How people elect parliaments
With the probable make-up of the Australian Senate becoming clearer, the balance of power looks grim for the government.
Almost all the cross-bench factions will be able to veto government proposals.
On the latest available predictions the outcomes for the larger parties are 30 Liberal-National coalition senators, 27 Labor senators and 9 Greens senators.
The government has lost 3 senators, Labor gained 2, and the Greens have lost 1.
The cross-bench has grown from 8 to 10 senators. The new combination is 3 NeXt (Nick Xenophon) party senators, 3 One Nation senators, and 2 Liberal Democrats, as well as individual senators Jacqui Lambie and Derry Hinch.
On the Senate floor 39 votes are needed to pass legislation, and conversely 38 votes can block any vote. Labor and the Greens – who often jointly oppose the government – will have 36 votes.
Politically, the situation will create a lot of veto powers, and few simple options for the passage of legislation
The good options are that either Labor or the Greens could combine with the government on specific issues to pass any vote.
After that it gets hard. On any government matter which is opposed by both Labor and the Greens, the government must prevent them from securing two more votes in opposition. On other words, they can allow only one more opposing vote from the cross-bench.
This means that any of NeXt, One Nation, the Liberal Democrats, or just the two individual senators jointly can effectively veto a motion.
With this in mind, the government will be anxiously watching the late stages of the vote counting to see if any of the vulnerable Greens seats can fall their way.
The current uncertain position of the Liberal Democrats’ two candidates – which would be substituted by a conservative minor party alternative – make somewhat less difference to the overall political result.
The prospects of a joint sitting
On two pieces of legislation from the last Parliament, if the Senate refuses to support the legislation one more time the government can convene a joint sitting of both houses.
The two bills are the Building and Construction Industry (Improving Productivity) Bill 2013 (together with a consequential provisions bill) and the Fair Work (Registered Organisations) Amendment Bill 2014.
(On some views, a third bill relating to the abolition of the renewable energy investment agency is also eligible for this procedure, although prior to the election the government denied any intention to argue that case.)
The bills would be handled separately, and one or other may be passed by the Senate. If both are rejected only one joint sitting would be convened.
At the joint sitting an absolute majority of the total number of 226 senators and members – 114 votes – is constitutionally required to pass the bills.
Assuming the government wins 77 seats in the House (and it may only be 76), the government would go into that debate with 107 votes, while Labor and the Greens (who oppose the bills) would together have 105. The government would need 7 more votes.
Further votes against the bills, and abstentions, don’t really matter – the absolute majority of 114 votes must be found to pass the bills.
There would be 14 votes potentially available: 3 from NeXt, 3 from One Nation, 2 Liberal Democrats, and six individual members and senators (Andrew Wilkie, Cathy McGowan, Bob Katter, Rebekah Sharkie, Derry Hinch and Jacqui Lambie).
On the past position of senator Leyonhjelm, the two Liberal Democrats would appear likely to support the government.
If the government has by that point lost the Senate vote on a bill, that means at least 2 of the remaining votes will have already been cast against them.
That would leave the government searching for 5 of the remaining 10 votes.
You could also point out that Labor and the Greens would only need 3 extra votes to get to 39 to pass motions to do things like disallow regulations, establish committees and inquiries, etc.
Indeed. I think we can expect that the Senate will early on pass a resolution calling on the government to launch a royal commission into the banking sector, and if the government fails to do so that will impact on relationships. In fact, all sorts of Senate inquiries can be expected.
Regarding disallowance of regulations, indeed that looks likely to be a continuing issue. I suspect one of the reasons that main bills are getting longer over the decades is specifically to load up detail that should more logically be left to regulations, out of fears of disallowance. Not a particularly helpful legislative trend for governments, but it can be argued that it is more democratic to have the houses continually scrutinising regulations and instruments.