Broken Promises and Stolen Senate Seats

Introduction
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25/09/2016

Labor and the Coalition have gotten away with stealing Senate seats. By decree, they have handed themselves a disproportionate amount of the six year senate terms. They were handed to Labor's Deborah O'Neill and Liberal's Scott Ryan, at the expense of Derryn Hinch and the Greens' Lee Rhiannon. In doing so, they break repeated promises they have made to the Australian public. These promises took the form of two separate but identical Senate resolutions that were passed with support from both Labor and the Coalition in 1998 and 2010. The commercial media facilitated this coup by failing to mention these Senate resolutions in any articles written after Labor and the Coalition announced their plans. There was a long period of time between the announcement and the Senate vote (which the media also failed to report on) in which a more aware Australian public could have held the major parties accountable to their promises. The media quoted major party spokespeople offering a variety of excuses and validations for their actions, but universally failed to report key facts that would have allowed the Australian public to make an informed judgement. No tough questions have been put to the politicians responsible.

This article provides a brief constitutional background and the history of this important electoral reform, details of the 2016 election, the decision to steal Senate seats and the consistent failure by the media to report key facts.

Background
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Australian Senators from each state have staggered 3 year terms. At a normal election, held every 3 years, six senators from each state are elected. They sit for a term of six years. At a double dissolution, 12 Senators from each state are elected. Half sit for six years, and half for three, so that the staggered terms can start again.

The Australian constitution grants the Senate the right to choose, however it sees fit, how to allocate the six and three years terms after a double dissolution election. A party with control over the Senate could, for example, grant all the six year terms to its own senators. Luckily, they settled on a reasonably fair convention. The first six senators elected get six year terms. The last six get three year terms.

Senators from the two territories get 3 year terms, aligned with the lower house cycle. There are only two from each territory. State senate terms start on July 30, and can get out of sync with lower house terms.

History
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There have been six previous double dissolution elections in 1914, 1951, 1974, 1975, 1983 and 1987.

In 1984, Labor passed reform legislation (section 282 of the Commonwealth Electoral Act). This legislation is in accordance with the September 1983 recommendation of the Joint Select Committee on Electoral Reform. It requires the Australian Electoral Commission (AEC) to do a special recount in the event of a double dissolution election. This recount involves only the 12 elected senators. In the first step of the process, votes are distributed according to preferences until they reach one of the 12 (this differs from the normal method). All votes are then recounted normally so that only six senators are elected. The intention of the legislation is that the six Senators who win the recount vote get the six year terms. This method is called the 'recount' method, while the conventional method is called the ‘order of election’ method.

These two methods are almost identical in outcome. In the 2016 election, it only made a difference of one seat in each of two states - hence Hinch and Rhiannon losing out. Where differences arise, the recount method is demonstrably fairer [1, 2] and more in line with the will of all Australians and the democratic principles on which our senate and our broader democracy is based. The recount method means that only the Senators who would have won a seat in a regular half senate election get to sit for a full six years. It roughly doubles the quota of votes required to get a six year term (from 7.7% to 14.3%), meaning that preferences from excluded candidates must be distributed for all six of the full terms to be allocated. On the other hand, the order of election method disproportionately favours the major parties. In the 2016 election, the 36 Senators given full six year terms were all chosen based on first preference votes to the candidates or parties involved. That is, no candidates were excluded before the first six seats were allocated (more on this below).

More information.

Discuss.

The 1983 Joint Select Committee on Electoral Reform also recommended a referendum to resolve the issue, rather than leaving it up to the Senate of the day to decide. Two double dissolution elections later, history has proven them right. The constitution was not changed by the 1984 legislation. The Senate still decides who gets the six year terms and only a referendum can force the Senate’s hand. But now, before deciding, they are presented with two different lists. One is the list of the first six Senators elected in each state. The other is a list of the six winners of the recount method. The Senate then decides who gets the full terms.

A difference of two seats
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In both of the double dissolution elections we have had since then, the difference between the two methods was only two full term seats, out of a total of 72 state senate seats around the nation (36 of which are full term). In the 1987 double dissolution election, the new, fairer method would have allocated the two seats in question to two National Party Senators, while the old method allocated the seats to two Australian Democrats Senators. Labor and the Democrats held power in the Senate, under the leadership of Senator John Button. Labor discarded its own legislation and the recommendations of the Joint Select Committee, to hand the Senate seats to their coalition partners, the Democrats.

Although Labor abandoned the reform it had championed up until that point, the reform gained a new champion: the Coaltion. In 1987, the Coalition moved a motion to use the new, fairer method. It failed.

This left a cloud hanging over any future Double Dissolution elections. Labor had introduced legislation supporting the new, fairer method. The Coalition had attempted to use that method in 1987, but Labor held control of the Senate and abandoned its own reform, out of self-interest. In any future Double Dissolution election, whoever held control of the Senate would have two ‘legitimate’ methods to choose from: one fairer, the other supported by convention. They would be able to choose whichever method gave them more senate seats.

The resolutions that no-one knows about
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Both Labor and the Coalition recognised the problem. In 1998, Labor was in opposition. Their Senate leader at the time, John Faulkner, introduced a Senate motion on 29 June stating that in any future double dissolution election, the new, fairer ‘recount’ method would be used to allocate six year senate terms. Both Labor and the Coalition supported the motion. An agreement had been struck, but the constitution still left it up to the major parties to keep to their agreement. Most people probably anticipated that Labor and the Coalition would do a good enough job of holding each other to their promise.

Twelve years went by, and there was no double dissolution election. On 22 June 2010, Liberal Senator Michael Ronaldson introduced an identical motion, just in case anyone had forgotten their agreement. Again, both Labor and the Coalition supported the motion. It passed without debate.

The 2016 election
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Six more years went by. In 2016, we had a double dissolution election. It was finally time for Labor and the Coalition to fulfil their promise. The only problem was that this time, the two methods for allocating six year terms were a closer reflection of what we would expect. The old method favoured Labor and the Coalition by one seat each. Both Labor and the Coalition had an incentive to discard their previous agreement (to use the new, fairer recount method) and go with the order of election method instead.

On 12 August, 2016, after the Australian public had voted, but before the new Senate first sat, Labor and the Coalition announced that they had reached an agreement on how to allocate the six year Senate seats. It was not a ‘new agreement’, just an agreement. The had agreed to use the old 'order of election' method.

On 19 July 2016 (after the public had voted, but before Labor and the Coalition announced their plans), the Liberal party put Scott Ryan in charge of the Australian Electoral Commission.

Media coverage
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In their various press releases, Labor and the Coalition did not mention their previous agreements of 1998 and 2010. The media did not mention them either, even though they took the most concrete form a political promise could take - bipartisan Senate resolutions.

There was some controversy following the announcement. Derryn Hinch and Lee Rhiannon were not happy, but if you went by the media articles, there was not much they could do. The media quoted Labor and Coalition spokespeople justifying their agreement as fair and consistent with convention. Not a single article written by the Australian, the Sydney Morning Herald or any of their subsidiaries in the wake of the announcement mentioned the 1998 or 2010 resolutions. Going by media reports, not a single politician was asked any question at all about the legitimacy of reneging on these promises. Labor and Liberal Senators kept to a tight script. If you write to any of them about the decision, you will most likely get no response at all, while occasionally you will get one that repeats what was printed in the media and pretends you did not ask them about the resolutions.

For balance, their two victims, Hinch and Rhiannon were quoted saying the method was unfair. However, by omitting the most obvious justification for their complaint, and the only legitimate basis on which to criticise Labor and the Coalition for sticking to convention, the media helped to legitimise what is an entirely illegitimate move by the major parties. Derryn Hinch was even quoted proposing an entirely new method, which was sufficiently selfish to deligitimise his position. All the Australian public knew about this issue was that Derryn Hinch and Lee Rhiannon were upset about being denied a six year senate term, but that both Labor and the Coalition were in agreement, were acting in accordance with Senate convention, were describing the outcome as fair and were allocating six year senate terms according to who got the most votes. The Australian published even more extraordinary claims from Liberal Senator Mathias Cormann, that the order of election method reflects the will of the people through the distribution of preferences. It does not (more details below). These claims also went unchallenged, or at least, the challenges went unpublished.

Public remain ignorant
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The media blackout continued. The new Senate first sat on 30 August, 2016. By then, even if the original omissions by the media were an honest mistake, they must have realised how great their failure was in reporting on the August 12 announcement. The Senate vote was expected to happen on that day. It did not. The media did not report on this. The Senate voted on 31 August to pass the new agreement. Again, not a single mainstream media outlet reported this. Labor and the Coalition had gotten away with breaking promises and stealing Senate seats.

The Australian public did not even realise, because the media failed to report it.

The repeated failures by the media have contributed to the destruction of an important reform to the way double dissolution elections are handled in the Senate. Prior to the 2016 election, both major parties considered this reform so important that they passed a Senate resolution on it, agreeing to change precedent. 12 years later, they passed an identical resolution. Six years later, with the prospect of stealing a seat each, those resolutions are out the window. The politicians are not answering questions. The media is not asking them. Why am I the only one who thinks this matters? An important reform has been destroyed. The outcome of an election has been altered. After 2019, this will most likely affect the ability of whichever party holds power to get legislation through the senate, because there will be fewer minor party Senators to negotiate with. That is, it will have legislative outcomes. The Australian public have lost two important voices that could have held the major parties to their promises, which we demonstrably need.

Lazy and incompetent?
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This is, at best, lazy and incompetent journalism. Is it possible that they simply forgot? A look at references to the 1998 and 2010 resolutions in the media prior to and after the August 12 announcement suggests not. A copy of all the relevant articles discussed here is provided below.


Odger
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Odgers' Australian Senate Practice Thirteenth Edition (2012), Chapter 4 (Elections for the Senate) provides background on the 1983 Joint Select Committee, the 1984 Legislation, the 1987 double dissolution election (even outlining the self-interest Labor had for discarding their own reform), the 1998 bipartisan senate resolution and the 2010 bipartisan senate resolution. This is hosted at aph.gov.au (Australian Parliament House), where it (Odgers...) is described as “the authoritative account of the practices and procedures of the Australian Senate and its place in the framework of the Australian Constitution.”

On 29 January 2016, aph.gov.au also published an article outlining the issues and referring to the 1998 and 2010 resolutions. Both of these articles, published by the supposedly neutral APH website, are more critical of the major parties, and more forthright with incriminating facts, than the commercial media have been in response to the 12 August announcement.

Public pesters Antony Green
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Antony Green blogged about section 282 of the Electoral Act and its implications for the Senate repeatedly in the lead-up to the election. Perhaps in response to this this, the ABC coverage of the election was slightly better than its competitors, with one article published after the August 12 announcement mentioning the 1998 and 2010 resolutions.

On 30 June, 2014, Antony Green published an extensive blog about the issue, including the two Senate resolutions and other details covered by Odgers. Early in 2016, with the prospect of a double dissolution election looming, he was asked about it repeatedly, providing links back to his 2014 blog four times in a Q&A session on 9 March, 2016, again on 15 March, five more times on 21 March, then again on 24 March and 7 April. Perhaps fed up with answering the same question so many times, he wrote another blog on 25 April, 2016, covering the same topics. In this blog he mentions the resolutions but provides no details, but does refer people via a link to Odgers and to his 2014 blog. More questions followed on unrelated blogs on 2 June, 21 June and 1 July, with more links to the 25 April blog. At one point Green describes the allocation of long and short term Senate seats as the "question he has been asked more than any other in recent weeks".

The election was held on 2 July, 2016. As always, Senate results were significantly delayed.

Antony Green blogged about the allocation of long and short senate terms once more on 22 July. Despite being highly technical in nature, and not of immediate partisan relevance, all 3 of his blogs gained a lot of interest and many responses with detailed questions. This time he did not specifically refer to the 1998 and 2010 resolutions. He did state that the Senate had debated the issue many times since 1987 and had “recommended” using the recount method. He also linked back to his blog from earlier in 2016. On 22 July the initial Senate outcome was known. That is, the order of election was known, which means that the Senators who would get six year terms using the order of election method were known. Who those seats would go to under the recount method was not yet known. Green’s blog goes into some detail on how complicated this is, and the special provisions for a double dissolution recount.

This discussion on our forum, from before the 12 August announcement, opens with a summary of Antony Green’s blog from 2014 (the one with the most detail on the resolutions).

Another discussion from August 5, anticipating the 12 August announcement.

Two more discussions that followed the 12 August announcement:

Discuss.

Discuss.

Two more that followed the 31 August Senate vote:

Discuss.

Discuss.

ABC coverage
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Prior to the 12 August announcement, the ABC reported on the issue and included references and links to the Senate resolutions, to Antony Green’s blog, and to the relevant APH articles (24 May). On 5 July the ABC published an article about how six year terms are allocated. This article refers and links to the 1984 legislation, Antony Green's blog of April 25, 2016, and the Odgers site. It also specifically mentions the 1998 and 2010 resolutions. It was updated after the August 12 announcement. One other ABC article written after the August 12 announcement mentions the resolutions. After this date, the ABC joins the commercial media with a complete blackout on the Senate resolutions and the broken promises by Labor and the Coalition.

Coverage in the commercial media
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I can not figure out when the AEC released the results of the recount method. I expect it was shortly before 12 August. In any case, this was the date of the big announcement. Labor and the Coalition had reached an agreement. Mild controversy ensued, in which Hinch and the Greens came across as sore losers battling the perceived injustice of Senate convention, apparently with nothing concrete to support their complaints. Fairness and consistency with convention (by the major parties) are common themes, as were claims of unfairness by Hinch and the Greens. Articles in The Guardian [1, 2], the Sydney Morning Herald, The Mercury and Sky News, written before or immediately after the announcement, omit the 1998 and 2010 resolutions, despite referring to the recount method in various ways as a potential option.

The Australian and Senator Mathias Cormann promote a lie about preference flows
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The Australian took this strategy of lying by omission one step further. They quoted Senator Mathias Cormann (WA) claiming that the order of election method “would recognise that those senators’ tickets attracted more primary votes and a stronger flow of preferences” and “is a function of how many votes and how many preferences you are able to attract”. This is not true.

To suggest that the order elected method reflects the flow of preferences in any way is a lie. Under this method, six year terms go to the first six senators elected in each state. As this article demonstrates

http://www.ozpolitic.com/electoral-reform/who-did-your-senate-vote-go-to.html

in each state, either eight, nine or ten senators were elected before a single candidate was eliminated.

That is, not a single one of the 36 senators allocated six year terms did so with the help of preference flows from eliminated candidates. Anyone who gave their first preference vote to a minor party candidate without more than one quota (7.7%) of first preference votes did not have their preferences considered in deciding who gets six year terms.

The only significant preference flows supporting the first six elected senators from each state were within the major parties (parties with enough first preference votes to get two senators elected among the first six from the state). These preference flows only happened because the candidates listed first by these parties were elected with more than two quotas of first preferences. That is, the only votes that contributed to the election of the first six Senators were from people who gave a major party candidate their first preference (either above or below the line). For the vast majority of voters who voted above the line, this means that the votes remained with the party (the ‘ticket’ referred to by Cormann) that they gave their first preference to. It did not leave their first preference until all the six year terms were allocated. Most people who voted below the line are in the same boat, because they ranked all candidates from the party they gave their first preference to before ranking other parties. Regardless of the order they ranked them in, these votes stayed with the party they gave their first preference to until after all the six year senate terms were allocated. Even in the unusual case where a voter only gave their first below-the-line preference to one major party candidate and their second preference went to a candidate from a minor party (that had to rely on preferences from eliminated candidates to get elected), there was no way for the second preference candidate to get elected to a six year term based on those preference flows.

If it sounds like I am repeating myself, it is to eliminate any way in which Senator Cormann's claims could be construed as honest. Contrary to his claims, the only senators given six year terms were senators from parties that got one or several quotas of first preference votes and who did not need to rely on the flow of preferences from eliminated candidates. Senator Cormann's justification for using the order of election method is entirely misleading. The Australian published this justification, and several other insipid justifications from Labor and the Coalition, without mentioning the 1998 and 2010 Senate resolutions in which Labor and the Coalition promised not to do what they have just done.

I am not aware of any journalists asking Senator Cormann to explain why he made this claim.

More discussion on this issue can be found here.

On 19 July 2016, after the public had voted, but before Labor and the Coalition announced their plans to steal one senate seat each, the Liberal party handed the portfolio of special minister of state from Mathias Cormann to Scott Ryan. The special minister of state is responsible for the Australian Electoral Commission. They put the fox in charge of the hen house.

More discussion on this issue can be found here.

Media silence
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Not surprisingly, the ’controversy’ over the 12 August announcement only lasted a day. The media went quiet quickly. People stopped asking Antony Green about this on his blog. August 30 rolled around. The Senate sat for a day. There was no vote. The Senate sat again on 31 August. This time Labor and the Coalition put forward the motion to give themselves more Senate seats. Was there debate? Fisticuffs in the Senate? Senators demanding to know why their colleagues abandoned past promises and bipartisan Senate resolutions? Did Hinch tell everyone about his idea of giving every party a six year term? Did Rhiannon cry foul? Did the motion even pass?

None of these questions were answered by the mainstream media, because they did not report on the non-vote of 30 August, or the vote of 31 August. The coup succeeded without even a wimper. I do know they got away with it because one website published an article on it, but that is the extent of the coverage. On 31 August, australianpolitics.com reported on the vote, without specifically mentioning the date.

Where to from here?
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So, what are our options? We could do nothing and allow Labor and the Coalition to get away with this coup. They will still not trust each other on the issue. Maybe there will be more bipartisan Senate resolutions promising to do the right thing next time. Maybe in one future double dissolution election it will be in the interests of whichever party holds power in the Senate to use the new method and they will set a new convention. Would that convention hold? Both major parties have now probably realised that the old method tends to give them an advantage over the minor parties, and that the Democracts vs National Party struggle in 1987 was an unlikely outcome. The status quo gives the major parties two ‘pre-legitimised’ options. Whoever controls the Senate after the next double dissolution election will no doubt take advantage of having both options available and use whichever option gives them the most seats. There is a good chance that keeping their options open will benefit both Labor and the Coalition next time we have a double dissolution election. In any case, it might be too hard to keep a straight face while passing another Senate resolution, although the eagerness of the media to play ball makes anything possible.

It should have been possible for the major parties to act in good faith to establish and keep a new precedent, even if only to keep each other in line. That opportunity is now almost lost. The distrust between the major parties is still there, and they do have genuine reason to fear that they will, in the future, be victims of this as the Coalition was in 1987.

The opportunity is almost lost, but not completely. There are two viable options for the Australian public. The first, and probably the easiest, is for the Australian public to hold the media and the major parties accountable for their failures and get them to give back the stolen Senate seats. We have until 2019 to make this happen. If we succeed, the major parties will not be able to get away with it again. The reputational cost would be too high. We can make the reform happen with merely a gentleman’s agreement. It is not unheard-of for the Australian public to hold politicians responsible for broken promises.

Perhaps the biggest hurdle blocking this easy option is the defeatist attitude of the Australian public themselves. For some reason, the major parties have had great success in convincing the Australian public that this is all over and there is nothing they can do about it. In fact, the opposite is true. Labor and the Coalition must stare down the public for another 3 years before this decision can even take effect. Three years is a long time in politics, especially when you need the support of the cross bench Senators you just screwed over in order to pass legislation. The failure by the media to report on the broken promises obviously helped to establish this defeatist attitude, but I suspect there is more to it than that. This issue may be far easier to resolve than the public give themselves credit for.

The other alternative is to give in to hard reality and take advantage of the mistrust between Labor and the Coalition and get a referendum to change the constitution. This was a recommendation of the 1983 Joint Select Committee that started the reform process. I do not think we should give in so easily, but this remains a good plan B if plan A fails.

