Dr Damon Muller,
Politics and Public Administration
The Senate voting system was changed shortly before the 2016 election to allow optional preferential voting above and below the line.
The new voting system was unsuccessfully challenged in the High Court.
The Tasmanian Senate count has resulted in the unprecedented election of a senator on the basis of below the line votes.
The 2016 Senate election was distinctive in a
number of ways:
- the election was the first to be held after reforms to the Senate
voting system—legislated only months before the election was called—that
abolished group voting tickets and introduced optional preferential voting to
the ballot paper
- the election was the first federal election where computerised ballot
paper scanning was an essential part of counting the ballot papers and
- the 2016 election was the first double dissolution since 1987 and only
the seventh double dissolution election—where all 12 senators from each state
were elected—since Federation.
Senate electoral system reform
A notable outcome of the 2013 election was the
election of a number of previously unknown candidates to the Senate from ‘micro-parties’
on very small primary votes. This result was perceived by some as a perverse
outcome of the Senate voting system. From 1984 parties had been able to
submit group voting tickets, and voters could elect to use a party’s ticket to
distribute their preferences by voting ‘1’ for that party above the line on the
Originally introduced to reduce the rate of
informal voting in the Senate, the group voting tickets were increasingly used
to trade preferences between groups of parties in a way that was largely opaque
to voters. It has been argued
that this pooling of preferences between small parties led to results which did
not best represent the will of the voters.
During its post-2013 election inquiry the Joint
Standing Committee on Electoral Matters (JSCEM) released
an interim report in May 2014 that recommended substantial changes to the
Senate voting system. Significant recommendations included abolishing group
voting tickets and implementing optional preferential voting both above and
below the line on the Senate ballot paper.
In February 2016 the Government introduced legislation
to amend the Commonwealth
Electoral Act 1918 (the CEA)—the Commonwealth
Electoral Amendment Bill 2016. Following the longest
continuous sitting of the Senate (at almost 29 hours straight), the Bill
passed both Houses with a number of amendments on 18 March 2016 and was
assented to on 21 March.
The most significant element of the Commonwealth
Electoral Amendment Act 2016 is to implement optional preferential
voting both above and below the line on the Senate ballot paper. Voters are now
instructed to complete at least six preferences above the line or at least 12
below the line; saving provisions would allow votes that expressed fewer
preferences to be counted.
The effect of this is that the preferences of
voters who vote above the line now only apply to the groups that voters express
explicit preferences for, leaving voters in control of how far their
preferences flow. Group voting tickets no longer apply.
The amending Act also provides for the inclusion of
party logos alongside the party name on ballot papers. This appears to be in
response to suggestions some voters were confused by party names in the 2013
The introduction of these significant reforms only
three months before the announcement of the election led to concerns about the
ability of the Australian Electoral Commission (AEC) to successfully
implement the changes and conduct the election. These concerns followed the
overturned 2013 Western Australian Senate election where it was found that security
and logistical failures may have contributed to the loss of ballot papers.
The High Court challenge
Following the passage of the Senate voting reforms
through the Parliament, South Australian Family First Senator Bob Day lodged a High Court
challenge against the changes.
Day argued that the changes to the CEA were unconstitutional for a number
of reasons, including that voters would be disenfranchised if their votes
exhausted (when there are no more preferences on a ballot paper for candidates
remaining in the count, and the ballot paper is removed from the count) because
they had not preferenced a winning candidate, and that above and below the line
voting constituted different methods of voting. Section 9 of the Australian Constitution
requires the voting ‘method ... be uniform for all the States’.
In a unanimous judgement
delivered on 12 May 2016 the High Court dismissed the case.
Counting the Senate ballot papers
The implications for counting the Senate ballot
papers are substantial. Under the former group voting ticket system in place
from 1984 to 2013, most voters (96
per cent in 2013) voted 1 above the line.
To count the votes, the number of first preference
above the line votes each group received was recorded first. The ballot papers
that contained below the line votes (around 470,000
in 2013) were then sent to a central location in each state where all of
the preferences were entered into a computer. Once the below the line votes
were entered the computer then applied the group voting tickets to the above
the line votes, combined this with the below the line votes, and conducted the
In contrast, under the new Senate voting system
each of the roughly 15 million ballot papers requires at least six (for above
the line) or 12 (for below the line) votes to be entered into the computer.
The AEC elected to electronically scan the
ballot papers to assist with the 2016 Senate election count, due to the time it
would take to manually enter all of the preferences. According
to the AEC:
The AEC is using a semi-automated process to
conduct the Senate count, scanning Senate ballot papers and using optical
character recognition technology to capture preferences. Once captured, these
preferences are then verified by a human operator.
The double dissolution election
In a double dissolution election there are two
important differences for the Senate as compared to a ‘standard’ half-Senate
election. Firstly, in a normal half-Senate election only half of the senators
from each state, and the territory senators, face election and the Senate as a
chamber continues. In a double dissolution, the Senate is dissolved and all 76
senators face election. At the commencement of the new Parliament in 2016, the
Senate will be only the eighth Senate since Federation.
