Senate Terms: Human Headline Constitutionally Skewered

BY allocating six-year terms to the first Senators elected in each state, the new Senate will replicate the act of all others convened after a double dissolution since Federation; Derryn Hinch, aggrieved by a three-year term but worthier of six than most, offered a surprisingly undemocratic alternative his colleagues and precedent will sink. A touted lawsuit is constitutionally doomed. He should eschew pointless brawls in favour of more salient issues.

Short of criticising Malcolm Turnbull and the tentative early missteps of his re-elected government — over Kevin Rudd, the Don Dale fiasco, the continued triumphalism of moderate factional hacks in the Liberal Party in rubbing the majority conservatives’ noses in the dirt, or over his diminished authority and continued exhibition of poor or non-existent political judgement — there has been little to discuss over the past week, and as I am waiting to see how Turnbull fares when Parliament reconvenes in ten days’ time, I am reluctant to tear into his government. For now.

After the appalling election campaign and the events that led to it, readers can be well assured that whilst this column’s guns have not fired at the Prime Minister in recent weeks, they are trained in that direction and will do precisely that if my view is that Turnbull and his smug moderate cohorts are pushing the Coalition nearer to the electoral abyss: not that there’s very far to push these days, given the government was re-elected with the barest possible majority in the lower house and a diabolical position in the Senate.

But the news this week that the Coalition and Labor have “done a deal” to put a majority of the Senate crossbench on three-year terms is unexceptional, albeit one of the first items of real business for the new Senate to resolve, and even in the current era of rank negativity, pointless populism and incendiary tactics to achieve outcomes counter to the national interest but conducive to one political agenda or another, it is hard to have any sympathy for any of the Senators who have got it into their heads that they should have been installed for six years if they ended up being relegated to three.

Readers can access coverage of this issue, depending on preference, by the Fairfax and Murdoch stables; the allocation of six-year terms to 16 of 30 Coalition Senators and 13 of 26 from Labor is hardly excessive, and I would make the point that if this were indeed a conspiratorial stitch-up claimed by the likes of idiotic Communist Greens leader Richard Di Natale, then most or all of the seven of the 18 crossbench or Greens Senators in line for six-year terms would be contemplating just three years in the red chamber this weekend.

So let’s dispense with the bullshit: there hasn’t been a hatchet job done on the crossbenchers, even if obsessive self-interest has deluded some of them that there has.

The “order of election” method for allocating six-year and three-year terms to Senators after a double dissolution is the exact method used after double dissolutions in 1914, 1951, 1974, 1975, 1983 and 1987; it is impossible to argue that the utilisation of this method now is inconsistent with historical practice.

As part of its 1984 electoral reforms — which, at root, are responsible for the mess the Senate has descended into over the past ten years — the ALP enshrined in the Electoral Act a “countback method” (the so-called Section 282 recount) as an alternative mechanism for allocating terms based on the votes obtained by the 12 winning candidates in each state to the exclusion of preferences obtained from eliminated candidates; significantly, the Hawke government did not use this mechanism after the 1987 election, and as the article I’ve linked from The Age notes, the electoral commissioner advised the Clerk of the Parliament after the election that the Senate was in no way obliged to use Section 282 of the Electoral Act in determining the tenure of Senators.

And the reason is brutally simple, and brutal in its finality: the Constitution.

I have provided links to the Constitution in the past, and do so again today here; in the context of how three-year and six-year terms are carved up, the matter is entirely dealt with by S13, and that section itself makes no prescription whatsoever for the method to be used, merely noting that the Senate itself is responsible for dividing Senators into short-term and long-term Senators following a double dissolution.

As there is no recourse where the Constitution is concerned — clearly, any finding by a Court against the provisions of the Constitution would, by its nature, be unlawful — it is safe to assert that the method for this practice is as the sole discretion of the Senate; the fact the same method used on six previous occasions is again being used now merely adds the strengthening hand of precedent to the allocations announced yesterday, and it would be a foolish and wantonly expensive misadventure indeed for any aggrieved party to run off to the High Court seeking an intervention against the Constitution in their favour. It isn’t going to happen.