Please refer to the calls to action on the home page of this website (also copied below - 15 August 2016 and 11 September 2016) and write to politicians, the media, facebook friends etc. Links are provided to find email addresses for the relevant politicians. The first called on the public to write to their elected representatives. The second was published after the 31 August vote (and the frustration of trying to find out whether it had even happened). It also asks the public to write to media outlets to complain about the repeated failures by the media to adequately report the important facts.

join discussion

Commonwealth Consolidated Acts
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COMMONWEALTH ELECTORAL ACT 1918 - SECT 282

http://www.austlii.edu.au/au/legis/cth/consol_act/cea1918233/s282.html

Re-count of Senate votes to determine order of election in other circumstances

(1) Where the scrutiny in an election of Senators for a State held following a dissolution of the Senate under section 57 of the Constitution has been completed, the Australian Electoral Officer for that State shall conduct a re-count of the ballot papers in the election in accordance with subsections 273(7) to (30) (inclusive) as if:

(a) in subsection 273(8) "half" were inserted before "the number of candidates"; and

(b) the only names of candidates appearing on the ballot papers were the names of the candidates elected at the election and the numbers indicating preferences had been altered accordingly.

(2) Sections 280 and 281 do not apply in relation to a re-count under subsection (1).

(3) The result obtained in a re-count under subsection (1) in relation to a Senate election shall not affect the result of that election.

(4) Where, in a Senate election:

(a) an elector has marked a ballot paper according to subsection 239(2) or paragraph 269(1)(b); and

(b) the elector has also marked the ballot paper in such a way that, had it not been marked according to subsection 239(2) or paragraph 269(1)(b), the ballot paper would have been informal;

the ballot paper shall be treated, for the purposes of this section, as if the only marking on the ballot paper were the marking according to subsection 239(2) or paragraph 269(1)(b).

Odgers' Australian Senate Practice Thirteenth Edition
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2012

Chapter 4 - Elections for the Senate

http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/odgers13?file=chapter04§ion=22

Division of the Senate following simultaneous general elections

After a general election for the Senate, following simultaneous dissolutions of both Houses, it is necessary for the Senate to divide senators into two classes for the purpose of restoring the rotation of members.[31]

On the seven occasions that it has been necessary to divide the Senate for the purposes of rotation, the practice has been to allocate senators according to the order of their election. An example of the effective part of the resolution passed is that used following simultaneous dissolutions in 1974: "the name of the Senator first elected shall be placed first on the Senators' Roll for each State and the name of the Senator next elected shall be placed next, and so on in rotation".

In its report of September 1983 the Joint Select Committee on Electoral Reform proposed that "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".[32] The committee also recommended that there should be a constitutional referendum on "the practice of ranking senators in accordance with their relative success at the election" so that "the issue is placed beyond doubt and removed from the political arena".[33] The Commonwealth Electoral Act was subsequently amended to authorise a recount of the Senate vote in each state after a dissolution of the Senate to determine who would have been elected in the event of a periodical election for half the Senate.[34]

Following the 1987 dissolution of the Senate, the then Leader of the Government in the Senate, Senator John Button, successfully proposed that the method used following previous elections for the full Senate should again be used in determining senators in the first and second classes respectively.[35]

The Opposition on that occasion unsuccessfully moved an amendment to utilise section 282 of the Commonwealth Electoral Act for the purpose of determining the two classes of senators, in accordance with the September 1983 recommendation of the Joint Select Committee on Electoral Reform. According to the leading Opposition speaker, Senator Short, the effect of using the historical rather than the proposed new method was that two National Party senators would be senators in the first (three-year) class rather than the second (six-year) class, whilst two Australian Democrat senators would be senators in the second rather than the first class.[36]

On 29 June 1998 the Senate agreed to a motion, moved by the Leader of the Opposition in the Senate, Senator Faulkner, indicating support for the use of section 282 of the Commonwealth Electoral Act in a future division of the Senate.[37] The stated reason for the motion was that the new method should not be adopted without the Senate indicating its intention in advance of a simultaneous dissolution, but it was pointed out that the motion could not bind the Senate for the future.[38] An identical motion was moved by Senator Ronaldson (Shadow Special Minister of State) on 22 June 2010 and agreed to without debate.[39]

31. Constitution, s. 13.

32. PP 227/1983, para 3.39.

33. ibid.

34. s. 282.

35. SD, 14/9/1987, p. 17.

36. SD, 15/9/1987, p. 97.

37. 29/6/1998, J.4095.

38. SD, 13/5/1998, pp. 2649-51, 29/6/1998, pp. 4326-7.

39. 22/6/2010, J.3652.

Double dissolution election: implications for the Senate
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http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/FlagPost/2016/January/Doubledissolution

Posted 29/01/2016 by Rob Lundie

Prime Minister Turnbull has a number of triggers and potential triggers should he opt for a double dissolution election. If the Prime Minister decides to call a double dissolution election prior to the Budget (10 May), both Houses of Parliament would need to be dissolved, and the writs issued no later than Monday 4 April, for an election on Saturday 7 May.

Implications for senators' terms of office

The major effect of a double dissolution election is that the entire Senate is dissolved, meaning that all Senate positions are up for election. The past nine general elections (from 1990 onwards) have been for the House of Representatives and half the Senate. Since Federation there have only been six double dissolution elections, with the last in July 1987.

If the Senate is dissolved, when the new Senate meets following the election section 13 of the Australian Constitution requires the Senate to divide senators for each state into two classes: those having three-year terms, and those having six-year terms. Under section 13 also the two classes must be as nearly equal in number as practicable. One purpose of the shorter three-year term is to restore the rotation of the Senate, which occurs at half-Senate elections.

The Constitution does not prescribe the mechanism for the division of senators into the two classes—the Senate is free to adopt any criteria it chooses. To date, division into the two classes has been based on the number of votes received at the election (which determines the order of election), with those elected first becoming senators with six-year terms and those elected last becoming senators with three-year terms.

While other mechanisms have been canvassed, they have not been implemented. An amendment to the Commonwealth Electoral Act 1918 (’the Act’) introduced after a 1983 Joint Select Committee on Electoral Reform proposal provides for a recount of Senate votes to determine the order of election after a double dissolution. Under section 282 of the Act, the recount uses a half-Senate quota (14.3%), rather than a full-Senate quota (7.7%), and excludes unsuccessful candidates from consideration.

However, the Senate is not bound to use section 282, and may decide the means of dividing senators into the two classes of term by resolution. This occurred after the last double dissolution election in 1987 when the Senate voted on 17 September 1987 to use the method outlined above (the number of votes received at election).

On 29 June 1998, the Senate agreed to a motion by the then Leader of the Opposition in the Senate, Senator John Faulkner, indicating support for the use of section 282 in a future division of the Senate. Senator Faulkner expressed the Opposition’s view that a decision to adopt the section 282 recount method should be made prior to any double dissolution election, and that the section 282 method was the fairest mechanism for dividing senators into the two classes. However, it was pointed out by Senator Bob Brown that the Senate could change the mechanism in the future. On 22 June 2010 the Senate agreed to an identical motion by the then Shadow Special Minister of State, Senator Michael Ronaldson, without debate.

Implications for future elections

Under section 13 of the Constitution the terms of senators elected at a double dissolution election are deemed to have commenced on 1 July preceding the date of the election, and the next election to fill vacant Senate places must be held in the year before they become vacant. Thus if a double dissolution election was held on Saturday 7 May 2016, elected senators’ terms would be backdated to 1 July 2015, and a half-Senate election would need to be held before 30 June 2018.

In addition, in order to reintroduce simultaneous House of Representatives and half-Senate elections (the norm now for 25 years), a House of Representatives election would need to be held at the same time as the 2018 half-Senate election. This would shorten the term of the House of Representatives by about a year to just two years.

Antony Green's blogs
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http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

30/06/2014

How Senate Rotations are Re-established After a Double Dissolution

Australian State Senators are elected to fixed but staggered six year terms, with half of each state's Senators facing the electorate every three years.

Currently the Senate has 76 Senators, each state represented by 12 Senators broken into two rotations of six, plus two Senators from each of the Territories.

Terms of State Senators are fixed, and Section 13 of the Constitution specifies that an election for new Senators can only be held in the last twelve months of a Senate's term.

It is the Senate's fixed term that is the main impediments to Australian Prime Ministers calling early elections, unless they want to run the risk of House and Senate elections getting out of step.

The only method of breaking the Senate's fixed term is through a double dissolution, the constitutional deadlock resolution method that sends all of the Senate to an election at once.

After a double dissolution, the rotation of terms has to be re-established, all Senators being allocated to either a long or a short term.

Many times I've been asked what mechanism is used to allocate new Senators to short and long terms.

In this post I will outline the method the Senate has used in the past. I will also outline a fairer method that is provided for in the Electoral Act, a method ignored by the Senate when it last met after a double dissolution in 1987.

First let me clarify that term rotation only applies to the 72 State Senators. The four Territory Senators owe their positions to legislation rather than the Constitution. There is no rotation or fixed terms for Territory Senators. Territory Senate terms are tied to the life of the House of Representatives.

There are four types of Federal elections that can be held in Australia, and the type of election determines whether State and Territory Senators face election, as shown in the table below.

Election Type

House Only

House and Half-Senate

Half-Senate only

Double Dissolution

Territory Senators are sworn in at the same time as House members, at the first sitting after an election for the House of Representatives.

The swearing in of State Senators depends on whether they have been elected at a half-Senate or double dissolution election.

Senators elected at a half-Senate election begin their fixed six-year term on the next 1 July, usually at a later date than the House begins its new term. Senators elected at a double dissolution elections are sworn in at the first sitting after the election, but have their terms backdated to the previous 1 July.

The Senators elected at last September's half-Senate election do not begin their terms until 1 July 2014. They will be sworn in at a special sitting next week. Had last September's election been a double dissolution, Senators would have been sworn at the first sitting last November and their terms would have been deemed to begin on 1 July 2013.

This backdating of Senate terms after a double dissolution means that the new long-term Senators will serve less than six years, and short term Senators less than three years. Backdating of terms means that double dissolution elections interfere with the normal three year cycle of Australian elections.

When Gough Whitlam called a double dissolution election for May 1974 (it replaced an already announced half-Senate election), all new Senators had their terms backdated to 1 July 1973, meaning a new half-Senate election was due by the middle of 1976.

That is why Gough Whitlam visited the Governor-General on 11 November 1975 with a plan to call a separate half-Senate election as a way of resolving the budget deadlock. Instead Sir John Kerr chose to dismiss Whitlam and appoint Malcolm Fraser Prime Minister, and then accepted Fraser's advice for a double dissolution.

The 1975 double dissolution meant the next half-Senate election had to be held by mid-1978. Fraser called it for December 1977, six months before the end of the Senate term, but a year ahead of when a House election was due.

In early 1983, when Fraser wanted to call a snap election in the hope of catching the Labor Party with Bill Hayden as Leader, his only options were a separate House election, or a double dissolution. He chose a snap double dissolution for March 1983, but with Senate terms backdated to July 1982, new Prime Minister Bob Hawke had to call his own early election for December 1984 to keep House and half-Senate elections in step.

But back to the issue of how long and short terms are allocated to Senators after a double dissolution. To explain how this takes place, I will use the example election result below. The percentage vote for three three parties is shown, as well as the quotas that would be achieved for this vote at a double dissolution election and at a half-Senate election.

Example of Double Dissolution and Half-Senate Quotas

Party

Quotas

Quotas

Liberal

Labor

Greens

In percentage terms, the quota is 100% divided by one more than the number of members to be elected. For a half-Senate election, six members are elected so the quota is one-seventh or 14.29%. At a double dissolution, twelve members are elected and the quota is one-thirteenth or 7.69%.

At a half-senate election, the above result would have elected three Liberal Senators, two Labor and one Green. At a double dissolution the numbers would have been five Liberal, five Labor and two Greens.

Under the Senate's quota preferential electoral system, members are declared elected in an order determined by the rules under which the count is conducted. Using the example election above, the table below shows the order in which Senators would have been declared elected at a double dissolution.

Example Result - Order Elected at Double Dissolution

Order

Elected

Elected

Elected

1

4

7

9

11

The method used after previous double dissolutions has been to allocate long terms to the first Senators elected, and the short terms to the balance of Senators elected. For 12 Senators that would mean the long terms go to the first six elected, and those elected in positions 7-12 would be allocated short terms.

This method made sense in the days when majority voting was used, but can create serious anomalies when applied to the proportional system used since 1949. This is illustrated in the table below where Senators have been allocated to terms based on my example election and the order of election method.

Allocations of Long and Short Senate Terms - Order Elected Method

Senate Term

Long

Short

Despite the Liberal Party polling more votes than Labor and three times the vote of the Greens, all three parties receive two long term positions, and Labor and Liberal receive three short-term Senators. In this example, the Green's two Senators have received long terms, Labor and Liberal three short terms. The order elected method has allocated terms that seriously distort the election result.

To get around this problem, a new provision was inserted into the Commonwealth Electoral Act in 1984 to provide a fairer method of allocating Senators to short and long terms.

The method is to re-count the Senate votes cast at the double dissolution as if the election had been a half-Senate election for six seats. The principle is that the long term seats would be allocated to the Senators elected in the re-count, and the short-term positions allocated to the balance of Senators elected at the double dissolution.

The earlier table of results for my sample election indicated that a half-Senate election would have elected three Liberal, two Labor and one Green member. Using this result to allocate the long-term members, my example election for a double dissolution would produce the allocation of long and short term members shown below.

Allocation of Long and Short Senate Terms - Re-Count Method

Senate Term

Long

Short

Using the re-count method, a much fairer balance of long and short term members has been achieved. Both Liberal and Labor elected five members, but with the higher first preference vote, the Liberal Party receive three long-term Senators and Labor three short-term members. The Green Senators are more fairly split into one long-term and one-short-term position.

On a technical note, the AEC does not re-conduct the entire count as if it were a half-Senate election. Instead it uses the following procedures.

It first conducts the double dissolution count and declares 12 Senators elected.

It then reverts to the first preference counts.

All candidates that failed to be elected are excluded and the preferences on their ballot papers examined and the votes distributed accordingly to one of the 12 candidates remaining in the count.

Once all ballot papers have been distributed to one of the continuing 12 candidates, a new quota based on the votes remaining is calculated, and an election for six Senators conducted between the 12 candidates in the count.

Conducting the count in this way removes the theoretical possibility that someone could be elected at a six-member count who would not have been elected to a 12-member count.

The Electoral Commission conducted such a count at the 1987 double dissolution election, producing an allocation of Senators to long and short terms.

However, the Constitution gives the power to determine long and short term members to the Senate, and in 1987 the Senate chose to ignore the alternative count and instead use the traditional method based on order of election.

The reason was self-interest by Labor and Democrat Senators, who found themselves allocated more long-term positions at the expense of the Coalition. It meant that at the next election in 1990, the Coalition had more Senators than normal facing election while Labor and the Democrats had fewer seats to defend.

Since 1987 the Senate has several times passed resolutions stating its intention to use the re-count method to allocate seats at any future double dissolution.

However, if and when another double dissolution takes place, it will be the new Senate that determines the allocation of long and short terms. It will not be tied by resolutions of previous Senates.

And as in 1987, the majority of Senators present may choose to ignore the fairer re-count method if there is an advantage in sticking to the old order elected method.

(Note: Details of resolutions on the method that should be adopted in 1987 and resolutions of the Senate since can be found via this link to the relevant section of Odgers Senate Practice.)

Posted by Antony Green on June 30, 2014 at 11:39 AM in Double Dissolutions, Federal Politics and Governments, Senate Elections | Permalink

Comments

Thanks for the clarification Antony; I was curious about how this was done!

I have a question regarding double-dissolution triggers... Understandably, it is up to the Government as to whether a trigger is used to call on a double dissolution election or not (and they would only do so if they had a chance of winning), but is there a time limit on triggers? Does a trigger "expire" if, say, it is not used within a certain time frame? I've heard different answers to this - one being that there is NO time limit, and the other being that it must be used by the end of the following "parliamentary session".

COMMENT: The proclamation of a double dissolution cannot take place in the last six months of a term of parliament. The current parliament first sat on 12 November 2013, so the Governor-General cannot issue a proclamation dissolving both house for a double dissolution after 11 May 2016.

Posted by: Stas | June 30, 2014 at 04:29 PM

Hi, Antony,

Thank you for shedding so much light on this.

I have a different question about the double dissolution trigger.

Does it expire with a Senate term? Does Prime Minister Abbot need to requalify the trigger he acquired from the last Senate on this new Senate? Or does is the trigger he received from the last Senate remain active despite a new Senate beginning its term?

COMMENT: That is a slightly complex question. The trigger still exists, but the Prime Minister has probably lost the right to use it until he establishes that the new Senate has reached a point of practical deadlock, which would be hard to establish without putting the legislation into the Senate a third time.

Unless there is a trigger, a double dissolution cannot be called. But as well as having a trigger, the Prime Minister has to advise the Governor-General that the legislation is a matter of importance to the government, and that political deadlock has been reached with the Senate. In short, a trigger is a necessary but not on its own sufficient justification for a double dissolution.

Posted by: Dan W. in Los Angeles, California, USA | July 01, 2014 at 03:31 PM

Antony, good summary. A postscript of potential interest is that while one part of the Constitution (Section 13, parag #2) gives the Senate itself power to divide its members into long-and short-term classes after a double dissolution, another part (Section 14) gives the Parliament as a whole power to specify, by statute, how Senators are divided when the number of Senators per State is changed.

Thus after the 1983 and 1987 elections, the Senate itself decided which five or six Senators in each State would have long terms. On the other hand, after the 1984 election - at which, for the only time (so far) in Australian history, each State chose seven Senators: five to replace the five from the Class of 󈭃 who'd been given short terms, plus two to bring the total for each State from ten up to twelve - the seven seats were divided five/ two on a "first past the quota" method. (I can't find this specified in the Commonwealth Electoral Act: AustLII cites a “Commonwealth Electoral Legislation Amendment Bill 1983” as a match for Boolean query “twelve + Senators” but it’s only in PDF form that isn’t text-searchable.)

Rather than either method proposed so far - "first six past the quota" or "re-run a PR count for six seats only" - after a twelve-seat count at a double dissolution, I'd advocate a third way: elect six Senators by PR for 5 to 6 years, then resurrect all the defeated candidates and re-allocate and recount the ballots afresh elect another six Senators by PR for 2 to 3 years. In other words, two separate six-seat counts. The quota would not drop below 14.28%. Perhaps then a double dissolution would resume a role closer to what the Founders intended - a way of making the Senate accountable if its members are persistently obstructionist - rather than a twelve-seat scramble with a good chance that some random lunatic will scrape up a 7.7% quota even if 99% of the voters didn't vote for him or her.

Posted by: Tom Round | July 01, 2014 at 09:08 PM

Why can't a double dissolution take place in the last six months of a term of parliament? Why are Senate terms back dated toward the previous July after a Double Dissolution? Wouldn't it be better to have it more aligned with the lower house?

COMMENT: The answer to the first two questions is because the constitution says so. On the third questions, four times referendums have been put to tie the terms of the Senate to the term of the House, and four times they have been defeated, though the 1977 attempt had clear majority support but lost by being rejected in three states.

Posted by: Rob | July 02, 2014 at 04:59 PM

Do you know if there was there a reason that the Territory Senators were given terms tied to the House, rather than simply 3-year terms starting at the next 1 July (or previous 1 July for double dissolutions)?

COMMENT: At the time Territory Senate representation was created, House and Senate elections had been out of step for a decade. Labor in 1974 and the Coalition in 1977 put forward referendums to tie the Senate to terms of the House, and the Territory Senate representation legislation reflected what was though to be the likelihood of future change to State Senate terms. Alas, attempts to change the Senate terms in 1974, 1977, 1984 and 1988 were all defeated, though the 1977 attempt achieved a clear majority of the national vote, only to be defeated in the three small states. Hence the difference in state and territory representation.

