THE ill-thought-out Section 13 of the Constitution will almost certainly cause further political grief on two counts.

The section provides that after a double dissolution, “The Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of three years, and the places of those of the second class at the expiration of six years, from the beginning of their term of service.”

If it liked, the Senate (that is, a majority of senators) could draw lots; choose in alphabetical order; choose according to first-preference votes; choose according to order of election; or even choose according to political party. The Labor Party and Coalition could gang up and grant the long-term positions to themselves.

Any attempt to legislate to bind the Senate to choose in a fair and reasonable way would be unconstitutional as beyond the power of the Parliament (that is, both Houses). It is for the Senate alone to do the choosing.

As it happens, there is a very fair and reasonable way to decide who gets the long terms.

That method is to do a recount of the vote pretending that it is for six senators in each state, not 12. The six “elected” in the pretend recount would get the six-year terms.

Indeed, there is a provision in the Commonwealth Electoral Act requiring the Australian Electoral Commission to do precisely this.

But the provision does not state that by law these senators will in fact get the long terms. This is because such a provision would be unconstitutional. The commission just counts and hopes the senators will adopt.

Well, at the last double dissolution in 1987 they (the majority Labor and Democrats) ignored the commission and chose the long-term senators according to the order of election because it gave them more long-term senators. The two methods can produce very different results.

My guess is that every senator will work out which method suits them best and vote accordingly – throwing fairness and principle to the wind and causing some strange bedfellows.

The second cause for political grief caused by Section 13 is the timing of the next election.

It provides that the senators elected on 2 July are deemed to have taken their seats on 1 July 2016, even if they are not actually sworn in until Parliament next meets, presumably in August. Further, it provides that senators must be elected within a year of their term expiring – that is a year before 30 June 2019.

Meanwhile, the next House of Representatives election can be as late as three years and two months from the first sitting of the new Parliament – in this instance October 2019.

No sensible government would have a separate half-Senate election before 30 June 2019 followed by a House of Representatives election later in the year.

It means the next full election will be before 30 June 2019. And given that governments do poorly in winter elections, it is likely to be at least a couple of months before that – say March or April 2019. Another early election.

How much more sensible it would be to have fixed terms for both houses with elections in November so any new government would get the summer to settle in.

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