How people elect parliaments
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.