'Feral Senate': How voters keep the government on its toes

Democracies never stop changing. Even among those whose parameters are — like ours — staked out by constitutions that are, almost comically, difficult to alter, change happens relentlessly between the cracks. 

Institutions and rules set up with one purpose in mind warp over generations into something else. Rapidly evolving communications technology allows citizens to talk to each other and amass power outside the legislated structures that spring first to mind when we are asked to consider the dull question "what is our democracy?"

Money, events, global forces, the expanding bureaucracy — they all squeeze and shape the decisions we make as a nation. And in Australia, there is another unmistakable and idiosyncratic trait: voters using their people power to put the brakes on any political grouping that looks to be getting too powerful.

The Senate is the longest-standing example of this national proclivity, which at some federal elections looks dangerously close to a deliberate prank.

The 'feral Senate'

Australia is the only democracy in the world to combine compulsory and preferential voting. It means — in the House of Representatives, where government is decided — not only that every voter is obliged to vote, but also to rank candidates in order of preference rather than simply choosing one.

And the Senate — which unlike the House of Representatives has had a proportional representation system since 1949 that elects multiple delegates from each state rather than just one — adds a further dimension, allowing minor parties a better chance of election.

The result? At the vast majority of federal elections over the last six decades, Australians have done something rather shrewd. Our usual approach is to elect one party to majority government using our votes for the House of Representatives. And then — reaching for the bedsheet-sized white Senate ballot paper — we then proceed to create a Senate crossbench that seems, some years, almost deliberately designed to make that government's life a living hell.

To say that the Upper House can prove frustrating to prime ministers would understate matters.

Paul Keating once described the Senate as "unrepresentative swill". Tony Abbott, vexed beyond measure in 2015 by the blocking of his budget cuts, complained to colleagues about the "feral Senate" with which he was obliged to contend.

In 2007, Kevin Rudd won government in a landslide result. But in the Senate, he scored a crossbench of five Greens, Family First senator Steve Fielding (famous for dressing up as a beer bottle) and No Pokies senator Nick Xenophon (whose own notable sartorial choices include wearing pyjamas into the Senate).

Rudd's promised emissions trading scheme was crushed when the Coalition and Greens teamed up to defeat it. Fifteen years on, he is phlegmatic on the question of the Senate, and the elaborate hand with which Australian voters like to compose it.

"The fundamental element in the Australian political zeitgeist, I think, and I'm speaking as a Queenslander … is an inherent distrust across the country to give those mugs too much power, whether it's me, or John Howard, or anybody else," he says.

Rudd characterises the national mindset like this: "Yes, we want to change the government. Yes, we want to sustain the government. But we would like to add a degree of complexity, difficulty — a reverse twist and pike for you to handle — in the pirouettes you must undertake in the Senate. And I think it does reflect a level of … crowd intuition, crowd knowledge, crowd behaviour, crowd instinct about how to maintain a check and balance in our system."

Only on two occasions has a party commanded control of both houses — once 50 years ago when Malcolm Fraser's government was elected after the dismissal of Gough Whitlam's by Governor-General John Kerr, and once in 2004 when the national rejection of Mark Latham's Labor Party was so comprehensive that it spilled upstairs.

It's notable that Fraser later became a pariah in his own party for his failure to wield this power more ruthlessly, while Howard — emboldened by the opportunity to reshape the industrial system in the way he'd always wanted — wrote and legislated the Work Choices legislation that turned out to be his political death warrant.

'Sometimes, it's frustrating'

Penny Wong has been Labor's Senate leader for 12 years, during which time she has been, as she says — with a degree of diplomacy befitting a senator who is also foreign minister and thus the nation's senior diplomat — "on both sides of the Senate chamber".

"I've been in opposition trying to prevent a government doing things, and I've been on the government side of the chamber trying to deliver a government's program," she says.

"Sometimes, it's frustrating. Sometimes you want the senators to vote differently. I remember in opposition pleading with a couple of senators not to pass the stage three of the tax package because I said, 'It's unfair'. And they said, 'Oh no, we're going to do it and you can repeal it in government'. And I said, 'Well, you know, that's a tough ask'."

But Wong also is a defender of the system.

"I do believe ... it's one of the strengths of our system that power can't be concentrated in one place. That is, you know, we have a separation of powers. I think of the bicameral system and the different voting systems in the same way; that it prevents one part of government or of the state, having too much power. [The system is] really uniquely Australian, and it's one we should be very proud of."

The funny thing is, though, that the Senate today is nothing like what it was originally designed to be.

The dreamers and visionaries who advocated for federation in the late 1800s had an entirely different notion of what the Upper House would be. Their sepia-tinted photographs are incapable — a century and a quarter later — of expressive response to what their creation has become.