Posted by: kme | July 03, 2014 at 11:23 AM

The law which provided for Senate term lengths after 1983, which Tom Round wasn't able to track down, was the Representation Act 1983 (http://www.comlaw.gov.au/Details/C2004C00214), for which I did the drafting instructions. It was based on a similar Act which provided for the increase in the size of the Parliament effected at the 1949 election.

Posted by: Michael Maley | July 05, 2014 at 04:43 PM

Thanks Michael for the tip. The statutory formula is reproduced here: http://www.austlii.edu.au/au/legis/cth/num_act/ra1983186/s5.html. Ironic that the House of Reps and government urged the Senate to adopt the "recount for six seats" procedure in 1987 when in 1983 the former had had no problems with the "first past the quota" method. To be fair, it's one thing to lay down a formula a year or so before an election is held, and another thing to choose among formulas when the newly-elected (or newly-renewed) chamber meets after the poll and members know whose ox will be gored depending which option is adopted.

Posted by: Tom Round | July 05, 2014 at 08:29 PM

The comments to this entry are closed.

Q&A - Ask Away About Election Timing, Double Dissolutions etc

http://blogs.abc.net.au/antonygreen/2016/03/question-time-ask-away-about-election-timing-double-dissolutions-etc.html

Hello there,

I am a little confused about Senate election timing. If there was a double dissolution, would all senate terms begin immediately and then get backdated to the most recent July?

And then the first six state senators would get six year terms, and the last six three year terms?

COMMENT: After a double dissolution, Senate terms are back-dated to the 1 July before polling day. So a DD election on 25 May 2016 would backdate Senate terms to 1 July 2015. A DD election on 2 July 2016 would backdate to 1 July 2016, and the next half-Senate election would be due in 2019 instead of 2018.

The terms of Senators after a double dissolution are determined at the first sitting of the senate. I outline the two methods that could be used in the following post. http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Captain Obvious | March 09, 2016 at 12:52 PM

if we have a 2016 DD, is the distribution for Full Term - Partial Term spots via order of quota filled? or another process they decide on?

COMMENT: See this post http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Mark Duckett | March 09, 2016 at 09:10 PM

What happens to the cycle of half senate elections after a DD? Do half the senators get a 6 year term and half get 3?

COMMENT: See here http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Julian Ebeli | March 09, 2016 at 10:43 PM

What happens to the cycle of half senate elections after a DD? Do half the senators get a 6 year term and half get 3?

COMMENT: See here http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Julian Ebeli | March 09, 2016 at 10:43 PM

scenario re senate terms. I am considering Fred Nile's Christian Democratic Party. If they were to elect say 2 senators in different states (1 senator from NSW and the other from say QLD) would that mean 1 of them serves for 3 years and the other for 6 years? Would the scenario change if CDP were to elect 2 senators from the same state in a DD?

COMMENT: After a double dissolution election, Senators are allocated short and long terms within each state. Winning seats in two states has nothing to do with being allocated short or long terms. In each state the Senators are allocated 6 long term and 6 short term.

I explain the methods used to allocate terms in a previous blog post http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: John | March 10, 2016 at 11:07 AM

http://blogs.abc.net.au/antonygreen/2016/03/senate-electoral-reform-double-dissolutions-and-section-64-of-the-constitution.html

Hi Antony

If there is a DD election on 2 July 2016 there will be an election for all 12 Senators for the States. I would like to know which 6 senators get allocated for the "1 July 2016" intake with a 6 year term, and which ones get backdated to "1 July 2013" and are up for election in 3 years (assuming a 2019 election). Do you simply say the first 6 elected get 6 year terms and the next 6 elected get 3 year terms?

COMMENT: It's explained here. http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Mitch | March 21, 2016 at 03:37 PM

Open Q&A Post - Double Dissolutions, New Senate Electoral System - ask away

http://blogs.abc.net.au/antonygreen/2016/03/open-qa-post-double-dissolutions-new-senate-electoral-system-ask-away.html

How does the reassigning of Senate term lengths work? As in how is it decided who remains for a full 6 year term after a DD and who is up at the next election?

COMMENT: I explain it all in this post http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Tim | March 21, 2016 at 09:32 PM

Hi Antony, I have just read your post on re-establishing Senate rotations:

http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

I'm amazed that the Senate still has the ability to return to the traditional method rather than the re-count method, since their resolutions aren't binding. I presume since it's a Constitutional issue it can only be corrected by referendum?

Perhaps the best we can hope for is that journalists ask each major party leader to commit to the re-count method during the campaign, to make it harder for any to renege.

Posted by: Mathew Inkson | March 21, 2016 at 09:44 PM

In the case of a double dissolution, which senators will get a full six year term, and which will only get a half term? Does this mechanism have the potential to cause an unbalanced senate after the following half election?

COMMENT: I explain the mechanism in a previous post http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Jon Paxman | March 21, 2016 at 10:24 PM

Hi Antony. If a DD is called on 2 July there will be 12 Senators elected for the States. Is it the case the top 6 Senators elected get 6 year terms and then the bottom 6 Senators elected get 3 year terms? If not, how is it determined which 6 are up for re-election in 3 years?

COMMENT: I explain the re-establishment of Senate rotation in the following post http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Mitch | March 22, 2016 at 09:19 AM

Hello,

In a DD election, how is it decided who in the Senate will stay for only half the time? Do they draw straws?

ANSWER: http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Sári Gaddam | March 24, 2016 at 09:34 AM

http://blogs.abc.net.au/antonygreen/2016/03/first-preference-votes-for-elected-senators.html

Is it correct that the eight cross bench Senators (actually seven if the DLP Senator is not counted - given his six year term is up) will each serve another three years if there is not a DD election, or another three years if they are re-elected at a DD election?

COMMENT: All the Senators elected in 2013, term starting 2014, would serve until 2020 if there were not a double dissolution. If there is a double dissolution, all current terms are terminated and a new cycle of short and long terms set up by the Senate after the election. I explained the allocation to short and long terms in the following post http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

Posted by: Colin Thomas | March 24, 2016 at 12:05 AM

http://blogs.abc.net.au/antonygreen/2016/04/the-turnbull-governments-senate-position-would-be-little-better-after-a-double-dissolution.html

Dear Antony,

Fascinating once again; so thankyou.

Can you please clear up a matter premised on the DD election proceeding ? Under the half-Senate election, half of each States Senators are up for re-election in 2016, with the remainder to face re-election in 2019 - correct ?

Under a DD all 12 of each State's Senators stand for election in 2016. So what happens in 2019 ? It is presumed that a half-Senate election would still be held then, but which of the Senators elected in 2016 will face re-election and which ones continue to hold office until 2022 ?

Also - what happens regarding ACT & NT Senators under each scenario ?

COMMENT: After a double dissolution, all Senators are allocated to either a short or a long term. I set out the methods by which this can be done on by blog about two years ago. http://blogs.abc.net.au/antonygreen/2014/06/how-senate-rotations-are-re-established-after-a-double-dissolution.html

The ACT and NT Senators have been split 1 Labor 1 Coalition at every election since they were first elected in 1975. The only difference the Senate electoral changes will make is to strengthen the Liberal hold on its ACT Senate seat.

Posted by: Eric | April 07, 2016 at 02:11 PM

How Long and Short Senate Terms are Allocated After a Double Dissolution

http://blogs.abc.net.au/antonygreen/2016/04/how-long-and-short-terms-are-allocated-after-a-double-dissolution.html

25/04/2016

The question I've been asked more than any other in recent weeks is how the Senators elected at a double dissolution election are allocated to either long or short terms.

I wrote a post on the subject two years ago, but given the topic's relevance with a looming double dissolution, I thought I should re-post it with some minor changes.

The short answer is that the Constitution leaves the decision to the elected senators. A method based on order of election has always been used after past double dissolutions, but a second re-count method would produce a fairer outcome.

Australian State Senators are elected to fixed but staggered six year terms, with half of each state's Senators facing the electorate every three years.

Currently the Senate has 76 Senators, each state represented by 12 Senators broken into two rotations of six, plus two Senators from each of the Territories.

Terms of State Senators are fixed, and Section 13 of the Constitution specifies that an election for new Senators can only be held in the last twelve months of a Senate's term.

It is the Senate's fixed term that is the main impediments to Australian Prime Ministers calling early elections, unless they want to run the risk of House and Senate elections getting out of step.

The only method of breaking the Senate's fixed term is through a double dissolution, the constitutional deadlock resolution method that sends all of the Senate to an election at once.

After a double dissolution, the rotation of terms has to be re-established, all Senators being allocated to either a long or a short term.

In this post I will outline the method the Senate has used in the past. I will also outline a fairer method that is provided for in Section 282 of the Electoral Act, a method ignored by the Senate when it last met after a double dissolution in 1987.

First let me clarify that term rotation only applies to the 72 State Senators. The four Territory Senators owe their positions to legislation rather than the Constitution. There is no rotation or fixed terms for Territory Senators. Territory Senate terms are tied to the life of the House of Representatives.

There are four types of Federal elections that can be held in Australia, and the type of election determines whether State and Territory Senators face election, as shown in the table below.

Election Type

House Only

House and Half-Senate

Half-Senate only

Double Dissolution

Territory Senators are sworn in at the same time as House members, at the first sitting after an election for the House of Representatives.

The swearing in of State Senators depends on whether they have been elected at a half-Senate or double dissolution election.

Senators elected at a half-Senate election begin their fixed six-year term on the next 1 July, usually at a later date than the House begins its new term. Senators elected at a double dissolution elections are sworn in at the first sitting after the election, but have their terms backdated to the previous 1 July.

If a normal House and Half-Senate election were held later this year, the new Senators would not take their seats until 1 July 2017. If the double dissolution is held as expected on 2 July, then the new senators will be sworn in at the first sitting of the new Parliament, likely to be at the end of August 2016. The terms of the new Senators will be deemed to begin on 1 July 2016.

If the double dissolution election were held in May or June, then Senate terms would be backdated to 1 July 2015. That's why the Prime Minister has nominated 2 July as his election date, to avoid losing a year off the new Senate's term.

This backdating of Senate terms after a double dissolution means that the new long-term Senators will serve less than six years, and short term Senators less than three years. Backdating of terms means that double dissolution elections interfere with the normal three year cycle of Australian elections.

When Gough Whitlam called a double dissolution election for May 1974 (it replaced an already announced half-Senate election), all new Senators had their terms backdated to 1 July 1973, meaning a new half-Senate election was due by the middle of 1976.

That is why Gough Whitlam visited the Governor-General on 11 November 1975 with a plan to call a separate half-Senate election as a way of resolving the budget deadlock. Instead Sir John Kerr chose to dismiss Whitlam and appoint Malcolm Fraser Prime Minister, and then accepted Fraser's advice for a double dissolution.

The 1975 double dissolution meant the next half-Senate election had to be held by mid-1978. Fraser called it for December 1977, six months before the end of the Senate term, but a year ahead of when a House election was due.

In early 1983, when Fraser wanted to call a snap election in the hope of catching the Labor Party with Bill Hayden as Leader, his only options were a separate House election, or a double dissolution. He chose a snap double dissolution for March 1983, but with Senate terms backdated to July 1982, new Prime Minister Bob Hawke had to call his own early election for December 1984 to keep House and half-Senate elections in step.

But back to the issue of how long and short terms are allocated to Senators after a double dissolution. To explain how this takes place, I will use the example election result below. The percentage vote for three three parties is shown, as well as the quotas that would be achieved for this vote at a double dissolution election and at a half-Senate election.

Example of Double Dissolution and Half-Senate Quotas

Party

Quotas

Quotas

Liberal

Labor

Greens

In percentage terms, the quota is 100% divided by one more than the number of members to be elected. For a half-Senate election, six members are elected so the quota is one-seventh or 14.29%. At a double dissolution, twelve members are elected and the quota is one-thirteenth or 7.69%.

At a half-senate election, the above result would have elected three Liberal Senators, two Labor and one Green. At a double dissolution the numbers would have been five Liberal, five Labor and two Greens.

Under the Senate's quota preferential electoral system, members are declared elected in an order determined by the rules under which the count is conducted. Using the example election above, the table below shows the order in which Senators would have been declared elected at a double dissolution.

Example Result - Order Elected at Double Dissolution

Order

Elected

Elected

Elected

1

4

7

9

11

The method used after previous double dissolutions has been to allocate long terms to the first Senators elected, and the short terms to the balance of Senators elected. For 12 Senators that would mean the long terms go to the first six elected, and those elected in positions 7-12 would be allocated short terms.

This method made sense in the days when majority voting was used, but can create serious anomalies when applied to the proportional system used since 1949. This is illustrated in the table below where Senators have been allocated to terms based on my example election and the order of election method.

Allocations of Long and Short Senate Terms - Order Elected Method

Senate Term

Long

Short

Despite the Liberal Party polling more votes than Labor and three times the vote of the Greens, all three parties receive two long term positions, and Labor and Liberal receive three short-term Senators. In this example, the Green's two Senators have received long terms, Labor and Liberal three short terms. The order elected method has allocated terms that seriously distort the election result.

To get around this problem, Section 282 was inserted into the Commonwealth Electoral Act in 1984 to provide a fairer method of allocating Senators to short and long terms.

The method is to re-count the Senate votes cast at the double dissolution as if the election had been a half-Senate election for six seats. The principle is that the long term seats would be allocated to the Senators elected in the re-count, and the short-term positions allocated to the balance of Senators elected at the double dissolution.

The earlier table of results for my sample election indicated that a half-Senate election would have elected three Liberal, two Labor and one Green member. Using this result to allocate the long-term members, my example election for a double dissolution would produce the allocation of long and short term members shown below.

Allocation of Long and Short Senate Terms - Re-Count Method

Senate Term

Long

Short

Using the re-count method, a much fairer balance of long and short term members has been achieved. Both Liberal and Labor elected five members, but with the higher first preference vote, the Liberal Party receive three long-term Senators and Labor three short-term members. The Green Senators are more fairly split into one long-term and one-short-term position.

On a technical note, the AEC does not re-conduct the entire count as if it were a half-Senate election. Instead it uses the following procedures.

It first conducts the double dissolution count and declares 12 Senators elected.

It then reverts to the first preference counts.

All candidates that failed to be elected are excluded and the preferences on their ballot papers examined and the votes distributed accordingly to one of the 12 candidates remaining in the count.

Once all ballot papers have been distributed to one of the continuing 12 candidates, a new quota based on the votes remaining is calculated, and an election for six Senators conducted between the 12 candidates in the count.

Conducting the count in this way removes the theoretical possibility that someone could be elected at a six-member count who would not have been elected to a 12-member count.

The Electoral Commission conducted such a count at the 1987 double dissolution election, producing an allocation of Senators to long and short terms.

However, the Constitution gives the power to determine long and short term members to the Senate, and in 1987 the Senate chose to ignore the alternative count and instead use the traditional method based on order of election.

The reason was self-interest by Labor and Democrat Senators, who found themselves allocated more long-term positions at the expense of the Coalition. It meant that at the next election in 1990, the Coalition had more Senators than normal facing election while Labor and the Democrats had fewer seats to defend.

Since 1987 the Senate has several times passed resolutions stating its intention to use the re-count method to allocate seats at any future double dissolution.

However, what the Senate will do after the 2 July double dissolution will be up to the Senators elected.

And as in 1987, the majority of Senators present may choose to ignore the fairer re-count method if there is an advantage in sticking to the old order elected method.

The difference between the two methods will be greatest where a party achieves more than the double dissolution quota of 7.69%, but less than the 14.29% quota at a half-Senate election. Parties that fall between these two percentage votes would be allocated long term seats under the order elected method, but short term seats under the re-count method.

This is most likely to have an impact on the Greens in NSW and Queensland where the two methods are likely to produce different results on whether Labor or the Greens are allocated long term seats.

My above example showing how the Greens could win two long term senators under the order elected method would be a possibility in Tasmania, Western Australia and Victoria, and would be certain to occur with the Nick Xenophon Team in South Australia. A victory by Jacqui Lambie in Tasmania would further distort the order elected method.

It should be noted that any minor party elected on preferences from less than the double dissolution quota would be allocated a short term under both methods.

(Note: Details of resolutions on the method that should be adopted in 1987 and resolutions of the Senate since can be found via this link to the relevant section of Odgers Senate Practice.)

Posted by Antony Green on April 25, 2016 at 04:07 PM in Double Dissolutions, Electoral Law, Electoral Systems, Federal Politics and Governments, Senate Elections | Permalink

Comments

So had the half senate election Whitlam wanted gone ahead, it would have only involved the election of state senators who wouldn't have been active senators until July 1976 anyway?

Supposing it is in the interests of the Greens and Labour (or some other parties perhaps) would it not be scandalous if they were to use their numbers to force a less fair allocation to occur?

Very interesting read, thanks for your work.

COMMENT: The half-Senate election Whitlam was requesting would also have been for the four new Territory Senators, who would have taken their seats at once. This was a special provision for the first election of Territory Senators.

Posted by: David | April 25, 2016 at 06:25 PM

Thanks Antony, for a complex system, you've made it (almost) understandable; no mean feat...well done and thanks (as usual...).

How is it that we accept that the constitution allows this effectively after the vote, with elected Senators able to determine the recount (short or long) method? Have I missed something? Is this due to the quota system and the total number of senators?

I'm fairly aghast at how this particular aspect works - appearing to favour some and not others as per your 1987 example, and I understand why people like me number every box below the line!

COMMENT: Because the Constitution contained no definition of the electoral system to be used to elect the Senate, it also could not include a definition of how long and short term members should be appointed.

Posted by: Daniel Bennett | April 25, 2016 at 08:13 PM

Regarding Whitlam's proposed election, this would also have elected Senators to immediately fill casual vacancies in both New South Wales and Queensland - under the old rules interim appointments by a state parliament only lasted until the next federal election. In both states non-ALP senators had controversially been appointed to seats won by the ALP in 1974, causing the Senate numbers to tip the Coalition's way and it was hoped that the election at least claw back some of the government's position.

Posted by: Tim Roll-Pickering | April 25, 2016 at 11:09 PM

One thing is certain, the Greens (or Zenephon if he gets enough people elected) will team up with either ALP or coalition to use whatever rule suits them best. Then either the ALP or the Coalition (depending on who misses out on the deal) will complain about how the other side has rigged the system and ignored the will of the people.

Posted by: Mango | April 26, 2016 at 11:11 AM

So now we effectively have Optional Preferential Voting for the Senate? How long until we can have that in the HoR? Even if I put someone last (say, the Nazi Party), I'm still giving them tacit endorsement by having to put a number against their name?

Posted by: Mark | April 26, 2016 at 04:56 PM

The Constitution could, however, have specified that the Senate only decides on how to allocate long and short terms "until Parliament otherwise provides".

COMMENT: It didn't though, and recommendations by the 1956-59 and 1975-83 constitutional conventions to introduce a rule never produced anything.

Posted by: kme | April 26, 2016 at 09:55 PM

Antony, in your view, how likely is it that the 'order elected' method will be used? Clearly a vote would come down to Labor's decision with the Coalition and Crossbench benefitting most from different systems. Is their decision as simple as picking between the LNP and Greens or are they likely to benefit from election order in SA or Tas?

COMMENT: I think the re-count method is more likely to be used. The choice will come down to whether Labor or Green Senators get short or long terms, especially in NSW and Queensland. In states where the Greens might get two up, or Xenophon 2 in SA, I think it highly unlikely the Coalition would allocate itself only 2 long term positions.

Posted by: Luke | April 26, 2016 at 09:56 PM

So now we effectively have Optional Preferential Voting for the Senate? How long until we can have that in the HoR? Even if I put someone last (say, the Nazi Party), I'm still giving them tacit endorsement by having to put a number against their name?

By not numbering the slightly evil candidates your helping the completely evil candidates.

COMMENT: 80-90% of preferences on ballot papers never get counted and those that do are between mainstream candidates, not evil candidates.

