On Elections

How people elect parliaments

Could senators lose a year of their terms?

A reader of this site – Reg Jones – has sent in a comment/query suggesting that there may be some defect in the Australian government’s calculation that the state senators that Australians will elect on 2 July will have their three- or six-year terms of office deemed to start on the day before the election – 1 July 2016.

Reg’s comment is that because the Constitution backdates the start of state (but not territory) senators’ terms to “the first day of July preceding the day of his election” (section 13 of the Constitution, final line – and note the gendered language that was the fashion at the time), and because the High Court has held that each ‘election’ includes not merely the election day but includes all the long process beginning with the issue of writs some weeks before the poll, that the backdating of the commencement date of senators’ terms should actually become a reference to 1 July 2015, not 1 July 2016 – costing all 72 of the new state senators a whole year in office.

Reg wants an opinion on whether this suggestion might hold water.

Short answer: No.

Longer answers don’t contradict the short answer, but lets have a think about it anyway.

Reg is certainly right that the High Court has previously indicated that ‘the election’ means more than just ‘election day’, the Saturday with the sausage sizzles outside primary school halls.

In past times some House of Representatives seats were filled by candidates who were the sole nominee for the seat, which meant there was no actual election held at all. At the 1903 election 17 seats – over 20% of the House – were filled uncontested. At general elections the safe seats of Hindmarsh (SA), Melbourne Ports (Vic), Kalgoorlie (WA) and Swan (WA) have each been uncontested six times. As late as 1955 ten Coalition seats were filled uncontested. The occurrence of uncontested seats – still common in the United States – finally died out in Australia after 1963.

Such unchallenged members of parliament (these were all House members – this never happened for Senate elections) could not sensibly be said to be ‘elected’ specifically on the official saturday of the poll.

Such members might, in a meaningful sense, be said to have been elected when the nominations were announced. Or they could have become formally elected weeks later when the writs were returned. In any case their ‘term of office’ would have commenced when they were sworn in on the first day that Parliament sat.

But this is of course playing with words. The Court judgements in recent decades – the Mulholland case in 2004, for example, which upheld laws regulating the registration of political parties and commented on the significance of ballot papers to the process of election, together with the Roach (2007) and Rowe (2010) decisions concerned with who could be on the electoral roll – have been concerned with the meaning of representatives being ‘chosen’ by the people.

The Court has concluded that ‘election’ means a drawn-out process of choice, including stages for regulating electoral enrolments, issuing writs to start the process, nominations, objections, the process of communication we call the ‘campaign’, the actual polling (which, in any case, involves the growing modern use of pre-poll voting), the counting or ‘scrutiny’, the declaration of results, and finally the return of writs. It may even include the determination of any subsequent legal challenges.

The Court has clearly determined that the legal definition of the terms ‘chosen’, and ‘election’ are not limited only to what happens on the single main polling day, and nor are they limited only to what is marked on the written ballot paper.

That may have many consequences in interpreting the Constitution in ways which allow the Parliament to legislate in ways relating to various stages of the process of the election, or ‘choosing’, of representatives.

But the constitutional words about senators’ terms cited above are actually very specific in nature. They state that following a dissolution of the Senate (as is happening in 2016) “the term of service of a senator shall be taken to begin on the first day of July preceding the day of his election”.

The whole purpose of that statement is to ensure the restart of the linked pair of overlapping cycles of six-year terms of the senators. It obviously envisages a backcasting to a single specific starting date, from a single specific date. The clear implication is that that date is the general election day.

In fact the words “the day of his election” received a specific interpretation by the Court long ago. Back in 1907, in the case of Vardon v O’Loghlin, the Court had to decide a dispute about a Senate seat for South Australia. There had been a defect in the original count (something to do with disputed informal votes) and some time after the election, one of the new Senators, Joseph Vardon, was ruled not to have been correctly elected. A legal dispute followed about whether this created a vacancy (which could be – and briefly was – filled by the South Australian Parliament) or whether it amounted to a failed election (which would require a new special election by the state’s voters).

