Posted 06/09/2016 by Damon Muller
Following a double dissolution election, section 13 of the Australian Constitution states that the Senate must decide which of the senators will serve a full six-year term and which will serve a three-year half term and face election at the next federal election. The process is described in detail in a previous FlagPost published in early 2016.
The Senate resolved this issue on its second sitting day. On 31 August 2016 Senator Fifield moved:
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.
The motion was passed 50 to 15. The Ayes included the Coalition and ALP senators, and the Noes included Senators Day, Hinch, Leyonhjelm and the Nick Xenophon Team and Australian Greens senators.
The motion reflected the practice following all previous double dissolution elections of having the first six senators elected in the count in each state receive long terms, and the remaining six senators for each state receive the shorter terms.
Section 282 of the Commonwealth Electoral Act 1918, requires the Australian Electoral Commission (AEC) to conduct a special recount following double dissolution elections. The recount is conducted for each state as if the number of vacancies was for a normal half-Senate election, and only includes the senators who were elected at the election. Following the July 2016 election the AEC submitted the results of its section 282 recount to the Senate, and the results were tabled in the Senate on the first sitting day.
Section 282 was added to the Act in 1983, with one government senator characterising the recount method as a ‘fairer system’. However, for the two double dissolution elections in which the recount results have been calculated (1987 and 2016), the results have been quite similar to the order of election.
Following the 1987 double dissolution, if the Senate had elected to use the section 282 recount method rather than the order of election, two long terms that went to Australian Democrats senators would have gone to National Party senators instead. At the time it was alleged that that the Australian Labor Party (ALP) and the Democrats had reached agreement in order to ensure that they received the longer terms.
When comparing the results of the 2016 double dissolution, the order of election method and the section 282 method differed only in NSW and Victoria, and only by one senator in each state (see tables below). If the Senate had elected to use the section 282 method, Greens Senator Lee Rhiannon would have received the long term instead of ALP Senator Deborah O’Neill. In Victoria, Derryn Hinch’s Justice Party Senator Derryn Hinch would have received a long term under section 282 rather than Liberal Party Senator Scott Ryan.
Two weeks before the Senate first sat, media reports stated that Labor and the Coalition had reached agreement to utilise the order of election method.
During the debate on Senator Fifield’s motion, one Coalition and one ALP senator spoke. Senator Brandis and Senator Dastyari noted in the Senate that it had been the practice in all previous double dissolution elections since Federation to use order of election to determine the rotation of senators. Senator Dastyari added that it was a simple and transparent way to make the decision.
Senator Hinch, one of the crossbench senators affected by the decision, disagreed, stating that it was ‘wrong’, ‘unfair’ and a ‘stitch-up’.
NSW - six year terms
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Order of Election
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Section 282 Recount
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Payne, Marise
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Payne, Marise
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Dastyari, Sam
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Dastyari, Sam
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Sinodinos, Arthur
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Sinodinos, Arthur
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McAllister, Jenny
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McAllister, Jenny
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Nash, Fiona
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Nash, Fiona
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O’Neill, Deborah
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Rhiannon, Lee
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Victoria - six year terms
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Order of Election
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Section 282 Recount
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Fifield, Mitch
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Fifield, Mitch
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Carr, Kim
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Carr, Kim
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Di Natale, Richard
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Di Natale, Richard
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McKenzie, Bridget
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McKenzie, Bridget
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Conroy, Stephen Michael
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Conroy, Stephen Michael
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Ryan, Scott
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Hinch, Derryn
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