Senators will allocate terms of office to themselves
In August, when the newly elected Australian Senate first meets, the senators will face a task with an unusual degree of political and personal seat-interest.
A decision must be made dividing the 12 senators for each state into 6 who will serve six-year terms, and 6 with only three-year terms.
In what is perhaps one of the Australian Constitution’s genuine drafting defects, the matter is left entirely to the senators themselves, who must pass a resolution determining the issue.
With the Senate set to be deeply divided between members of several large and small parties, anything could happen.
There is speculation that the two major parties might combine to assure themselves an unfair share of the longer terms, and in particular to allocate short terms to the individual cross-bench senators they find most politically troublesome.
Normally the Senate has an orderly system of rolling six-year terms, where all the state senators having six-year terms, but with half facing election every three years. The unusual decision to allocate term lengths only needs to be taken after a full dissolution of the Senate – which indeed happened at the 2016 election.
The four senators representing the people of the ACT and the Northern Territory are not affected by this issue – they have terms which end with every ordinary House of Representatives election.
Fortunately, there is some guidance as to what would be a fair basis for allocating the seats on the basis of some principle other than merely securing the numbers to pass a resolution.
One possibility is the ‘order-of-election’ method. Under this approach, the ‘order’ in which the senators achieve the quota of votes for election during the vote count is used: the first six to be elected get the long term seats.
This approach may appeal to the major parties. While not an absolute advantage, the senators of the minor parties will mainly come from those who secure a quota late in the count.
The problem here is that the order-of-election is a somewhat arbitrary construct. Results can vary depending on the counting procedures.
One version of the order elected approach can regard all candidates which have a quota of votes on first preferences as starting the ‘order’.
A different approach can start with the most successful individual candidate (who is almost inevitably the lead candidate of the most popular major party) and complete the transfer of their over-quota ballots, allocating places in the order-of-election. This approach would tend to exaggerate the order placings of the major parties, especially the most popular one.
The current procedures in the electoral law do generate a notional order of election, but this order was clearly not intended to serve the purpose of determining the term length allocation issue, because the 1983 revision of the Electoral Act expressly included an alternative solution.
A quite different approach is the ‘recount’ method, under which the whole body of votes are recounted as if there had only been six seats available. (This recount is not as much work as it might sound, because the votes and preference flows have already been counted and only need to be used in a fresh calculation of preference flows.) Only the 12 original winners are eligible to ‘win’ under this special count, and the idea is that the six candidates who win get the long-term seats.
The recount method seems fairer in principle, because it is based more clearly on the votes on the ballots themselves, rather than on the counting procedures.
On multiple occasions the Senate itself has passed resolutions in advance of elections declaring that the recount method is best and fairest method to use if a decision is needed. (A post in April by the ABC’s Antony Green comprehensively explains the history and use of the procedure.)
With this issue in mind, in 1983 the Parliament enacted provisions in the electoral law creating a requirement that after a Senate dissolution the Electoral Commission is to conduct just such a special count, and declare the results publicly.
But that published result does not bind the Senate.
Sadly, on the only occasion when this law has been used – in 1987 – a majority of senators (the Labor and Australian Democrats senators) voted to divide the seats using an order-of-election approach, which advantaged these two parties. So the guidance method written into the Electoral Act has already been undermined.
But the recount law is still in force, and when the Senate meets in August everyone will know which of the 72 state senators are entitled to the six-year seats under the method.
The temptation for senators who would get three-year terms under the recount method to vote with whichever major party sees the most advantage in a different result will be strong. A Labor-Coalition deal is also a possibility.
But any outcome other that the safe option of following the electoral law’s recommended solution will be an exercise in self-interest done in full view of the public. This will only add to the already substantial disrespect the community has for politicians, as well as damaging the febrile relationships likely to characterise the coming term of Parliament.
Update: there is also a good article on this issue at the Constitution Education Fund which notes that the constitution’s drafters wished to avoid the use of random selection in deciding the term-length allocation. At least one leading figure – Alfred Deakin – mentioned that the candidates with the most votes should be preferred for the longer term seats. But in the end the mater was left for the Senate to decide.
On Elections 
I see Derryn Hinch has already threatened a high Court case if he doesn’t get six years. though he admitted he didn’t know the Constitution or the law. He was arguing on “the principal”. Shape of things to come.
This comment – and other emails – mention Derryn Hinch’s public comments that he will challenge a Senate resolution that fails to give him a six year term in the High Court.
Leaving aside that we should first wait to see whether the published results of the 6-seat recount method exercise actually award Hinch one of the long-term seats, there is an issue whether Hinch would have any legal claim that the Court would support (or would even decide to hear).
Presumably the idea is that Hinch (and possibly others) would seek a Court declaration that the Senate resolution in question was invalid because of some defect. Plainly the Constitution’s sparse words on this issue to not expressly include anything binding the Senate as to how it allocates the term lengths. It would be up to a claimant to convince the Court that there is some implied obligation on the Senate. Looking over the history of the issue (and I don’t have a copy of Quick and Garren at hand, alas) there is no sign of anything remotely useful to Hinch.
The six previous historical examples of this terms resolution do not provide any clarity, and have never been understood to be binding on future cases. The multiple motions on this issue passed by the Senate urge that the recount method be used in future, but no commentator suggests that these motions actually bind a future Senate. The Electoral Act makes possible the use of the recount method, but in a way which clearly indicates that it is not binding on the Senate (even if legislation could actually have that effect). Taking that all into account, the Court would almost certainly say that there is no constitutional rule here, and that the Court will not intrude into the internal proceedings of a house of the Parliament.
Hinch is probably advised of this already, but in any case the main issue is political, and relates to a media opportunity to secure public sympathy if he and other senators are the victim of obvious foul play. In which case, actually taking the issue to the High Court and promptly losing might actually be counterproductive to that agenda.
If some majority of the new Senate does combine to overthrow the use of the recount rule, it may be best to simply let the public debate and disapproval play out, rather than attempt to resort to litigation. Better, perhaps, in this case to try to rely on the ‘vibe’ of the Constitution rather than its actual words. We shall see.