Terms of Reference: That the Joint Standing Committee on Electoral Matters inquire into and report on all aspects of the conduct of the 2013 Federal Election and matters related thereto.
Allowing 1/76th of the voters to appoint 1/76th of the Senate
Upon invitation from the Joint Standing Committee on Electoral Matters conducting an investigation into the conduct of the 2013 federal election and matters related thereto I, Philip Lillingston, publisher of the website Why Not Proportional Representation? request that the following proposals be taken into consideration.
Main Proposal: Senators no longer state based
That the committee suggest to Parliament to pass legislation to hold a referendum to change the Australian Constitution to effect the following:
Complementary Proposal: Choice of Senate ballot paper for voters
That if the reason the above proposals cannot be adopted is that it would make Senate ballot papers too large, the following suggestions be considered:
Table of Remaining Contents
Winning through Preference Deals
Over 40% of National Vote go to Preferences
One of the main criticisms of the 2013 Senate election related to the preferential system of voting utilised. Where a person’s vote did not immediately become part of a quota to elect a candidate, it subsequently went into what may be called, a holding pattern of floating preference votes, which after various attempts, would eventually become part of a quota to elect someone, a candidate often way down on the list and not that well known, if at all, with the voting public. This, allegedly, is because small party preference choices are becoming motivated by strategy rather than what was previously ideological, where always giving your following preferences to the major party you were more aligned with, never won you a seat.
While suggestions of making it even harder for small parties have been made to remedy this perceived problem, possibly the simplest of all has been ignored.
Lower quotas = fewer preference votes
Many of the political parties engaged in preference swap negotiations garner less than 2% of popular support, and yet by current law, to win a seat in the Senate, a quota of 14.3% of the vote must be accrued. At the last election 21 of the 36 states’ Senate vacancies were won on only primary vote quotas, meaning that the remaining 15 vacancies, over 40% of the vote, went into this preference-exchange, holding pattern, maze.
The Problem of the High Quota
But why does this quota have to be so high? Suppose there were a single zone, Australia-wide electorate for the Senate where all voters throughout the land were given the same white ballot paper to cast their vote. With 76 seats in the Australian Senate the natural quota is only 1.3%, a fraction of the existing artificial level, and small enough to ensure that almost all primary votes could in fact elect a candidate. Yes, there would still be some preference votes left over, but far less than the current 41% of the total.
Reasons Given for High Quotas
Rotating Electoral Periods
A rotation system, as exists in most Australian PR electorates, is where at every election only half the seats are up of election, but for twice the electoral period, followed by at the next election, the remaining seats which would at that stage have completed their double electoral term.
The alleged justification for this system is the stability it offers to the parliamentary house it is attached to. “An upper house elected by rotation, with only half of the members facing re-election each time, provides greater continuity of experience and stability. Elections [only] every three years can lead to short-term thinking and planning which may not be in the best interests of the nation”
There are a number of problems with this defence:
Whether or not Parliament attains greater “needed” stability, one thing without doubt is that having only half the seats available at every election doubles the quota needed to win a seat.
Multiple Electoral Zones
The reason for not having the whole country as a single zone for proportional representation, but instead dividing it up into multiple member electorates, (apart from where commentators and politicians unashamedly declare it is to raise the quota so as to deny “extremist” and single issue parties representation) is allegedly to give the voter a compromise between PR and maintaining a (somewhat) local member.
[It is interesting to note that the proportional representation house is always the one set aside for compromise and not the other. No major party politician has ever suggested that the upper house should have pure, one-zone proportional representation, while the lower house should use a compromise system of local member representation where, instead of one member per local electorate there should be, perhaps three, to accommodate differing points of view.]
But why do we need this compromise here? The very meaning of compromise is to accommodate the interests of both parties. Are not the interests of single member voting and local area representation already fully accommodated in the House of Representatives anyway? In fact doubly accounted for considering it has twice as many representatives as the Senate.
The arguments made to defend high quotas, the “need” for both multiple zoning and rotating electoral periods, tend to ignore not only the loss of political representation for minorities but also the clarity and confidence gained from elections where preference dealing would play such little effect.
