I INTRODUCTION

Section 24 of the Constitution creates a link or ‘nexus’ between the size of the House of Representatives and the size of the Senate; however, this clause has faced criticism as it means that the population/representative ratio is higher than it otherwise would be. It is posited that while the inclusion of the nexus was beneficial at Federation, it has become problematic in the present day due to the changing roles of government. This essay will firstly examine the reasons for including the nexus, then explain how the changing role of the Senate and a shift in the federal balance has reduced the benefits of the clause. It will then explain why removing the nexus would be problematic, through examining the 1967 referendum on that issue. Finally, it is premised that alternative, non-Parliamentary forms of political participation should be considered to mitigate issues of representation without disturbing the Constitution.

II NEXUS IN HISTORY

The inclusion of the nexus into the Constitution was not without debate.[1] From these debates, the rationale for including the nexus can be seen. Though the provision reads that the House of Representatives shall have 'as nearly as practicable, twice the number of Senators',[2] the debates make clear that the focus was on limiting the lower house.

The idea of a nexus came fairly late into the Constitutional Conventions, with delegate Richard O’Connor of New South Wales introducing the idea in 1897.[3] Given the estimated speed of population growth (later found to be grossly inaccurate), combined with the fact that each state was to be allocated only six Senate seats, the House of Representatives had the potential to quite quickly become disproportionately large.[4] This could undermine the power of the Senate, particularly if the joint sitting provision of the Constitution (s 57) were to be invoked.[5] The disproportionate House of Representatives would overwhelm the Senate, making it subordinate to the House of Representatives as the House of Lords is subordinate to the House of Commons in the United Kingdom. In Australia, the Senate was deliberately designed to have near-equal powers with the lower house.[6] In his argument, O’Connor also pointed out that maintaining a large parliament would be expensive.[7]

As the number of electorates would not be able to increase, the size of the electorates would increase instead, meaning that the population/representative ratio would become more filtered. This issue is topical in the present day, particularly with regard to rural electorates, but was not such a difficulty to the contemporary mindset, due to a different view of federalism. Australia was originally designed to be a coordinate federation, with the states having a high degree of autonomy, as is seen in the United States.[8] The states were to in many situations have jurisdiction that was separate, not subordinate, to the Commonwealth; it is for this reason that the Constitution expressly limits the powers of the Commonwealth rather than the states. O’Connor argued that under such a system, the size of electorates would not be such a large issue as the federal government held 'limited responsibilities', most of which were not 'locality-specific.'[9] O’Connor believed that if the Commonwealth were to expand over time, the Senate would be able to keep pace with the House of Representatives.[10]

Given the assumptions regarding population growth, and the intended role of federal government, the nexus clause was a clever solution to prevent the situation of an unwieldy House of Representatives.

III TRANSLATION ERRORS

While the inclusion of the nexus was being debated, Alfred Deakin argued that the nexus could be useful initially, but would eventually become too inflexible.[11] While the nexus was conducive to stable governance at the time of Federation, it has not translated so well to the present day due to the changing roles of government, both in the Senate’s function and the nature of the relationship between the Commonwealth and the states.

A Relationship Between the States and Commonwealth

The power balance between the states and the Commonwealth has shifted over time, meaning that the states have become significantly more subordinate to the federal government.[12] The powers of the Commonwealth are less limited and more locality-specific than was originally foreseen. Thus, there are now more situations where citizens rely on their federal, rather than state representatives; and therefore, the need for good federal representation is more pronounced. Due to population distribution, the needs of different communities within the same electorate can be quite disparate. In metropolitan areas, the geographical size of electorates is quite contained; yet this is not so for less densely populated areas. For example, the Northern Territory only has two electorates.[13] It is not unreasonable to believe that people living in different parts of the Territory could have differing interests, some of which could not be concurrently expressed by one representative. Tasmania would not sustain its five seats but for the Constitutional requirement.[14] While the increasing population/representative ratio and competing interests within electorates would have been a lesser problem in a coordinate federation, the balance has changed and the stakes are higher.

