Posted 08/02/2016 by Damon Muller
Reform of the Senate electoral system is once again in the news, with reports that the Government wants to pass legislation enabling reform before the budget sitting (that is, effectively by 17 March). Other reports are suggesting that the Australian Greens will produce their own Senate voting reform legislation.
Unlike other recent discussions about Senate electoral system reform, the approaches currently being discussed do not follow the May 2014 recommendations of the Joint Standing Committee on Electoral Matters (JSCEM), which were outlined in a previous Flagpost.
This Flagpost examines some of these new proposals with a particular focus on what constitutes a valid vote.
The only details available about the approaches to Senate electoral reform now being discussed are from media reports. In articles of 3 February and 4 February 2016 it was reported that the Government is considering, and the Greens are intending to introduce, separate legislation eliminating group voting tickets and requiring voters to allocate multiple preferences above the line and/or below the line.
Senator Xenophon has also publically endorsed a similar approach to this, stating that his preference is for ‘voters to number at least three consecutive numbers above the line, or at least 12 below—their choice—not that of party machines or preference whisperers’.
A common feature of these approaches is a requirement for voters to indicate multiple preferences above the line. Without the details, it seems reasonable to assume that these approaches would retain the current ballot paper design, with groups below the line and voting squares above the line. Votes above the line would distribute preferences down the column of the groups preferenced above the line, in the order in which they are preferenced, and no further. Apart from nominating a lower limit of allowable preferences, this appears to be essentially the system the JSCEM recommended.
The proposed requirement for multiple preferences could be motivated by a concern that the system proposed by JSCEM would effectively prevent any preferences flowing to the smaller parties, and has a number of important implications. The biggest unanswered question of these proposals relates to formality requirements—what the voter must do at a minimum to render the ballot paper countable.
A question of formality
Australian voters have spent over 30 years voting 1 above the line, and at the 2013 federal election more than 96 per cent of Australians voted 1 only. Even if the Australian Electoral Commission (AEC) was provided with the time and funding to run a substantial advertising campaign about a change to multiple preferences above the line, it would still be expected that a large number of voters would continue to vote 1 above the line, inadvertently rendering their ballot paper informal.
Formality rules—and the question of whether such 1 above the line votes could be counted—are crucial here; high levels of informality in the Senate vote led to the original above the line reform, and similarly high levels of informality in future elections could call into question the legitimacy of the result under a new system.
Only the media report on the Greens’ proposal identifies a formality approach that could be adopted. This appears to be similar to the approach used in ACT elections, where the ballot paper instructions instruct voters to provide at least five preferences —but as long as there is at least one preference, the vote is formal and will be counted. At the 2012 ACT election, most (70 to 75 per cent) filled out as many preferences as they were asked to and only a few per cent filled out fewer.
A complication of this approach is that it may create an incentive for parties, particularly larger parties who do not want their preferences to go to smaller parties, to campaign to ‘just vote 1’, contrary to the ballot paper instructions.
An alternate approach to formality would be a savings provision similar to that used in South Australian Legislative Assembly elections. Under this provision candidates can provide voting tickets that are only used where the vote would otherwise be informal due to incomplete preferences. Advocating ‘just vote 1’, meaning the preferences are distributed by the voting ticket, is forbidden by the South Australian Electoral Act 1985 (section 126).
Given that returning the power to determine preferences to voters seems to be an element in the latest proposed Senate voting reforms, it is possible that a group voting ticket system would not be a feature of these reforms, even as a savings provision.
Another approach which could be adopted is a requirement for the ballot paper to contain a certain number of effective preferences. For example, the minimum formality requirement might be six effective preferences, which would render the ballot paper formal if the voter expressed at least two preferences above the line for groups with three members each. This is essentially how the NSW Legislative Council voting system works.
This system would create an incentive for parties to nominate as many candidates in their group as the number of minimal effective preferences required. To continue with the same hypothetical example, if the minimum formality requirement was six effective preferences, large parties would be likely to nominate six candidates in their group, and may campaign to ‘just vote 1’.
Given that the latest proposed Senate voting reforms are a form of optional preferential voting (OPV), in many ways the minutiae of the formality requirements are probably more important than how many preferences voters could be told to put above or below the line.
There are a number of other issues (such as the requirement for the AEC to data enter all ballot papers), many of which have been discussed in detail by ABC election analyst Antony Green. There are also some important unanswered technical details, such as how the values of transferred votes would be calculated (crucial in respect of the vote count). Until these details are elucidated it would be impossible for the AEC to start building the software and systems to count the votes.
Changing the Senate electoral system to OPV and requiring a number of votes above the line would effectively fix the issue that the JSCEM set out to solve—senators being elected on very small numbers of votes. Whether it would generate new complications in the process would be down to the details.