One Person - one Vote, Not
Here: One Person - one Vote, There: One Person - Fourteen Votes
In 1992 then Prime Minister Paul Keating described Senators as “unrepresentative swill”. Whether or not they were swill, he was certainly correct in describing them as unrepresentative. Allegedly to prevent the more populous states dominating the others, Section 7 of the constitution was included to ensure all states shall have equal numbers of Senators. In practice what this has meant is that a state such as Tasmania with a population of 500,000 has as many Senators as NSW with a population 14 times larger. This blatant violation of the tradition democratic concept of one-person-one-vote was meant to allow more members of parliament in the so called house of review to specifically act for and defend the smaller states. However in practice this has not happened. Politically alignment in the Senate for the last 60 years, if not longer, has strictly been with the nationally established political parties whether from small state or large. In name or in policy platform, there has rarely, if ever, been a “Small States Defender Party” represented in the Senate.
So if the Constitution were to be changed to rid us of these undemocratic sections we could have an electoral system for the Senate which not only granted every Australian citizen equal voting power, but also granted truly proportional and fair representation to both large parties and small. This done at the moderate cost of removing a constitutional attribute that has never been utilised anyway.
New Senate Ballot Papers
Problem of Tablecloth Papers
If the electoral system for the Senate were to be changed such that the natural 1.3% quota became the real and effective quota, then this would lead to a significant increase in the size of the white Senate ballot paper (the so-called tablecloth paper) to accommodate the expected increase in the number of candidates contesting future elections.
To address this problem a solution could be to:
Below-the-line ballot papers
These would be similar to traditional ballot papers except that the section for ‘above the line’ voting would have been removed.
Above-the-line ballot papers
The ballot paper would be of high gsm, hard paper similar to a TAB or Tattslotto card, where the voter would fill out only three boxes (see below), from three listings of the alphabet, to indicate a three letter code representing the candidate or political party he or she chooses. (eg. ALP, LIB, NAT, GRN, DLP)
Cards would be read and sorted by optical character reader (OCR) sorting machines as in Post Office letter distribution centres, and grouped into bundles of (perhaps) 50 according to their respectively marked candidate. After sorting and counting, scrutiny would then consist of party scrutineers randomly choosing a bundle of fifty for an AEC checker to take to a table and, under scrutiny of interested parties, manually recount and check for affiliation.
Points of Note:
Upon invitation from the Joint Standing Committee on Electoral Matters conducting an inquiry into the Commonwealth Electoral Amendment Bill 2016, drafted to, amongst other initiatives, abolish Group Voting Tickets, I request that the following comments be taken into consideration.
Publisher of the website Why Not Proportional Representation?
Rather than suggest different solutions to the alleged problems in our Senate electoral system I would like to challenge the rationale behind these “problems” with respect to ATL voting.
Winning with miniscule primary votes
The primary vote count is irrelevant. In a preferential voting system the final count is the total of primary and secondary votes. A voter does not deserve to lose the franchise because their earlier choice was wasted due to insufficient other voters.
Most voters don’t know where their preferences are going
They don’t know only because they don’t bother to find out.
Most voters trust the parties they vote for. Those who don’t can find out, or vote below the line.
Senate voting … is overly complex
For 97% of the population it is not. You simply make one tick above the line.
Alleged problems (re ATL voting) that need addressing
Despite detailed government publications of the 2014 JSCEM inquiry into the 2013 election and the Explanatory Memorandum of the above mentioned bill, alleged problems relating to above-the-line voting that are in need of reform are not that easily to fully ascertain. For that reason, together with quotes from these documents I have included quotes from Prime Minster Malcolm Turnbull and Special Minister of State Senator Mathias Cormann.