Family First Senator Bob Day found this out the hard way earlier this year, when he launched a ridiculous High Court challenge to changes to the way the Senate is elected, believing his interests and those of minor parties generally were disadvantaged; whether they were or not is irrelevant (and with a record 20 Senators set to take their places on the crossbench on 23 August, it’s problematic to argue the point), for S9 is unequivocal that the Commonwealth Parliament may prescribe the method of electing Senators provided such a method is uniform for all of the states: which, earlier this year, it did.

Assessed against the backdrop of constitutional provisions that confer unequivocal authority on Parliament to determine these matters at its absolute discretion, the actions of Victorian Senator Derryn Hinch are curious, to say the least.

Surprisingly, for a decent man ferociously (and rightly) obsessed with standards in public life, Hinch’s proposed alternative — that all represented parties be allocated at least one six-year Senator — not only flies in the face of both constitutional provision and parliamentary precedent, but also exudes a distinctly anti-democratic odour.

Taken to its logical conclusion, the Hinch proposal would have seen the Australian Motorist Enthusiasts Party Senator Ricky Muir, with his 0.5% of the primary vote, given six years in the Senate had that result and outcome been replicated last month; the Hinch proposal gives every appearance of being an unashamed attempted sop to minor parties at the expense of the traditional major parties, and those who rail against the major parties too often conveniently lose sight of the fact that they generally do win an awful lot more votes than their tiny counterparts.

Long-term readers know I have a lot of time for Hinch — and have had for decades — and I welcome his presence in the Senate; some of his positions (such as his support for gay marriage) I do not support, but others (such as disclosure and tougher sentencing for sex offenders) I wholeheartedly endorse. I am not having a go at Derryn today. But it does seem that in trying to push a proposal that would in fact benefit him, he has highlighted problems not just with Senate elections more broadly, but with the conflict that erupts at the intersection of standard parliamentary practice and the “modern” political practice of doing business with a sledgehammer and voluble amounts of intimidatory hot air designed to force opposition into submission.

But as I said earlier in today’s piece, were this simply a stitch-up, there would be worse things to bleat about than Derryn only being given a three-year term.

The good news is that odious actual Communist and national disgrace Lee Rhiannon has been added to the list of those who must face election before June 2019: an opportunity to get rid of an appalling blight on the national polity once and for all. Diversity be damned; this is someone whose past activities verge on treason, and who should be permanently disqualified from holding elective office in this country altogether.

Also to be welcomed is the fact Rhiannon’s rival as the Greens’ most contemptible parliamentarian — the obsequious Sarah Hanson-Young — will also be forced to provide voters with a further opportunity to get rid of her the next time a federal election is held.

And all three of Pauline Hanson’s One Nation buddies will be forced back to the polls at the same time; the prospect of any or all returning to Canberra after the next election must be regarded as low given the almost doubled quotas they will require in order to do so.

The bad news is that good people — like Hinch, Day, and Liberal Democrat David Leyonhjelm — will likewise be marched off to the polls again; this is not the result of any personal targeting but the even application of a system that has been used repeatedly at double dissolutions. In this case, it has produced outcomes that are not desirable.

Similarly, the news that Pauline Hanson and Jacqui Lambie will spend six-year terms in the Senate is a cause for rue; Hanson, by virtue of the vote recorded in Queensland, is entitled to such a term whether you like it or not, but Lambie — in my view the stupidest person ever elected to an Australian Parliament, and much, much worse than Hanson in any case — is a presence whose voice adds precisely nothing of value to the national debate in any way, shape, or form.

But “the system” is just that — the system which, by consent under law, we agree to abide by — and too often in recent years, the refusal of some (mostly, but not exclusively, on the Left) to accept the outcomes it delivers is a disturbing symptom of anti-democratic momentum that runs counter to the national interest, and it is for this reason I was dismayed by Hinch’s “give all parties six years” approach when such a position lacks merit, credibility, and legal integrity.

My criticism of Hinch starts and ends there, but my ongoing critique of others in Canberra — whom we have repeatedly discussed this year in their attempts to subvert process in one way or another — does not.

