A question barely considered in the ongoing section 44 crisis is what would be the outcome of the filling of places for which Senators were disqualified where they held a six year term, rather than a three year term, following last year’s Double Dissolution election. Would any of the new Senators, elected after a special recount, be entitled to a seat that would not see them go to re-election until 2021-22?
It seems this question has not even considered by the WA Greens, who put their newest Senator, Jordon Steele-John, through a fresh pre-selection at the weekend, even though the highly likely outcome of the High Court’s ruling on him replacing Scott Ludlam is that he now doesn’t have to face voters for up to five years.
Section 13 of the Constitution provides that the allocation of six and three year terms occurs after the first meeting of the Senate following a Double Dissolution election. This usually sees the lowest ranked Senators having to recontest an election within three years – whereas the usual term is six years.
I see nothing in s.13 that allows this to be done again at any stage in the life of the Senate so as to re-order the allocation. Once allocated, they’re locked.
The allocation of Senate terms following last year’s Double Dissolution election took place on 31 August 2016. The Senate resolved that it would allocate the six year terms to the Senators elected 1 to 6 in each state, and the three year terms to the Senators elected 7 to 12. Ludlam was elected 3rd in Western Australia, and thereby was allocated a six year term.
And normally, there wouldn’t be any need to reconsider the allocation. A Senator who resigns their term in ordinary circumstances (remember those?) is replaced under s.15, and the new Senator takes up the remnant of the term, however long it is.
Until now, the Senate has never had to consider what happens if the election of a Senator with a six year term is voided after a double dissolution election. In 1987, Robert Wood had been elected as the 12th Senator for NSW, and was allocated a three year term. With the voiding of his election, Irina Dunn secured the place in the recount, and saw out the remainder of the term until it expired on 30 June 1990.
As a result of the citizenship cases that have gone before it this year, the High Court has now voided the election of two Senators who secured six year terms when the terms were allocated last year – Fiona Nash in NSW and Ludlam in WA.
Nash’s place has yet to be determined, with reasons for voiding the election of her likely successor, Hollie Hughes, due on Wednesday. A special recount has been done by the AEC, in readiness for the High Court to consider in making orders for Nash’s replacement.
In respect of Scott Ludlam, the High Court ordered that Jordon Steele-John take his place, as the next placed candidate in the special recount. It appears, however, the WA Greens thought that this resulted in the second WA Greens Senator, Rachel Siewert, getting the six year term as the highest place Green, and Steele-John taking the remainder of her three year term.
There are reports that at the weekend, the WA Greens conducted a pre-selection contest for the next Senate election, due before 2019, at which Steele-John was the successful candidate.
However, the orders of the High Court give Ludlam’s spot, with its six year term, directly to Steele-John, meaning that he does not have to contest the next half-Senate election – Rachel Siewert, as the (still) 12th ranked Senator, does.
With the High Court ordering and declaring that Steele-John was duly elected for the place for which Ludlam was returned, he would take Ludlam’s place on the certificate of election at 3rd, and thereby acquire the six year term. Whatever the WA Greens thought might be the case, if they thought Steele-John was up for re-election in 2019, they need to think again.