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The Commonwealth Electoral Amendment Bill 2016 - optional preferential voting below the line in the Senate


On 22 February 2016 the government introduced the Commonwealth Electoral Amendment Bill 2016 (the Bill) into the House of Representatives. The Bill responds to elements of the interim and final reports of the Joint Standing Committee on Electoral Matters’ (JSCEM) inquiry into the 2013 federal election, particularly in relation to the election of Senators on very small primary votes. The Bill was passed the House of Representatives on 24 February 2016 and is currently before the Senate.

The Bill proposes to implement part of the Committee’s Recommendation 1, that the Senate voting system be changed to allow optional preferential voting in the Senate electoral system. The Bill would amend the Commonwealth Electoral Act 1918 (the Act) to abolish group voting tickets and allow optional preferential voting above the line. The changes are examined in detail in the Parliamentary Library Bills Digest for the Bill.

The JSCEM also recommended the introduction of partial optional preferential voting below the line. Initially, the Bill did not seek to change the below the line voting system in any significant way, and would have still required all preferences below the line to be completed. The Government did not provide any information as to why it only sought to partially implement the JSCEM recommendations. The proposal to only change above the line voting received considerable criticism from electoral experts.

After its introduction in the House of Representatives the Bill was referred to the JSCEM for inquiry, which tabled its advisory report on 2 March 2016. The Committee recommended ‘that the Government introduce a system of partial optional preferential voting below the line’, and also that the Bill be passed. The Government has since proposed amendments in the Senate that would implement the changes in relation to below the line voting.

In line with the Committee’s recommendations, the amendments would instruct voters who choose to vote below the line to number at least 12 boxes (Item 19).

The proposed amendments also specify new formality requirements for below the line votes (Item 21B). While voters would be told to provide at least 12 preferences, votes below the line would be formal (that is, the vote would be admitted into the count) as long as there were at least preferences 1 to 6 indicated below the line. This is similar to the ‘savings provision’ in the Bill which provides that voters voting above the line would be told to provide at least six preferences, but votes would be formal as long as there was at least one preference.

The amendments would significantly simplify the rules for determining whether a below the line vote is formal. Currently, the Act allows three errors in the numbering sequence (without the amendments the Bill would change this to five) and ignores any repeated numbers (section 270). However, the amendments specify that the number sequence would stop at any missing or repeated numbers, and only the preferences in numbered sequence would be counted. If repeated or skipped numbers result in fewer than six preferences below the line, the ballot paper will be informal.

As an example, if a ballot paper was marked below the line with the preferences ‘1, 2, 3, 4, 5, 6’ against candidates, this would be formal. If the ballot paper was marked with ‘1, 2, 3, 4, 5, 5, 6’ or ‘1, 2, 3, 4, 6, 7’, it would be informal, because the sequence before the repeated or skipped number does not supply six preferences. However the sequence ‘1, 2, 3, 4, 5, 6, 7, 8, 9, 11’ would be formal, although only the preferences 1 to 9 would be counted.

The amendments also specify that if the voter has marked preferences both below and above the line, the below the line preferences are counted (Item 24). The wording here is not clear, but suggests that if a ballot paper contains both above the line and below the line votes, and the below the line vote is informal, the ballot paper as a whole would be informal. This would be in contrast to the current situation under the Act, where a ballot paper with both below and above the line votes will be counted according to the below the line votes if the below the line votes are formal, and will be counted according to the above the line votes if the below the line votes are not formal.

The amendments appear to address most of the significant criticisms of the Bill by electoral experts. By requiring a minimum of six preferences below the line for a formal ballot paper, the amendments would take into consideration potential voter confusion in relation to the instruction to provide six preferences above the line. However the instruction to write at least 12 preferences below the line should not be so daunting as to discourage those who would like to vote below the line from doing so.

Under the current system only a small number of voters vote below the line, and at the 2013 federal election over 8,000 of those votes were informal. The proposed amendments should make below the line voting a lot easier, and may lead to an increase in voters allocating their own preferences to candidates below the line.

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