A Senate far from its origins

The concept of the Senate was a watershed moment in the campaign for the six Australian colonies to come together as a nation. With the leaders of the smaller colonies understandably cagey about handing over their power to the more populous and prosperous colonies led by Sydney and Melbourne, the challenge was to find a model that would ease their fears.

The British House of Commons seemed an obvious fit, with its single-member constituencies and prime ministerial model, but the wig-infested, hereditary House of Lords was an absurdly inappropriate import. So the Upper House in our federation model was instead borrowed from the United States, where each state sent an equal number of senators to Washington regardless of population. 

This was the chance for the smaller states to hold their own, and check the power of New South Wales and Victoria. Thus was born, at Federation, the bicameral model known as "Washminster": Half Westminster, half Washington, with a largely decorative governor-general perched on top like an elaborate vice-regal cherry.

(Fifty years ago, of course, we learned from Sir John Kerr that governors-general aren't always just decorative. And to be fair, even our first governor-general — Lord Hopetoun — was rather a hot mess. Appointed by Queen Victoria to preside over Federation on January 1, 1901, Hopetoun fell off the boat in mid-December half-addled with typhoid, and promptly named the wrong man as prime minister, occasioning a full-scale constitutional crisis in the Commonwealth of Australia before it had even drawn its first breath. Quite an achievement.)

But the Senate, in practice, has never worked as a chamber where the states do battle with each other. When did you last see a vote in the Senate that broke along state lines?

"I think the idea of a Senate and a body that was able to represent states' rights and states' interests was a good idea at the time," says constitutional expert Megan Davis, currently visiting professor at Harvard Law School.

"But that's not how it's panned out … the reality is that professional political parties have taken over our parliamentary system."

The question of party solidarity

Australia's federal political parties aren't mentioned in the Constitution. There's an incredibly good reason: they weren't invented at the time the document was written.

But the formation of the Australian Labor Party soon after the constitutional ink had dried set the tone for what would ultimately become — for much of our history — a two-party system.

And not just any two-party system. Australian politics is unusual for the discipline of its party system. Vote against the party if you're a Labor MP, and you're inviting formal expulsion.

The Liberal Party — formed in 1944 out of a broad collection of anti-Labor groups — does not formally bind its parliamentarians in the same way.

But the peculiar Australian maxim that "disunity is death" is regularly employed across the political spectrum. And "crossing the floor" is an act unusual enough to have its own verb. ("In other countries," quips Greens Senator Sarah Hanson Young, the longest-serving senator in her party's history, "they just call it 'Voting'.")

"That's a good question. Why is party solidarity regarded as so important?" reflects former Liberal PM Tony Abbott.

"Partly because it is important on the Liberal National side. We've always respected the right of people to cross the floor on issues where they feel extremely strongly; it hasn't been an automatic expulsion offence as it has been for Labor people. But still, you don't want people to exercise their freedom of conscience — if you like — lightly. Because in the end, if you are elected as a Liberal or a National, you are expected to adhere to the decisions of the Liberal and National leadership of the Coalition party room. If you want your colleagues to support you on your issues, you've got to be prepared to support them on their issues."

A remarkable shift

For most of our Federation's history, the two-party system has been an efficient organiser of the population.

Either you were a Labor voter (working class) or you were Liberal (enterprise and small-business class). The vast majority of federal electorates were either rusted-on Labor seats, or rusted-on Coalition ones. Though we've had preferential voting since 1918, the count in most seats didn't ever get to preferences, because the Labor or Coalition candidate received more than 50 per cent of the primary vote.

Fifty years ago, for instance, at the 1975 election, only 24 out of the nation's 127 seats went to preferences.

But this year's election was different.

The House of Representatives now has 150 seats. And on election night this year, 139 of them went to preferences — a record. The Australian Electoral Commission was obliged to count second, third and even fourth preferences to determine a result.

While the headline news was clear and immediate — a landslide victory to Labor, significantly due to Greens voters putting Labor above the Coalition on their ballots — the underlying trend is transfixing.

If voting in Australia were an Olympics event, the usual situation is that in the race to secure voters' first preferences, Labor wins gold and the Coalition silver, or vice versa.

This time, the podium was rearranged. Labor won gold, but the Coalition was relegated to bronze. Winning silver, for the first time in Australian history, was "None Of The Above". A third of Australian voters gave their first preference to an independent or a minor party. It's a proportion that's grown at every election this century.

The Bob Hawke factor

George Megalogenis, who analysed this pattern in his recent Quarterly Essay, Minority Report, credits former prime minister Bob Hawke with educating Australian voters on how to use the preferential voting system strategically.