Winning on a low primary vote
“the other issue of widespread community concern was the election of Senators in some states on a very low percentage of primary votes.” -JSCEM report 1.12
“Australians were astonished to see people elected to the Senate whose primary votes were a fraction in the case of one senator from Victoria, about 0.5 per cent of the vote.” -Prime Minister Turnbull Parliament house press conference 22/2/2016
The very nature of preferential voting
One must ask, why are only the primary votes mentioned as though preferential votes are irrelevant? Whether by multiple elections or sequential voting, preferential voting, otherwise internationally known as choice, alternative or instant runoff voting, is very common throughout the democratic world. If a voter’s choice becomes ineligible due to lack of other support, preferential voting guarantees the voter another choice, as compared to kicking him or her out of the voting booth and telling them they no longer have a right to a democratic input.
Winning micro party candidates accrue at least the requisite 14.28% of the vote, representing that percentage of the voters who want someone to represent them, even if that someone was not always their first choice. Under the new proposals it is estimated approximately two million votes will become exhausted and elect no one. How can we endorse a system that, whether intentional or not, punishes a voter by removing his or her right to representation, merely because their first few choices were not popular ones?
In the 1998 federal election Pauline Hanson won 36% of the primary vote in the seat of Blair, more than 10% ahead of the next placed candidate and even further ahead of the Liberal Party candidate Cameron Thompson. And yet, due to preference flows, it was Thompson who won the seat. One doesn’t seem to remember the Liberal Party then complaining about someone winning with only a fraction of the primary vote.
It is one thing to complain and seek to abolish our preferential voting system because one believes the alternative, first-past-the-post, is superior. However it is nothing short of hypocrisy to complain of a basic attribute of preferential voting in areas where one electorally suffers, while accepting the system in other areas where one profits.
Senate voting is overly complex
“The bill thereby proposes to reduce the complexity of the Senate voting system” -Explanatory Memorandum
No it isn’t. For over 96% of voters who vote above the line, you simply mark off one box and that’s it. It is even simpler than lower house, local member voting.
To the degree that some people do find it so, reducing complexity is not a justification for effectively disenfranchising millions of people.
Not knowing where your preferences flow
“most voters are unlikely to understand, where their preferences flow when they vote above the line.” -Explanatory Memorandum
“…a political party trades those votes away in secret without actually reflecting the true intention of the voter,”
“[the reforms] will empower the voter to determine their preference” -Special Minister of State Senator Mathias Cormann.
“[most voters don’t know where their votes are going] unless they bother to look up the Group Voting Tickets (GVT) on the AEC website.” -Prime Minister Turnbull
In secret, behind closed doors
A very common sentiment in support of change is that small party GTVs are the product of secret, back room deals behind closed doors, done strictly to benefit the party operators irrespective of the “true intention of the voter”.
This does seem to be a bit of a beat up. Unless the claim is that those party operatives take a bribe in exchange for their party taking a ‘dive’ facilitating another party winning, the goal of the small parties is to be successful at elections, utilizing whatever preference deals that offer that chance. It is hardly as though their ‘behind closed door’ actions can be compared to that of a criminal conspiracy. The result of their actions are not only not criminal, but also not secret.
Either mark below the line or trust your chosen party
It is true that most voters don’t know where all their preferences flow, but how is this a problem, or at least a serious one deserving of such drastic changes to the system that most commentators believe would exhaust approximately 23% of the votes and thus leave that percentage of Australian voters unrepresented in the Senate.
The premise behind this claim is that the average voter would like to scrutinise the GVT to check against ‘problem’ parties getting an earlier tick than warranted. However there is already accommodation for those voters who wish to control their full preference order; that being voting below the line voting. The above arguments presented seems to imply that after those voters who care, fill out below the line, and the other voters also care, but just happen to fill out above the line anyway. But this is a contradiction.
If a voter votes above the line it means they trust the party they give their support to. Why should this be so hard to believe? The motive behind parties enumerating their Group Voting Tickets (GVT) is strategic. They arrange deals with other parties to maximise their chances. The supporter wants their party to win so obviously they will accept what their party advises. In contemporary times micro parties advise preferencing almost any small party to a major one as it gives them a chance of victory as compared to guaranteed failure if a larger party is in the shortlist.