Posted by: David | April 26, 2016 at 10:52 PM

To Mark, you can leave the last box blank and the vote is still formal. By numbering all but the last box, all you're saying when you number the second last one is, 'given a choice between the two remaining candidates, this one is least objectionable.' That's hardly approval, and it's a lot better than leaving the choice to those who do feel strongly about the Nazi party.

COMMENT: On 80-90% of ballot papers it doesn't matter who you put last as the preference will never be counted. The final race in electorates almost always comes down to a contest between two thoroughly mainstream parties, so it's usually a tweedledum/tweedledee choice that voters are forced to make just have have the first preference they really care for count.

Posted by: Daniel | April 26, 2016 at 11:49 PM

Thank you Antony - I always enjoy reading your posts even if some of them leave my mind boggled. However, due to you I was able to advise my political party aware partner on some issues the other night. "where did you find that out?" i was asked - "Antony told me" I said. So obviously some of your points have got into my head. Well done.

Posted by: David | April 27, 2016 at 12:13 PM

Regarding the 'savings provision' in the senate voting, I gather that just a single '1' vote above the line will still be counted. Is this still the case if you number 1 and 2, or any other number up to 5 ? And would it be acceptable for a party to advise voters to just number a '1' above the line, as this vote would be counted, and would avoid any chance of eventually being cascaded to, say, one of the major parties.

COMMENT: It would also stop a minor party votes cascading to another minor parties. It is why all the micro parties opposed the abolition of the group tickets.

Posted by: Ian | April 28, 2016 at 01:05 PM

How many voters would understand what they are doing when they cast their compulsory vote---very few. It is time our democracy was modernized with the abolition of compulsory voting, the implementation of first past the post voting, fixed four year terms and the abolition of the "House to protect the States interests" [which it doesn't] the Senate. Or if the Senators need to keep their pay then at least remove their power to block money bills.

Posted by: Ian Smith | April 28, 2016 at 05:25 PM

@mango - Nothing is certain! If the Greens and Xenophon manages to get enough seats and benefit significantly from the order elected method, There is a good chance that Labor and Liberal may both be disadvantaged and decide to team up and push the reount

COMMENT: I expect the re-count method will be used as the order elected method is highly likely to have some strange outcomes.

Posted by: Phil D | April 29, 2016 at 09:14 AM

Given that this election for the Senate will use the optional preferential system and with only 12 entries required for below the line voting below the line becomes a more feasible option. Do you think that parties will produce two how to vote cards? Which method if any favours the major parties?

COMMENT: Parties will still have an interest in influencing preferences if they have surplus votes so will most likely recommend preferences to other parties above the line.

Posted by: Tom Dobinson | April 29, 2016 at 01:35 PM

Antony, a strange but interesting question: if a party elected two or more Senators in the same state after DD election, with at least one long-term and one short-term Senators, is it possible for two senators to swap their terms, either by both Senators resign at the same time, and the party nominates the same two Senators as replacements but on the 'other' vacancy. Or, using a scheme like cricket where using a third bowler to changing bowing ends, in order to do a swap of terms?

It would sound extremely strange why any Senator would like to change from a long-term to a short-term Senator, but I can see someone like Nick Xenophon would be happy to face a normal Senate election sooner rather than later, as his name on the ballot paper can make a significant difference for his party vote in the next normal Senate.

COMMENT: A minor party that tried that stunt might find the relevant state parliament refuses to fill the vacancies in that manner. While a vacancy must be filled by a member from the same party, the parliament still has the power to reject a candidate.

Posted by: TT | April 29, 2016 at 04:43 PM

Antony I have two questions regarding a possible joint sitting post the election. Who presides over the sitting, and does the other presiding officer have a vote? Also if the election result delivers for example 36 LNP Senators, and a two seat margin in the House for the LNP there is a possibility that the trigger bills will be lost. Can they come back for a second time?

COMMENT: When the joint sitting convenes one of those present will be elected to chair the session. Section 57 seems to indicate that all members vote. I don't know whether the chair has a casting or deliberative vote but the wording suggests to me it is deliberative and that would be clarified by the standing orders adopted. If the government doesn't have the numbers to pass the legislation at the joint sitting the legislation doesn't pass.

Posted by: Vern Lewis | April 30, 2016 at 08:07 AM

Antony, on an unrelated question; why is it that the Senate can refuse individual budget measures such as tax increases or spending cuts without refusing supply? Aren't these located in the appropriation bills, which mean that if the Senate refuses them then they are rejecting the entire budget? What is located in supply bills if not tax and spending measures announced in a government's budget? It's always perplexed me when the media talks about the government not being able to get its budget through the Senate, surely no budget has actually been rejected since 1975. Am I missing some sort of constitutional nicety?

COMMENT: The appropriation bill just sets out how much money is allocated to each government department for the year. Without the passage of an appropriation bill, government departments don't have any money to spend. Tax measures are always in separate legislation.

The appropriation bill is also introduced to the Parliament as the Governor-General requesting these appropriations. If a government cannot pass the appropriations bill, then it has failed to achieve the revenue required for the services of the Crown.

It is why the classic no-confidence motion is to amend the appropriation bill by one pound/dollar.

Posted by: Melissa | May 05, 2016 at 01:44 AM

Antony - slightly academic, but if the senators' terms are backdated, does that mean that they receive salary for the backdated days? (Only one day I know if the election is on 2 July 2016, but potentially up to a year)?

COMMENT: Their term is backdated to the previous 1 July but their pay is backdated only to the date of the election.

Posted by: Paul | May 05, 2016 at 01:15 PM

Might the "order elected" method yield the long-term senators in most states to be two each of Liberal/LNP, Labor, and Greens? This would leave all of the minor party members in short-term seats, and likely to lose some of their number to the major parties in the next half-senate election.

COMMENT: If the order elected method maximises the number of Greens elected, it will also minimise the number of Labor and Coalition members receiving long terms, which is why is unlikely to be used. Any party that polls less than the double dissolution quota of 7.7% is almost certain to get a short term using both methods.

Posted by: Scott D | May 05, 2016 at 03:59 PM

Hi Antony, I appreciate your great work over the years and have a question that doesn't exactly relate to this post, but you would be the best person to answer this. Why is Labor slightly ahead in the most recent preferred party polls, but looking at the betting agencies, the coalition is paying just $1.33 for a win, with Labor way out at $3.40. Why are the betting agencies reflecting such huge difference from the polls?

COMMENT: Betting odds are set based solely on the amount and direction of money being wagered. Bookies set their odds to make a profit. The odds are based on which party people are prepared to put money on winning. If the polls convince more people to put money on Labor then the odds will change as the bookies adjust the odds to balance their books. The odds having nothing to do with opinion polls other than the flow of bets may change based on polls.

Posted by: Tristan | May 05, 2016 at 06:24 PM

There's also the point that even with a slim 2PP lead to the ALP, the Coalition is still likely to win more seats in the House. The ALP probably needs something like 51% 2PP to win the election.

COMMENT: As I said, betting odds are set by the bookmakers balancing their books. The flow of money suggests that people who gamble on elections have doubts that Labor can win. Whatever the reasons why gamblers think differently from voters in polls, the odds are set on the flow of money.

Posted by: kme | May 05, 2016 at 08:59 PM

Bit off topic...

In a previous thread you mentioned that the data from NSW elections under OPV showed how to vote cards made little difference in the upper house. Has that been true of all parties? I am thinking about Labor, Coalition, Greens and maybe FF who have the supporters to mass distribute at polling places.

Given that we are now going to a DD with the OPV above the line rules for the Senate, do you think the parties will be able to effectively influence second or third preferences?

COMMENT: I think that parties that distribute how-to-votes will have more influence on preference flows than candidates and parties that don't.

Posted by: Josh C | May 06, 2016 at 09:21 AM

What's to stop the LNP and Labor arranging to give most of the long terms to themselves and most of the short terms to Nick X, Greens etc.?

COMMENT: The fact that the government would need the support of the cross bench members to pass legislation in the face of opposition for Labor. The tactic you suggest would be a very poor method of beginning negotiations.

Posted by: Paul B. Austin | May 06, 2016 at 04:27 PM

Antony, during all the time you have had interest in politics have you a preference for another system of voting for both Houses? Are you willing to tell us?

COMMENT: I'm happy with various forms of preferential voting, but in my opinion preferences should be optional.

Posted by: Thomas | May 07, 2016 at 09:58 AM

Slightly off topic...

So as far as I know, unless we have a referendum on it each original state is entitled to the same number of senators. However would it be possible to introduce more senators, to be elected by the nation as a whole rather than by state, without having a referendum? (So everyone would need to vote twice for senators)

If it were possible they could presumably reduce the number of state senators and so approach a more fair/one vote one value system.

COMMENT: No, Senators are allocated by state and are elected by the voters of each state. There is no such thing as a Senator being elected by the whole nation.

Posted by: James | May 08, 2016 at 01:59 PM

Hi Antony, I've done a bit of reading about Bob Day's High Court challenge and get that it's improbable that it will be successful. Now that both houses are to be dissolved tomorrow what would happen if Senator Day succeeded in having the new voting method for the Senate ruled unconstitutional? Would this mean that parliament had to be recalled to legislate a new method of voting? Would it impact on the date of the election?

COMMENT: The problem for the Day challenge is that if it were successful, and it seems unlikely it will be, then the quota specified in the Act and used since 1949 would be invalid, and the ticket voting provisions in use since 1984 would probably be declared invalid. Under those circumstances, large parts of the electoral act would have been invalidated. Trying to undissolve the Parliament to legislate on fixing the problem gets beyond the limits of my knowledge of constitutional law as it relates to the powers of the Governor-general and precedent elsewhere.

Posted by: Craig | May 08, 2016 at 04:33 PM

The comments to this entry are closed.

http://blogs.abc.net.au/antonygreen/2016/06/2016-senate-calculators.html

Will half of the elected senators be appointed to 6 year terms and the other half to 3 year terms to return to the normal pattern of senate terms? If yes how will this be determined?

COMMENT: All explained here http://blogs.abc.net.au/antonygreen/2016/04/how-long-and-short-terms-are-allocated-after-a-double-dissolution.html

Posted by: Will | June 02, 2016 at 07:30 PM

In the case of a double dissolussion how do they pick which senators will serve half a term and which will serve a full term

Especially if xennephon got 3 greens got 6 and for example 16 other minors got in with balance being a split of liberal and labor

ANSWER: http://blogs.abc.net.au/antonygreen/2016/04/how-long-and-short-terms-are-allocated-after-a-double-dissolution.html

Posted by: Jamie | June 06, 2016 at 10:05 PM

http://blogs.abc.net.au/antonygreen/2016/06/senate-preference-recommendations.html

Hi Antony,

My understanding is that under the old Senate voting system if a voter voted below the line and made a botch of it if they made a valid vote above the line that vote would replace the below the line attempt.

Are you aware if a similar provision exists under the new rules? For example, if a voter attempted to vote for more than 12 candidates below the line and made a mistake, if they also entered at least 6 preferences above the line would that vote replace the below the line attempt?

I haven't been able to locate AEC reference material about this.

COMMENT: I wrote about it here. http://blogs.abc.net.au/antonygreen/2016/06/2016-senate-calculators.html

Posted by: Alex | June 21, 2016 at 12:44 PM

http://blogs.abc.net.au/antonygreen/2016/06/how-should-you-vote-in-the-senate.html

Just a question about Double Dissolutions. We are now electing a full Senate, as opposed to the normal half Senate. What happens at the next election? Will half the Senators have to submit themselves for re election, despite having sat for only 3 years? And, if that is the case, how is the decision reached about who sits for 3 years and who sits for 6 years?

COMMENT: I explained it here http://blogs.abc.net.au/antonygreen/2016/04/how-long-and-short-terms-are-allocated-after-a-double-dissolution.html

Posted by: Gwhat | July 01, 2016 at 03:23 AM

Hello Mr. Green,

Is not the first business of the Senate will be to determine, because all seats were vacated in a double dissolution election, who will now be half and full term Senators?

No one in the media seems to have taken this to heart or reported on it as it will be the first blood letting amongst peers as to who will benefit most from entitlements.

Previous Senators may think themselves entitled, but as per the law they will all be new with no previous as the new batch enters to place their plump rumps on our tax soaked red leather.

Weirdest election I have ever experienced in many a decade.

Keep up the good work.

COMMENT: I deal with how long and short Senate positions are allocated after a double dissolution here. http://blogs.abc.net.au/antonygreen/2016/04/how-long-and-short-terms-are-allocated-after-a-double-dissolution.html

Posted by: Billious | July 01, 2016 at 12:55 PM

Allocating New Senators to Long and Short Terms, plus Next Election Timing

http://blogs.abc.net.au/antonygreen/2016/07/allocating-new-senators-to-long-and-short-terms-and-next-election-timing.html

22/07/2016

Allocating New Senators to Long and Short Terms, plus Next Election Timing

When the new Senate sits on 30 August, one of its first items of business will be the allocation of state Senators to either three or six year terms.

This allocation has to be undertaken as the 2016 election was a double dissolution and all 72 state senators were elected together. The Senate has to divide the state Senators into two groups of 36 senators to re-establish staggered terms and the rotation of Senators.

I have previously written on the methods to allocate Senate terms, both those used in the past and those proposed for the future. That post can be found here.

The power to divide senators is granted to the Senate by the Constitution, which states in the first paragraph of Section 13 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 three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service.

Paragraph two of Section 13 then re-establishes the fixed terms by defining when writs for a new Senate election can be issued -

The election to fill vacant places shall be made within one year before the places are to become vacant.

The start of the term of service is then defined by paragraph three of Section 13 -

For the purposes of this section the term of service of a senator shall be taken to begin on the first day of July following the day of his election, except in the case 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 July preceding the day of his election

Dealing with these paragraphs in reverse order, paragraph three means that when Senators are sworn in on 30 August, their terms are deemed to start on 1 July, though they will only be paid from the day they are elected, which is 2 July. Terms will last until either 30 June 2019 for short term Senators, and 30 June 2022 for long term Senators.

The second paragraph prevents writs for a new half Senate election being issued before 1 July 2018. As the Senate elected at the next half-Senate election must take its place on 1 July 2019, the next half-Senate election would have to be held by mid-May 2019 to allow time for votes to be counted.

This means that if the next election is to be for the House and half the Senate, it must be held between August 2018 and May 2019. It should be noted that the NSW election is currently set for the end of March 2019 and the Victorian election for the end of November 2018. The dates for both state's elections can be altered if they clash with a Federal election.

The timing of a May budget makes it more likely that the election would be held at the end of 2018.

The House election could be put off until as late as October 2019, but the half-Senate election must be held by mid-May 2019. It would be very odd for a government to hold the House and half-Senate elections on separate dates in 2019.

Of course, if the government achieved a double dissolution trigger, then an early double dissolution election could be held as late as March 2019.

As I outlined in my post linked above, there are two methods proposed to allocate new Senate terms. In the past the order election method has always been used, but the Senate has recommended previously that the re-count method set out in Section 282 of the Electoral Act should be used instead.

There is no automatic method of allocating senators to seats. The Senate must divide the senators, and this is done by a motion on which the Senate votes.

This last happened in September 1987 after that year's double dissolution.

Government Leader in the Senate, Senator Button, moved a motion adopting the order elected method. It read -

That, in pursuance of section 13 of the Constitution of the Commonwealth, the Senators chosen for each State be divided into two classes as follows:

(1) The name of the Senator first elected shall be placed first on the Senators' Roll for each State and the name of the Senator next elected shall be placed next, and so on in rotation.

(2) The Senators whose names are placed first, second, third, fourth, fifth and sixth on the Roll shall be Senators of the second class, that is, the long-term Senators, and the Senators whose names are placed seventh, eighth, ninth, tenth, eleventh and twelfth on the Roll shall be Senators of the first class, that is, the short-term Senators.

On behalf of the opposition, Senator Short sought to amend the motion to adopt the re-count method by amending paragraph (2) to read -

(2) The six Senators for each State whose order of election was determined in a re-count of ballot papers pursuant to section 282 of the Commonwealth Electoral Act 1918 and certified by the Australian Electoral Officer for that State shall be Senators of the second class, that is, the long-term Senators, and the remaining six Senators for that State shall be Senators of the first class, that is, the short-term Senators.

Backed by the Australian Democrats, the government had the numbers to pass the motion adopting the order elected method. The result was that two more Democrats received six year terms and two more Coalition members received three year terms.

The same two motions may be put in 2016. The main difference is that the senate has debated the matter several times since 1987 and recommended that the re-count method should be adopted after any future double dissolution.

However, those past debates do not bind the new Senate taking its place on 30 August. The Constitution grants the Senate power to make the decision, and legislation and past motions cannot bind the deliberations of the Senate when it sits on 30 August.

While the final composition of the new senate remains to be determined, it is possible to work out how the two methods would allocate six year terms.

The outcome of the order elected method is clear. It would grant six year terms to 16 Coalition Senators, 13 Labor, three Greens, two Nick Xenophon Team members, plus Jacqui Lambie and Pauline Hanson. It would allocate more short terms to Labor and the Greens than to the Coalition, and deliver the rest of the Senate cross bench short terms. The traditional method would deliver a three year term to Derryn Hinch.

Working out how the re-count method would work is more complex. Let me explain why.

First, the re-count is not a matter of simple re-running the election for six Senators and using the 1/7th quota rather than the 1/13th.

Instead the count is conducted as follows.

(1) The first preference votes of the 12 elected Senators are admitted to the re-count.

(2) The ballot papers for all other candidates are examined to determine which of the 12 elected senators has the next available preference.

(3) Ballot papers for other candidates are then transferred by their preferences to one of the 12 elected candidates. Any ballot paper that exhausts its preferences before reaching one of the 12 candidates is excluded from the count.

(4) A quota is determined by dividing the total number of formal votes for the 12 candidates by 7.

(5) The count then continues as a normal count using the total votes received by the 12 candidates.

A key point in this process is that the huge increase in exhausted preferences produced by the Senate's electoral system will have a bigger impact on the re-count than the original count.

At a normal election, ballot papers that exhaust their preferences do so after the quota has been set. At the re-count, these ballot papers will exhaust before the quota is set.

Say the double dissolution election for a state had 700,000 formal votes. The 1/13th double dissolution quota would be 53,849, and the 1/7th half Senate quota would be 100,001.

But assume that around 10% of votes exhaust. That would be 70,000 ballot papers that were included in the original count. These would be excluded on the re-count, so the starting point would be 630,000 ballot papers, not 700,000, and the quota would be 90,001, not 100,001.

Say one of the parties with candidates in the re-count had 250,000 votes. That would be 2.50 quotas on the original quota, but 2.77 quotas after excluding the exhausted preferences.

The exhaustion rate may not have as much impact as I suggest above, but it will be an advantage to any party that has more than a quota of first preference votes.

It also means that the re-count method is likely to produce the same outcome as the order of election method.

Either way, before the Parliament meets, the Senate will have available the results of both methods for allocating long and short Senate terms.

Both the order of election and the re-count by the AEC will be available before the debate. What motion is moved to allocate terms will be influenced by the advantage that parties see from adopting either method.

But then, there is also nothing to stop the Senate doing something entirely different. The two big parties could gang up on everyone else and allocate themselves all the long terms.

Except that the self-interests of both Labor and the Coalition are unlikely to align in such a brazen and cynical manner.

Both the government and the opposition will be seeking to work with the cross-bench over the next three years. Putting the cross bench offside in a grab for power in the next Senate after 2019 is not the best way to establish rules for debate in the Senate in place for the next three years.

Posted by Antony Green on July 22, 2016 at 01:26 PM in Double Dissolutions, Federal Politics and Governments, Senate Elections | Permalink

Comments

Due to the 'exhausted votes' under the new Senate voting system, I gather the election of the last one or two Senators in each state will be based on candidates with the highest remaining first preference votes. If so, doesn't this open the possibility that whilst exhausted votes don't count, some votes would get to be counted twice, i.e. once on distribution of preferences (to another candidate) and again where there's still a vacant Senate seat and that candidate has the highest number of first preferences?