B Changed Function of the Senate

Historically, the interests of smaller states were intended to be championed in the Senate.[15] However, the role of 'states’ house' never really eventuated,[16] particularly after the two-party system became entrenched. Senators represent and are elected based on partisan rather than state interests - thus, any mechanism designed to mitigate the effect of the predominance of more populous states in the House of Representatives is failing. Our current nexus system is not working - not for flaws in the original design, but because of how the system has since evolved. While the inclusion of the nexus in the Constitution was good for the time, perhaps it would have been wise to establish a time limit for the clause, as was done for Section 87.

IV THE NEXUS WILL REMAIN

It would seem that the simplest way to fix this situation would be to break the nexus and increase the House of Representatives. Though this is theoretically a good solution, in reality it is not viable. Beneficial or not, the nexus provision is entrenched in the Constitution. Removing it was unsuccessfully attempted in 1967. As a rule, Australians are adverse to Constitutional change; only 8 of 44 referendums have been successful.[17] The reasons given against the removal of the nexus in 1967 would likely still be given today.

The 'No' vote seems to have been successful due to the fact that its campaign was argued largely on emotional grounds.[18] The dissenters in Parliament who organised the campaign had legitimate concerns regarding the efficacy of increasing the House of Representatives and were worried that the Constitutional position of the Senate might be weakened.[19] However, they understood that arguing on emotional rather than political terms would better resonate with the Australian people. The official pamphlet for the ‘No’ case read:

+ If you want more politicians, vote ‘Yes’.

+ If you do not want more politicians, vote ‘No’.

+ Australia is already over-governed. What we need is not more, but better politicians.

+ The proposed additional 24 members of the House of Representatives would cost an additional (pound symbol) 200,000 per year at least.

+ A ‘Yes’ vote is a vote against the interests of small States and country districts.[20]

The 'Yes' campaign recognised that selling the proposal to the public would be a challenge. Though the proposal enjoyed the support of the majority of Parliament, it took 10 hours and 10 minutes of debate to be passed in the Senate; as a contrast, the famed referendum regarding Aboriginal recognition, run at the same time, was discussed for only 38 minutes.[21] The two proposals were actually linked together in the hope that the overwhelming 'Yes' sentiment for the Aboriginal question would carry over into the nexus question.[22]

Australia firmly voted 'No' on the nexus issue, with only New South Wales achieving a majority at 51.01%.[23] The 'Yes' campaign had been argued politically and supported by most of Parliament, and this support was part of what prompted such a decided negative response. Though these attitudes were recorded more than 50 years ago, they still hold true. Australians are disillusioned with their Parliament and their politicians.[24] The nexus, though imperfect, still holds its benefits; it limits both the number of politicians and the cost of maintaining them, which is attractive to many.[25]

Given the documented reluctance of Australians to allow any changes to the Constitution, let alone one that will increase the size and reach of government, it is almost certain that another referendum to remove the nexus would have the same result as the 1967 attempt. Attempting to remove the nexus is a fruitless exercise; resources would be better used in seeking alternative means of representation which could come alongside the current system rather than undoing it.

A Increasing the Senate is Not a Viable Option

Before alternative means of representation are considered, it should be stated that although issues of representation in the House of Representatives could be mitigated by proportionately increasing Senate seats, such a course of action is not desirable. As there is no need to increase the Senate, doing so would unnecessarily increase the size of Parliament, and therefore the cost of maintaining government. (Interestingly, Prime Minister Harold Holt pointed out this fact as a reason to support breaking the nexus, but his argument was largely ignored by the Australian public). Furthermore, unnecessarily increasing the Senate would be not a benign mistake, but a distinct disadvantage. There are already concerns around the low quota of votes a candidate needs to gain a Senate seat, especially after Ricky Muir of the Australian Motoring Enthusiast Party was elected with only 0.51% of the primary vote in 2013.[26] These concerns were addressed in the 2016 Senate electoral reform. While much of the concern was about transparency in preference dealing, having a low quota was what allowed the deals to have such a large effect on who was elected.[27] Increasing the Senate would further 'water-down' the quota, potentially undermining the effects of the 2016 reform. Hence, increasing the Senate is not truly an option.

V ALTERNATIVE MEANS OF REPRESENTATION

Since the Constitutional situation is unlikely to change, it makes sense to create a system that comes alongside Parliament’s current mechanisms; a supplement to increase representation, via an informal (non-Parliamentary) avenue.