The High Court, with four judges sitting – Chief Justice Samuel Griffith and Justices Edmund Barton, Isaac Isaacs and Henry Bourne Higgins, all of whom had been constitutional founders (as had been the absent fifth judge, Richard O’Connor) – decided the situation was not a vacancy, but was a failed election, which then led to a new election for one senator (which, after all his trouble, Mr Vardon won). The Court strongly preferred that the principle of direct election be favoured, and that the alternative of casual vacancies being filled by a state parliament was to be seen as only an emergency measure.

In the course of the judgement the Court decided that the constitutional words specifying that the senators should be directly elected was “the dominant provision”, and that because the “ancillary” procedural provisions which followed were meant to serve that dominant provision, the lesser provisions should not be interpreted so as to defeat the principle of direct election.

In reaching that result the judgement specifically addressed the problem that if a new election were to be held, the constitutional statements about when the new senator’s term would commence might cause a mismatch in the term cycles. (The constitutional text involved was slightly different to that relevant to the 2016 situation, as the 1906 election was not a full Senate dissolution, and also because until an amendment in 1907 senator’s terms ran January-December, not July-June, but the issues are the same). The Court held:

“It is plain, however, that s.13 was framed … for the purpose of fixing the term of service of senators elected in ordinary and regular rotation. The term “election” in that section does not mean the day of nomination or the polling day alone, but comprises the whole proceedings form the issue of the writ to the valid return. And the election spoken of is the periodical election prescribed to be held [before the current senators’ terms expired] … The words “… the day of his election” in this view mean the day on which he was elected during that election. For the purpose of determining his term of service any accidental delay before [his] election is validly completed is quite immaterial.” (1907) 5 CLR 201, at 210

In short, even if the correctly held election was held up for a year by technical defects, the Court was going to declare that the term of service to be served was one that fitted into the overall cycle, not some anomalous term derived from tricky interpretations of the ‘ancillary’ constitutional provisions.

And as a matter of history Senator Vardon did, in fact, serve out the remainder of the term that would have started at the normal date had there been no problem. The final irony was that, because he had initially been declared elected, Mr Vardon had in fact been sworn in as a senator at the opening of the Parliament and had sat in the Senate for 5 months before all the legal trouble even began.

We have been mentioning ‘writs’. These old-fashioned legal documents are how the election processes are formally launched. The Governor-General issues writs (to the electoral commissioner) setting out the election timetable, and weeks later the electoral commissioner eventually ‘returns’ the writs, stating who has won election. The returned writs are the legal basis for members of parliament taking office.

While the Governor-General issues writs for the elections of House of Representatives members and territory senators, according to section 12 of the Constitution the writs for the elections of the state senators are issued by the state Governors.

The practice is that the Governor-General writes to the Governors proposing the dates for the stages of the election, and the Governors act as advised by the state executive councils (i.e.: the state governments), who unfailingly advise that the agreed dates be used.

image - Qld Governor de Jersey signs 2016 writQueensland Governor Paul de Jersey signs the writ for the election of senators for Queensland in 2016 (image: Government House, Queensland)

Each Governor then formally issues a state senate election writ asking the state electoral officers of the AEC to conduct the elections of senators. These writs include the timetable of key dates, the same for all the states and consistent with the House election dates.

These actions together create a uniform national election on the same day for all the Commonwealth parliamentary seats.

And yet, section 8 of the Constitution does state that “The Parliament of a State may make laws for determining the times and places of elections of senators for the State.” This remains one of the few absolute powers given by the Constitution to the states.

Legally, the various state governors, acting according to alternative state laws or state government directions, might issue writs to hold the elections for senators on different dates. But this has never happened. For over 100 years, state legislative power and executive conduct has only been exercised so as to bring about unified election dates. Senate election writs have always been issued by the governors so as to coincide with the election date chosen by the Governor-General on the advice of the Prime Minister.

Obviously this is a sensible practice, and the selection of separate House and Senate election dates would generally be regarded as absolutely crazy.

But, hypothetically, if there was to be a future June-July election, and some unhelpful state parliament had passed laws setting their own election date for senators, there could be a problem.

