Chapter 1 - The
Senate and its constitutional role
Rotation of senators and terms of office
The term of senators from the states
is six years commencing on 1 July following a periodical election. Six places from
each state are contested at each alternate election. The Senate is thus a
continuing chamber with no places being vacant except for casual vacancies.
The terms of senators elected in an election arising from a
simultaneous dissolution date from 1 July preceding the election.
Following such an election senators are divided into two classes: short-term
senators whose terms expire on 30 June three years after their nominal date of
commencement; and long-term senators whose terms expire on 30 June six years
after their nominal date of commencement. It is the Senate itself which decides
the method by which its members are divided into two classes and which senators
are assigned to each class (Constitution, s. 13). For more details
see Chapter 4, Elections.
The election of territory senators coincides with general elections for
the House of Representatives, and their term expires and the new term begins on
the day of the election (Commonwealth Electoral Act, s. 42).
The six year fixed term of senators derives in part from the Senate’s
character as a continuing House. It
stems also from the view that an effective Parliament reflects the state of
electoral opinion at different stages of its development rather than at a
particular date. It is also a feature of the Senate’s character contributing to
its role as a House of review and reflection.
The six year term and the principle of rotation were based on
comparable provisions in the Constitution of the United States concerning the
United States Senate. The objectives of those provisions as expounded by The
Federalist were to counteract
the dangers of instability which would arise if all places in the Congress were
contested at biennial intervals, and to create conditions enabling some members
of Congress to become expert in legislation and “the affairs and the
comprehensive interests of their country” (The Federalist, No 62, p.
317). In the case of the United States Senate, with its special
responsibilities concerning foreign relations, especially the ratification of
treaties, the longer term was perceived to be an advantage (ibid., p.
318).
In the case of the Australian Senate
the benefits of the distinctive arrangements for election and tenure are most
readily observable in its extensive committee activity, in scrutiny of primary and
subordinate legislation; in the twice-yearly examination of estimates; and in
review of policy and administration.
The commencement date
for Senate terms was originally 1 January; 1 July was fixed as the commencement
date following amendment of the Constitution in 1906.
The provision for
back-dating the commencement of senators’ terms following a simultaneous
dissolution preserves the Senate’s continuity, with fixed terms for senators
and a fixed starting point. It has, however, the effect of shortening the terms
of both short and long-term senators by up to one year.
One incidental effect is that successive governments have brought
forward dissolutions of the House of Representatives to coincide with
periodical elections of senators, usually but not invariably those in the
short-term class (1977 and 1984; 1955 was the exception). This effect of
current constitutional provisions on the timing of elections could be reduced
if the terms of state senators after simultaneous elections for the two Houses
were deemed to commence on 1 July following such elections (see Chapter 4,
Elections for the Senate, under Terms of state senators).
In the past there
have been four attempts to secure amendment of the Constitution to provide that
the term of a senator, barring the particular circumstances of a simultaneous
dissolution of the two Houses, should be that of two terms of the House of
Representatives. Such an amendment would change the term of a senator from a
fixed to a maximum term.
Although these amendments were defeated by the electors on three
occasions (1974, 1977, 1984), the Constitutional Commission of 1986-88
recommended that the proposal should be revived. The Commission did not offer
any particular reason for resubmission of the matter, yet again, to the
electors, merely stating that the reasons for so doing in the past “remain
convincing” (First Report, PP 97/1988 (volume 2), p. 345). In 1988
the proposal, with maximum terms of four years, was again put to a referendum
and again defeated, in this instance by one of the largest margins in the
history of referendums in Australia.
The proposal, if
adopted, would fundamentally alter the nature of bicameralism in the
Commonwealth Parliament by removing one of its essential features, the
principle of fixed, periodical elections, with a fixed, autonomous electoral
cycle for the Senate. To lock the Senate
into an electoral cycle dependent upon general elections for the House of
Representatives, which can occur at any time, would significantly weaken its
position as an independent house, and dilute its capacity to embrace electoral
opinion which goes unrepresented in the method used for electing members of the
House of Representatives. It would also remove a significant restraint on
governments holding early elections for partisan reasons. The overwhelming
weight of argument supports retention of the present constitutional
arrangements which allow for, but do not compel, holding periodical elections
for the Senate simultaneously with general elections for the House of
Representatives.
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