Mitch Fifield (Victoria, Liberal Party, Manager of Government Business in the Senate) Share this | Link to this | Hansard source

I move:

That, pursuant to section 13 of the Constitution, the senators chosen for each state be divided into two classes, as follows:

Senators listed at positions 7 to 12 on the certificate of election of senators for each state shall be allocated to the first class and receive 3 year terms.

Senators listed at positions 1 to 6 on the certificate of election of senators for each state shall be allocated to the second class and receive 6 year terms.

Richard Di Natale (Victoria, Australian Greens) Share this | Link to this | Hansard source

I would just like to draw the Senate's attention to the method of allocating Senate terms that has been applied in this motion. It is not the countback method that this Senate has previously indicated should be the appropriate method for electing senators. The Labor and Liberal parties have both previously supported the much fairer method advocated by the Australian Electoral Commission; yet, disappointingly, but not surprisingly, when it does come to the crunch, they have gone back to a method that really has been adopted out of narrow self-interest.

We know that the countback method is the fairer, more democratic method of the two. We know that the order of election, which is the method that is being used in allocating Senate terms in this case, does create serious anomalies in preferential voting like ours. That is precisely why moving to a countback process was the recommendation of the 1983 Joint Select Committee on Electoral Reform. The Commonwealth Electoral Act was even amended to authorise the AEC to conduct a countback of the Senate vote.

Ultimately, this is a decision which is in our hands. It is a deliberate choice of this Senate to disregard the more democratic process that more closely reflects the will of voters. Senator Button and, indeed, Senator Faulkner, whom I had the pleasure of working with during my early years in this parliament and is somebody for whom I have tremendous respect, were both champions of the countback method. So it is disappointing to see Labor supporting this motion. They are not the only ones; we saw Senator Ronaldson move and successfully pass the motion on behalf of the coalition in 2010. It comes back to something that we have said on a number of occasions: there is nothing that brings the old parties—the Labor Party and the Liberal Party—closer together than ensuring they protect their cosy little duopoly. And here we are again; they are voting together to stop diverse voices in the parliament. It is the Coles and Woolies of politics, as I have said before.

The outcome of this motion has clearly been predetermined by both the Labor Party and the Liberal Party, but we will continue to advocate for the recount method, regardless of who it benefits, because it is the fairer method.

George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I wish to make some brief remarks in contribution to this debate and in support of the motion. The point to be made is that the motion proposed by Senator Fifield is consistent with every single precedent adopted by this chamber following a double dissolution. After the 1914, 1951, 1974, 1975, 1983 and 1987 double dissolutions—in other words, after all of the double dissolution elections that have occurred since Federation—when the appropriate operation of section 13 of the Constitution, which is the provision that provides for the rotation of senators, had to be considered by this chamber, the order-of-election principle was adopted.

Now, it is true, Senator Di Natale, as you say, that in 1998—not after a double dissolution—Senator Faulkner advocated for the countback method. That is true. That is a matter about which the Labor Party might wish to say something; nevertheless, that was not after a double dissolution. The motion that Senator Fifield has moved is consistent with every single constitutional precedent, and, of course, the relevant section of the Constitution, section 13, remains in the form it has always taken since 1901.

Finally, Senator Di Natale, can I correct something you said. You said that the Australian Electoral Commission advocated for the countback method. The Australian Electoral Commission does not advocate for anything; the Australian Electoral Commission merely conducts the count. The safest course for this chamber to adopt is the course consistent with each of the previous six double dissolutions and the division of the chamber in the subsequent term.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I would also like to address this matter. I do not find it at all persuasive that Senator Brandis refers to precedent in this instance. Precedent does not necessarily make it fair or legitimate nor does it avoid injustice. There is a legislated alternative in the Commonwealth Electoral Act which allows for the allocation of terms on the basis of the assumption that they would have been elected under half-Senate results. It seems to me that this motion is based on a certain outcome in terms of who will sit for six years and who will sit for three years, and it has been worked back from that position, and the option envisaged in the motion is the result of that end result that has been chosen.