If so, wouldn't the 're-count' method described above be a fairer election method for the last one or two Senators in each state?

COMMENT: I'm not quite sure what you are talking about. It is entirely possible that a ballot paper can take part in electing a candidate before it exhausts. If someone voted just 1 ATL for the Liberal Party in WA, their ballot paper would play a part in electing five Senators before it exhausted.

The re-count method to allocate the six long term members is the fairer system than the order elected method.

Posted by: Bill Koutalianos | July 22, 2016 at 03:08 PM

Hi Antony, i know that this is unrelated to your post, but is there a break down of preference flows and how the candidates were eliminated in each seat? I live in Melbourne Ports and are interested in seeing how close the Greens came to overtaking Danby - especially given the result in Prahran at the last State election.

COMMENT: The full distribution of preferences will be published when it is completed. The distribution of preferences cannot be done until the count of first preference votes is completed.

Posted by: MATTHEW | July 22, 2016 at 03:21 PM

Thanks for the explanation, Antony. One question, what would happen if exhausted ballot votes (with the quota set before they exhausted as in a normal election) meant that insufficient candidates reached the quota?

I realise this would mean a huge percentage of exhausted votes and is unlikely in practice, but it is theoretically possible and the AEC is, presumably, ready for any potential outcome.

COMMENT: If vacancies remain to be filled and no candidates remain to be excluded, then the candidates with the highest current final of votes are declared to fill the final seats.

Posted by: Alan Bustany | July 22, 2016 at 03:45 PM

Antony,

Could the majors and the greens agree on either of the two methods and then amend it such that an alternate to Pauline Hanson is given a 6 year term if she would have otherwise received a 6 year term?

I'm thinking that the HTV cards of each major party suggest they both find David Lyenhjelm to be preferable to Hanson.

COMMENT: The Senate shall determine who gets a long term and who gets a short term. That's all the Constitution states.

Posted by: Frank | July 22, 2016 at 05:54 PM

I think it is unlikely that the next election is held in 2018. That would make it almost a 2 year term. I don't see anything wrong with an election between February and April. As you say the date of the NSW election can be changed if it conflicts with the federal election. The same problem would exist at the end of 2018 anyway with the Victorian election. We've had plenty of March elections and elections in the 1st half of the year reduce the time that a newly elected government has to deal with a lame duck Senate. As it is the government which decides the election date, I assume it would be prepared to deliver a budget in May if it was reelected.

COMMENT: We've had plenty of March elections but not since the budget was moved to May. That said, the budget can always be deferred to August, as the Howard government did when elected to office in March 1996.

Posted by: Camille | July 22, 2016 at 06:01 PM

The lower quota (in number of votes) caused by the exclusion of exhausted votes from calculating would also help candidates from parties not far bellow a quota. This means that the Greens` Senator`s Waters and Rhiannon (Qld and NSW) would be well placed to get longer terms, especially with a number of the micro parties having Green leaning voters preferencing the Greens.

Hanson-Young (Greens, SA) and Hinch may even be in with a chance under the recount method.

The order of election method puts the Greens at a disadvantage at the next election because they would have 3 states with no long term Senators (and no chance of electing 2 at a half-Senate election), compared with only 1 or even 0 state(s) under the recount method.

The new preferencing rules will create a far higher rate of exhausted votes than the recount method was designed for.

COMMENT: I can't agree with your first comment. The point I am making is that a party with 2.8 quotas on an original 1/7th quota will be vastly advantaged by exhausted preferences compared to a party on 0.8.

Assuming a 10% exhaustion rate, the party with 2.8 quotas would be pushed over 3 quotas while a party on 0.8 would still be short of a quota. The exhaustion rate is much more advantageous to a party with more than a quota as it benefits from the lower quota on its filled quotas as well as the final partial quota.

Posted by: Tom the first and best | July 22, 2016 at 06:42 PM

Bill Koutalianos: If a candidate is elected to one of the final positions short of a quota, there is no way that any first preference vote for that candidate can have played a part in electing any other candidate. Preferences remain with a candidate until that candidate is either elected or excluded.

Posted by: kme | July 22, 2016 at 08:48 PM

Further to my comment at 3:08pm, perhaps I misused the term 'exhausted votes'. I meant for example where someone has voted solely for one or more minor parties that all got nowhere and as a result their vote goes to no one. Such a vote would play no part in the outcome and get wasted. I thought that's what you meant when you noted in your 2 June article "If your ballot paper runs out of numbers and 'exhausts' its preferences, it will not take part in choosing the last candidate elected."

If I read your 2nd June article correctly, I was contrasting this to some votes potentially being counted twice for two different candidates from two different parties, "i.e. once on distribution of preferences ... and again where there's still a vacant Senate seat and that party/candidate has the highest number of first preferences".

For example, with senate seats 11 & 12 in play, let's say Labor has a 0.6 remaining quota & Greens have a remaining quota of 0.4. Let's also assume the Greens voters all had Labor at 2nd preference. Labor wins the 11th seat & no one else can quite complete a full quota for the 12th seat. Assuming the Greens 0.4 quota was the highest remaining first preference vote, would that 0.4 quota elect a Green as the 12th Senator? If so, the 0.4 quota has contributed to the election of 2 senators. It certainly doesn't sound right, especially in the case where another party got closer to filling a quota for the 12th seat.

I note in the comment at 3:45 you talk of the "highest current final" filling the final seats. On June 2 your blog described the filling of the final seats as being based on the "remaining candidates with the highest votes are elected" and also as "parties with the highest partial quotas at the start of the count".

So where the final quota can't be filled, is it the "highest partial quotas at the start of the count" that wins, or the highest vote after preferences have been distributed?

COMMENT: An exhausted ballot paper is one that runs out of preferences while there are vacancies still to be filled. Such a ballot paper therefore plays no direct part in determining who fills the final vacancy. Such a ballot paper may have already played a part in electing Senators, or it may exhaust before electing anybody.

Candidates and parties starting the count with the highest partial quotas are advantaged in the race for the final seat but it doesn't determine the final seat. If at the end of the count count no candidates remain to be excluded, and vacancies are yet to be filled, then the candidates in the contest with the highest tally of votes are declared elected. That is their current tally at the point where the count stops, not their initial tally.

Posted by: Bill Koutalianos | July 23, 2016 at 01:51 AM

Hi Antony

I saw footage on ABC of the AEC scanning the Senate papers into a large machine to calculate first and other preferences. My questions are, can those machine separate the ways people write say a 1 and 7 and 4 and secondly can they separate informal votes for the savings provision scrutiny?

COMMENT: The ballot papers are also data entered, once if no anomalies are detected, twice if there are any anomalies.

Posted by: Ann | July 23, 2016 at 04:49 PM

We all know that there's only one fair & decent way to solve the question of which senators will leave after 3 years:

A huge game of pin-the-tail-on-the-Donkey involving all senators, followed by a bout of cage-fighting. You know you agree Antony.

Posted by: Q | July 23, 2016 at 05:04 PM

Dear Antony,

Long time follower, first time poster.

Just wanted to say thank you so much for your insight into the workings of electing the Senate.

It has certainly made researching for my undergraduate research paper on reforming the Canadian Senate to an Australian-type model much less stressful!!!

Sincerely a hard working law student (and budding amateur psephologist!)

Posted by: Timothy Wrathall | July 23, 2016 at 10:24 PM

Antony, I believe I've found an error in the way your old senate calculator works out successive transfer values, and the same error seems to exist in the AEC's distribution-of-preferences algorithm, judging by read-outs. This miscalculation could easily swing some of the final senate appointments in the current election, and leave the results open to challenge.

The error occurs when surplus votes from a major party are passed to another party, then that party reaches quota and their surplus is redistributed. The miscalculation results in preferences from the major-party ballots being severely over-valued in the second surplus-redistribution calculation.

Looking at your senate calculator for Queensland in 2010:

http://www.abc.net.au/elections/federal/2010/guide/sqld-results.htm

At Count 21 Larissa Waters reaches a quota, based partly on 20,476 surplus Labor votes being transferred when David Smith was excluded, which is on a par with the Democrats' original 19,018 votes flowing to the Greens. After Larissa Waters is elected, 5,565 of her 8,177-vote surplus are transferred according to the Labor group ticket, and only 146 votes are transferred according to the Democrats' group ticket, which seems paradoxical given the two parties contributed almost equally to Waters' current total.

The surplus-redistribution algorithm apparently factors in the Labor contribution as a full 312,804 original raw votes, forgetting that these votes have already expended most of their value by electing two Labor senators. The huge number of raw Labor ballots crowds out all the other parties, so Labor's 6% contribution to Larissa Waters' election achieves 85% control of how her surplus votes are distributed.

I believe the correct calculation is that the existing transfer-value of the Labor votes (0.0284) should be multiplied by the new surplus-transfer-value (0.0228), resulting in a new transfer value of 0.00065 for the hundreds of thousands of Labor votes, while the simple transfer value of 0.0228 should be applied to votes belonging to other parties. This then brings Labor's share of the preference flow (466 votes) into line with that of the Democrats (434 votes).

Whereas your calculator was a simplification driven by group tickets, the AEC counts every vote individually. Looking at the AEC's distribution-of-preferences read-out, Count 193 indicates the same miscalculation is being made:

http://results.aec.gov.au/15508/Website/External/SenateStateDop-15508-QLD.pdf

In order for only 2,002 of Waters' 6,506-vote surplus to flow to the Sex Party, at least two thirds of Greens first-preference ballots would have had to be marked below the line, which seems highly unlikely. I can only conclude that the AEC calculator is over-writing the transfer-value of the Labor votes instead of multiplying the progressive values, as was the case in your old senate calculator.

In the current election, the first-preference numbers in Victoria suggest a similar miscalculation is extremely likely to happen, and could throw the final results. Labor has 4.006 quotas, so its surplus after election of four senators is already smaller than the other groupings, so Labor's votes will be redistributed early, at massively reduced value. Labor's how-to-vote card preferences Hinch at #2 and Greens at #5, so once Hinch gets elected, the electoral value of Labor ballots will be resurrected, and assuming most voters followed the HTV card, this will unfairly favour the Greens. (I am a Greens supporter, so I'm arguing against my own self-interest here.)

If the exclusion of a moderately-polling candidate contributes to Hinch going significantly over quota, the resulting surplus could be very large, and the transfer-value miscalculation could easily make a difference of 0.1 or 0.2 quotas to the final showdown, even though there was only 0.06 quota left over to begin with. I have done some simulations, and in the theoretical (but unrealistic) extreme case, a 0.5-quota loss can be turned into a 0.5-quota win for the candidate preferenced by major-party votes.

COMMENT: The calculations are correct according to law. Whether they are the correct calculation is a different matter entirely. You are describing the difference between the Inclusive Gregory and Weighted Inclusive Gregory method of determining transfer values.

I dealt with the example you refer in a blog post here http://blogs.abc.net.au/antonygreen/2010/09/distortions-in-the-queensland-senate-count.html

And at the 2014 Victorian election, the difference in the two methods actually impacted on the final result in one region.

http://blogs.abc.net.au/antonygreen/2014/12/transfer-values-in-northern-victoria-region.html

Posted by: Matthew Coller | July 23, 2016 at 10:51 PM

living in a first past the post country looking at your system, i doubt very much that i would trade for yours.

Posted by: harry | July 24, 2016 at 12:47 PM

So what would happen if the Senate was completely deadlocked. For example, the vote kept being tied 37 ayes 37 noes and 1 abstain (if I recall the president of the senate doesn't have a casting votes, ties are resolved in the negative).

Would the GG decide? Would the senate be forbidden from undertaking any other business until the issue was resolved?

COMMENT: A deadlocked Senate is a deadlocked Senate. Nothing happens until another election. The Governor General has no roll.

There are 76 Senators and the President has a deliberative vote not a casting vote.

Posted by: Alex | July 24, 2016 at 07:25 PM

Antony

This is the first election where the average enrolment per Division has exceeded 100,000. Logistically, I think it's becoming quite difficult for members to effectively represent their constituents in the parliament.

A repeat of the 1984 expansion under the Hawke government - I think - is well overdue.

Is there any possibility that this parliament may choose to expand both chambers by increasing the number of senators from each state?

EG, if the Parliament chose to increase the number of senators from each state from 12 to 16, would that also mean that only 4 of the 12 elected senators from each state would have to face re-election in 2019? Or would 6 face re-election for 8 places?

COMMENT: I think any increase if it were to occur would take the Senate to 14 seats and restore the principle of electing an odd number of Senators at a half-Senate election. As at the last increases in 1949 and 1984, the extra Senators would be elected at the first half-Senate election and some of them allocated to short terms.

Posted by: Jeff Waddell | July 25, 2016 at 06:47 AM

Hi Antony, I've got a question related to numbers required for an "absolute majority" in the House of Reps. Even without winning the seat of Herbert won't the government still command an absolute majority, after appointing a speaker, given that 75 government MPs will beat 74 other MPs when it comes to a vote?

COMMENT: A government needs 76 seats for a floor majority of 75, and that is the position the Turnbull government is in.

Posted by: Joseph Briggs | July 25, 2016 at 07:13 AM

Why has the number of votes allocated to Labor decreased from earlier in the day on the page for Herbert?

It's 44,189 now and was over 44,200 before.

http://www.abc.net.au/news/federal-election-2016/guide/herb/

Posted by: James | July 26, 2016 at 07:55 PM

Could you please do a new post updating the Senate count with a prediction if possible?

Posted by: Steve Gethin | July 27, 2016 at 02:23 AM

Hi Antony

Yes these count backs are fraught with danger. As a side issue NSW is planning to implement count back for local government elections in NSW and I am not at all convinced there has been sufficient research into the viability of this concept when using data from a previous optional preferential count. I can easily see these count backs giving very silly answers.

Posted by: Brighty0101 | July 27, 2016 at 11:50 AM

what is the current outlook for a result in any state for the senate ? This week ? Next week ? The week after that ?

Is there any statistic we can watch to see the countdown to the completion of the preparation of the votes ?

Posted by: enno | July 27, 2016 at 04:19 PM

I've just noticed that the AEC website is updated and seems to be showing which senators have actually been elected in Tasmania.

If this was reported in the news anywhere, I missed it.

The ALP outcome is somewhat remarkable.

Posted by: enno | July 27, 2016 at 04:32 PM

The distribution of the surplus of Colbeck certainly looks curious. They don't publish some of the counts, which makes that hard to observe.

It looks live several thousand people wrote their preferences backwards for the Liberal Party, which seems strange.

It looks like McKimm beat the One nation candidate McCullogh by about 80 votes for the last spot.

Posted by: enno | July 27, 2016 at 05:02 PM

The really interesting count in Tasmania is count 334, where the leading Sex Party candidate Allen is excluded, and their preferences distributed.

A whopping votes 1925 become exhausted at that count, more that double all the votes exhausted in the count up to that point.

The remaining candidates standing at that point were ( in order of votes )

23792 Singh Labor, 5th candidate, with large 1st pref vote

21450 Bushby Liberal, 4th candidate, with surplus from first 3 Libs.

18957 Bilyk Labor, 4th candidate, with surplus from first 3 ALP

18261 McKim Green, 2nd candidate

16673 Colbeck Liberal, 5th candidate, with large 1st pref vote

16384 McCulloch One Nation

11074 Madden Family First

The first four of these seven got the last four spots in the senate. Which is probably how it is supposed to work.

Madden's distributed votes pushed McCulloch ahead of Colbeck, so Colbeck was the next eliminated. Another 1912 votes were exhausted when Madden's preferences were distributed.

It would have taken only a couple of hundred of the Family First or Sex Party votes to have NOT exhausted, to change the elimination order of Colbeck or McCullogh.

After Madden's votes were distributed, the two weakest remaining candidates were

18136 McCulloch

16918 Colbeck

Only 150 votes different, with 3800 votes exhausted just in the preceding 2 eliminations.

If McCullogh had finished behind Colbeck at this point, the distribution of preferences would probably have resulted in the outcome would probably have been Colbeck elected and McKim missing out.

So, those exhausted votes might certainly make a difference.

Posted by: enno | July 27, 2016 at 05:43 PM

living in a first past the post country looking at your system, i doubt very much that i would trade for yours.

Harry, i can assure you that many Australians wouldn't want to go back to FPTP either.

The only selling point of FPTP that i can see is that it's kind to people who struggle with math.

Posted by: paulo | July 27, 2016 at 05:44 PM

Antony,

Under either of the methods you have outlined is it possible/probable that the two Vic Greens Senators would be BOTH allocated 3 year terms?

COMMENT: It is possible.

Posted by: paulo | July 27, 2016 at 06:14 PM

The other interesting question, is would it have made any difference if the 5th ALP and Liberal candidates had not both got such a large personal first preference vote ?

What if their supporters had just voted 1 for the party ticket ?

If the voters had done so, then the 4th ALP and 4th Liberal senators would have been elected earlier in the counts, and the surplus would have gone to the 5th candidate in each case, who would have been competing with family first, one nation and the second green for the last two places.

The reported total quotas for the ALP and Liberal tickets in total were reported to be 4.367 and 4.228 quotas respectively.

That still puts the 5th ALP in a stronger position than the 5th Liberal, which is what happened.

The preference flow in the actual count from Colbeck is rather curious

76.9% back up the ticket to the 4th Liberal

14.4% to the ALP, the vast majority of which directly to Singh

6.21% exhausted

3.5% to One Nation

0.23% to the Green

It's difficult to know what those voters were thinking.

The eventual surplus votes from the last Liberal who was actually elected went to

41.1 % ALP

26.2 % exhausted

20.8 % One Nation

11.8 % Green

If the voters who apparently voted 1 Colbeck and then nothing for anyone else, or who had voted 1 Colbeck and then voted only for micro-party candidates, if those voters had voted for the Liberal Party ticket, or in the same way as all the other Liberal voters did, then the outcome would probably have been that One Nation would have got the last spot in Tasmania, and McKim the Green would have missed out.

So, voting for your party candidates in an abnormal order might make a difference, but not necessarily the difference you were expecting.

COMMENT: Voters should always vote for the candidates in the order they wish to see them elected.

Posted by: enno | July 27, 2016 at 06:32 PM

I'd be interested to find out how the recount method resolves above and below the line votes, i.e. personal vs party votes, since with Lisa Singh elected in Tasmania with a large personal vote it seems this would be an issue. Also when was the last senator elected with a below the line vote?

Posted by: Robert Whitehurst | July 27, 2016 at 08:22 PM

Some interesting observations on the Tasmanian Senate count. All parties that led in the part quota count ended up getting the final positions (although not always in ticket order). Six Senators elected after 3 counts, another 352 counts needed for the last six. Only the last spot decided on less than a quota. 2.8% of votes exhausted.

Posted by: Mango | July 28, 2016 at 09:36 AM

Will all newly-elected Senators be sworn in on August 30th? How is the order for Maiden Speeches decided and how much notice is given?

COMMENT: Senators will be sworn on the first sitting day which I understand is 30 August. I have no idea on how the order of first speeches is determined.

Posted by: Katya Watt | July 28, 2016 at 11:04 AM

Antony are you going to analyse or present the Senate results? It is a hard slog working through the AEC presentation of the distribution of preferences - your previous presentations are easier, showing the order of candidates by votes at each point and who is eliminated at each round.

AEC so far has not put up any of the house of reps preference distributions, just the primary votes and two candidate preferred, despite confirming quite a few seats where preferences were required to confirm the winner.

COMMENT: When I get a chance. I've been in New Zealand most of this week and have other pressing commitments at the moment.

Posted by: Conor King | July 28, 2016 at 11:43 AM

I note that the Tasmanian Senate result shows 355 counts were required in order to determine the exhausting of candidates and the preference vote transfers.

Why doesn't the AEC publish "count results to date" at the end of each day for each State? These would make interesting reading, and give an idea as to who is leading in the race for the final seat!

