no good reason why they should do either. If districts have to be fitted within States, we would of course retain the present requirement (section 24, second paragraph) that the number of members chosen in the States must be in proportion to the respective numbers of their people, so States will be entitled to numbers of members that are generally not multiples of five. However, all numbers above five can be made by adding up some number of threes, fives and sevens - so the alternative below is suggested. [Districts represented by an even number of members should be avoided because a party that gets a majority of the vote in such a district does not get a majority of members for the district, unless the majority of the vote is huge.]

23A. Eligible Territory.
In this Part "eligible Territory" means any territory referred to in section 122 in respect of which there is in force a law allowing its representation in the House of Representatives.
[See the comment above re the similar provision for the Senate.]

29. Electoral divisions (of the House of Representatives)
(1) A State or eligible Territory that is entitled to five or less members in the House of Representatives shall be one electorate.

(2) A State (or eligible Territory) that is entitled to more than five members in the House of Representatives shall be divided into electoral divisions each of which is to return three, five or seven members, on the following principles:

(a) each division shall be a contiguous area, and shall not be unnecessarily extended in any one direction compared with its extent in other directions;

(b) the numbers formed in respect of each division by dividing the numbers of voters expected to be on the rolls at the next election by the number of members to be elected shall all be within five percent of the average of such numbers;

(c) on the basis of previous voting figures and reasonable predictions about changes in voting patterns, it shall seem probable that if any party, or group of parties likely to form a coalition, obtains more than one half of the effective preferences of the voters of a State (or Territory), then one half or more than one half of the members elected for the State (or Territory) will be from that party or those parties.
[The majority government or "pendulum awareness" principle.]
(d) A division shall not be formed out of parts of different States.

(3) A State (or Territory) shall be redistributed into electoral divisions whenever the number of members of the House of Representatives to which it is entitled under section 24 has changed, or when the number of divisions in which the number of enrolled electors differs from the average of such numbers by more than five per cent is more than one third of the number of divisions in the State (or Territory), and seems likely to remain so.

(4) The Parliament of the Commonwealth may make laws, consistent with the principles stated in this section, for the division of a State (or eligible Territory) into electoral divisions. Such laws may include provision for redistributions in addition to those provided for by sub-section (3).

(5) In the absence of a valid division, the State (or Territory) shall be one electorate.
[References to Territories in sub-sections other than (1) are in brackets because it seems unlikely that any Territory should remain simply a Territory if it is entitled to more than five members.]

Section to Follow in Either Case

31. Method of election of members of the House of Representatives.
The members for each electoral district shall be chosen by some form of the system of proportional representation known alternatively as Quota Preferential or the Single Transferable Vote, with optional expression of preferences. The Parliament of the Commonwealth may make laws, consistent with the principles stated in the previous sentence, for the counting of votes and declaration of successful candidates.

[Electing MHRs by P.R. would then raise the issue whether sec 33 should be amended to provide for the filling of casual vacancies in the House of Reps by "count-back", as in the Tasmanian Legislative Assembly. I can see arguments both ways. Count-back means that a governing party is hardly ever likely to lose office because of by-elections, no matter how unpopular it has become. But where a minority party has won one seat out of three, five or seven, and the one member has died, a by-election for just one member is going to sabotage PR - the minority representative will almost certainly be replaced by one more member of the most popular party.]

Back to: Constitutional Alterations for a Real Republic

Last amended by John Pyke, 20 November 1997