Section 13 of the Constitution of Australia

Section 13 of the Constitution of Australia provides for three aspects of the terms of members of the Australian Senate, the timing of elections, the commencement date of their terms and for the Senate to allocate 6 and 3 year terms following a double dissolution of the Parliament of Australia.^[1] While member of the House of Representatives have a maximum three year term, members of the Senate have a fixed 6 year term, subject only to the parliament being dissolved by a double dissolution.

Timing of elections and commencement of terms

Senate elections must be held within one year of the expiry of the fixed term of the senate. The constitution originally provided for senate terms on calendar years, beginning on 1 January and ending on 31 December 6 years later. This was changed as a result of the 1906 referendum to terms beginning on 1 July and ending on 30 June, primarily to enable simultaneous elections to be held in March.^[2] The amendments were passed, being approved by 82.65% of voters with a majority in all 6 states.^[3] Despite the intention to hold elections in March, the first such Federal election was March 1983. Since 1906 section 13 provides that

As soon as may be after the Senate first meets and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable and the places of the senators of the first class shall become vacant at the expiration of the third year three years, and the places of those of the second class at the expiration of the sixth year six years, from the beginning of their term of service and afterwards the places of senators shall be vacant at the expiration of six years from the beginning of their term of service.

The election to fill vacant places shall be made in the year at the expiration of which within one year before the places are to become vacant.

For the purpose of this section the term of service of a senator shall be taken to begin on the first day of January July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of January July preceding the day of his election.^[1]

In relation to the commencement of terms, there is a subtle difference between a half senate election and a double dissolution. For a half senate election, the election can be held up to one year before the commencement of the new senate term on 1 July, which means there can be a considerable delay between the election and Senators taking their seats. For example those elected at the 21 August 2010 election were required to wait 314 days before they took their seats. For a double dissolution, the terms are deemed to have commenced from the previous 1 July. This made no difference at the 2 July 2016 election where the backdating was just one day. The timing of the March 1983 election and May 1974 election meant that the "3 year" short term was less than 2.5 years.

Allocation of terms

The Constitution does not provide a process for the allocation of terms and it is left to the Senate to decide itself.^[4] Thus if one party had a majority in the Senate, in theory the Senate could decide that members of that Party receive six year terms, with the result that following the next half Senate election, the party would retain a significant majority, grossly distorting the intentions of the voters. The Senate is constrained from acting in this way by concerns about the potential political controversy, rather than any provision in the Constitution to prevent such an outcome.^[5]

Prior to 1949

From 1901 the method of voting for the Senate was block voting, where each elector voted for as many candidates as there were vacancies. This system tended to result in all senators for one state being elected by a single party, the extreme of which was in the 1943 election where all 18 senators were members of the Labor party. The system did however make the allocation of terms simple. Thus in 1901,^[6] and 1914,^[7] the Senate resolved that the first three candidates elected would receive the 6 year term.

Proportional representation

The voting system used for the Senate changed in 1949 to a single transferable vote, which is designed to achieve proportional representation. In 1950 the Menzies Government saw difficulties with Senate voting after a double dissolution and passed a bill for a referendum that would enable the voters to determine which Senators would have a six-year term and which have a three-year term.^[8][9] The bill was not passed by the Senate. While the Government could have requested the Governor-General submit the proposal to a referendum under section 128 of the Constitution,^[10] it did not do so and the bill lapsed at the 1951 double dissolution. Despite Prime Minister Menzies' claim that a deadlock was "next door to being inevitable" following a double dissolution, the coalition government won a Senate majority, winning 6 of the 10 senate seats in Queensland,^[11] and Western Australia.^[12]

In 1951 the Senate again resolved that the first five candidates elected would receive the 6 year term,^[13] and 1914,^[14] The result of this division was that 18 Coalition & 12 Labor Senators received 6 year terms, while 14 Coalition & 16 Labor Senators received 3 year terms.

The Joint Committee on Constitutional Review in 1959 considered that constitutional effect should be given to past practice of the allocation of terms according to their relative success at the election. While a bill was introduced to the Senate in 1964 by the opposition, it was not passed and no such referendum was held.^[15]

The Senate again resolved that the first five candidates elected would receive the 6 year term following the double dissolution elections in 1974,^[16]1975,^[17] and 1983.^[18]

Proposal for reform

In 1983 the Joint Select Committee on Electoral Reform had unanimously recommended an alternative "recount" method to reflect proportional representation,

• Following a double dissolution election, the Australian Electoral Commission conduct a second count, of Senate votes, using the half Senate quota, in order to establish the order of election to the Senate, and therefore the terms of election; and
• the practice of ranking Senators in accordance with their relative success at the election be submitted to electors at a referendum for incorporation, in: the Constitution, by way of amendment, so that the issue is placed beyond doubt and removed from the political arena.^[19]

The Commonwealth Electoral Act was amended to provide for a recount using the half Senate quota, limited to the successful candidates.^[20] The rationale for limiting the recount to the successful candidates was to eliminate the chance of an unsuccessful candidate being in the recount as a result of the complex preference flows.^[21] It is not apparent what, if any, impact this limitation would have on the order of successful candidates.

Pragmatism wins

After the 1987 double dissolution election, Labor and the Democrats ignored the unanimous recommendation for reform and the provisions of the Commonwealth Electoral Act, and instead maintained the previous system where the first six Senators elected in each State were allocated the full six-year terms ending on 30 June 1993 while the other half were allocated three-year terms ending on 30 June 1990. The effect of this system was that two Democrat Senators got a long term instead of two National Senators. There was no net affect on Labor and Liberal Senators.^[5][22]

One of the reasons advanced for not using the alternative count in 1987 was that the method should only be adopted if the Senate passed a resolution before the double dissolution.^[5] To this end Labor Senator John Faulkner moved a motion to use section 282 of the Commonwealth Electoral Act in a future double dissolution. It was noted in the debate that the motion could not bind the Senate in the future.^[23] The same motion was moved in 2010 by Liberal Senator Michael Ronaldson and was agreed to without debate.^[24]

Despite the provisions of the Commonwealth Electoral Act and the apparent support for the recount method, following the July 2016 election, the Senate rejected the recount method and maintained the "order elected" method used on all 7 previous double dissolution elections.^[25] This made no difference to the terms of Senators in 4 states, Queensland, South Australia, Tasmania and Western Australia. In NSW under the order elected method Labor had 3 long term and 1 short term Senators, whereas under the recount method Labor would have had 2 long term and 2 short term Senators. Under the recount method the 6th long term vacancy would have been allocated to the Greens. Similarly in Victoria under the order elected method the Coalition had 3 long term and 2 short term Senators, whereas under the recount method the Coalition would have had 2 long term and 3 short term Senators. Under the recount method the 6th long term vacancy would have been allocated to Derryn Hinch.^[26]

References