If I was honest, I would have to say I’m just about fed up with the Senate: the niceties of allocating three and six-year terms aside, it’s not democratic, it’s not representative, and it most certainly isn’t functional in the sense a reasonable person would understand the term to imply — just like proportionally elected Parliaments in Europe, which are usually gridlocked and are a direct cause of the economic and social malaise that now afflicts the EU and its neighbours on the continent.

Perhaps all of this lends weight to the possibility of constitutional change to overhaul Parliament itself, along the lines we have discussed in this column across the journey: breaking the nexus between the Houses that dictate their relative size, along with a recasting of the Senate into upper house districts that return a single member at a half-Senate election and two members at a double dissolution.

But any such change would require the courage and perspicacity of MPs and their organisational structures to formulate arguments for such change, and the skill to sell those arguments and carry public opinion: attributes I don’t think anyone believes exist right now, to any great degree, among the group currently charged with governance in Canberra.

To be clear, the changes made to Senate election procedures earlier this year were entirely within the Parliament’s jurisdiction to make, but were in fact little more than a Band-Aid on a suppurating sore: they were no more “real reform” than the idea a superannuation tax rise and a business tax cut was a “clear economic program.”

In this context, whatever merit or otherwise might rest in Hinch’s musings on the carve-up of terms for Senators, the point is moot: and even if his concept were valid (and I don’t believe it is), such a change would be just as much a rearrangement rather than an overhaul as those electoral reforms are already proving.

Hinch was elected on credible (and in some cases, urgently indicated) policies: he should shun the allure of picking a pointless legal fight guaranteed to end badly, and focus instead on those policies. The Constitution has him snookered. The High Court would simply pot the black on him. It would be a silly waste of time, money, and public goodwill.

But this wouldn’t stop him attempting to explore, as a Senator, substantial ideas for genuine reform of the Senate, although the record level of self-interest and obsession with keeping their snouts in the trough means that whatever else is said of Australia’s MPs, the interest factor will be virtually zero.

Best to get on with the job at hand. Most of the people in Canberra, despite their protestations to the contrary, are really only concerned with staying there. If Hinch is to be different, there’s a big opportunity to prove it by standing out from the pack.

The clock is ticking.



4 thoughts on “Senate Terms: Human Headline Constitutionally Skewered

  1. Yale,

    “To be clear, the changes made to Senate election procedures earlier this year were entirely within the Parliament’s jurisdiction to make, but were in fact little more than a Band-Aid on a suppurating sore: ”

    I would think that this is perhaps over-egging what was a real change within the rules without a referendum. This is particularly so for Victorian voters who have now experienced optional preferential voting, which by the way allowed for Hinch to be elected. I would suggest that having now experienced it that the pressure will come to use it in the lower house federally as well as in the State elections with the instructions simplified and in accordance with the Act. So I would suggest that this alone merits more than a band-aid perhaps at least a plaster cast and crutches.

    Your overall theme of snouts and character certainly meets the pub test for the lot of them.

  2. As a CONSTITUTIONALIST I actually enjoyed reading this article and very balanced written.
    Hansard 17-2-1898 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)
    The Bill provides that half of the senators go to their constituents every three years, and that the members of the other House shall be elected every three years, or probably at shorter intervals.
    Hansard 9-3-1898 Constitution Convention Debates
    Sir JOHN FORREST.-I say that if the two Houses cannot agree, they should meet together and settle the matter in dispute. The world has not been made for to-day or to-morrow, and we are no dependent for our existence or our well being upon the passing of any measure immediately. If there is a grave dispute, no one loses much by delay. Under this Constitution the Senate will be continually changing. Every three years one-half of the members will go out. If they are opposed to what is the popular view they will not be re-elected, and in six years it will be possible for the people to alter the whole personnel of the Senate.