I want to place on the record my disagreement with the motion. If there is a division on it I will vote against it; nonetheless, I want to record the fact that I do not approve.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

This is not my first speech and I have taken my No-Doz. I think it is a dirty stitch-up deal between the government and the Labor Party. The fix was in from the day of the election, and I think that in this deal you have betrayed more than 200,000 voters in Victoria, in my case. In the case of Senator Rhiannon, you have betrayed the voters of New South Wales. Under section 282, former Prime Minister Hawke said was a fair way to reflect what happens after double dissolution—a fair way to do it. I should get six years and Senator Rhiannon should get six years and we are—we are going to get three. The AEC report was tabled last night—282(1) says:

Where the scrutiny in an election of Senators for a State held following a dissolution of the Senate under section 57 of the Constitution has been completed, the Australian Electoral Officer for that state shall conduct a re-count of the ballot papers in the election in accordance with subsections 273(7) to (30) …

And:

in subsection 273(8) 'half' were inserted before 'the number of candidates'; …

The whole point of this method was that after a double dissolution the result best resembled a regular half-Senate election. Now, I am told by Liberal Party people in Victoria that with the vote that I got, I actually would have got elected and be in this place if there had been a half Senate instead of a double dissolution.

The AEC in that report say that this is the way you should have elected senators for six-year terms—(1) Mitch Fifield, (2) Kim Carr (3) Richard Di Natale, (4) Bridget McKenzie, (5) Stephen Conroy and (6) Derryn Hinch. That is the way the people of Victoria voted on 2 July. You did this dirty little stitch-up to try and get one more, and said: 'Yeah, let's do a deal here. We'll put one more Labor senator up in New South Wales. We'll put one more Lib up in Victoria. That gives us one more each. Isn't that great.'

It is wrong; it is unfair and, in this place of all places, you should respect democracy in the way that the voters of Victoria said you should. This is not for me personally; this is for somebody who comes after me. I just think it is wrong and I know it is not going to work. I said the stitch-up was done the same way that the government made the deal to try and get rid of the minor parties earlier this year. That worked fine, didn’t it!

I do not want to take up the full 20 minutes. I just want to say it is wrong. If the vote goes against us, okay, I am here for three years. I have been sacked 16 times. If the voters of Victoria want to sack me the 17th time, they will do it. My plan is to go there in three years time—if the vote goes against us—get re-elected and do six years, and leave here after nine years. Thank you very much.

Sam Dastyari (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I want to echo the sentiments of the Leader of the Government in the Senate, Senator Brandis. I think it is one the quirks of this chamber that it is responsible for making these types decisions. Naturally, when we are making these decisions there will be those who will miss out because of the decisions that are made. I want to echo two of the points that were made by Senator Brandis. Firstly, this is the method that has always been used for making these types of determinations in the past. Secondly, there is a test that we have to apply—that is, what is a reasonable and sensible process? The idea that when there are 12 senators elected, the first six would serve for a longer period than the second six is a simple and transparent way of making these decisions. That being said, again, I think it is somewhat quirky that it is the Senate that makes this decision about itself.

Nick Xenophon (SA, Independent) Share this | Link to this | Hansard source

I want to indicate my support for the position set out by Senator Hinch. I will say that in terms of NXT we are not affected either way by this, but there is an important principle in respect of this—that is, we legislated to have a process in place. Of course, the Senate can override it, as is the Senate's right. But I think the litmus test, if you like, the pub test in terms of what is fair, is how would this have played out if it was as though it was a half-Senate election. I think that, clearly, in this case, Senator Hinch would have been elected for a six-year term. We did go through a legislative process many years ago that anticipated this. It can be overridden by the Senate, but I think that this is fundamentally unfair and that is why I support the position of Senator Hinch and other crossbenchers in relation to this. We had a legislative reform. That legislative reform ought to be respected, even though it can be overridden by the Senate.

Stephen Parry (President) Share this | Link to this | Hansard source

The question is that the motion moved by Senator Fifield be agreed to. Those of that opinion say aye. Those against say no. I think the ayes have it.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

We think the noes have it.

Stephen Parry (President) Share this | Link to this | Hansard source

Thank you, Senator Hinch. A division has been called, so we will be able to divide. The question is that the motion moved by Senator Fifield concerning the rotation of senators for the purposes of section 13 of the Constitution be agreed to.