OPINION | Changes to election terms causes a Senate quandary

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Crispin Hull

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After next year, the Federal Parliament will be the only one in Australia with a terms of three years.

And so this week the chair of the House Social Policy and Legal Affairs Committee, Andrew Wallace (LNP, Qld) announced a public “roundtable” of constitutional experts to look at the issue in November.

It is very well-trodden ground over more than 40 years that hitherto has hit a series of brick walls.

The usual stumbling block has been the Senate.

At present senators have a fixed six-year term. Usually half of them are elected every three years, usually at the time of the House of Representatives election.

If the House of Representatives went to four years there would be three options for the Senate.

First, retain the present terms with separate half-Senate elections every three years and separate House of Representatives every three years. This is obviously too expensive and would mean an election roughly every two years – the very thing the four-year term idea hopes to avoid.

Secondly, have simultaneous elections for the House and half the Senate, with senators having the equivalent of two House terms, or eight years. That is a long time between democratic drinks. Given the number of senators who change parties or resign early in their terms handing the seat for the rest of the terms to a fellow party member it is doubly undemocratic. A senator could serve in the Senate for nearly 16 years and only face the people once.

Of course, in Australia’s most corrupt state, NSW, Upper House terms are eight years – a cosy little sinecure for some party hacks.

Thirdly, senators could have four-year terms, with the whole Senate being elected every four years at the same time as the House. Hitherto the major parties have objected. If the whole Senate is elected every four years it means all 12 senators from each state would be elected at once and the quota for election would be just 7.7 per cent, making it much easier for minor parties to win a Senate seat.

This is what happens in double dissolutions. Last time that happened was in 2016 and three minor party senators were elected from every state, except South Australia, which elected five of them – an aberrant result because of the Xenophon phenomenon. The 20 minor-party senators elected in 2016 formed the largest Senate cross-bench in Australia’s history.

The minor parties would love it, but the major parties, at least the LNP, would object, at least for now.

In 2019, the LNP won three out of six senators in every state except Tasmania. In the longer term, the LNP might well think that it could get a working majority in the Senate with just the help of a couple of One Nation senators.

In the longer term, however, that is likely to be delusional. The LNP only just scrapped its third seat on preferences in each state. The trend is for a declining vote for the major parties, a much lower chance of getting a third seat. Labor has no hope of ever winning a third seat in any state.

In future, half senate elections are more likely result will be two senators each for the major parties and two for the minors. That trend would ultimately result in a Senate of 24 LNP; 24 Labor and 24 minors – a much less palatable result for the major parties than the average double dissolution.

The longer-term projection for electing all 12 senators in each state every election would be three seats for minor parties and four or five each for the majors.

That would result in a Senate of 18 minors and 27 for each of the majors, give or take a bit from each. That, oddly, enough would be a better result for the major parties than the longer-term projection for half-Senate elections.

The LNP – cocky after the 2019 result – is likely to be blind to that trend for now. But the 2019 result was a very lucky one for the LNP. Just a slight swing away would result in it not getting the third seat.

In short, the major parties should not dismiss the idea of electing the whole Senate every four years.

Wallace points out, there are “community concerns about the revolving doors of politicians and policy” and about “stability and opportunities for longer-term outcomes”.

Whether the four-year term stumbles or not, there are still other things to do to meet those community concerns.

For a start, there have been 46 House of Representatives since federation, giving an average term of a tad over two and a half years. So, if you could stop Prime Ministers calling early elections, you could add five or six months to the term. If the term were fixed and the election held on say the last Saturday in November, or whatever, it would create a lot of certainty and stability.

No more spooked markets over election dates. No more media guessing over the date. No more messed-up holiday or work arrangements for the public service and political staffers and so on.

To ensure the Parliament stayed on track we would have to do away with double dissolutions. There have been seven since federation. Each caused either a subsequent half-senate election on its own or a truncated term for the House that was elected at the time. The is because the Constitution deems senators’ terms to be back-dated to the previous 1 July after a double dissolution.

Of the double dissolutions only one, 1974, was a genuine attempt to break the deadlock between the House and the Senate.

An easier way to break that deadlock would be that any legislation twice rejected by the Senate during a term could be passed (without amendment) by the House of Representatives on its own after the subsequent election.

That would be quite democratic because the actual words of legislation would have been before the people at the subsequent election.

Senators’ terms would be two terms of the House without any post-dating or back-dating as we have now.

The House is in desperate need of expansion. Each member now serves about 100,000 voters people, substantially more than their counterparts in Britain, Canada and New Zealand. But there is no need for more senators, especially in Tasmania.

Australia’s system is pretty good on the whole, and certainly is more democratic than the British first-past-the-post system which can give the spoils of victory on quite low percentages of the vote.

Nonetheless, a few tweaks could improve it.


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