An upper house by sortition

One of the checks and balances in Australias system of national government is our bicameral legislature. Before a new law can be enacted it must pass through two separate houses of parliament. Laws are introduced in the lower house (the house of represenatives) but must also be accepted by the upper house (the senate).

The upper house was at the time of federation intented to safe guard the interests of the states. It has essentially failed in this regard. Many have criticised it for impeding the will of executive government, which may mean that it has perhaps at times safeguarded the interest of the people. In terms of representing the people of Australia it has likewise been criticised as unrepresentative. Most famously Paul Keating called it an “unrepresentative swill” but probably more because it impeded his personal agenda.

Our upper house is modelled on the British House of Lords. However the British House of Lords has certainly never being a particularily popularist body because members were appointed by herditary title and serve for life rather than by any system or election. This tenure allowed its members to obstruct governments without too much regard to popular sentiment. Arguably this has at times been a good thing in terms of limiting government power (and maybe sometimes a bad thing). Canada also modelled it’s upper house on the British House of Lords but rather than using heridary title its members are appointed by the prime minister and serve until age 75. Tony Blair reformed the British House of Lords to fill vacancies more along the lines of the Canadian model.

What I like about the Canadian and British model is that senators can be more fearless in their decision making. What I don’t like about these systems is that they are quite elitist. And appointment by a prime minister who is a product of a system with a centrist bias will probably tend to make the views of the upper house also quite centrist. I would not expect a prime minister to appoint many anarchist or hard core communist sympathisers. I suspect that upper house debates are more stale than they might otherwise be.

The point of representative democracy is that it reflects the breadth of values and interests within the society but that it also allows detailed consideration of proposed laws. Dictatorship represents the values and interests of one person only whilst direct democracy would never allow decision making about complex matters to be well informed. Unfortunately represenative democracy is in practice also a popularity contest with selection being undertaken by a largely uninformed public (probably rationally uniformed).

If we were to reform our upper house my suggested model would be to select senators by sortition for the equivalent of five parliamentary terms. This would give them a degree of tenure and the opportunity to become informed representatives. Whilst the lower house would be reappointed by election approximately every 3 years the upper house would replace 20% of its members on these occasions and members would serve for up to 15 years.

 What does it mean to select senators by sortition? Sortition is an alternative to appointment (the British and Canadian approach) as well as an alternative to elections (the current Australian approach). Sortition essentially means to select at random.

This is how I envisage such a system working. Firstly candidates would need to demonstrate that they are motivated rather than merely acting on a whim. I’d suggest that candidates need to be at least 30 years of age. I’d also suggest that to do this they would need to gather signed nominations forms from 100 people which affirm something such as the following:-

“Having known Mr/Ms Candidate  for at least two years I am of the view that he/she is of sound mind and good character and that he/she is motivated and capable to act as an Australian senator.”

Nominations would need to be dated and could not be used to support a candidates entry criteria if they were signed more than 5 years prior. Candidates would be registered prior to the occasion of sortition and would be assigned a number. The names and numbers of candidates would be published. On the day of sortition the senate positions would be filled by drawing numbers from a barrel (like lotto) where each number represents one of the digits in a candidates assigned number.  Each vacancy would be filled in turn by this same procedure.  

Would a more representatative upper house containing senators who had tenure and no incentive to act as popularists be more liberal in their decisions. Perhaps, perhaps not. However I believe that trying to be popular is a serious constraint on any persons attempt to properly decide on a matter purely on the facts.

The use of sortition is not common but neither is it novel. Aristotle considered it central to democracy. Apparently the managers of some Spanish savings banks are appointed by a committee which is formed from account holders selected by sortition. Sortition is a large part of how we appoint people to juries to consider very serious questions of liberty.

32 thoughts on “An upper house by sortition

  1. Why not have ‘Australian of the Year’ as the newest member, every year, for life?
    Or have Senators tied to the State’s electoral cycle, with half of the ten Senators for each state being voted by the state electorate, and half appointed by the new State government?
    Of course, a minarchist solution would have counties as the strongest element in any federation, so a Senate system wouldn’t be needed, ideally.

  2. “Why not have ‘Australian of the Year’ as the newest member, every year, for life?”