It is a highly spurious argument to claim the system allowing small parties to occupy a seat at the nation’s forum must be abolished because their voters don’t know who they are voting for. Those that trust their chosen parties don’t care, and those that do care can vote below the line anyway.
It is the Liberal Party of Australia which is introducing legislation to address this “fault in the system” whereby voters generally do not know where their preferences are heading. The obvious implication is that the Liberal Party is concerned that voters, to a degree, are voting blind, concerned enough to change the voting procedure which per chance will just happen to, according to most commentators, increase the Liberal Party’s numbers in the Senate.
But if one looks at lower house ‘how to vote’ cards printed by the Liberal Party for recent federal elections, it is very interesting to note that nothing is done to enlighten their own supporters as to where their preferences will flow. When listing the order of voting they want their supporters to follow (from one to, on average, nine in a certain order), all information given on the card is the candidate’s name beside the box to number, while party affiliation is left out.
Doing such would not be that difficult considering lesser resourced parties such as, Australian Christians, Secular Party of Australia, Rise Up Australia, Bullet Train for Australia, Katter’s Australian Party, and even some independents, do give affiliations for every name on their preference list.
Thus we are asked to believe the Liberal Party is doing this because they care that average Australian voters are kept fully aware, yet the Liberals themselves, unlike many independents or micro parties, don’t even keep their own supporters informed of where their preferences would be going?
Excluding the marginal voters -versus- input for all
The virtue of the current system for Senate voting is that, subject to informal votes, practically every voter can have an effect upon the outcome. In final vote counting undertaken by the AEC, the ballot papers are passed on from one preferenced candidate to the next in order, until finally, in conjunction with enough others to make a quota, they find a home and elect a candidate. For an Australian who has gone to the trouble of attending a polling place, waited in line, gone through the formalities and then made your considered primary vote and your party’s considered preference votes, to have your 87th preference elect a candidate is still a better feeling than for your vote to mean absolutely nothing.
Under the proposed changes for voting above the line, the usual choice for over 96% of voters, there will be a maximum limit of six boxes to number, which will mean that voters not enamoured with the major parties will in all probability have their vote exhausted when their (from) twelfth to thirtieth preference vote for micro parties still elects no one. If voter intention is the same as the last election, this would relate to approximately three million Australians who would be denied an input into the appointment of Senators.
The cure that is worse than the disease
So what we are left with is the “problem” that certain voters who endorse micro parties put their trust in their associated Group Voting Tickets even though they might not have bothered to go to the trouble of finding out where their preferences flow. And the solution to said problem is to deny those voters the right to indicate simply, with one mark, that their list of preferences is concordant with their chosen party, a prohibition which is to effectively disenfranchise them.
Challenging the constitutionality of aspects of Commonwealth Electoral Amendment Act of 2016 which introduced changes to the method Senators are elected in Australian federal elections.
The Glenn Drury road to electoral success
In the last few years there has been a prolificacy of micro parties in both federal and state parliaments. The reason for this is a practice, allegedly discovered by so called ‘preference whisperer’, electoral campaigner Glenn Druery, whereby smaller political parties arrange to not only share preferences with other parties of similar platforms, but also arrange to place all other micro parties ahead of the major parties on their Group Voting Tickets (GVT). This practice which might be called micro-party exclusive, preference swapping guarantees electoral success for at least one party at half senate elections if the total number of disaffected small party supporters exceeds 14.3% of the population. Of course it depends on popularity and luck to decide which of the smaller parties will win, but the practice has been accepted because a chance of success is always more desired than guaranteed failure.
Effect of new changes to voting
The requirement for electing a micro party has been for the full GVT to be completed, either with one tick above the line or completing in full below the line. This is because to work out which one of the large number of micro-party candidates is to eventually win the seat, full preference distribution must occur.