Also, are the respective parties privy to interim status quo at the end of each individual count - eg, in Tasmania's case, say at count 300, count 330, count 340, or whatever? If they can know, why can't the public?

COMMENT: The counts are only revealed when the button is pressed to distribute preferences. Nobody has access to them beforehand. The distribution if published would be done to completion.

The ACT publishes daily distribution of preferences, but it has the advantage that 25% of its votes are completed electronically and are available on election night. For a Federal election, it would take 2-3 weeks before enough ballot papers have been entered to get a sensible count.

Posted by: FearlessFred | July 31, 2016 at 03:01 PM

Do you know when the button/s will be pressed for the various state senate results? Tasmania is done but the others are still to come.

COMMENT: This week apparently.

Posted by: Zelda T | July 31, 2016 at 03:04 PM

Unrelated to this topic but would be interested in your thoughts.

In the Tasmanian Senate election the Green's Nick McKim secured the last Senate spot beating the One Nation's Kate McCulloch by 141 votes.

It has already been reported that the Nick Xenophon Team's second Senate candidate, Nicky Cohen, had failed to renounce his British citizenship prior to nominating for the election and was therefore ineligible to contest the election. He secured 159 votes before being excluded from the count.

Do you believe there would be any merit in someone challenging the result because of this matter - say One Nation? Not sure if a recount were conducted, excluding Nicky Cohen from the second count, would change the final result.

COMMENT: If someone took it to court then the instruction would be to exclude Cohen, distribute any preferences then proceed with the count as normal. Two-thirds of Cohen's preferences flowed to the lead candidate of the Xenophon Team in the preference distribution. I doubt re-doing the count would have much impact.

Posted by: Ben | July 31, 2016 at 05:30 PM

I have a question.

If a senate candidate has surplus votes for a quota, how do they determine which votes are used to elect that candidate and which are passed to the next preference?

COMMENT: All votes are distributed but at a reduced value equal to the surplus votes divided by the total votes.

So if a candidate had 1.25 quotas, one quota needs to be set aside as electing the candidate, and 0.25 distributed as a surplus. A transfer value is calculated as the surplus divided by the total votes, in this case 0.25/1.25 = 0.2.

Every vote is then transferred to the next available preference but at a value of 0.2, which effectively means 0.8 of the vote is left with the elected candidate.

All the calculations are done with actual votes, and there are technical points which means it isn't quite as simple as I set out above, but this is an approximation of the method used.

Posted by: Nathan | July 31, 2016 at 09:08 PM

Antony, can you explain what's happening with the 2PP count on the AEC site?

It was close on election night, then the ALP jumped ahead, before the Coalition got ahead and close to 50.3, now it's virtually reversed with the ALP well ahead.

What's going on?

COMMENT: Ignore the overall totals and look here http://vtr.aec.gov.au/HouseTppByDivision-20499-NAT.htm

From this table you can work out the electorates for which the two-party preferred vote is not available. In the last few days the two-party for Batman, and Wills have been entered, while Melbourne and Higgins part entered and Maranoa has been removed as One nation finished second. This has shifted the figure Labor's way.

There are currently eight electorates missing from the totals. Barker, Grayndler, Grey, Indi, Maranoa, Mayo, New England and Warringah. Seven of these seats are very safe Coalition seats which will put the Coalition in front in the national two-party preferred by the end of the count.

The national two-party preferred total is always wrong until missing seats can be included. It caused enormous confusion in 2010, causing it to be removed from the front page of the AEC result site in 2013, and I am very surprised they put it back on the results home page in 2016.

Neither the ABC nor any of the State Electoral Commission's publish total two-party preferred statistics because they are not available until some time after the election.

Posted by: Benjamin | August 01, 2016 at 07:47 AM

Given how both majors saw a benefit from below the line votes for their lower candidates, is it time that they started to issue HTV cards with below the line instructions, splitting the vote among the below the line candidates?

COMMENT: I think you'll find neither major party saw this as a benefit. Having carefully constructed a candidate ordering based on factional decisions, neither major party would have been happy at the decision of voters to re-order the candidates.

Posted by: Frank | August 01, 2016 at 11:38 AM

Hello Antony

Congratulations on another brilliant election coverage. You certainly do the people of Australia proud with you insight and reasoning. Perhaps it might be interesting for people to see a summary of each news outlet, and the various predictions that it made throughout the election - especially between the beginning of voting, through the first returns and then maybe hourly 'til the close of the first evening, then daily until all seats had been called. Personally, I love a table where all the results can be seen at a glance.

Thanks again for the great coverage

Posted by: John | August 01, 2016 at 01:17 PM

It is a curious feature of senate vote counting, that the distribution of preferences can be seen for all the candidates elected, and for all the candidates excluded, but for the 0,1 or more candidates left standing at the end of the count, the destination of their preferences remains a mystery.

COMMENT: That's no different to the House where you can't see the preferences for the two candidates competing for the single seat.

If you want to see the preferences for the Senate, the AEC publishes all the ballot paper data for analysis.

Posted by: enno | August 01, 2016 at 07:52 PM

Labor's unhappiness would presumably be tempered by the fact that they most likely won one more seat than they otherwise would have.

Posted by: kme | August 02, 2016 at 04:16 PM

Antony,

When exactly does the Senate decide which mechanism it will use for allocating ilong-term and short-term seats between its post-double dissolution members?

I would assume it is an early order of business, no?

COMMENT: It will be a matter looked at in the first sitting week. It doesn't have to be the very first issue but it has to be decided early.

Posted by: Dan | August 04, 2016 at 01:54 AM

What would happen if the Senate were deadlocked over the question of who got 6 year terms?

COMMENT: They would change the motion on who gets short and long terms and vote again. And if that was tied they'd have to have another go. The Senate has to decide, it is its constitutional duty and they would continue to vote until they do decide.

Posted by: Greg | August 04, 2016 at 05:01 PM

The comments to this entry are closed.

Curious Campaign: Which senators will get a six-year term and which will only get three?
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http://www.abc.net.au/news/2016-05-24/which-senators-will-get-a-six-year-term-and-which-will-get-three/7438598

24/05/2016

Australians are about to endure the first double dissolution election in a generation. This throws up a number of peculiarities, not least for sitting senators.

To restore the normal electoral rhythm after polling day, some of the newly elected senators will receive a six-year term, while others will get three years.

So how is this decided? That was the question posed to us by several curious Australians.

Any journalist setting out to research this topic owes a debt to ABC election analyst Antony Green, who has blogged extensively on it.

The short answer, as Green points out, is that the Senate itself will decide which senators will serve longer terms.

In the past, the Senate has used one of two methods; the Order-Of-Election or a Recount.

First - some background. Australia has 76 senators, 12 from each state and two from both the Northern Territory and the ACT. State senators are usually elected to staggered six-year terms, with half of each state's senators facing the electorate every three years.

The election of Territory senators is tied to elections in the House of Representatives, so they usually serve terms of about three years.

Order-Of-Election

There have been six previous double dissolution elections in 1914, 1951, 1974, 1975, 1983 and 1987.

After each of these elections the new Senate has used the Order-Of-Election method to choose which senators serve a full six-year term. This means the first six senators elected in any state get six years, numbers seven through 12 get three years.

But as Green points out in his blog, Order-Of-Election can create some strange and potentially unfair outcomes.

To get around this problem, Section 282 was inserted into the Commonwealth Electoral Act in 1984.

The Recount method

It provides for a different method, one we'll call the Recount method.

In this model, the votes are counted as if the double dissolution were a normal half-Senate election for six seats instead of 12. The senators elected in this method would get a full six years, and the rest would get three-year terms.

Interestingly, the Recount was used for the 1987 double dissolution election, but the Senate chose to ignore it and instead allocated terms using the Order-Of-Election method.

The Senate has since moved resolutions under both Coalition and Labor governments stating its intention to use the Recount method. But there's nothing to bind a future Senate to it, and a majority of senators would be free to act in their own political interests.

Green says the choice of method could have significant implications for the left of politics.

This is most likely to have an impact on the Greens in New South Wales and Queensland where the two methods are likely to produce different results on whether Labor or the Greens are allocated long term seats, he wrote in his blog.

He says under the Order-of-Election method, it is also possible the Greens could win two long-term senators in Tasmania, Western Australia and Victoria. He says the method would be certain to deliver the Nick Xenophon Team two long-term senators in South Australia.

A new start date

As an interesting aside - this double dissolution will almost certainly bring to an end to the long delay often experienced by new senators taking their seats.

Had a normal election been held later this year, new senators wouldn't start until July 2017. But under double dissolution rules, the new Senate's term will be backdated (only a day) to July 1st this year.

That means another Senate election would be due by July 2019, bringing it into much closer alignment with the House of Representatives term.

Election 2016: How do we decide which senators are in for three years and which are in for six?
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http://www.abc.net.au/news/2016-07-05/election-2016-new-senate-terms-explained/7571406

Originally published 5 July 2016?

Updated 12 Aug 2016, 4:56pm

We're still waiting for the final count in the Senate after Saturday's election.

Under the usual circumstances only half the Senate is up for election in each three-year cycle.

But, in the weekend's double dissolution election, all senators were up for a vote.

Not sure how we get back to half the Senate being up for election in three years time?

This is how.

How will the new terms be decided?

A normal Senate stint lasts for six years.

The only exception to the rule is in the territories, the two senators representing the ACT, and the pair representing the NT are up for re-election every three years regardless.

So, 36 senators will get a three-year term and 36 senators will get a six-year term.

For a normal election senators need to achieve a "quota" of one-seventh of the overall vote or 14.29 per cent.

For a double-dissolution election the "quota" that needs to be reached is much lower, one-thirteenth of the share or 7.69 per cent.

There are two ways this could be settled

The recount method or the order-elected method.

The Australian Financial Review has reported the Coalition and the Labor Party plan to team up to try to protect their own senators and ensure that more minor senators face shorter terms.

There are two groups that should be worried here: those senators who achieved between 7.69 per cent and 14.29 per cent of their state's vote.

They'll face off against the senators who belong to a party with more than 14.29 per cent of the vote but were lower down their ticket order.

Attorney-General George Brandis noted:

There are various constitutional precedents that will have to be studied and whatever is the fairest way of dividing the Senate between short-term and long-term senators, I'm sure, is what will occur.

The recount method

In 1984 the Electoral Act was changed to outline the recount method for sorting the senators' terms in a double dissolution.

The law says the AEC has to recount the vote but it does not say senators have to use the recount method.

To divvy up the short and long-term positions, the votes have to be recounted as if a normal election had been held.

Every senator who manages to achieve 14.29 per cent of their state's vote gets a six-year term (the quota needed for a regular election).

Everyone else keeps their job for three years.

It is speculated that the Coalition and Labor will agree to use this method if it looks like it will deliver more six-year terms to the major parties leaving relatively more of the minor party senators with three-year terms.

Victorian candidate Derryn Hinch is looking at taking it to the High Court:

My argument would be, and we may end up in the High Court over this, my argument would be I should be the fourth senator in the top six who should stay for six years because at the moment the Justice Party is running behind the Libs, behind Labor and just over half of the vote the Greens got. So, I think we're sitting at the fourth number of primary votes, I should be the one that stays for six years, he said.

The order-elected method

Despite the 1984 legal changes, in every double-dissolution election senators have opted for the order-elected method.

Twelve senators are elected in each state

The six longer-term seats are given to the first six to make it past the 7.69 per cent quota.

This method has a tendency to effectively discount the over-quota votes that flow down major party tickets from their top candidate to subsequent ones, so the minor parties are the most likely to benefit.

In a comprehensive blog post on the subject earlier this year ABC election analyst Antony Green explained that the re-count method tends to result in fairer outcomes as it better reflects where voters directed their first preferences.

In both 1998 and 2010 the Senate voted in favour of using the re-count method following future double dissolutions.

Greens call on Labor to support 'fairer' method to share six-year Senate terms
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https://www.theguardian.com/australia-news/2016/aug/05/greens-lee-rhiannon-labor-method-six-year-senate-terms-double-dissolution

Friday 5 August 2016 19.20 AEST

The New South Wales Greens senator Lee Rhiannon has warned Labor to abide by fairer Senate rules in the allocation of six and three-year Senate terms following the double dissolution election.

“If Labor supports the first-six-elected method rather than the fairer method of a half Senate recount then Labor will be helping the Coalition boost their Senate numbers at the next election,” Rhiannon said.

“The main reason for is that under a recount method [Justice party’s] Derryn Hinch wins a long-term Senate seat at the expense of a Liberal senator.”

At issue is how long senators have before they face the next election. Senators are elected on six-year terms but only half the Senate faces an election at the end of every three-year House of Representatives term.

Malcolm Turnbull’s decision to call a double-dissolution election means the Senate needs to determine which senators are on a three-year term and which are on a six-year term, in order to fall back into the usual election pattern.

There are two counting methods which are available to the Senate. The first, which has been used historically in double dissolutions, sees the first six of 12 state senators receive the six year terms and the remainder appointed for three years. The second is a Hawke government reform known as section 282 which creates a second Senate count to allocate positions that more closely replicate a half-Senate election.

“Section 282 is more democratic and the Senate has acknowledged that on previous occasions,” Rhiannon said. “If the crossbenchers are interested in reducing the power of the major party duopoly then they would support the fairer recount method.”

The Australian Electoral Commission has yet to conduct the second count but the Senate is not legally committed to use the s282 results to determine the terms. Previously the “first six” method has been used.

An early analysis by data expert, Grahame Bowland, who is also co-convenor for the Western Australia Greens, found that under the s282 count, Rhiannon and Hinch would receive six-year terms over Victorian Liberal Scott Ryan and NSW Labor senator Deb O’Neill.

If the Australian Electoral Commission second Senate counts supports that analysis (and Bowland’s work has mirrored the AEC count thus far), this would force the major parties to decide whether to marginalise Hinch and the Greens, who have a balance of power bloc, or support longer terms for their own senators.

Newly elected senators have yet to receive their offices and staff allocations but unions have already begun lobbying the crossbench to reject the Australian Building and Construction Commission legislation.

The fate of the bill still hangs in the balance after the double dissolution called to reinstate the tougher building industry regulator.

After the Senate results were finalised on Thursday, the government and unions are likely to focus on the Nick Xenophon Team, Pauline Hanson’s One Nation and Victorian senator, Derryn Hinch, who are still undecided on the bill.

The bill will first go through the House of Representatives and then to the Senate. If it is rejected there, the government can introduce it to a joint sitting where a total of 114 votes are needed to pass it.

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The bill’s prospects have been boosted by the re-election of senators David Leyonhjelm and Bob Day, who both support it.

If the Coalition can count on MP Cathy McGowan, who supported the bill in the last parliament, it has 109 votes for the bill in a joint sitting.

There are 108 MPs and senators opposed to the bill, including Labor, the Greens, Jacqui Lambie, Bob Katter and Andrew Wilkie, the latter two of who voted to abolish the body in 2012.

Katter has been particularly vocal, warning the prime minister not to “antagonise” him by proceeding with legislation to restore the ABCC.

There are nine undecided votes: three NXT senators and Rebekha Sharkie in the lower house, four Pauline Hanson One Nation senators, and Hinch.

Current numbers suggest the bill could pass with two or three of Xenophon, Hanson and Hinch supporting it, provided Hanson and Xenophon’s parties vote as a bloc.

This is not assured, as newly elected One Nation senator Malcolm Roberts noted on Thursday his first allegiance is to Queensland and Hanson “told me and every other candidate, if you disagree with the party, you have a responsibility to cross the floor”.

The ABCC is a watchdog for construction unions with compulsory investigation powers and the authority to clamp down on unlawful pickets.

A spokesman for Hanson told Guardian Australia the party had not made a decision yet but Hanson supported those sentiments. Hanson had already met with unions, other organisations and the employment minister, Michaelia Cash, he said.

Hinch said he was still undecided but had meetings scheduled with the Australian Council of Trade Unions and Labor to discuss the bill.

Construction Forestry Mining Energy Union construction national secretary, Dave Noonan, told Guardian Australia “we’ll seek to put the case for equality before the law and a balanced approach to industrial relations to the crossbench”.

On Thursday Xenophon said he had made clear he would support the ABCC bill at the second reading stage so it can be further debated.

“But I wanted a number of amendments in relation to occupational health and safety, the Australian building code and Australian content,” he said.

Further Senate results and analysis
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https://theconversation.com/further-senate-results-and-analysis-63592

August 7, 2016 10.31pm AEST

The table below gives the Senate breakdown for each state and territory. 12 Senators were elected for each state, and 2 for each territory, for a total of 76 Senators. The table also gives the percent of all seats won by each party, the percent of the national vote won by each party, and the change in seat numbers since the previous Parliament. Others are David Leyonhjelm (NSW), Derryn Hinch (Victoria), Bob Day (SA) and Jacqui Lambie (Tasmania).

Relative to national vote share, the major parties and the Greens are somewhat overrepresented in the Senate. This is because these parties can get high fractions of a quota, which puts them well in the hunt to win more seats than their overall vote share suggests. More popular parties also did better on preferences than micro parties.

Others are underrepresented in proportion to the overall Others vote because these parties could not individually reach a sizable fraction of a quota, and without the old group voting system, their preferences did not combine. At this election, One Nation was the only non-established party that was able to win seats in multiple states, with the Nick Xenophon Team (NXT) struggling outside SA.

The Coalition lost a seat in each of NSW, Queensland, SA and WA, but gained a seat in Victoria, where they were very unlucky in 2013. Labor gained a seat in WA, and the Greens lost a SA seat.

Half-Senate election, and long and short term Senators

When Parliament resumes on 30 August, one of the first tasks of the new Senate will be to decide which half of the 72 state Senators are assigned long terms expiring in July 2022, and which get short terms expiring in July 2019. The four territory Senators are tied to the term of the House.

In the past, the order of election method has always been used to assign long and short terms following a double dissolution. In this method, the first six to be declared elected get the long terms, and the last six receive the short terms. This method favours parties that have won full quotas on primary votes, so it benefits the major parties.

While the order of election method has been used after all previous double dissolutions, the recount method has been recommended since the last double dissolution in 1987. The recount method is not quite the same, but very similar to what would be produced by a half-Senate election. In this method, the six Senators who would win had a half-Senate election been held get long terms, and the others have short terms.

The electoral commission has not published results of the recount method, but they can be derived from the downloadable data on every Senate vote, and this has been done here by Grahame Bowland. The table below gives the state results had a half-Senate election been held.

So if the recount method were used, the Coalition would get 15 of the 36 long terms, Labor 12, the Greens 4, the NXT 2, and Hanson, Hinch and Lambie one each.

The order-of-election method gives the Coalition an additional long term in Victoria at Hinch’s expense, and Labor an additional long term in NSW at the Greens' expense. This may incline both major parties to vote together for the order-of-election method.

However, the Senate is not bound to go with either method. The major parties could reserve all the long terms for themselves, for example, though they may worry about public reaction to such a cynical move.

Lower quotas and declining major party support are responsible for One Nation success

As the half-Senate table shows, One Nation would only have won one seat (Hanson herself) under the new Senate system had a half-Senate election been held. The reduction in the quota from 14.3% at a half-Senate election to 7.7% at a double dissolution was crucial in electing 4 One Nation Senators.

As I have noted before, the last time One Nation was a force, in 1998 and 2001, the establishment parties, namely Labor, the Coalition, the Greens and the Australian Democrats, were much stronger. At this election, the Coalition, Labor and the Greens combined won a mere 73.7% of the national Senate vote, down 2.8 points on what was already a weak showing in 2013.

In One Nation’s former heyday, the group voting tickets issued by the established parties were partly responsible for One Nation’s failure to win Senate seats. However, populist right wing parties generally have a larger vote share now, and these parties would have been likely to put One Nation high on their group voting ticket, if that system had still existed.

As a result, I think One Nation would still have won seats in NSW and WA under the old system, though their second Queensland seat would have been more doubtful. However, seats not won by One Nation would probably have gone to similar right wing populist parties.