Secondly, the Senate electoral system operates by
requiring candidates to exceed a quota of votes, either with primary votes or
surplus votes transferred from other candidates. The quota equals the number of
formal votes divided by one more than the number of vacancies. In a normal
half-Senate election the quota is about 14 per cent of the vote. In a double
dissolution it is about 7.7 per cent of the vote. As a result, the threshold
for election to the Senate is much lower in a double dissolution election.
The double dissolution and the resulting election
are covered in further detail in the Briefing Book article: ‘The 2016 federal election’.
Selecting long- and short-term senators
Following a double dissolution election, section 13
of the Constitution requires the 12 incoming senators for each of the
states to be broken into two groups (or classes) of six. One group of senators
is awarded a full six-year term, and the other group is awarded a half (three-year)
The Constitution gives the Senate the power
to determine who will be awarded the long and short terms. Traditionally this
has been determined by order of election, with the first six senators elected
according to the Senate vote count in each state being awarded the long terms,
and the remainder the short terms.
In 1983 the CEA was amended to insert section
282, which requires the AEC to conduct an additional recount following a
double dissolution election. This recount only includes those candidates who
were successful at being elected to the Senate, and uses a half-Senate election
quota to select six of the twelve successful candidates. It has been argued
that the section 282 recount provides the Senate with a fairer method for
determining the long- and short term senators.
Following the 1987 double dissolution election (until
2016 the only such election since section 282 was inserted into the CEA),
Senate resolved to use the order of election method.
On 29 June 1998 the Senate
agreed to a motion by then Labor Senator John Faulkner supporting the use
of section 282 following any future double dissolutions. On 22 June 2010 the
to an identical motion put by the then Special Minister of State, Liberal
Senator Michael Ronaldson. The Senate is not bound by either of these motions,
Section 13 of the Constitution also requires
that the terms of senators be back-dated to 1 July before the preceding election.
Accordingly, the three-year senators’ terms will end on 30 June 2019, requiring
a half-Senate election within one year prior to this. Under section 43 of the CEA
the two senators for each of the territories serve the same terms as the
members of the House of Representatives.
The outcome of the election
At the time of publication only the results from
the Northern Territory and Tasmanian Senate elections had been declared.
Influence of below the line votes
Prior to the 2016 reforms, voters who elected to
vote below the line, not using a party’s group voting ticket, were required to
preference every candidate on the ballot paper. In the case of NSW in the 2013
Senate election, this meant they had to complete 110
preferences. Under the reforms, however, voters who vote below the line are
only required to number at least 12 preferences, substantially reducing the
burden for this type of vote.
Australian Labor Party (ALP) senator Lisa Singh, a shadow
parliamentary secretary and former Tasmanian state government minister, was preselected
by the ALP into sixth position on its Tasmanian Senate ticket, widely
expected to be an unwinnable position. Liberal tourism minister Senator Richard
Colbeck, the only Tasmanian in the Turnbull ministry, was preselected by his
party to the fifth place on the Liberal ticket.
Both Singh and Colbeck were supported by grassroots
campaigns in Tasmania encouraging their supporters to vote for them below the
line. As a result, both Singh and Colbeck received substantial below the line
votes—in Singh’s case roughly equal to one quarter of the ALP’s above the line
vote in Tasmania.
While Colbeck was ultimately unsuccessful, Singh
was the tenth candidate elected of 12, preventing the election of the ALP candidate
above her on the ticket. There are no comparable examples of a candidate
winning a Senate election from sixth position against the preference direction
of their party.
Use of the new Senate voting system
At the time of the introduction of the new Senate
voting system there was considerable concern
that the reforms would lead to many people continuing to just vote 1 above the
line with a correspondingly high rate of vote exhaustion (this was a key
element of Senator Day’s High Court challenge).
Although not necessarily representative of the
larger states, analysis of the Tasmanian results reveal that only 2.8 per cent
of votes exhausted (compared to 0.1
per cent in 2013), and around 85 per cent of
those who voted above the line preferenced 1 to 6 as instructed on the
Tasmanian Senate voters also largely chose to
ignore preference recommendations from ‘How To Vote’ cards, even from the major
than 10 per cent of Liberal voters, and ever fewer Labor voters,
preferenced above the line according to How To Vote cards. However, this may
not be typical of Senate voting in other states, particularly given that
Tasmanian voters are accustomed to voting using the Hare-Clark system in state
elections, which is similar to below the line voting.
Australian Electoral Commission (AEC), Federal election 2016 Central Senate Scrutiny: frequently asked questions, AEC, Canberra, 2016.
R Lundie, ‘Double dissolution election: implications for the Senate’, FlagPost, Parliamentary Library blog, 29 January 2016.
A Green, ‘How long and short Senate terms are allocated after a double dissolution’, Antony Green’s Election Blog, 25 April 2016.
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