    Because that would result in Tim Flannery being in the Senate.

  3. Greego
    Exactly. If we’re going to have to endure Flannery in the senate I would much rather it happened randomly through a lottery rather than through that suggestion.

    Okay, not a bad idea, however I think you would also require the ability to recall. Randomness could also mean Tim Flannery is selected randomly too and you want the ability to recall such reprobates.

    How do you prevent stacking? I could imagine the situation where labor stacked the thing so badly that it wouldn’t be random any more in the sense that numbers alone would carry them through. Those dudes are experts at that sort of crap.

  4. JC – there might be tens of thousands of candidates across the country. Sortition makes stacking nearly impossible especially compared to elections. Sortition also makes the incentives for trying to groom candidates through the party system negligible. Sortition would also remove the need for election funding (private or public). The only reason I retain a nomination process is to filter out people who want to put their name down on a whim and are not serious about serving.

    The benefit of elections is that it encourages incumbants to do a good job so they can get elected again. This is why I would retain elections for the lower house where the executive branch of government is formed. I’d also remove the option of having senators serve in cabinet or as ministers. The upper house would be strictly for legislative review.

    If you have 76 senators the chance of getting 76 Tim Flannery type characters in the senate is only likely if most of the population is like Tim Flanery. Otherwise a random selection process makes it very unlikely. If you’re worried then increase the number of senators to 150 or some such number.

    There is an interesting account of sortition in practice written by Campbell Sharman. He talks about the British Columbia Citizens’ Assembly on Electoral Reform which was fully appointed using sortition. The media and many others were sceptical that a random set of citizens could work successfully on such a serious matter. However it seems to have worked well and even the media changed it’s tune.

    Click to access 310306.pdf

  5. “direct democracy would never allow decision making about complex matters to be well informed”
    People would just choose someone who is well informed to be their proxy.

  6. If I wanted to add spin to this reform I think I’d rename the two houses so the lower house was called the “Political House” and the upper house where sentators would be selected by sortition would be called the “Apolitical House”.

  7. Firstly … minor point … its not it’s above twice(!) Ugh!!

    I am for sortition, as you know, but I think it should be the lower house — and then we could do away with the upper house entirely, and ideally the states and local councils as well, perhaps in favour of regional government — perhaps 35 of them might do it. The “review” and guidance function would be from Direct Democracy, in which a direct vote would establish key policy priorities for the coming 1-year, 2-year 3-year periods and longer and in which policies adopted that were controversial — i.e. apparently at odds with the key policy priorities and rejected by, say, 30% of the parliament could be submitted for review by Direct Vote. MPs could also seek to rally support for different ideas and where 10% of the populace thought that something was an idea worth exploring, a sub-committee would be set up to examine it and produce a report which would then be promoted and at a suitable time, go to a direct vote which could accept or reject it or suggest it needed further work.

    In my version of sortition, it would be more like a reality-game show survivor thing in which the sortition produces a short list, who are then trained and given state support to develop and publicise their ideas and improve their relevant skills and then deliberatively marked with people rating their policies/character out of ten and also weighing them for significance. By the time the final sort happened, the barrel would be skewed in favour of those that attracted the strongest support, without excluding from possibility those who were somewhat outside the mainstream paradigm.

    MPs would be paid 125% of average weekly ordinary fulltime earnings, but be supplied in kind with the services they needed to do their jobs properly. At the end of their terms — perhaps four years, they’d return to their regular lives with a stipend for the next four years equal to their salary, after which it would cease. During this period they would not be permitted to take any job in conflict with their previous duties unless they were prepared to forfeit the stipend. There would be an absolute bar for the first two years.

    All MP financial interests, and those of their families would be subject to the scrutiny of an ICAC-style body but with strict non-disclosure rules unless the MP was charged with an offence by the DPP. The body could elect to issue a confidential “advisory” on possible existing conflicts of interest and also give advice in advance on a confidential basis.

    Other than as provided above, no individual or party would receive state funds. All donations would have to go directly to a nominated bank account and be fully accounted for. No person could receive more than one month’s salary at AWOFTE in any 12 month period from any individual or group. While a person could, subject to law, disburse these funds as they saw fit all such disbursements would need to be fully accounted.

