By Malcolm Mackerras

I have had two public conversations on Switzer TV since the July 2 elections. The first with Marty, the second with Peter. Both conversations were dominated by our exchange of views on this awful new Senate the Australian people have elected. As usual, I made the point that the 76 senators have been elected under a new voting system. That system is a result of the collaboration between Malcolm Turnbull, Barnaby Joyce, Richard Di Natale, Nick Xenophon and their parties at the tail end of the 44th Parliament which was double dissolved on 9 May.

In my second interview, I told Peter quite dogmatically: “Pauline Hanson has been ELECTED to a six-year term, and her three deputies (one each from Queensland, New South Wales and Western Australia) have been elected to three-year terms.” That statement has been criticised in other media on the ground that the Senate itself decides who gets six years, and who gets three. My critics say, however, that Pauline Hanson will secure a six-year term under a deal between the major parties.

So, was Hanson ELECTED to a six-year term, or is she to be given it by grace and favour of the generosity of the Labor and Liberal parties in their deal? Let me explain. 

We have recently voted in Australia’s eighth Senate general election. The previous seven took place in March 1901, September 1914, April 1951, May 1974, December 1975, March 1983 and July 1987. Back in the 19th century, a collection of statesmen drafted Australia’s Constitution. They believed in the concept of what was then called the “gentlemen’s agreement”. Knowing nothing about the toxic politics of 1987 or 2016, they assumed their “fair go” democratic values would always prevail. 

Consequently, section 13 of their (our!) Constitution reads: “As soon as may be after the Senate first meets, and after each first meeting following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable ...” So it is technically correct to say that the Senate itself decides who gets six-year terms, and who gets three.

The Senate general elections of 1901 and 1914 were conducted under an electoral system we psephologists call “multi-seat plurality”. Each elector had one vote which was actually six votes – and they were counted. The top six scoring candidates (all men, by the way) were elected; then the top three scorers for each State were given six-year terms by the Senate itself under a common sense gentlemen’s agreement. Since the States then were the same as now, the total size of the Senate was 36.

In 1948, the method of counting votes was changed to the present single-transferable vote system. Several things were not noticed about the change at the time – and this was one of them. Following the 1951 election, I noticed that the nominal order of election was clearly an unfair way to distribute the five long terms and five short terms in Tasmania. However, I was only a schoolboy at the time so I did nothing about it. The size of the Senate then was 60.

The Senate general elections of 1974, 1975 and 1983 passed by without anyone suggesting that the nominal order of election method had resulted in any unfairness. However, due to the unsatisfactory nature of the entire federal electoral system at the time, the Hawke government, elected in March 1983, decided to set up an all-party joint select committee on electoral reform. That committee later became the present Joint Standing Committee on Electoral Matters. An Adelaide mathematician by the name of Alastair Fischer (among whose distinctions is the fact of being the father of actress Kate Fischer of “Sirens” fame) proposed a new section of the Commonwealth Electoral Act. 

That is now section 282, which requires an additional count of any Senate general election votes as a guide to the future. The Australian Electoral Commission is currently doing the section 282 counts for the July 2 elections in the States. These counts convert the full-Senate votes into a half-Senate election count. Section 282 was inserted in 1984 to the universal approval of all the psephologists of the day and ever since. On every score, if the present politicians were to implement section 282 early next month, they would enjoy universal third-party validation for their decision.

It happened that the first possible use of section 282 would have given the Coalition two extra senators (net) with six-year terms. Consequently, the Coalition wanted its use in 1987. However, Labor and the Democrats voted together to give those two seats to the Democrats, justifying that decision by asserting that the nominal order was fairer – pure nonsense, of course, but they had the numbers. At the time, the senator who most disappointed me was independent Brian Harradine. He should have known better – and voted with the Coalition. However, when I accosted him and berated him he explained that he would always favour minor parties at the expense of the bigger parties – hence his sympathy with the Democrats on this issue.

This time, it is the other way round from 1987. The smaller parties would benefit from the fairness of section 282. Lee Rhiannon of The Greens and Derryn Hinch would get the long terms if section 282 were implemented. So the two big parties want to cheat both Rhiannon and Hinch out of the six-year terms to which they were elected on July 2. The confiscated goods are to be given one each to Labor and Liberal.

I should mention that I am not an elector of either New South Wales or Victoria. If I had been I can imagine I might easily have voted for Deborah O’Neill (Labor, NSW) or Scott Ryan (Liberal, Victoria). I cannot imagine my voting for Rhiannon or Hinch. However, that is not the point. Rhiannon and Hinch (like Hanson) have been ELECTED to six-year terms. O’Neill and Ryan have not. I have a unique knowledge and experience in this area and I would fail myself if I did not write the view I have expressed above.

(Malcolm Mackerras is a visiting fellow at the Australian Catholic University’s Canberra campus.