Australian State Senators are elected to fixed but staggered six year terms, with half of each state's Senators facing the electorate every three years.
Currently the Senate has 76 Senators, each state represented by 12 Senators broken into two rotations of six, plus two Senators from each of the Territories.
Terms of State Senators are fixed, and Section 13 of the Constitution specifies that an election for new Senators can only be held in the last twelve months of a Senate's term.
It is the Senate's fixed term that is the main impediments to Australian Prime Ministers calling early elections, unless they want to run the risk of House and Senate elections getting out of step.
The only method of breaking the Senate's fixed term is through a double dissolution, the constitutional deadlock resolution method that sends all of the Senate to an election at once.
After a double dissolution, the rotation of terms has to be re-established, all Senators being allocated to either a long or a short term.
Many times I've been asked what mechanism is used to allocate new Senators to short and long terms.
In this post I will outline the method the Senate has used in the past. I will also outline a fairer method that is provided for in the Electoral Act, a method ignored by the Senate when it last met after a double dissolution in 1987.
First let me clarify that term rotation only applies to the 72 State Senators. The four Territory Senators owe their positions to legislation rather than the Constitution. There is no rotation or fixed terms for Territory Senators. Territory Senate terms are tied to the life of the House of Representatives.
There are four types of Federal elections that can be held in Australia, and the type of election determines whether State and Territory Senators face election, as shown in the table below.
|Election Type||Senators Elected|
|House Only||4 Territory|
|House and Half-Senate||36 State and 4 Territory|
|Half-Senate only||36 State|
|Double Dissolution||72 State and 4 Territory|
Territory Senators are sworn in at the same time as House members, at the first sitting after an election for the House of Representatives.
The swearing in of State Senators depends on whether they have been elected at a half-Senate or double dissolution election.
Senators elected at a half-Senate election begin their fixed six-year term on the next 1 July, usually at a later date than the House begins its new term. Senators elected at a double dissolution elections are sworn in at the first sitting after the election, but have their terms backdated to the previous 1 July.
The Senators elected at last September's half-Senate election do not begin their terms until 1 July 2014. They will be sworn in at a special sitting next week. Had last September's election been a double dissolution, Senators would have been sworn at the first sitting last November and their terms would have been deemed to begin on 1 July 2013.
This backdating of Senate terms after a double dissolution means that the new long-term Senators will serve less than six years, and short term Senators less than three years. Backdating of terms means that double dissolution elections interfere with the normal three year cycle of Australian elections.
When Gough Whitlam called a double dissolution election for May 1974 (it replaced an already announced half-Senate election), all new Senators had their terms backdated to 1 July 1973, meaning a new half-Senate election was due by the middle of 1976.
That is why Gough Whitlam visited the Governor-General on 11 November 1975 with a plan to call a separate half-Senate election as a way of resolving the budget deadlock. Instead Sir John Kerr chose to dismiss Whitlam and appoint Malcolm Fraser Prime Minister, and then accepted Fraser's advice for a double dissolution.
The 1975 double dissolution meant the next half-Senate election had to be held by mid-1978. Fraser called it for December 1977, six months before the end of the Senate term, but a year ahead of when a House election was due.
In early 1983, when Fraser wanted to call a snap election in the hope of catching the Labor Party with Bill Hayden as Leader, his only options were a separate House election, or a double dissolution. He chose a snap double dissolution for March 1983, but with Senate terms backdated to July 1982, new Prime Minister Bob Hawke had to call his own early election for December 1984 to keep House and half-Senate elections in step.
But back to the issue of how long and short terms are allocated to Senators after a double dissolution. To explain how this takes place, I will use the example election result below. The percentage vote for three three parties is shown, as well as the quotas that would be achieved for this vote at a double dissolution election and at a half-Senate election.
|Party||% Vote||Double Dissolution|
In percentage terms, the quota is 100% divided by one more than the number of members to be elected. For a half-Senate election, six members are elected so the quota is one-seventh or 14.29%. At a double dissolution, twelve members are elected and the quota is one-thirteenth or 7.69%.