Australia is moving away from traditional and formal modes of communication.[28] The government could use this to its advantage. Doing so would both improve representation and make the government seem more accessible, and therefore probably more appealing, to the public. However, changes must be navigated with caution; attempts to informally add to political mechanisms can be ill-received. The 2017 postal survey regarding amendments to the Marriage Act 1961 received backlash. However, this was largely because the survey was seen as a way of getting around the mechanisms of Parliament which already existed.[29] It should be ensured that the focus is not on circumnavigating what is already in place, but on enriching it. What follows is a brief exploration of two avenues through which representation could be informally increased.

A Internet and Social Media

The internet has made the world smaller and more well-connected than could ever have been foreseen at Federation. With the advent of social media has come a new and preferred means of communication; particularly among young people, party membership is down, but online activism is increasing.[30] Increasingly, Australians are getting their political information not from Parliament or traditional media, but from political blogs and opinion pieces. Though traditional political participation has decreased, people are still engaging with the political sphere.

If individual electorates were to have their own social media platforms, where citizens could discuss different issues within their communities, it would enable them to participate more fully in the political process. There could also be a forum not just for individual electorates, but also operating at a federal level. One of the challenges with politics and social media is that while people often give their opinions, they are not received. It can also be difficult to separate earnest discussion from misinformation. If the internet forums and social media were to have official links to the Parliament, it would ensure that the discussions were actually considered in Parliament.

B Forum Participation

While we should make use of the internet and social media, we should not place sole reliance on it. Many people do not maintain a social media presence, and/or have limited internet access. Official forums could be created within electorates, so that people could be selected or volunteer to represent the interests of different communities within the electorate. This would be particularly useful in electorates which cover a large geographical area; not only because it would provide a place for the different needs within the electorate to discuss, but also because it could help a large area obtain a greater sense of community.

VI CONCLUSION

Though the nexus is not entirely beneficial, it will remain. While it was well-considered and beneficial when created, altered roles of government have changed the effect that the nexus has on the Australian population. However, the negative effects of these changes can be mitigated if we look for alternative, non-Parliamentary means of increasing representation.

BIBLIOGRAPHY

A Articles/Books/Reports

Chavura, Stephen A, and George Melleuish, 'Conservative Instinct in Australian Political Thought: The Federation Debates, 1890 – 1898' (2015) 50(3) Australian Journal of Political Science 513

Fawcett, Paul, and Jack Corbett, 'Politicians, Professionalization and Anti-Politics: Why We Want Leaders Who Act Like Professionals But Are Paid Like Amateurs' (2018) 51(4) Policy Sciences 412

Gorman, Zachary, and George Melleuish, 'The Nexus Clause: A Peculiarly Australian Obstacle' (2018) 5 Cogent Arts & Humanities 1

McAllister, Ian, and Feodor Snagovsky, 'Explaining Voting in the 2017 Australian Same-sex Marriage Plebiscite' (2018) 53(4) Australian Journal of Political Science 409

McAllister, Ian, 'Internet Use, Political Knowledge and Youth Electoral Participation in Australia' (2016) 19 Journal of Youth Studies 1220

Roeger, Shauna, '2016 Senate Electoral Reforms in the High Court and Beyond' (2017) 38 Adelaide Law Review 243

Selway, Bradley, and John M Williams, 'The High Court and Australian Federalism' (2005) 35 Publius 467

Strangman, Denis, 'The Defeated 1967 Nexus Referendum' (2017) 68 (December) Papers on Parliament 69

Uhr, John, 'Explicating the Australian Senate' (2002) 8(3) Journal of Legislative Studies 3

B Other

Australian Broadcasting Corporation, Senate Results: Victoria Australia Votes <https://www.abc.net.au/news/federal-election-2013/results/senate/vic>.

Current Federal Electoral Divisions (11 July 2018) Australian Electoral Commission <https://www.aec.gov.au/profiles/>

Parliamentary Education Office, The Australian Constitution: Successful Referendums Get Parliament <https://getparliament.peo.gov.au/the-australian-constitution/successful-referendums>.

Referendum Results Parliament of Australia <https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id....