Who decides which senators get the sought-after six-year terms?

After the double dissolution election, every senator wants a six-year double term. Likely new Victorian senator Derryn Hinch has even said he will sue for one. But who really makes the decision?

Senate, election, ballot papers

Polling officials and scrutineers counting and rechecking senate ballot papers. Source: AAP

Following the weekend's tumultuous double dissolution election, very little is certain in Australian politics.

The balance of the house of representatives is yet to be confirmed, there is still no clear path to power for either the Coalition or Labor and the rise of controversial minority senators has many around the country concerned.

And there is another question still to be answered: which senators will get the highly-prized double six-year terms and which will be forced to fight to retain their seats after a single three-year term?

Let's start at the beginning...

Australia has 12 senators for each state and four senators for each territory.

In a normal election cycle, Australian senators are elected every three years for a six-year term. This means that every time Australia has a federal election, voters elect politicians to the House of Representatives and half of the Senate seats.

At the following federal election, the other half of the Senate seats go up for re-election.
But in a double dissolution election all the seats are vacated.

This means half of the elected senators will get to serve out a six-year term, but the other half will have their term cut short and will have to campaign in the next federal election, due to be held in 2019.

In order for a senator to get elected in a normal half-senate election they usually need to get about 14 per cent of the vote, or a quota, including preferences.

In a double dissolution election the quota for election is lower, about seven per cent, which makes it easier for minor party candidates, like One Nation's Pauline Hanson and the Justice Party's Derryn Hinch, to land a senate seat.

So who decides who gets what?

The Australia constitution says it is up to the senate to decide which senators get a full term and which only get half, but does not specify the method for doing so.

University of Adelaide politics Professor Clem Macintyre told SBS News there was a tried and tested method that allowed the senate to distribute the terms among the senators.

"The [Australian] Electoral Commission is invited to take the 12 winning senators [for each state] and use the votes as though they were the only 12 candidates and see which six were elected first and which were elected second," he said.

This means the first six senators in each state who received the most votes will be given six-year terms and the last six will receive three-year terms, Professor Macintyre said.
"It's more likely the major parties with big primary votes will have been elected first," he said.

"Minor parties like [Derryn] Hinch and [Pauline] Hanson and the Greens in South Australia, who didn't make up a [the quota needed for election in a half-senate election] are likely to come in at seventh to 12th.

"Once we know the order that they're elected then we can make a guess at which six are likely to get six-year terms."

Professor Macintyre said there was nothing to compel the senate to use this method, but it was likely to be favoured by the major parties who had been elected on clear quotas and who receive most of the six-year terms.

"In order to get elected in a half senate election you need about 14 per cent of the vote," he said.

While voting is still weeks from being completed, Ms Hanson is sitting on about nine or 10 per cent of the vote and Mr Hinch has about five or six per cent, which would mean in a normal senate election they would not have won a seat.

What difference did the new senate voting laws make?

Once preference deals meant that everyone on the party's ticket would be pulled over the line, and minor parties could band together and share preferences.

But the new senate voting method means voters allocate their own preferences to individual candidates or parties, negating any preference deals done prior to the election.
Professor Macintyre said this meant the senate ballot papers would take even longer to count because the AEC could no longer assume that a vote for one party would automatically apply to all the listed candidates once preferences were taken into account.

He said parties were having to rely on voters following how to vote cards, which not all voters did.

"If you've got 100,000 votes, maybe 60,000 of them will follow the how to vote card, but another 40,000 won't and they can't control that," Professor Macintyre said.

Can a senator sue if they don't get the six-year term they want?

Shock-jock and Justice Party senate candidate Derryn Hinch looks likely to be elected to the senate for Victoria.

He has said if he is denied a six-year term he will sue.

Because, at this point in the counting process, it looks like he has not received enough of the vote to qualify for the double term, he may have to make good on his threat.

However, University of Adelaide chair of law and director of the South Australian Law Reform Institute, John Williams, told SBS News such a challenge was unlikely to succeed.

"The court would possibly have a view that it was clearly a matter for the senate itself," Professor Williams said.

"They would be more likely than not to decline to hear the matter.

"It's not a question about disputed returns, it's what happens after a senate election."

So why are there double terms for senators at all?

Professor Macintyre said the double senate terms were initially introduced to slow any sudden political change that might come with a new government.

He said leaving half the previous senators with a new government would leave some of the previous parliament to put a halt to any radical changes that might eventuate. 

He said the need for this legislative brake was not really required anymore, but as it was in the constitution, it was unlikely to change.


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6 min read

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By Kerrie Armstrong
Source: SBS News


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