At a half-senate election, the above result would have elected three Liberal Senators, two Labor and one Green. At a double dissolution the numbers would have been five Liberal, five Labor and two Greens.
Under the Senate's quota preferential electoral system, members are declared elected in an order determined by the rules under which the count is conducted. Using the example election above, the table below shows the order in which Senators would have been declared elected at a double dissolution.
The method used after previous double dissolutions has been to allocate long terms to the first Senators elected, and the short terms to the balance of Senators elected. For 12 Senators that would mean the long terms go to the first six elected, and those elected in positions 7-12 would be allocated short terms.
This method made sense in the days when majority voting was used, but can create serious anomalies when applied to the proportional system used since 1949. This is illustrated in the table below where Senators have been allocated to terms based on my example election and the order of election method.
|Senate Term||Party Representation|
Despite the Liberal Party polling more votes than Labor and three times the vote of the Greens, all three parties receive two long term positions, and Labor and Liberal receive three short-term Senators. In this example, the Green's two Senators have received long terms, Labor and Liberal three short terms. The order elected method has allocated terms that seriously distort the election result.
To get around this problem, a new provision was inserted into the Commonwealth Electoral Act in 1984 to provide a fairer method of allocating Senators to short and long terms.
The method is to re-count the Senate votes cast at the double dissolution as if the election had been a half-Senate election for six seats. The principle is that the long term seats would be allocated to the Senators elected in the re-count, and the short-term positions allocated to the balance of Senators elected at the double dissolution.
The earlier table of results for my sample election indicated that a half-Senate election would have elected three Liberal, two Labor and one Green member. Using this result to allocate the long-term members, my example election for a double dissolution would produce the allocation of long and short term members shown below.
|Senate Term||Party Representation|
Using the re-count method, a much fairer balance of long and short term members has been achieved. Both Liberal and Labor elected five members, but with the higher first preference vote, the Liberal Party receive three long-term Senators and Labor three short-term members. The Green Senators are more fairly split into one long-term and one-short-term position.
On a technical note, the AEC does not re-conduct the entire count as if it were a half-Senate election. Instead it uses the following procedures.
- It first conducts the double dissolution count and declares 12 Senators elected.
- It then reverts to the first preference counts.
- All candidates that failed to be elected are excluded and the preferences on their ballot papers examined and the votes distributed accordingly to one of the 12 candidates remaining in the count.
- Once all ballot papers have been distributed to one of the continuing 12 candidates, a new quota based on the votes remaining is calculated, and an election for six Senators conducted between the 12 candidates in the count.
Conducting the count in this way removes the theoretical possibility that someone could be elected at a six-member count who would not have been elected to a 12-member count.
The Electoral Commission conducted such a count at the 1987 double dissolution election, producing an allocation of Senators to long and short terms.
However, the Constitution gives the power to determine long and short term members to the Senate, and in 1987 the Senate chose to ignore the alternative count and instead use the traditional method based on order of election.
The reason was self-interest by Labor and Democrat Senators, who found themselves allocated more long-term positions at the expense of the Coalition. It meant that at the next election in 1990, the Coalition had more Senators than normal facing election while Labor and the Democrats had fewer seats to defend.
Since 1987 the Senate has several times passed resolutions stating its intention to use the re-count method to allocate seats at any future double dissolution.
However, if and when another double dissolution takes place, it will be the new Senate that determines the allocation of long and short terms. It will not be tied by resolutions of previous Senates.
And as in 1987, the majority of Senators present may choose to ignore the fairer re-count method if there is an advantage in sticking to the old order elected method.
(Note: Details of resolutions on the method that should be adopted in 1987 and resolutions of the Senate since can be found via this link to the relevant section of Odgers Senate Practice.)