    The constitution is the general rule book, and if those in the Senate cannot manage to organise themselves then well get rid of the lot and get new Senators. While I can understand that a person having campaigned to be a Senator having to pay say $2,000 then could find to be out of pocket for only 3 years. But that is what the constitution provides for, that is half Senate election and the deposit is fabricated by the parliament that I hold is not constitutionally valid, as it places a requirement upon a candidate that undermines his right to be a candidate based on being an elector.
    Hansard 15-4-1897 Constitution Convention Debates (Official Record of the Debates of the National Australasian Convention)
    Mr. O’CONNOR: There are only two limitations to the Subjects which may come under the head of “manner of choosing.” One is that the member is to be chosen by the people of the States as one electorate. That cannot be altered. The other is that the qualification shall be as stated for the House of Representatives, and one man shall have one vote. Those two things are expressly provided for, and therefore the “manner” cannot touch them. They really put the very basis upon which the Senate is elected.
    Mr. BARTON: That is the clause that calls the Senate into being.
    Mr. O’CONNOR: But the manner of conducting elections must embrace everything else, and the manner of choosing, surely, would include the method in which the votes are to be recorded. The method in which votes are recorded must allow for representation of minorities, alternative votes, or any other system.
    Mr. BARTON: It would be perfectly open, for instance, for every Parliament to provide for the Hare system of election. The tenth – clause provides that the Parliament may, in the first instance, prescribe an uniform manner applicable to every State, of choosing members for the Senate; but, subject, to such provision, the Parliament of each State may decide how to choose members of that body. It reserves such a power to the Parliaments of the States. But there is reserved to the Federal Parliament a power of control, which might well be exercised, in the case of certain difficulties or misdeeds arising, to take the matter into its hands.
    Mr. SYMON: I quite agree with Mr. Barton, that if a power is not taken away from the State it remains with it. But I doubt very much whether this provision in the first part of clause 10 would cover such an alteration as is implied in the introduction of the Hare system of voting. The other name for it is proportional representation, and I doubt whether the manner of choosing the members of the Senate would cover the alteration, either for a Federal Parliament or a State Parliament. My idea is that section is a limita- [start page 674] tion simply with regard to the manner of election, narrowly and technically understood. There is implied, first the creation of a constituency, and second, the creation of the voters by means of the qualification. which is also declared in the Constitution as that applicable to the more numerous Legislature in the State. And it leaves untouched everything else. Therefore, if there were to be an alteration in the way of introducing proportional representation, that power would remain with the States and be exercised by them. There is nothing in this clause which enables the Parliament of the Federation to alter the qualification of electors to the Senate unless by an alteration of the Constitution. Proportional representation may or may not-I do not know whether it would or not-alter the principle of representation. If it would, it would, therefore, be untouched by a provision merely dealing with the manner of choosing the members of the Senate. I think, therefore, that the clause had better be left as it is, the result being, in my view, that, whilst the Parliament of the Commonwealth may make aws which would dominate as to the manner of choosing the members of the Senate, it would be for the States to deal with such a matter as is involved in the Hare system of voting. It establishes a different system of representation under the name of proportional representation.

    Consider the following regarding Sue v Hill!
    Hansard 2-4-1891 Constitution Convention Debates
    We propose to form a commonwealth of Australia, and are we to prohibit people of our own race, born in other portions of the British dominions, from becoming senators until they have been resident in the commonwealth for a certain period? No such prohibition is placed upon Australians residing in the old country. Any Australian, resident in England, can at once, if the electors desire, become a member of the House of Commons, and I see no reason why a distinguished Englishman coming to these colonies should not at once be eligible for the position of senator if the legislature of one of the colonies desired his appointment.

    It is only when a successful candidate for the Senate being Senator-Elect having taken up the seat by oath/affirmation that the person becomes a Senator.
    One has to ask if the Appropriation Bills for the financial year commencing 1 July 2016 have not been passed then who paid for the 2-7-2016 election?
    Who is paying for all the departments?
    Derryn Hinch would do better to address those issues then to argue about the bad luck happen to be drawn to a 3 year term.

  3. Very good article Yale, as an up and coming Barrister with a propensity for Constitutional Law, I very much enjoyed it.
    On an aside and from my studies, I suspect that you might be interested in the fact that ‘legally’ in Australia all of the laws and provisions are in place for Gay people to have a civil ceremony ‘bonding’ (for want of a better word).
    What they want , and what all of this cuffullel and the spending of $1.6 b on a plebiscite is about, is they want to use the word ‘Marriage’. That’s it.
    Constitutionally, they cannot use Marriage.
    I am against any change in the Constitution as it was framed by men far more intelligent and less corrupt than those we see today and I fear there is a far deeper motive at play and yet to be revealed in this move for any change to our Constitution.

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