Furthermore, the near 100% preference flows between micro parties under the old system meant that it was hostile to the established parties, and particularly Labor. Labor was hindered by being a centre left party, so they received few preferences from either far left or right micro parties.

If the old system had still been used, Labor would probably have only won 3 Queensland Senators instead of 4, and either Labor or the Greens would probably have lost a seat in WA and Tasmania. The Coalition would have probably lost its fifth Victorian seat.

New Senate system worked well

There were many who thought the new Senate system would result in very high informal, just vote 𔄙” and/or exhaust rates. Other criticisms were that the non-Greens crossbench would shrink drastically, that the primary vote leaders in contests for the final seats in each state would always win, and that a Coalition majority would result.

The non-Greens crossbench expanded from 8 to 11, primary vote leads were overturned in Queensland and SA, and the Coalition has 30 seats, down 3 on the last Senate.

The informal rate for the Senate was 3.9%, up 1.0%, but still better than the House informal rate of 5.1%. The just vote 𔄙” above the line rate was 3.0% nationally, and this is inflated by a 4.7% rate in NSW, which has optional preferential voting for both its state Houses. NSW also has high rates of non-English speaking people.

Nationally, 5.1% of votes exhausted by the time winners were determined in each state (irrelevant further distributions were carried out in some cases). That exhaustion rate is once again inflated by NSW with a 7.3% exhaust rate. The exhaust rate in NSW was due not only to a high just vote 𔄙” rate, but also because the final seat was contested by the Liberal Democrats and Christian Democrats, micro parties that many did not care about.

The lowest exhaust rate was in SA (2.0%). Ironically, given Labor opposed the Senate voting reforms, they would have benefited there from a higher exhaust rate.

Despite relatively low primary votes, 11 of the 12 seats in each state were filled on a quota or very near a quota. Only the last seat in each state was filled on significantly less than a full quota. David Leyonhjelm won re-election with 60% of a quota in NSW, while Bob Day won with 89% in SA. One Nation’s Malcolm Roberts had 78% of a quota after preferences in Queensland.

How to Vote cards for the various parties were not followed assiduously. In the various states about 30% followed the Coalition’s How to Vote cards 1-6, and about 10-15% for Labor and the Greens. Some micro parties had follow rates that were competitive with Labor’s, but most had very low follow rates.

Queensland poll has One Nation on 16%

A Queensland Galaxy poll, presumably conducted 3-4 August from a sample of about 800, has a 50-50 tie, a 2 point gain for Labor since May. Primary votes are 33% for Labor (down 3), 38% for the Liberal Nationals (down 6) and 16% for One Nation. Despite One Nation’s surge, Premier Annastacia Palaszczuk’s approval rating is 46% (up 2) and her disapproval is 31% (down 8), for a net approval of +15, up ten points. Opposition leader Tim Nicholls has a net approval of zero, up five points.

Cormann raises ‘first elected’ plan to halve Senate terms for crossbenchers
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http://www.theaustralian.com.au/national-affairs/cormann-backs-first-elected-plan-to-halve-senate-terms-for-crossbenchers/news-story/78b2d3837377ddf078c61a3ffd6d412f

The Australian 12:39PM August 12, 2016

Finance Minister Mathias Cormann has articulated a plan that would disproportionately relegate crossbench senators to three-year terms, while ensuring six-year terms for more than half of the Coalition’s upper-house MPs.

Following a double-dissolution election, half of the states’ senators will be forced to recontest their seats in three years’ time. How that is determined is left up to the chamber itself.

Senator Cormann, the Coalition’s deputy leader in the upper house, today said the “first-elected method” - under which the first six senators elected in each state receive longer terms - would recognise that those senators’ tickets attracted more primary votes and a stronger flow of preferences.

The Leader of the Opposition in the Senate, Penny Wong, threw the ALP’s weight behind the idea.

Under that formula there would be six-year terms for 13 of Labor’s 26 senators, 16 of the Coalition’s 30 senators, three of the Greens’ nine senators, two of the Nick Xenophon Team’s three senators and populist crossbenchers Jacqui Lambie and Pauline Hanson.

Senators who received less popular support - such as Derryn Hinch of Victoria, David Leyonhjelm of NSW and Bob Day of South Australia - would all risk losing their seats at the election due in 2019, as would the NXT’s Skye Kakoschke-Moore and three One Nation senators.

Major party senators facing re-election would include International Development Minister Concetta Fierravanti-Wells and Labor frontbenchers Lisa Singh, Pat Dodson, Doug Cameron, Jacinta Collins and Claire Moore.

Senator Cormann, the first-elected senator in Western Australia, told Sky News: “This has happened on seven occasions before since federation and on each occasion the way this has been settled is on the basis of the order in which individual senators were elected to the Senate in their respective states.

“The important point is obviously this is a function of how many votes and how many preferences you are able to attract. If you are elected in the first six out of 12 then it stands to reason that you were elected earlier and as such you qualify for the longer period.”

Senator Wong said in a statement to The Australian: “Labor will support the Government’s proposal to allocate Senators’ terms of office according to the order in which Senators were elected in each State.

“This is consistent with the Senate’s previous practice following double dissolution elections and reflects the will of the voters.”

An alternate formula, known as the “recount method”, would see the Australian Electoral Commission recount the ballots as though it were a regular half-Senate election and award seats depending on those duly elected. The AEC is required to conduct such a recount, although it will be up to the Senate to decide which method is used.

Mr Hinch, who has raised the spectre of legal action if he is handed a three-year term, has proposed an entirely new method in which each elected party would receive at least one six-year term for its team regardless of how well it did relative to larger parties. This would safeguard minor party candidates, such as himself.

ALP-LNP deal to force senators back to poll in three years
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http://www.theaustralian.com.au/federal-election-2016/alplnp-deal-to-force-senators-back-to-poll-in-three-years/news-story/f04dae3cfa3f26ae8b28e5c13c232b60

The Australian 12:00AM August 13, 2016

Derryn Hinch and Lee Rhiannon have missed out on a six-year Senate term after a controversial countback method was rejected by the Coalition and Labor to ­decide term limits.

Under a deal between Finance Minister Mathias Cormann and Labor’s Senate leader Penny Wong, just four of the 11 ­crossbenchers will get a six-year term and only three of the nine Greens.

It means seven crossbenchers and six Greens will face re-election within three years at a half-Senate poll, where they will be required to effectively double their vote to retain their seats.

But Pauline Hanson, Jacqui Lambie, Nick Xenophon and his first running mate Stirling Griff will take six-year terms because of the high vote they received at last month’s election.

The constitution requires the Senate to award a six-year term to six of the 12 members from each state elected following a double dissolution. Their terms expire on June 30, 2022. The other six receive a three-year term, which will expire on June 30, 2019.

There are no rules about how this should be done after a double dissolution.

The deal struck yesterday means six-year terms will be given to 16 of the Coalition’s 30 senators and 13 of Labor’s 26.

Senator Cormann told The Weekend Australian the government believed the first six senators elected in each state should be given the six-year term, which was the practice used after previous double-dissolution elections.

“It is the fairest way and reflects the will of the people expressed at the election,” he said.

Senator Wong said Labor supported the government’s proposal to allocate senators’ terms to the order in which they were elected in each state. “This is consistent with the Senate’s previous practice following double-dissolution elections and reflects the will of the voters,” she said.

In 1984 Labor introduced a countback method known as a section 282 count, under which the electoral commission recalculates the result for six winners but it is based only on the votes for the 12 elected senators and ignores the preferences of people who voted for other candidates.

It is non-binding and has never been adopted but The Weekend Australian has learned that under this method, Mr Hinch would have won a six-year term in Victoria instead of Liberal Scott Ryan, and in NSW Senator Rhiannon would have knocked out Labor’s Deborah O’Neil.

However, based on the order of election method, Mr Hinch was elected 10th in Victoria and Senator Rhiannon came ninth. In all other states the same six senators would have received six-year terms.

Mr Hinch was unavailable yesterday, but has proposed a method where each elected party would be guaranteed at least one six-year term, regardless of how many votes it received compared with other parties.

The three Greens senators who will receive six-year terms are leader Richard Di Natale, who was elected third overall in Vic­toria, and Peter Whish-Wilson in Tasmania and Scott Ludlam in Western Australia, both also elected third.

The crossbench members who, like Mr Hinch, will be fighting to keep their seats in three years are Family First’s Bob Day, who was elected 12th, Liberal Democrat David Leyonhjelm, (12th), the Xenophon party’s Skye Kako­schke-Moore, (10th), and One Nation’s Brian Burston (11th), Malcolm Roberts (12th) and Rodney Culleton (11th).

Election 2016: Pauline Hanson secures six-year Senate term, Derryn Hinch has three years until re-election
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http://www.abc.net.au/news/2016-08-12/pauline-hanson-secures-six-years-in-senate/7730280

Updated 12 Aug 2016, 7:43pm

Pauline Hanson has secured a six-year Senate term, while Derryn Hinch has only three years before he faces re-election, under a deal struck by the major parties.

Senators are usually elected for six years at a time, but the July 2 double dissolution election put the fate of all 76 senators on the line.

A normal election sees only half the Senate face voters, with the exception of the ACT and Northern Territory, whose two senators each are up for re-election at every federal poll.

Cabinet Minister Mathias Cormann told Sky News the first six senators elected in each state will get six-year terms.

Under the methodology used so far, the first six senators elected would get six years, whoever they are and whoever they represent, Senator Cormann said.

When pressed about whether minor party senators would be unfairly disadvantaged, he said the outcomes varied in different states.

The Opposition intends to back the move, ensuring it will be endorsed by the Senate.

Labor's Senate leader Penny Wong said: "Labor will support the Government's proposal to allocate senators' terms of office according to the order in which Senators were elected in each state."

This is consistent with the Senate's previous practice following double dissolution elections and reflects the will of the voters.

There had been speculation about how the major parties would decide on the Senate terms.

There are two methods of allocation available — the "recount method" and the "order-elected method".

The latter method, which has been adopted by the Coalition and Labor after this year's poll, sees the first six senators elected in each state receive the longer terms, and the rest given three years in the Upper House.

In both 1998 and 2010, the Senate voted in favour of using the recount method following future double dissolutions.

That means Senator Hanson could lead her One Nation Party in the Senate for the next six years, alongside other crossbenchers, including South Australians Nick Xenophon and Stirling Griff from the Nick Xenophon Team and Tasmania's Jacqui Lambie.

Senator Hinch had pushed for the "recount method", arguing it would deliver a fairer result.

The Government, of course, and the Labor party have decided no, they'll go the other way, and so yes, I have to face the polls again in three years, Senator Hinch told Radio National.

He had previously threatened legal action if he was pushed to take a half-Senate term.

I'm not going to take legal action, I'd rather save the money for my re-election campaign, Senator Hinch said.

"Once I went through it all and talked to lawyers about it, it's not a constitutional issue, so I haven't got a legal leg to stand on, it's a Senate issue and [Senator] Cormann and [Senator] Wong are entitled to do this. I've got three years, if I don't do well in that three years, they're entitled to throw me out."""

Senate terms: Derryn Hinch and Greens' Lee Rhiannon given three years
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https://www.theguardian.com/australia-news/2016/aug/12/senate-terms-derryn-hinch-and-greens-lee-rhiannon-given-three-year-terms

The Coalition and Labor have agreed on the allocation of six and three-year Senate terms following the double dissolution election, with Lee Rhiannon of the Greens and Derryn Hinch from Victoria missing out on longer office.

The finance minister, Mathias Cormann, said on Friday that the first six senators elected in every state should be given six-year terms, and Labor senator Penny Wong has agreed.

“This is a function of how many votes and how many preferences you are able to attract,” Cormann told Sky News.

Derryn Hinch threatens legal action if he is relegated to three-year Senate term

“If you are elected in the first six out of 12 it stands to reason that you were elected earlier, and as such you qualify for the longer period.”

Wong told Guardian Australia that Labor agreed with the Coalition’s proposal: “Labor will support the government’s proposal to allocate senators’ terms of office according to the order in which senators were elected in each state,” Wong said.

“This is consistent with the Senate’s previous practice following double dissolution elections and reflects the will of the voters.”

It means the last six senators in every state will be up for re-election within three years.

Malcolm Turnbull’s double-dissolution election meant the Senate needs to determine which senators are on a three-year term and which are on a six-year term, in order to fall back into the usual election pattern.

There are two counting methods available for the Senate.

The first, which has been used historically in double dissolutions, sees the first six of 12 state senators in every state receive the six-year terms and the remainder appointed for three years.

The second is a Hawke government reform, known as section 282, which creates a second Senate count to allocate positions that more closely replicate a half-Senate election.

With the Coalition and Labor in agreement, it means first counting method will be used.

Rhiannon and Hinch had been pushing for the alternative method because it would have given them a chance of claiming six-year senate terms at the expense of NSW Labor senator Deb O’Neill and Victorian Liberal senator Scott Ryan.

Hinch told Guardian Australia the major parties were trying to screw him and Rhiannon over: “Labor under Bob Hawke brought in section 282 because he said it was fair. The major parties will try to screw us because it’s a Senate vote - not a constitutional issue - but we’ll keep fighting.”

“The Greens’ [Lee] Rhiannon is in the same boat in NSW,” he said.

Rhiannon called on Labor last week to abide by the “fairer” allocation method because it would prevent the Coalition boosting their Senate numbers at the next election.

“The main reason is that under a recount method [Justice party’s] Derryn Hinch wins a long-term Senate seat at the expense of a Liberal senator,” Rhiannon said.

“Section 282 is more democratic and the Senate has acknowledged that on previous occasions,” she said. “If the crossbenchers are interested in reducing the power of the major party duopoly then they would support the fairer recount method.”

Pauline Hanson will be a senator for the next six years, but her three other senators will face the polls within three years.

Up for re-election within six or three years:

NSW (12 senators):

Liberals:

Marise Payne, 6 years

Arthur Sinodinos, 6 years

Concetta Fierravanti-Wells, 3 years

Nationals:

Fiona Nash, 6 years

John Williams, 3 years

Labor:

Jenny McAllister , 6 years

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Sam Dastyari, 6 years

Deb O’Neill, 6 years

Doug Cameron, 3 years

Greens:

Lee Rhiannon, Greens 3 years

Cross bench:

Brian Burston, One Nation, 3 years

David Leyonhjelm, Liberal Democrats, 3 years

Victoria (12 senators):

Liberals:

Mitch Fifield, 6 years

Scott Ryan, 6 years

Jane Hume, 3 years

James Paterson, 3 years

Nationals:

Bridget McKenzie, 6 years

Labor:

Kim Carr, 6 years

Stephen Conroy, 6 years

Jacinta Collins, 3 years

Gavin Marshall, 3 years

Greens:

Richard Di Natale, 6 years

Janet Rice, 3 years

Crossbench:

Derryn Hinch, Derryn Hinch’s Justice Party, 3 years

Queensland (12 senators):

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Liberals:

George Brandis, 6 years

Matthew Canavan (Liberal National Party), 6 years

James McGrath (Liberal National Party), 6 years

Ian Macdonald (Liberal National Party), 3 years

Barry O’Sullivan (Liberal National Party), 3 years

Labor:

Murray Watt, 6 years

Anthony Chisholm, 6 years

Claire Moore, 3 years

Chris Ketter , 3 years

Greens:

Larissa Waters, 3 years

Crossbench:

Pauline Hanson, One Nation, 6 years

Malcolm Roberts, One Nation, 3 years

South Australia (12 senators)

Liberals:

Simon Birmingham, 6 years

Cory Bernardi, 6 years

Anne Ruston, 3 years

David Fawcett, 3 years

Labor:

Penny Wong, 6 years

Don Farrell, 6 years

Alex Gallacher, 3 years

Greens:

Sarah Hanson-Young, 3 years

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Crossbench:

Nick Xenophon (Nick Xenophon Team), 6 years

Griff Stirling (Nick Xenophon Team), 6 years

Skye Kakoschke-Moore (Nick Xenophon Team), 3 years

Bob Day (Family First), 3 years

Western Australia (12 senators):

Liberals:

Mathias Cormann, 6 years

Michaelia Cash, 6 years

Dean Smith, 6 years

Linda Reynolds, 3 years

Chris Back, 3 years

Labor:

Sue Lines, 6 years

Glenn Sterle, 6 years

Pat Dodson, 3 years

Louise Pratt, 3 years

Greens:

Scott Ludlum, 6 years

Rachel Siewert, 3 years

Crossbench:

Rodney Culleton, One Nation, 3 years

Tasmania (12 senators):

Liberals:

Eric Abetz, 6 years

Stephen Parry, 6 years

Jonathon Duniam, 3 years

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David Bushby, 3 years

Labor:

Anne Urquhart, 6 years

Helen Poley, 6 years

Carol Brown, 3 years

Lisa Singh, 3 years

Catryna Bilyk, 3 years

Greens:

Peter Whish-Wilson, 6 years

Nick McKim, 3 years

Crossbench:

Jacqui Lambie, Jacqui Lambie Network, 6 years

Territories:

Senators in the Australian Capital Territory and Northern Territory always face re-election every three years.

ACT:

Zed Seselja, Liberal Party, 3 years

Katy Gallagher, Labor, 3 years

NT:

Nigel Scullion, Country Liberals, 3 years

Malarndirri McCarthy, Labor (NT branch), 3 years

Coalition and Labor team up to clear out crossbench senators in 2019
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http://www.smh.com.au/federal-politics/political-news/coalition-and-labor-team-up-to-clear-out-crossbench-senators-in-2019-20160812-gqr29k.html

AUGUST 12 2016

The Coalition and Labor will back a plan to divide up six and three-year Senate terms that benefits them but threatens to antagonise key crossbenchers, whose time in Parliament may be cut short as a result.

Senators are usually elected for six-year terms with half up for election every three years. Following a double dissolution election, which clears all seats, the Senate is empowered to decide how six and three-year terms are assigned.

The "order of election" method being backed by the government and opposition sees the first six senators elected in each state serve the longer term while the bottom six are relegated and forced to seek re-election in 2019.

12 senators are elected in every state. Under the methodology used on every occasion so far, the first six senators elected would get six years, whoever they are and whichever party they represent, Finance Minister and deputy government leader in the Senate Mathias Cormann said on Friday.

He told Sky News it "stands to reason" that senators who attracted more primary votes and preferences are rewarded and observed the method was used all seven times such a division in the upper house has been required.

While Senator Cormann did not explicitly say this was the government's plan of action, Fairfax Media understands it is the proposal and Penny Wong, leader of the opposition in the Senate, has confirmed Labor will back it.

The mechanism, labelled "unfair" and self-interested by Greens leader Richard Di Natale, guarantees full terms for 16 Coalition senators, 13 Labor senators, three Greens, two Nick Xenophon Team representatives, Jacqui Lambie and One Nation's Pauline Hanson.

The Greens' Senator Rhiannon, Liberal Democrats' David Leyonhjelm, Family First's Bob Day, law and order crusader Derryn Hinch, NXT's Sky Kakoschke-Moore and One Nation's three other senators are all endangered.

They will face a regular half-Senate election in 2019 when their terms expire, requiring twice the number of votes to get elected than in this year's double dissolution, which facilitated greater success for minor parties.

This is consistent with the Senate's previous practice following double dissolution elections and reflects the will of the voters, Senator Wong said.

The Australian Electoral Commission has also provided advice, seen by Fairfax Media, regarding which senators would receive six-year terms using the alternative "recount" method - who would have been elected if it had been a half-Senate election.

Using this method - set out as a possible way forward under section 282 of the Electoral Act - Senator Hinch would have been elected at the expense of Liberal Scott Ryan in Victoria, and Senator Rhiannon would have beaten out Labor's Deborah O'Neill in NSW.

The top six for the other four states would be the same whichever method was used.

