The ACT has two senators, representing the two major parties, which effectively means the territory has no influence on Senate voting outcomes because they cancel each other out. The six states each have 12 senators, a mix of major party, minor party, and independent senators. These independents are crucial in an evenly balanced Senate.
Statehood for the ACT is not an issue in this Saturday's territory poll, but if it were to ever occur the extra ACT senators may well include an independent or two. They could flex their muscles to the benefit of the territory, just as South Australian senator Stirling Griff of the Centre Alliance recently struck a deal with the Morrison government to bring 12,000 new funded university places to his state in return for the decisive vote on the flawed university reforms in the Job-Ready Graduates Bill.
The Senate was originally perceived as a "states' house", a counter to the "people's house", the House of Representatives, where the distribution of electorates between states is based on the size of each state's population.
The original deal struck was that the six founding states would have an equal number of senators to protect the interests of smaller states. The idea was that the senators of smaller states could come together to defeat legislation which favoured the larger states. This idea was never borne out because of party politics. The Senate arrangement was agreed to in the 1890s before the birth of the modern party system.
A watered-down view of the "states' house" idea was that equal numbers of senators from each state would change the internal dynamics of the two major party rooms in favour of smaller states. But there has never been much evidence of this phenomenon. The party whip prevails over state interests.
The introduction of proportional representation to elect the Senate changed some things, but did not directly make it more of a states' house. But it did make it, in part, a minor party and independents' house. It is in this indirect way that it has developed elements of a states' house. Independent senators, almost all found in the smaller states, can leverage their votes for state interests if they wish. Minor parties concentrated in one state, like Centre Alliance, (which was once the Nick Xenophon Team), effectively act as independents.
Recently the Senate has been evenly balanced, controlled neither by the government nor the opposition. There have been numerous occasions when independents from smaller states have cast a decisive vote. Often the margin on important government legislation has been just a single vote.
Negotiation with the crossbench has been the norm, and negotiation skills are prized. The departing government leader in the Senate, Mathias Cormann, was frequently praised as "the great negotiator", keeping ministers and prime ministers away from the crossbench in case they alienated senators.
Extensive briefings for the crossbench have become the usual practice. Governments and oppositions state their case on its merits. It would be a sad day if that was not the case. Politics in an ideal world should be about rational persuasion.
Sometimes the crossbench has been persuaded, while other times it has stood firm on principle. Sometimes the government has only got what it wants by way of a deal (effectively a bribe - call it what you will). The government always negotiates with more than one party or independent as it tries to build a majority of one.
This strategy puts great pressure on independents. They can stand on principle, but then find they are dealt out of the game. One of the great exponents of this practice, former senator Brian Harradine from Tasmania, experienced both outcomes. He was able to successfully influence government foreign aid policy against family planning in return for his vote, but then he conscientiously declined to support the Howard government's GST, despite the offer of $500 million for Tasmanian projects. The government then moved on to the Australian Democrats to get the bill passed.
One of the current Tasmanian senators, Jacqui Lambie, is another great exponent who has experienced wins and losses. In December last year she was the deciding vote, citing undisclosed security concerns, in enabling the Morrison government to repeal the medical evacuation (medevac) law which restricted the power of federal ministers over the medical repatriation of asylum seekers from overseas detention to Australia.
Last week she was the decisive vote against the government legislation to give it the draconian power to take away mobile phones from asylum seekers and refugees in detention.
When she rejected the government's pleas to back the university bill, she was made irrelevant when the government moved on to grab the last remaining Senate vote, that of Griff. The Centre Alliance senator, a long-standing ally of Nick Xenophon, is less well-known nationally than Lambie, but can play the same game.
The born-again states' house Senate has its dangers, and introduces an unpredictably random character to the passage of national legislation. Despite this, it is still better than party-dominated legislation; but it does reveal how much public policy is an undeniable mix of high-principled rationality and unscrupulous deal-making.
- John Warhurst is an Emeritus Professor of Political Science at the Australian National University.