Since politicians rarely enact laws to give themselves shorter terms of office, let’s imagine a double dissolution election called for late June (which is, by the way, exactly what Prime Minister Turnbull has chosen precisely to avoid doing by calling a very long election campaign), but with one or more states arranging by state law to elect their senators in early July, presumably with the intention that their senators’ terms would be around 3 and 6 years, while the other states’ senators would have terms of 2 and 5 years.

Given the obvious intention of the Constitution to have a neat, all-state three year rotation cycle, and given the fact that this is how the system has worked for 116 years now, such an outcome would be regarded as something of a constitutional contrivance, to say the least. And yet it might just, hypothetically, be legally valid.

Can anyone see one or more states trying this on, and getting way with it?

But coming back to Reg’s original point, which is that a narrow textual interpretation of the current law, applied to the current 2016 election, might work out this way, let’s consider the hypothetical litigation that would bring about this result.

When the state Governors receive back from the AEC the returned writs for the election of senators in late July or August, they will not in themselves legally determine the start or end dates of senators’ terms, they will simply state who is elected.

When the Senate first sits, presumably in August this year, one of its very first constitutional tasks will be to pass a resolution dividing each of the six groups of 12 state senators into two sub-groups of 6, one group getting terms which end three years after they begin, and the other getting terms which end six years after they begin. In a formal sense, this is the first moment at which the question of when the senators terms are deemed to begin needs to be resolved. (The basis on which the Senate passes this resolution is explained in detail by the ABC’s Antony Green.)

No-one should doubt that the resolution will declare that all the senators terms begin on 1 July 2016, not 1 July 2015. Never in the history of parliamentary democracy have parliamentarians deliberately cut twelve months off their terms of office for no apparent reason.

So then, will this resolution be subject to legal challenge?

One simple and obvious answer might be ‘no’, because of the principle that the courts do not inquire into the validity of the proceedings of Parliament.

But even supposing that the courts – presumably the High Court – might consider that such a Senate resolution was justiciable because it dealt with the interpretation of the Constitution, who would have standing to bring such an action?

The state governments might have legal standing, but which of them would have any interest in such a challenge?

Future senators must be elected within 12 months leading up to the end of current terms. Would an argument that any state voter (or ‘elector’) had standing to bring to court a claim that they possessed a right to elect their next crop of six senators in the July-June period in 2017-2018, rather than in 2018-19, be taken seriously?

The Court has consistently interpreted the constitutional words relating to the electoral process as being words which gave the Parliament power to legislate to control the details of the electoral system, rather than something which conferred individual rights.

But even if the Court did conclude that individuals have personal rights in elections, including the right to litigate about the correct dates in which senators serve in office, that would still only get the Court back to having to decide the meaning of the words “the first day of July preceding the day of his election”.

In the end, the odds of the current High Court interpreting these words not to mean what they naturally sound like they mean, and not to mean what 116 years of history have assumed that they mean, and not to mean what four of the leading constitutional founders – having become High Court judges – specifically said that they meant, but instead to mean something entirely inconvenient that no-one has ever imagined, overturning the past precedent of the Court, defeating the deliberate intention of the government – an intention that was understood and apparently accepted by everyone – and voiding an express resolution of the Senate acting according to five past precedents in carrying out a well understood process to fulfil a specific task required of it by the Constitution … well, these don’t look like good odds.

Last week the High Court dealt rather brutally with a legal challenge by Senator Bob Day to the new senate voting system laws, and hardly less brutally to another challenge by a private litigant to the electoral law’s closing period for enrolment changes. It hardly seems likely that in August or September this year the Court will be inclined to entertain a complaint about the meaning of the expression “the day [of] his election”.

So the long answer is, it seems, the same as the short answer: No.

We’ve come a long way round to come back to the same negative answer. Hopefully the things we’ve covered make it all worth the run through.

This isn’t the end of the problems Reg has raised, however. What appears from the Court’s rulings is that there is really no such thing as a single ‘date’ of an election. An election is an event held over a period of time, not on a single day. This result might turn out to have other legal consequences.

Thank you Reg, and keep up the questions.

PS – Reg has also raised this issue on Antony Green’s blog, see comment below the main post at May 18, 01:31pm

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This entry was posted on May 19, 2016 by in Australia, Constitutional courts, Current issues.
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