In a letter to Clerk of the Senate, Rosemary Laing, dated August 11, electoral commissioner Tom Rogers notes the Senate is not bound to follow the section 282 recount.

Senator Di Natale said the Greens support the recount method as "the fairer of the two" and "regardless of the outcome" for the party.

The Labor and Liberal parties will stop at nothing to shut out everyone else from their cosy duopoly. Here they are again, voting together, to stop diverse voices in Parliament, he said, observing that both parties had previously advocated for the recount proposal.

Senator Hinch has threatened legal action if the major parties' method is adopted and has proposed an entirely new formula in which each party is guaranteed at least one six-year term.

With the Coalition and Labor's combined 56 votes in the 76-seat Senate, their preferred plan is guaranteed to pass.

Coalition flags first elected Senate plan
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http://www.skynews.com.au/news/politics/federal/2016/08/12/coalition-flags-first-elected-senate-plan.html

Published: 4:58 pm, Friday, 12 August 2016

The Turnbull government has signalled it will rely on electoral precedence to determine which of 72 senators elected on July 2 serves an extended six-year term in the upper house.

That means the first six senators elected in each state won't have to face the voters at the next general poll or a half-Senate election.

The bottom six would serve a three-year term, with four senators representing the ACT and Northern Territory.

On paper, that prospect favours the coalition over Labor with the added bonus of potentially reducing the size of the crossbench.

Seven of the 11 newly-elected crossbench senators - Derryn Hinch, Liberal Democrat David Leyonhjelm, Family First's Bob Day, NXT's Skye Kakoschke-Moore and three One Nation senators - could struggle to be re-elected because a higher quota of votes will be needed to win a seat than they required on July 2.

Labor would have three senators facing re-election in Tasmania.

Senior West Australian senator Mathias Cormann on Friday indicated the coalition was likely to opt for the way parliament has decided the issue on seven previous occasions.

On each occasion the way this has been settled is on the basis of the order of which individual senators were elected to the Senate in their respective states,' he told Sky News.

If you are elected in the first six out of 12 then it stands to reason that you were elected earlier and as such you qualify for the longer period.'

The upper house could, if it wanted, use a more complex formula known as the recount method where the electoral commission calculates the order of election as if it were a half-Senate election.

Senator Hinch has proposed a method in which each elected party would receive at least one six-year term for its team regardless of how well it did relative to larger parties.

That would ensure a six-year term for him and senators Day and Leyonhjelm.

Labor frontbencher Penny Wong said the opposition would support the plan.

Labor will support the government's proposal to allocate senators' terms of office according to the order in which senators were elected in each state,' Senator Wong said in a statement.

This is consistent with the Senate's previous practice following double dissolution elections and reflects the will of the voters.'

- See more at: file:///C:/OzPolitic/changes/electoral-reform/senate/articles/Coalition%20flags%20first%20elected%20Senate%20plan.html#sthash.3gXtmIXR.dpuf

Jacqui Lambie secures six-year position in Canberra
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http://www.themercury.com.au/news/politics/jacqui-lambie-secures-sixyear-position-in-canberra/news-story/61a3c826caa6c29a11993c2ef0b20634

August 14, 2016 12:00am

TASMANIAN senator Jacqui Lambie will occupy her seat in Canberra for the next six years after a deal was struck to determine who will go full-term and who must return to the polls in three years.

The Coalition and Labor, which have a combined majority in the Senate have agreed to stick to convention, meaning the first six senators elected in the recent poll will get six-year terms.

Under the deal, Tasmanian Liberal senators Eric Abetz and Stephen Parry, Labor senators Anne Urquhart and Helen Polley and Greens senator Peter-Wilson will not go to the polls for another six years.

Senator Lambie said despite much talk about three and six-year terms, the process was simple.

“Tradition, precedent, conventions and section 13 of the Australian Constitution lay out the rules and guidelines, which give clear direction to the Senate when it is time to make a decision,” she said.

“So if the Senate follows tradition, precedent and section 13 of the Australian Constitution — I will be allocated a six-year term.”

The new-look Senate will mean Labor senator Lisa Singh will have to go to the polls in three years with Labor’s Left-faction powerbroker Carol Brown and Right-aligned Catryna Bilyk.

Newcomer Liberal senator Jonathon Duniam and his colleague Liberal senator David Bushby will have to recontest in three years as will the only newcomer senator from Tasmania, Jonathon Duniam.

Former Tasmanian Greens leader Nick McKim, who was the last senator to gain a seat, will also be back in campaign mode in three years.

Urgent - please support democracy in the senate
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http://www.ozpolitic.com/index.html

August 15 2016

We just had a double dissolution election. Each state elected 12 senators. Our constitution gives the senate authority to decide which 6 senators from each state get full (6 year) terms and which get half (3 year) terms.

In 1984, the electoral act was changed by Labor to use a new, fairer method of deciding this. In the 1987 double dissolution election, Labor and the Democrats reneged on this and decided to stick with the old, unfair system, because it would give their senators more of the 6 year terms. They voted to give themselves more power in the Senate. In 1998 and 2010, both Labor and the Coalition passed resolutions to use the new, fairer method in any future double dissolution elections.

Now in 2016, both Labor and the coalition have reneged on their repeated promises to the Australian people. Why? Because it benefits them. Their own senators get more 6 year terms at the expense of other parties and independents. This is a fundamental subversion of the democratic process and must be stopped. Both parties have attempted to put a positive spin on this in the media. Please write to your local federal MP and your state senators from both parties to let them know you are aware of this deceit and plan to deny them senate votes in the future unless they do as they promised.

The following links will help you get contact details for your MPs and senators:

http://apps.aec.gov.au/esearch/

http://www.alp.org.au/people/#filter=.mp

http://www.alp.org.au/people/#filter=.senator

https://www.liberal.org.au/our-team

QLD: https://lnp.org.au/our-team/federal/

More information here: http://www.ozpolitic.com/forum/YaBB.pl?num=1471261637

Suggestions for emails to send in:

Subject: Senate debacle

LNP:

What your party has done in the Senate is wrong. Your party supported the changes to the electoral act in 1984 to adopt a new, fairer method. Your party passed resolutions in 1998 and 2010 to adopt these changes. Your party has reneged on your promise to the Australian people, in a greedy move to get your senators a bigger share of the full 6 year terms, at the expense of other candidates. Your party can not be trusted with this most fundamental aspect of democracy. Your party has deligitimised the senate of Australia. The spin your party has attempted to put on this grubby move in the media is dishonest.

I ask you to do the right thing and change this decision. If you have any backbone at all, you will call out your colleagues for supporting this despicable act.

Labor:

What your party has done in the Senate is wrong. Your party passed changes to the electoral act in 1984 to adopt a new, fairer method. Your party passed resolutions in 1998 and 2010 to adopt these changes. Despite this, your party reneged on this promise to the Australian public in 1987, in a greedy move to get your senators a bigger share of the full 6 year terms, at the expense of other candidates. Your party reneged on your promise yet again a few days ago, for the same greedy motive. Your party can not be trusted with this most fundamental aspect of democracy. Your party has deligitimised the senate of Australia. The spin your party has attempted to put on this grubby move in the media is dishonest.

I ask you to do the right thing and change this decision. If you have any backbone at all, you will call out your colleagues for supporting this despicable act.

Make sure you sign off with your name, address and mobile phone number.

Coalition-Labor Deal On Rotation Of Members Confirmed By Senate
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http://australianpolitics.com/2016/08/31/senate-rotation-of-members-confirmed.html

31/08/2016

The Senate has voted to confirm the agreement between the Coalition and the ALP on the rotation of senators following the double dissolution election.

As has occurred on each of the previous six occasions when double dissolutions have been held (1914, 1951, 1974, 1975, 1983 and 1987), the first six senators elected in each state have received six-year terms, whilst the second group of six will serve for three years. The rotation is required under Section 13 of the Constitution.

The major parties rejected the recount method whereby the Senate votes are recounted as if it was a half-Senate election. This method would have meant that the Liberal and Labor Parties each lose one long-term senator (Scott Ryan and Deborah O’Neill) in favour of minor parties (Derryn Hinch and Lee Rhiannon).

The rotation was approved by 50 votes to 15. The four One Nation senators and Jacqui Lambie supported the proposal. The Greens, Nick Xenophon Team, David Leyonhjelm, Bob Day and Derryn Hinch all opposed the resolution.

Full Details of the Senate Rotation

Listen to the Senate debate (19m - transcript below)

Watch the Senate proceedings (19m)

Hansard transcript of Senate debate on the rotation of members.

Senator FIFIELD (Victoria—Manager of Government Business in the Senate, Minister for Communications and Minister for the Arts) (09:38): I move:

That, pursuant to section 13 of the Constitution, the senators chosen for each state be divided into two classes, as follows:

Senators listed at positions 7 to 12 on the certificate of election of senators for each state shall be allocated to the first class and receive 3 year terms.

Senators listed at positions 1 to 6 on the certificate of election of senators for each state shall be allocated to the second class and receive 6 year terms.

Senator DI NATALE (Victoria—Leader of the Australian Greens) (09:38): I would just like to draw the Senate’s attention to the method of allocating Senate terms that has been applied in this motion. It is not the countback method that this Senate has previously indicated should be the appropriate method for electing senators. The Labor and Liberal parties have both previously supported the much fairer method advocated by the Australian Electoral Commission; yet, disappointingly, but not surprisingly, when it does come to the crunch, they have gone back to a method that really has been adopted out of narrow self-interest.

We know that the countback method is the fairer, more democratic method of the two. We know that the order of election, which is the method that is being used in allocating Senate terms in this case, does create serious anomalies in preferential voting like ours. That is precisely why moving to a countback process was the recommendation of the 1983 Joint Select Committee on Electoral Reform. The Commonwealth Electoral Act was even amended to authorise the AEC to conduct a countback of the Senate vote.

Ultimately, this is a decision which is in our hands. It is a deliberate choice of this Senate to disregard the more democratic process that more closely reflects the will of voters. Senator Button and, indeed, Senator Faulkner, whom I had the pleasure of working with during my early years in this parliament and is somebody for whom I have tremendous respect, were both champions of the countback method. So it is disappointing to see Labor supporting this motion. They are not the only ones; we saw Senator Ronaldson move and successfully pass the motion on behalf of the coalition in 2010. It comes back to something that we have said on a number of occasions: there is nothing that brings the old parties—the Labor Party and the Liberal Party—closer together than ensuring they protect their cosy little duopoly. And here we are again; they are voting together to stop diverse voices in the parliament. It is the Coles and Woolies of politics, as I have said before.

The outcome of this motion has clearly been predetermined by both the Labor Party and the Liberal Party, but we will continue to advocate for the recount method, regardless of who it benefits, because it is the fairer method.

Senator BRANDIS (Queensland—Attorney-General, Vice-President of the Executive Council and Leader of the Government in the Senate) (09:41): I wish to make some brief remarks in contribution to this debate and in support of the motion. The point to be made is that the motion proposed by Senator Fifield is consistent with every single precedent adopted by this chamber following a double dissolution. After the 1914, 1951, 1974, 1975, 1983 and 1987 double dissolutions—in other words, after all of the double dissolution elections that have occurred since Federation—when the appropriate operation of section 13 of the Constitution, which is the provision that provides for the rotation of senators, had to be considered by this chamber, the order-of-election principle was adopted.

Now, it is true, Senator Di Natale, as you say, that in 1998—not after a double dissolution—Senator Faulkner advocated for the countback method. That is true. That is a matter about which the Labor Party might wish to say something; nevertheless, that was not after a double dissolution. The motion that Senator Fifield has moved is consistent with every single constitutional precedent, and, of course, the relevant section of the Constitution, section 13, remains in the form it has always taken since 1901.

Finally, Senator Di Natale, can I correct something you said. You said that the Australian Electoral Commission advocated for the countback method. The Australian Electoral Commission does not advocate for anything; the Australian Electoral Commission merely conducts the count. The safest course for this chamber to adopt is the course consistent with each of the previous six double dissolutions and the division of the chamber in the subsequent term.

Senator LEYONHJELM (New South Wales) (09:43): I would also like to address this matter. I do not find it at all persuasive that Senator Brandis refers to precedent in this instance. Precedent does not necessarily make it fair or legitimate nor does it avoid injustice. There is a legislated alternative in the Commonwealth Electoral Act which allows for the allocation of terms on the basis of the assumption that they would have been elected under half-Senate results. It seems to me that this motion is based on a certain outcome in terms of who will sit for six years and who will sit for three years, and it has been worked back from that position, and the option envisaged in the motion is the result of that end result that has been chosen.

I want to place on the record my disagreement with the motion. If there is a division on it I will vote against it; nonetheless, I want to record the fact that I do not approve.

Senator HINCH (Victoria) (09:44): This is not my first speech and I have taken my No-Doz. I think it is a dirty stitch-up deal between the government and the Labor Party. The fix was in from the day of the election, and I think that in this deal you have betrayed more than 200,000 voters in Victoria, in my case. In the case of Senator Rhiannon, you have betrayed the voters of New South Wales. Under section 282, former Prime Minister Hawke said was a fair way to reflect what happens after double dissolution—a fair way to do it. I should get six years and Senator Rhiannon should get six years and we are—we are going to get three. The AEC report was tabled last night—282(1) says:

Where the scrutiny in an election of Senators for a State held following a dissolution of the Senate under section 57 of the Constitution has been completed, the Australian Electoral Officer for that state shall conduct a re-count of the ballot papers in the election in accordance with subsections 273(7) to (30) …

And:

in subsection 273(8) ‘half’ were inserted before ‘the number of candidates’ …

The whole point of this method was that after a double dissolution the result best resembled a regular half-Senate election. Now, I am told by Liberal Party people in Victoria that with the vote that I got, I actually would have got elected and be in this place if there had been a half Senate instead of a double dissolution.

The AEC in that report say that this is the way you should have elected senators for six-year terms—(1) Mitch Fifield, (2) Kim Carr (3) Richard Di Natale, (4) Bridget McKenzie, (5) Stephen Conroy and (6) Derryn Hinch. That is the way the people of Victoria voted on 2 July. You did this dirty little stitch-up to try and get one more, and said: ‘Yeah, let’s do a deal here. We’ll put one more Labor senator up in New South Wales. We’ll put one more Lib up in Victoria. That gives us one more each. Isn’t that great.’

It is wrong; it is unfair and, in this place of all places, you should respect democracy in the way that the voters of Victoria said you should. This is not for me personally; this is for somebody who comes after me. I just think it is wrong and I know it is not going to work. I said the stitch-up was done the same way that the government made the deal to try and get rid of the minor parties earlier this year. That worked fine, didn’t it!

I do not want to take up the full 20 minutes. I just want to say it is wrong. If the vote goes against us, okay, I am here for three years. I have been sacked 16 times. If the voters of Victoria want to sack me the 17th time, they will do it. My plan is to go there in three years time—if the vote goes against us—get re-elected and do six years, and leave here after nine years. Thank you very much.

Senator DASTYARI (New South Wales) (09:47): I want to echo the sentiments of the Leader of the Government in the Senate, Senator Brandis. I think it is one the quirks of this chamber that it is responsible for making these types decisions. Naturally, when we are making these decisions there will be those who will miss out because of the decisions that are made. I want to echo two of the points that were made by Senator Brandis. Firstly, this is the method that has always been used for making these types of determinations in the past. Secondly, there is a test that we have to apply—that is, what is a reasonable and sensible process? The idea that when there are 12 senators elected, the first six would serve for a longer period than the second six is a simple and transparent way of making these decisions. That being said, again, I think it is somewhat quirky that it is the Senate that makes this decision about itself.

Senator XENOPHON (South Australia) (09:49): I want to indicate my support for the position set out by Senator Hinch. I will say that in terms of NXT we are not affected either way by this, but there is an important principle in respect of this—that is, we legislated to have a process in place. Of course, the Senate can override it, as is the Senate’s right. But I think the litmus test, if you like, the pub test in terms of what is fair, is how would this have played out if it was as though it was a half-Senate election. I think that, clearly, in this case, Senator Hinch would have been elected for a six-year term. We did go through a legislative process many years ago that anticipated this. It can be overridden by the Senate, but I think that this is fundamentally unfair and that is why I support the position of Senator Hinch and other crossbenchers in relation to this. We had a legislative reform. That legislative reform ought to be respected, even though it can be overridden by the Senate.

The PRESIDENT: The question is that the motion moved by Senator Fifield be agreed to. Those of that opinion say aye. Those against say no. I think the ayes have it.

Senator Hinch: We think the noes have it.

The PRESIDENT: Thank you, Senator Hinch. A division has been called, so we will be able to divide. The question is that the motion moved by Senator Fifield concerning the rotation of senators for the purposes of section 13 of the Constitution be agreed to.

Media asleep at the wheel on stolen senate seats
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http://www.ozpolitic.com/index.html

September 11 2016

There are thieves in the Senate. Scott Ryan, Liberal Senator for Victoria and Deborah O'Neill, Labor Senator for NSW will continue to hold their Senate seats after June 2019, while roughly half of their colleagues will face re-election. They will continue to serve from 2019 until 2022, at the expense of Derryn Hinch and Lee Rhiannon. Their seats were stolen on their behalf by the Labor Party and the Coalition. The two major parties have broken promises they made twice to the Australian public in order to secure these seats. These promises took the form of Senate resolutions on 22 June 2010 and 29 June 1998. Both resolutions passed with bipartisan support and stated that the Senate will use the new, fairer method to determine which senators get full (6 year) terms in the event of a double dissolution election. Had they kept this promise, senate thieves Scott Ryan and Deborah O'Neill would be facing re-election in 2019 and Hinch and Rhiannon would have the six year terms that the Australian public voted for. Unfortunately these resolutions are not binding and the Australian constitution permits the Senate to allocate the seats as it pleases, meaning Labor and the Coalition are not bound to keep their promise and can literally get away with anything.

In addition to these two promises, the Labor party passed the relevant legislation (again, non-binding) in 1984. After the 1987 double dissolution election, Coalition Senators voted in favour of using the new method to allocate senate seats, while the Labor party chose to keep the old method - again, because it gave them a bigger share of the seats. It was this 1987 disagreement that prompted the two major parties to pass the 1998 and 2010 resolutions to use the fairer method in the future. They no doubt had every intention of holding each other to this promise, up until the current situation arose in which both stood to benefit from sticking with the unfair method.

This coup has been permitted by a mainstream media that is asleep at the wheel. No major outlet reported on the Senate decision of August 31. They did report on Labor and the Coalition reaching an agreement to do this several weeks earlier. However, the reporting on this agreement simply quoted the insipid justifications given by the major parties and lacked any critical analysis or hard questions. Neither Labor nor the Coalition have been forced by the media to comment on the fact that they both broke promises that they made clearly and repeatedly to the Australian public. They have not been forced to even acknowledge that they made these promises. Neither party has been forced to acknowledge the transparent self-interest behind the decision. Instead, The ABC, The Australian, The Sydney Morning Herald etc all let the major parties get away with simply pointing out that their agreement was "in keeping with the constitution and precedent", as if the new legislation and the repeated promises to use it never happened. The media has been publishing these insipid justifications and excuses on behalf of the major parties, while leaving out relevant facts and failing in their duty to ask the important questions.

Please contact your federal MP and senators using the links below (scroll down to "please support democracy in the senate") and let them know that you intend to punish them at the next election if they do not give back the stolen senate seats. Please also write to your newspaper and let them know of your disapproval at their failure to report on this coup and your scepticism at their ability to do their job. Please also write to Senators Ryan and O'Neill and let them know that you consider them to be thieves in the Senate and that their ongoing presence after 2019 undermines the legitimacy of the Senate.

Discussion:

Media asleep at the wheel on stolen senate seats

http://www.ozpolitic.com/forum/YaBB.pl?num=1473556559

Ryan and O'Neill - senate thieves

http://www.ozpolitic.com/forum/YaBB.pl?num=1473556615

Senators Ryan and O'Neill have been invited to respond to this article.

join discussion