The solution to a problem you probably didn't know exists

19/11/17

Solving Australia’s ongoing constitutional crisis, without altering the constitution.

The problem
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Australia is witnessing one of the most drawn-out constitutional crises in the history of modern democracy. If this is not resolved, we will go into the next double dissolution election now knowing how the six year and three year Senate terms will be allocated between the elected Senators. Labor and the Coalition have recently established a new precedent of waiting until after the votes come in to decide. This decision is based entirely on self-interest. After the election, two or more parties will join forces to form a Senate majority and vote to give themselves extra Senators. This is undemocratic and unacceptable, but the major parties are committed to leaving the issue unresolved so they can take advantage in the future.

The duplicitous actions of the major parties change the election outcome by changing the balance of power in the Senate. This has a real effect on what legislation the government is able to get through. It allows the major parties to 'steal' the election outcome.

The crux of this issue are provisions that allow the Senate (that is, whichever party or coalition controls the Senate) to allocate 'extra' senate seats to themselves after a double dissolution election. These provisions stem from the Senate's right (protected by the constitution) to allocate long (six year) and short (three year) term Senate seats. Traditionally, the allocation of seats was based on the order in which the Senators were elected. In the 1980's legislation was passed requiring the Australian Electoral Commission to perform a special recount of Senate votes, which allows the Senate to allocate seats on a fairer, more democratic basis. There have since been two bipartisan senate resolutions agreeing to use the new method. There have also been two double dissolution elections, and in both cases a coalition of parties used their numbers in the Senate to vote to use the old method, in order to take more seats.

The solution
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This problem is ultimately a constitutional flaw. It was the intention of the constitution to leave the details of the method for allocating long term seats to convention, and this worked well enough until 1984. The 1984 legislation, creating section 282 of the Commonwealth Electoral Act, is well-intentioned legislation in that it allows for a fairer, more representative method of allocating long term seats. However, it was crippled by the constitution. It may appear that constitutional reform is the only way to fix the problem, however there are other ways around it.

I propose here a modification to Section 282. The legislation currently requires the AEC to conduct a recount to elect the 6 senators from each state to long term seats prior to the first sitting of the Senate. This provides the Senate with the information it needs to allocate long term seats using the new method.

The proposal is to amend Section 282 to require the AEC to withhold as much information as is necessary from the Senate, including by delaying the special recount in part or in whole, until after the Senate makes an announcement regarding the method that will be employed to select long and short term Senate seats. As with the bipartisan senate resolutions, such an announcement can not be binding. However, the timing would draw too much media attention to what is happening. It was largely lack of media attention that has allowed the current situation to develop. Politicians can get away with promises made by their party ten years ago, but it is a bit harder when the promise was made the day before.

This would mean that the AEC announces the list of 12 Senators elected from each state, but not the order in which they were elected. This aspect may not be particularly effective, as the election process requires many observers.

More importantly, the AEC should delay the special recount. It is important to minimise this delay, so I suggest that it would be sufficient to conduct the special recount up to the point where the first 5 Senators from each state are elected (ie, given long term seats). Before distributing any surplus votes from the 5th candidate, and before eliminating any more candidates and distributing their votes to decide who gets the 6th spot, the AEC should cease the counting and await the announcement from the Senate.


The constitution
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Timing of the special recount is crucial, in part because of the wording of the constitution. Here it is (from section 13):

https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/link.aspx?_id=6690F0DE4F6F45E0A7471C5A907C612D&_z=z#chapter-01_part-02_13

13. Rotation of senators

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.

The crucial part is "As soon as may be," which may present problems for legislation that will inevitably delay that decision. No time frame is specified in the constitution, because Senators need time to argue, posture, vote, drink coffee etc. I do not claim to be in any position to decide whether such a provision violates the constitution. I do however, make suggestions to minimise the delay.

As suggested above, the special recount should be progressed, prior to the Senate first meeting, as far as it can without giving away too much information. In most states the two methods actually produce the same outcome. Where the outcome differs, it has only ever been by a single Senate seat. So, the AEC can progress to the election of 5 Senators without spoiling the party.

I suggest that the AEC time it's progress so that the election of the 5th Senator happens as the Senators first walk into the Senate. The reason for this is two-fold: sufficiently well-informed speculation may make it possible for Senators to predict the outcome of each method, though I consider this unlikely. Second, it makes it more likely that the media will push the Senators-elect to declare their intentions publicly prior to the first sitting. Even if there is 'cheating,' the spectacle of senators checking their text messages for last minute instructions may draw enough attention to the practice to make them stand on principle rather than self interest.

So, the AEC pauses the count when they get to 5 and await some kind of announcement from the Senate. This could be as simple as a motion indicating intent. Given the absence of vested interests, it could be over in 5 minutes. Then, the AEC resumes the count, completes it as rapidly as it can, and announces the result of the special recount. Senators receive a flurry of text messages. Then the Senate divides itself in accordance with the constitution.

A constitutional violation?
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An amendment to Section 282 could be worded loosely to give the AEC discretionary power in the event that this is considered a violation of the constitution. Note that delaying the announcement of the results of the special recount is not in itself a violation of the constitution. However, Senators deliberately delaying their vote to allocate seats might be. Importantly, this could not be challenged on constitutional grounds until after the Senate imposes the delay. The absurdity of such a challenge makes it unlikely.

