08 May 2016
by Tony Walker

Malcolm Turnbull's Senate nightmare

Australian Senate Chamber

On election night on July 2, Malcolm Turnbull and his Coalition brains trust will be paying more than usual attention to Senate voting for the simple reason that a Turnbull government would continue to be hostage to the vagaries of upper house numbers.

As the country's political establishment embarks on the second longest election campaign in Australia's history, in the klieg lights of a 24-hour news cycle the battle for the Senate will be a preoccupation, even an obsession.

Widely canvassed views on the likely Senate outcome among Coalition and Labor apparatchiks, representatives of minor parties, analysts at the Australia Institute and "vote whisperer" Glenn Druery who continues to play a behind-the-scenes role.

Druery is credited with fashioning many of the arcane preference deals that enabled representatives of micro-parties to gain representation in the current Senate.

If there is a consensus it is that new voting rules aimed at simplifying the Senate ballot and in the process excluding micro-parties will produce a Senate that would be more manageable from the perspective of the major parties – although nothing can be taken for granted.

Quotas for election in a double dissolution or full-Senate election at 7.7 per cent are half those required of 14.3 per cent for a half-Senate poll. This would benefit someone like the popular South Australian Senator Nick Xenophon who is certain to get more than one quota in a double D election.

Under a best case scenario for the Coalition it would win enough Senate seats to enable it to negotiate passage of legislation with either the Greens or, better still from Turnbull's perspective, with Xenophon.

Avoiding having to deal with troublesome cross-bench senators such as Tasmanian Jacqui Lambie – who is expected to be re-elected — would require the Coalition and Xenophon to gain a combined 39 quotas, or a simple majority in the 76-member chamber.

An unpleasant scenario would arise for Turnbull – apart from losing the election altogether — if the Coalition sheds several Senate quotas, and has its majority slashed in the House of Representatives thus depriving it of the numbers needed to pass double dissolution industrial relations legislation in a joint sitting.

As things stand, the Coalition holds 33 Senate seats, Labor 25, Greens 10, Palmer United Party 1, independents 4, Liberal Democratic Party 1, Family First 1, and Australian Motoring Enthusiast Party 1.

Under various scenarios distilled by AFR Weekend, the Coalition would end up with 35 seats, Labor 25, Greens 8 (9), Xenophon 3 (4) and independents 5, or 3, depending on whether Xenophon and the Greens secure extra quotas (see bracketed numbers above).

Among independents who stand the best chance of success are Lambie and Queensland's Glenn Lazarus.

Cross-bench senators with an outside chance of returning include David Leyonhjelm of the Liberal Democratic Party in New South Wales, and Bob Day of Family First in South Australia.

Apart from them, media personality Derryn Hinch has prospects in Victoria. Name recognition is not an issue for Hinch.

Other wildcards include Clive Palmer (if he stands); Pauline Hanson, and Katter's Australian Party, all in Queensland; the National Party in Western Australia; Fred Nile's Christian Democratic Party in NSW; and the Sex Party in Victoria.

What all this means is that South Australia's Nick Xenophon – who voted for legislation aimed at simplifying Senate voting rules to his notional advantage — is poised to emerge as the big winner of the 2016 election, irrespective of who ends up in the Lodge.

"I'm by nature cautiously pessimistic," Xenophon says.

In the 2013 half-Senate poll Xenophon scored a startling 24.88 per cent of the primary vote in South Australia. If that was repeated in 2016 in a double dissolution the South Australian senator would get three quotas in a canter and more likely four.

He may pick up an additional quota in another state.

His Nick Xenophon Team party is on the ballot in all states.

If he gained five quotas this would put him in an extraordinarily powerful position to advance his own pet initiatives, including poker machine reform.

The question might reasonably be asked: how did we get to a point where Senate numbers will be recast, and someone like Nick Xenophon be placed in a position where he might aggregate exceptional power and influence.

Turnbull's double dissolution has helped to create this opportunity on the basis of new Senate voting rules that were passed into law in March.

Under the new optional preferential system it will be more difficult for someone like Ricky Muir of the micro Australian Motoring Enthusiast Party to secure a quota.

Muir got elected in 2013 on just 0.51 per cent of the primary vote in his native Victoria after benefiting from cascading preference flows on a complicated ballot in which deals were struck between micro-parties to maximise the Muir vote.

In the new simplified system to exclude Muir-type aberrations, voters will have the choice of voting one to six above the line of a Senate ballot, or one to 12 below, or both.

Under the previous system voting one above the line would send preferences tumbling below the line with unpredictable consequences that were gamed algorithmically by the likes of Glenn Druery.

The latest reform to Senate voting marks the third time in Australia's history that the rules have changed. At Federation, voting involved first-past-the-post block balloting on a "winner-take-all" system on a state-by-state basis. In 1919 this was changed to preferential block voting.

The system was altered again in 1948 when proportional representation on a state-by-state basis was introduced.

In 1948, Senate representation grew from six for each state provided for in the Constitution to 10. The Northern Territory and the Australian Capital Territory were given two senators each in 1975, and in 1984 Senate numbers of each state were expanded to 12 – giving a total of 76.

The total number of senators is just about all that is certain about this year's poll.