    I realise this goes a lot further than what you are saying, but it’s how I see matters.

  8. Fran – your proposing an entire revolution rather than merely reform. Very ambitious.

    In terms of a binary choice between the status quo and what I’ve suggested which way do you lean?

  9. Minor points: you’re for your

    also Canada modelled it’s upper house … is still there …

    and do you really believe the public is rationally uniformed?

    And since I seem to be proofing … candidates entry criteria …

    Sentence beginning: The upper house was at the time of federation intented to safe guard Initial cap for Federation (proper noun); intended; close up safeguard;

    … sorry, I’m a teacher …;-)

    Sentence commencing Would a more representatative upper house … sp. representative; needs a question mark.

    Fran – your proposing an entire revolution rather than merely reform. Very ambitious.

    Well I am a revolutionary!

    In terms of a binary choice between the status quo and what I’ve suggested which way do you lean?

    Obviously I think what you’re proposing improves on what we have though I’d regard five parliamentary terms as far too long. Four years is plenty. One wouldn’t want ossification.
    Imagine still having senators from 1996 in office!!

  10. I’m not at all fixed on five year terms. Even if we stuck with the existing two I still think the proposal would be a good reform.

    Yes I do think the generally public is rationally uniformed on many issues of public policy. Rationally so because deciding to become informed doesn’t provide any direct benefit. There is a free rider problem in democratic decision making.

  11. rationally uniformed or uninformed?

    I’d be keen on the other matters I raised being part of any reform though.

  12. And so what if the occasional fixed-point advocate got into the senate? It still needs majority voting to get things passed or rejected, and Tim would have to become more flexible to get anything done. Indeed, having a vote might make him more responsible in what he says, but if it doesn’t, he still won’t get things passed just because he says so.

  13. Fran, in what way are you revolting?

    I’m no more revolting than you are …

    (couldn’t resist)

    What do you hope to achieve?

    Inclusive governance

  14. ‘Inclusive governance’ That’s one of those phrases, like ‘motherhood’, that seems warm and nice, but doesn’t explain anything. In fact, I reject it! I want exclusive government- one I can get away from if I want! I want to be able to exclude governments and their agents from my property and life!
    Xcentralism is what I call my philosophy these days. the ‘X’ can stand for any swearword you choose, though it can also stand for exterminating. Local government is what I favour. Whilst not ideal, the Swiss system is cloae to what I favour.

  15. Hopefully sortition would make Government utterly unworkable except in the most necessary cases.

    There could be some pretty bad populist rules, but the law would have the intention of at least being fair.

  16. Mark – I don’t think it would make government unworkable and neither did I intend that as the objective. The objective would be to ensure that all laws were well considered by a group of people that are:-

    i) prepresentative of the population and it’s diversity of views, values and interests.

    ii) outside the popularity games, horse trading and selection biases that are common in traditional elected bodies.

    Hopefully we would have an upper house that spent more time listening to arguments rather than formulating them. One that wasn’t so dominated by egos, extroverts and activists posing for the camera.

  17. p.s. The reason I propose that we keep elections for the lower house is so that we do retain decisive executive government that has electoral incentives linked to it’s active performance. The rule of law would continue to constrain the executive. The upper house, appointed by sortition and decoupled from party politics and influence, would check the executives activism when it comes to amending and creating laws. I’d still like to see a TABOR type clause in the constitution as a further check on fiscal excesses.

    An upper house by sortition is about limiting executive power not about creating unworkable government. I want good law not no law. And I’m not an anarchist.

  18. I think libertarians have quite a bit to add to the republican debate. George William’s recent article in the SMH is quite boring.

    Look at the way the New England States in the US are run. Executive Councils, separate to the legislature, can veto Gubernatorial decisions. Town meetings make local laws and decisions and selectmen act as executives and local judicial officers are elected elsewhere in the union. New Hampshire and Vermont are particularly interesting.

