How the WA Greens conducted a pre-selection for the wrong Senator

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.

One thought on “How the WA Greens conducted a pre-selection for the wrong Senator

  1. What has really happened here is that the orders of the High Court, and the work of the Electoral Commission in implementing its logic, is incomplete.

    True, the Court can give any order it thinks appropriate to resolve the dispute. But the inner logic of its decisions in these cases is that the election count has to be recalculated on the basis that the ineligible candidate disappears from the counting process. The result becomes the ‘correct’ election result. Following that logic, the list of the set of candidates who placed (‘were elected’) 1 through 6 must also be recalculated. This is not at all difficult, as by now the Commission has digitised all the data. It is simply a run-through go the vote data easily available.

    Once this is done. the Senate becomes aware that there is a new reality as to which six candidates had placed 1 to 6 in the ‘correct’ final election count.

    What the Senate does next is strictly up to it. Most obviously, it could refresh its allotment of 6- and 3-year terms to the new election count order of the 12 senators for the state. The counter-argument that it can only do the allotment once – while sound in normal circumstances – would seem to yield to a case like this where the underlying count facts on which the Senate’s initial allotment were based had been formally altered by a decision of the Court.

    But strictly, the Senate can do the long-and-short-terms allotment in any manner it chooses. It was only a discretionary option that is used result places 1-6 as the determinative factor anyway. In doing so it actually ignored an alternative approach that is actually included in the Electoral Act: that a hypothetical count as if there were only 6 places available be calculated, and those 6 nominal winers are then allotted the six year terms.

    It is presumably also open to the Senate to deal with the situation by mimicking what the Court has ordered, and simply slotting the new Senator into the ‘place’ of the one that is removed – as seems to be the default that might happen now.

    But the strict answer to this question is that the Senate really needs to make some resolution on the matter, whatever it be. Doing nothing, and leaving everyone to assume that new Senator Steele-Hall simply takes the ‘Ludlum’ 6-year allowed spot, seems vaguely inadequate and possibly unreliable.

    There is no real need to be concerned about the Senate having an unwelcome general capability to alter the post-election allotments midterm – a capability which could of course be politically abused in the future. It would seem clear from the constitutional wording that the primary resolution for the allotment can only be done once after the election is completed. But it does seem proper, by analogy with the Court’s reasoning that it is ‘correcting’ the election by dealing with the removal of an invalid candidate, that the Senate can adopt one (but only one) revising resolution of allotment to deal with the same problem.

    I suppose we will need to wait and see. Of course, with Senator Steele-Hall already seated, the Senate has already started going along without dealing with the matter.

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