Posted 08/03/2018 by Damon Muller
Following a double dissolution election, section 13 of the Australian Constitution requires that the newly-elected Senate be divided into two classes of senators. One class receives a standard six-year Senate term (the ‘long’ term, back-dated to the 1 July prior to the election), and the other a ‘short’ three-year half term.
The Constitution provides no mechanism for determining which senators receive the long and the short terms, leaving the decision to the Senate. Traditionally the Senate has used the order of election to determine the terms, with the first six senators elected in any state receiving long terms, and the remaining six senators the short terms. This continued after the 2016 double dissolution when the Senate resolved, on 31 August 2016, to use order of election to allocate terms. This process was described in a previous Flagpost.
Over eighteen months on from the 2016 election, nine senators who were elected at that election have been found to have been ineligible to have been elected under section 44 of the Constitution by the High Court sitting as the Court of Disputed Returns. Each of the ineligible senators has been replaced according to a special count of the ballot papers from the 2016 Senate election. However the question of the terms the newly-appointed senators will receive has only recently been resolved.
On 13 February 2018 Liberal Senator James McGrath moved a motion that:
(a) as soon as practicable, after the High Court orders a special count of the ballots from the 2016 Senate election for any state and makes an order declaring that a person identified by that count is duly elected as a senator for that state, there be laid on the table a copy of the statement of results report for that count; and
(b) if such a report is tabled, in relation to any state, then the order of the Senate of 31 August 2016, made pursuant to section 13 of the Constitution, have effect in relation to senators from that state as if a reference to the certificate of election were a reference to the most recent statement of results report.
This would mean that whenever a special count of the ballots from the 2016 election is ordered, the order of election from the special count would determine which senators received a short or long term, rather than the order of election resulting from the original 2016 election.
The motion passed with only the Greens senators and Senator Hinch voting against it. This is the first time that the Senate has changed the term lengths of senators during a term, after having initially allocated the terms lengths in the first sitting following a double dissolution election.
The motion is also discussed in a Procedural Information Bulletin issued by the Senate.
On the basis of the special counts ordered by the Court of Disputed Returns to date, this has resulted in the following changes to the allocation of short and long terms for current senators:
- In NSW the special count replaced a disqualified Nationals senator, who had had a long term, with Liberal Senator Jim Molan, who received a short term. Liberal Senator Concetta Fierravanti-Wells moved from a short to a long term.
- In Tasmania Independent Senator Steve Martin (formerly a Jacquie Lambie Network (JLN) candidate) received a short term rather than the long term of the JLN senator he replaced. Liberal Senators Bushby and Duniam moved from short to long terms, and newly-elected Liberal Senator Richard Colbeck received a short term rather than the long term of the senator he replaced.
- In Queensland, Western Australia and South Australia there was no change in the allocation of short and long terms between parties, however in Western Australia Greens Senator Rachel Siewert moved from a short to a long term.
At the time of publication there is only one pending section 44 case involving a senator before the Court of Disputed Returns—that of Labor Senator Katy Gallagher. As Senator Gallagher was elected to the Senate from the Australian Capital Territory, and therefore (under the Commonwealth Electoral Act 1918) has the same term as a member of the House of Representatives, any disqualification that may result from this case will not affect the allocation of short and long terms.