The Commonwealth Electoral Amendment Act of 2016 abolishes GVTs and now makes it next to impossible for a voter to declare a full preference list with only a small number of voting indications on the ballot paper. To quote columnist Van Badham, “by choosing fewer parties to preference, votes exhaust and preferences cease to circulate. If you only vote for one or six minor parties above the line, and all are excluded, your vote will not count, at all, towards electing a senator.” With making an effective vote with as little as two preference votes, the major parties will not suffer from this limitation and will now gain, with even fewer votes, the seats previously occupied by the micro parties
Although the new legislation does not blatantly deny the voter the ability to fill out the full preference list, it would certainly be an arduous task to mark off, in special designated order, up to in excess of 44 parties. Previous BTL voting, albeit with approximately 100 places, attracted only roughly 3.5% of the voters, so it would be fair to say that with the new system it would still be only a small minority of voters prepared to accept the challenge. Hypothetically, if the government was fully justified in its claim that ATL voting did not serve the best interests of the voter , it would still not be a fair response under the previous system to declare that the voter could simply fill out the full list of preferences BTL. Thus to create a system where some voters can elect their candidate with only a few marks on the ballot paper while others must fill in the complete form is obviously unfair, and also unnecessary.
To leave GVTs above the line and introduce optional preferential voting below the line accommodates all inclinations the voters may possess. Those that trust their own chosen party can make a simple single mark above the line while those wishing to dictate their own preferences and how far, can also manifest that desire.
Reasons offered for Senate changes
Minuscule Primary Vote
The government has defended the new legislation because of two alleged problems with the previous system. The first is that candidates have been elected with as little as 0.5% of the primary vote. As true as this is, it does not reflect any fundamental flaw in our democratic system. That percentage, together with preference votes still made up the necessary quota of 14.3% and those voters still needed someone to represent them in parliament. Under the current system, many micro party votes will become exhausted due to the fact they are spread so thin amongst approximately 40 parties and the average voter will doubtfully go much further than the suggested eight preferences. This will mean that the final candidate to be appointed, in all probability a major party candidate, will not need the usual quota of approximately 14% of the vote but only the largest number amongst the remaining candidates. This could be as little as 5% or even less, made up of primary and preference. In summation, to cure the ‘problem’ of candidates being elected with only 0.5% primary but still 14.2% of the total vote, changes are made such that one candidate per state will likely be elected with between 3 and 9 percent of the total vote, whatever it’s makeup.
The second and more quoted alleged problem with the erstwhile system is that voters voting above the line are allocating their preference votes in the direction of the interests of their party bosses rather than in their own interests.
Acclaimed psephologist Anthony Green has stated that when ATL and BTL ballot papers for the same party from previous elections have been compared, there is often little similarity in preference voting patterns. In that he is perfectly correct. However, those who use that fact to further their claims of GTV unintended votes may still may be missing the point. One has to consider who it is who electorally suffers when marginal voters vote above the line.
A success only managed by collective action
Supporters of this new Act speak loudly about how many voters have not understood certain details of the GVT system, however there are also other aspects of the electoral system that the government either doesn’t understand or refuses to acknowledge.
When micro party supporters go to the trouble of voting below the line they are, in fact and ironically, voting against their own self-interest.
Research has shown that Australians, like most other nationalities, are surprisingly ignorant of their democratic institutions. A 1994 ANOP Research Services poll discovered that not more than 24% of respondents knew Senators were elected state wide and only 18% had some understanding of federalism. Bearing in mind that it would be fair to assume that few voters understand the concept of Group Voting Ticket preference swaps and especially the modern practice of micro party exclusive preference swaps.
The result of this ignorance was that when someone voted below the line for their micro-party they gave their first few numbers to their chosen party, and then, thinking there was no more they could do to help that party succeed, went on to list other parties in order of worthiness in the understanding that if they fail with their preferred party they at least might be able to help another party that wasn’t so bad.
Unfortunately for that voter, that list of alternative preferred parties would somewhere contain a major party looking for a few more votes to attain a quota, and thus in most cases including such party actually impeded the voter’s long term chances of success. The voter may be initially gratified in registering his complete good to bad list of parties, but ultimately, at the end of the day of counting, he will unfortunately be informed that yet again, his party has not won a seat.