Approaching the 1990 election, he says, Hawke was under pressure; his government was tiring, a recession loomed and a strong protest movement was forming around environmental issues.

"The device that they came up with — Hawke and the party machine — was to acknowledge that people were tiring of this government. To give them permission to register a protest vote against the government. In a sense, it's a form of contrition: 'Look, I know we've been around for a while, I know we haven't been able to solve all the problems we said we would solve, but whatever you do, don't put that Andrew Peacock ahead of me'. 

"Now it worked, it worked. But I think it began the long decline in the two-party system. So that 1990 election you have fewer than 20 per cent of the Australian people voting for a party other than Labor or the coalition. The Democrats get a really, really big, primary vote, they don't get a seat in the lower house, but most of their preferences are flowing back to Labor. Now the Labor people look at that equation and go, 'Gee weren't we brilliant.' But years down the track, the parliament is hung."

Today, crossbenchers — once a rarity in the House of Representatives — number 13.

Essentially, the Australian people are starting to do to the House of Representatives what they have long done in the Senate.

"I think that what we're seeing now with, all of a sudden, all these independents, a big crossbench — it's a bit of a shock to the major parties," says Judith Brett, historian and author of From Secret Ballot To Democracy Sausage; How Australia Got Compulsory Voting.

"It's like there's been a return to parliament being the place where the debates happen. Whereas for example in the Labor Party where there were debates over policy, they happened in the party conference [and] once the decision was made, when you got into parliament you voted as a block. Whereas now the parliament is not in these two competing blocks. We've got a crossbench and a lot more opinions and points of view and ideas will be visible to the public. And I think that's a good thing."

"It would not at all surprise me if we end up relatively soon in an environment of just perpetual minority governments," says Waleed Aly, writer and politics lecturer at Monash University.

"You can say that's good or bad. It's not really the point I'm making. It's just that could well happen. The Europeanisation of Australian politics, let's say, is not necessarily very far away."

A fear of minority government

Fear of minority government is axiomatic in Australia.

In Denmark, where a single party has not held power in its own right for more than a century, sentiment tends to run the opposite way.

Soren Gade, the Speaker of the Danish Parliament, presides over a chamber where a dozen parties are represented. Elections in Denmark are customarily followed by lengthy negotiations between parties to form alliances in order to govern.

Remarkably, the current governing alliance is between the major centre-right party and the major centre-left party.

In Australian terms, it is as if Labor and Liberal were governing together.

"We normally fight each other," Gade laughs. "We don't like each other. But now we do like each other. We fell in love suddenly."

Gade is horrified when shown a sample clip of Australia's rowdy Question Time. And he says that Danes prefer minority governments.

"Danes are maybe a little nervous about majority governments because they are, you know, maybe too lazy. They have the majority. They don't listen to all the voices. They just get it their way."

Gade adds that because legislation needs to be negotiated and agreed across multiple parties, it is less likely to be dismantled by a subsequent government.

The end of the two-party duopoly

In Australia, the Albanese government's colossal majority means that discussion of the potential for minority government in future has receded for now.

But there is no doubt that Australians are quietly using the preferential voting system to dismantle — election by election — the two-party duopoly that has existed for much of our Federation's history.

It's ironic, because when preferential voting was introduced in 1918, it was a cunning move by prime minister Billy Hughes, who had sensationally converted in office from being a Labor prime minister to a conservative one. He introduced preferential voting in order to save his own hide and keep the conservative vote from splitting due to angry farmers who were running candidates against his Nationalist Party.

In a sense, he introduced preferential voting to maintain the Labor and anti-Labor duopoly.

But a century later, the very same system spelled the end for another conservative prime minister, Scott Morrison, whose government was defeated in 2022 thanks to a swarm of "teal" independents invading what had historically been safe Liberal seats.

It's a demonstration of the Australia people's quiet determination to derail the machinations of our leaders, and a reminder that structures and rules can themselves be subverted over time.

"You can write rules down in a constitution, you can have unwritten norms or conventions, you can have all the kinds of ideas that smart lawyers put in place to try and restrain and contain power," says Megan Davis.

"But you have seen in the past couple of decades Aussies exercising a particular agency to say, 'You know what? We hear what the media are saying, we hear what the people are saying, we are going to exercise our vote in the upper house to keep a check on your unlimited power in the lower house', and so on.

"I think it is behavioural. I think this is the kind of thing that happens in political and legal systems that often you can't foresee. And I think, like a lot of liberal democracies, we are fortunate in Australia that, at the end of the day, our voters are pretty wise to these things."

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