    I’m open to a Presidential Republic by direct preferential election, a unicameral Hare Clark PR legislature and judicial panels elected by approval voting, at all levels, in the context of a looser Federation with State, Federal, Local and regions for those who want to eliminate a tier of Government (City-States would be ideal candidates), within a loose Federation with other Pacific nations – the President appoints national chancellors to administer the law like junior VPs (they would rank under the VP in succession). The discussion we had here before on charter cities is worth looking at again. So here you’d have four levels of Government with a tier removed and allow people to remove another if they liked, along with citizen’s referenda and a strong bill of rights.

    I had another idea once of solving the republic debate by eliminating the head of state altogether, and giving reserve powers to the judiciary, senate, exec and parliament collectively. This also called for a bill of rights, citizen’s referenda, judicial appointments committees, tenure but fixed terms for judicial officers and four fixed year terms for both houses, within the current federal structure. My preference would be for more States, no Ministers in the Senate and to Federally recognise shires. I would also want about 5 Senators from 20 States, 200 MHRs. The Senate ticket would be a national ticket but the votes would be weighted to give equal representation, and a simple PR list system could be used. I don’t know if Hare Clark PR or single member preferential voting would be the best for the House in this case.

    Here is some discussion:

    Here is what I think of a bill of rights:

    I think we need an amendment, in the context of the original intent ensuring i) States/Shires respect rights as well as Commonwealth ii) explictly list explicit constitutional rights iii) explictly expand property rights in light of the Kelo case iv) explicitly list implicit rights v) explicitly list now typically lost common law rights and finally vi) a TABOR (relates to finance and trade powers already present).

    I actually don’t mind the sortition idea but in the context of what I’ve proposed, it makes me think more. In a Presidential system, you’d virtually need to keep bicameralism.

  19. As for the Republican debate, if we want a republic with minimal changes to the existing constitution, then have the Governor-general elected at the same time as a Federal General Election, but with no powers of policy. The governor-general would be an elected ombudsman, able to look into any allegation against a member of parliament, and to discharge them from office as they are charged with crimes in court.
    The g-g must assent to legislation unless he can prove wrongdoing in a court of law. Also, the reserve powers must be approved by the current high court before the G-G can use them, and only under any terms imposed by the high court.
    That would satisfy the public- a popularly-elected official, and the politicians would be happy- a non-policy office. A win all round. And the high court has the powers of the Crown when we are voting for the G-g, who they appoint when he wins office. We call things regal, and keep the references to ‘Crown’, with the G-g appointing State Governors to their office.

  20. In terms of minimalist reforms I think an elected head of state is a bad idea. It politicises the position and confuses executive responsibility and accountability. I’d rather let each state government nominate one candidate and then appoint one of those candidates using sortition and have them serve for a fixed term of 10 years. I’d make current and former state and federal MPs ineligible for nomination.

  21. I think an elected head of state would be a good idea, especially if we clearly limit it to a referee-type office. Instead of discarding what’s in the Constitution, we could simply add another option. (Section x- OR the Government could ask the high court for a General Election, and for the Governor-General, sometimes also called the Regent, to also be subject to an Australia-wide plebiscite at the same time as this General Election, blather, blather, etc.)
    And a good feature of this system is that it would be unique- I don’t know of any other country that has an elected regent. And ‘Regent’, with the adjective, ‘Regal’, would allow minimal name changes- change Royal to Regal. Our Royal Australian Air Force (RAAF) becomes One’s Regal Australian Air Force (RAAF). That’s minimalism!

  22. Do we need a Referendum For A New Democracy?

    Are you concerned about the future of democracy? Do you feel democracy is under attack by extreme greed in countries around the world? Are you sick and tired of: living in fear, corporate greed, growing police state, government for the rich, working more but having less?

    Can we use both elections and random selection (in the way we select government officials) to rid democracy of undue influence by extreme wealth and wealth-dominated mass media campaigns?

    The world’s first democracy (Athenian democracy, 600 B.C.) used both elections and random selection. Even Aristotle (the cofounder of Western thought) promoted the use random selection as the best way to protect democracy. The idea of randomly selecting (after screening) juries remains from Athenian democracy, but not randomly selecting (after screening) government officials. Why is it used only for individual justice and not also for social justice? Who wins from that? …the extremely wealthy?

    What is the best way to combine elections and random selection to protect democracy in today’s world? Can we use elections as the way to screen candidates, and random selection as the way to do the final selection? Who wins from that? …the people?

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