The Tragedy of the Commons
This type of human action is not new. In 1833 Victorian Oxford University economist William Forster Lloyd in an essay introduced the term ‘the tragedy of the commons’ to describe a concept where individual participants acting independently and rationally according to their own self-interest behave contrary to the common good of all participants. He used a hypothetical example of the effects of unregulated grazing on common land (then colloquially called "the commons") in the United Kingdom.
The Tyranny of Small Decisions
A similar concept, described as the ‘tyranny of small decisions’ by American economist Alfred E. Kahn, described example situations such as where energy "blackout" power outages occur during periods of extreme temperatures. The cause is too many people using more electricity than the minimum needed with the result of a power blackout where there is then no electricity at all for anyone.
This phenomenon has possibly best described by Aristotle in chapter 3 of book 2 of his Politics:
“For that which is common to the greatest number has the least care bestowed upon it. Everyone thinks chiefly of his own, hardly at all of the common interest; and only when he is himself concerned as an individual. For besides other considerations, everybody is more inclined to neglect the duty which he expects another to fulfill;”
A calculated risk
Also when voting above the line, it can be more than simply not knowing who you are subsequently supporting, it can be a situation where you have found you have helped elect someone you see as a truly obnoxious candidate. As much as this can happen what it comes down to for the voter is a calculation of estimated risks.
Every other micro-party candidate is not anathema to the voter. If you look at a circle of micro-parties, from Animal Justice to the HEMP party, to Motoring Enthusiasts, Fishing and Lifestyle, Shooters and Fishers, One Nation, Christian Democratic, Palmer United, Australian Christians, Secular Party, Uniting Australia Party etc, one would occasionally recognise an abhorrent one, but the average fringe party is odd, sometimes amusing but relatively innocuous to the average voter. Why would we sacrifice getting our very own, never before successful party, elected, at the risk of supporting an oddball party or the rare off-chance of an obnoxious party? Would a voter really consider the benefits of having his own micro-party elected to be on a lower scale than the possible liabilities of electing the “Bullet Train for Australia” candidate?
The issue at heart: what the marginal voter actually wants?
It is unquestionable that the new legislation will have the effect of denying political representation to the legitimate quota of Australians (14.3%) who voted as a block against the major parties. On its face, this would seem undemocratic and violating the ratio decidendi set in Roach. However the government, in its statements supporting the legislation, have claimed that those voters did not really understand what they were doing.
So the question arises: What do marginal voters really want to do? Do they merely wish to make a statement by declaring in order their list of preferred political parties for the Electoral Commission to subsequently make public, or do they want to, while accepting a minimal risk, make a substantive contribution to the very real possibility, either this election or a later one, of electing their chosen party?
Constitutionality of aspects of the Commonwealth Electoral Amendment Act of 2016
Under our constitution parliament has arbitrary power to decide which electoral systems and methods will be used for elections. Eg single member voting, proportional representation, compulsory voting, Robson Rotation, preferential voting etc. That a system may be proven to be less efficient than others is not a reason for it to be declared unconstitutional.
However in Roach v Electoral Commissioner  HCA 43 the High Court invalidated a law denying the vote to convicted prisoners serving less than three years, holding that whatever electoral law is made, it must align with the concept of representative government. Denying the vote to some for arbitrary reasons, in the eyes of the court, violated that concept.
Effectively denied the vote
Under the erstwhile system approximately 16% of the voters, comprising a multitude of parties, voted as a block to intentionally elect one of their own, even if they did not know at the time who that candidate would be. With the new legislation this manoeuvre can no longer (in practice) happen, and voters voting for their same parties ATL in new elections will end up having most of their votes declared exhausted. Therefore, with regards to the abolition of GVTs, to follow the precedent set in Roach, indirectly denying the vote to some Australians by making it unnecessarily arduous to carry out, a vote that, consciously or unconsciously, would possess the voter’s desired intention, would not be, to quote Chief Justice Gleeson from Roach “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government.”.
Group Supporting the High Court Challenge
Unfortunate actual appeal to High Court of Australia 2016 by Barrister Peter King
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