As an example of how to tiptoe around the constitution, the legislation could permit the AEC to conduct the full recount and announce the results prior to the first sitting if the AEC is satisfied that enough Senators have publicly declared their intention, such that a last-minute backflip is improbable, due to the bad publicity it would bring to the individuals and parties involved. This way, we are back to the original intention of the constitution - to allocate long term seats by convention - with a new convention that Senators announce how they will do so prior to finding out what is in their self interest.

If, for some reason, the Senate refuses to satisfy the AEC, the AEC refuses to complete the special recount, forcing the Senate to use the old method. This may be a "bad" outcome, but it is better than the current situation, and is unlikely.

A simpler method?
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There are simpler methods available, though their constitutional standing is also questionable. For example, we could simply compel Senators elect to announce their intentions as soon as the results are in (for the election of 12 senators, prior to the special recount being conducted). Compelling a Senator to vote in accordance with that announcement may well violate the constitution. However, that is not necessary because the court of public opinion would pass the sentence.

Background
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Three years after a double dissolution election, half of the sitting senators from each state will face a regular half senate election. From that point until the next half senate election (in another 3 years), half of them will have come from the double dissolution election. It is entirely up to the Senate to decide which senators get to stay on for the full 6 year term. This means that whoever controls the Senate after a double dissolution election is theoretically allowed by the constitution to hand themselves all of the long term seats, which would equate to 50% of the available state-based Senate votes from year 3 to year 6, in addition to the additional seats they win at the 3 year mark.

Fortunately the Senate has so far been reasonably well behaved, and has been guided by convention to allocate the long term Senate seats in a way that resembles the will of the people reasonably well, as was originally intended by the constitution. Ultimately, it is the risk of a public backlash that prevents them from taking advantage to the point of absurdity. However, an attempt in 1984 to change the convention for allocating seats has (perhaps intentionally) backfired. Since then, the Senate has taken liberty with allocating long term Senate seats.

This is because the attempt to change the rules has offered the Senate two options. Both have sufficient legitimacy in the public eye such that whoever controls the Senate can (and does) simply choose the method that gives them more of the long term Senate seats. Unfortunately, this 'dual legitimacy' largely takes the form of public disinterest, uninformed commentary from the media, and to some extent a sense of resignation in the face of the way politicians behave.

Two methods of allocating senate seats
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The two methods are:

The 'order-elected' method - under this method, the first six senators elected under the official Senate vote counting method get the long term seats. This is analogous to 'first past the post' voting for a multi-member electorate, in the sense that the senators with the largest block of first preference votes get elected first. This is the 'old' method and has been used in every full senate election in Australia's history.

The 'recount' method - under this method, after the 12 senators are chosen, a recount vote is conducted in which only those 12 senators are in the race, and only 6 (long term) senate seats are up for grabs. This is almost equivalent to holding a regular half senate election, except that all but 12 candidates are eliminated in the first round of vote counting (and those votes are distributed according to preference). In practice the outcome will be identical to a regular half senate election. This is the 'new' method, and has never been used.

The new recount method is demonstrably fairer, more representative of the will of the people, and is supported by nearly every politician, including both major parties, except when they have a vested interest in sticking with the old method. The moral gymnastics and backflipping from politicians on this issue is disturbing and disheartening - almost as disheartening as the resignation and disinterest from the public.

A difference of two seats
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The recount and the order-elected method produce different election outcomes. We have had two double dissolution elections since 1984, when legislation was passed requiring the Australian Electoral Commission (AEC) to conduct the recount so that the Senate has the option of allocating long term seats using that method. In both cases (1987 and 2016), the difference was two long term seats. In both cases, the parties controlling the Senate voted to use the old method instead of the new method because they benefitted by two long term seats, which effectively meant two extra votes on the floor of the Senate from 3 to 6 years after the double dissolution election.

Given the difficulty that the government often has getting legislation through the Senate, two seats is a game changer. It can give one party a majority in the Senate, or it can cut down the number of cross-bench senators whose support must be courted in order to get legislation through. It effectively changes the election outcome, because it changes the legislation that can be passed.

Bipartisan support for the new method
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Labor was responsible for the initial legislation in 1984 that requires the AEC to conduct the recount vote. In the 1987 double dissolution election, the Liberal party moved to use the new method in the Senate, but was blocked by Labor and the Democrats. The Democrats got two extra long term seats at the expense of the Nationals (and Labor got Democrat support in the Senate).

In 1998 and again in 2010, Labor and the Coalition passed bipartisan Senate resolutions to use the new, fairer method. Unfortunately neither of these resolutions, nor the 1984 legislation, are binding. They cannot be binding, as this would violate the constitutional provisions that leave the decision to the Senate. So in the 2016 double dissolution election, both Labor and the Coalition voted in favour of using the old method, because both parties gained one seat. In NSW, Labor's Deborah O'Neill was handed a long term seat at the expense of the Greens' Lee Rhiannon. In Victoria, the Liberal's Scott Ryan was handed a long term seat at the expense of Derryn Hinch. From 2019 to 2022, Labor and the Coalition will each have an extra vote in the Senate that they do not deserve. As if to highlight their ability to get away with anything, the Liberal party followed this up by putting Scott Ryan in charge of the AEC.

Media and public response
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Despite the significant consequences for election outcomes, the public remains largely disinterested in this issue. The media largely fails to report on the issue, or leaves out the critical details (such as the two bipartisan senate resolutions) that would make the public more likely to hold their parties to account.

Broken Promises and Stolen Senate Seats - Media coverage

Wikipedia also followed suit in not mentioning key details, and it took some effort by the author to get Wikipedia to acknowledge details of the problem and its history, such as the broken bipartisan senate resolutions.

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