Submission to the Joint Standing Committee on Electoral Matters:

Inquiry into and report on all aspects of the conduct of the 2013 Federal Election and matters related thereto. by Dr Kevin Bonham, submitted 10 April 2014

Summary

This submission concerns the system for voting in Senate elections.

Following the 2013 Australian federal elections, the existing Senate system of group ticket voting is argued to be broken on account of the following problems:

* Candidates being elected through methods other than genuine voter intention from very low primary votes. * Election outcomes depending on irrelevant events involving uncompetitive parties early in preference distributions. * The frequent appearance of perverse outcomes in which a party would have been more successful had it at some stage had fewer votes. * Oversized ballot papers, contributing to confusion between similarly-named parties. * Absurd preference deals and strategies, resulting in parties assigning their preferences to parties their supporters would be expected to oppose. * The greatly increased risk of close results that are then more prone to being voided as a result of mistakes by electoral authorities.

This submission recommends reform of the Senate system. The main proposed reform recommended is the replacement of Group Ticket Voting with a system in which a voter can choose to:

* vote above the line for one or more parties, with preferences distributed to those parties and no other; or * vote below the line with preferences to at least a prescribed minimum number of candidates and as many others as they wish to

This submission does not support the following solutions:

* the imposition of primary-vote threshholds for a candidate to be capable of election * the use of Hare-Clark with Robson Rotation for Senate elections * the use of a divisor-based system * the quarantining of party names such as “Liberal” or “Labor” to prevent parties with similar words in their names from running * the raising of deposits Background about this submission

This submission is written to supply views and evidence in written form in advance of a hearing in Hobart at which I have been invited to appear. It mainly derives from an article entitled “Senate Reform: Change This System, But To What?” which appeared on my website on 19 October 2013 at the following URL: http://kevinbonham.blogspot.com.au/2013/10/senate-reform-change-this- system-but-to.html

This submission is largely concerned with Senate reform, which I see as the most important topic arising out of the 2013 election, but I am happy to discuss other matters relating to the elections that may be of interest.

Author background

I am a Tasmanian political analyst with 26 years' experience as a scrutineer and analyst of preference distributions including Senate counts and other multi-member systems (especially Hare- Clark). I am also the author of a blog-form psephology, poll analysis and political comment website located at http://kevinbonham.blogspot.com.au/ and was widely interviewed in the local and national presses in the leadup to recent elections including the 2013 Australian federal election and various state elections. I am also the former house psephologist for the website www.tasmaniantimes.com , which I left to start my own site in October 2012.

My professional background is primarily in an area of science unrelated to politics and elections, but my tertiary qualifications include a major in Political Science. I am now also sometimes commissioned for work relating to electoral and polling analysis. I am writing this submission in a private capacity and am not a member of, associated with or strongly supportive of, any political party. Part 1. Comments on the existing Senate system

The existing Senate system allows a voter to just vote 1 for a given party, which results in their preferences being allocated according to one or more Group Voting Tickets submitted by their party. If a voter wishes to vote in a way not specified by any , they need to vote below the line and number at least 90% of the boxes, for their vote to be formal.

This system was introduced from the 1984 Senate election. This submission argues that, while flaws in the system have been evident for many years, the 2013 Senate election in particular has demonstrated the current system to be broken and in need of replacement.

It is worth stressing from the start that the widespread use of above-the-line voting does not demonstrate that it is supported by voters. Rather, it demonstrates that the only alternative way to cast a formal vote (numbering all squares below-the-line) is so onerous that voters increasingly choose above-the-line voting only as the lesser (or lazier) of two evils. This becomes more and more the case as the number of groups and candidates increases.

Another thing I want to stress is that calling for the system to be reformed is not necessarily a reflection on the quality of the micro-party Senators who are elected. Rather it is a comment on their mandate or lack thereof. It is sometimes suggested that a system that chose citizens at random to serve in government for short periods would produce good outcomes. Whether or not that is true, such a system would not be democratic. A similar critique applies to this system, in that there is a high degree of effective randomness in which out of a large number of cross-preferencing micro- parties may win a seat in a given state. Submission 48 by the in particular misses this point. prides itself on being an electoral democracy. If the process that leads to a candidate being elected is not an adequately democratic process then that alone is reason to change that process, no matter how good or bad that candidate may be.

The following are critical defects in the existing Senate system:

1. Snowballing from very low primaries

A preference snowball occurs when a candidate starting from a low base continually outlasts other candidates, adding their preferences as this occurs, and builds up to a very high vote from a low base.

The 2013 election saw the victory of (AMEP, Vic) with 0.51% of the primary vote. It saw the formal election (subsequently voided because of loss of ballots) of Wayne Dropulich (Sports Party, WA) with 0.23% of the primary vote. Various other candidates polling considerably less than one percent came reasonably close to election via preference snowball in various states, and in previous elections candidates have won via preference snowball from below 2% of the primary vote (including Steven Fielding in 2004 and Robert Wood (NDP) in 1987.) Preference snowballs have also disrupted the natural order of party exclusions in other counts.

It does not matter whether Senators elected in this way turn out to be excellent or disastrous as Senators. The point is that they would not have been elected under any proportional voting system not including Group Ticket Voting. If preferences were determined by direct voter choice (as in Hare-Clark) then candidates with negligible primary vote totals would almost never be elected, because preference flows in such cases are generally not strong enough to keep them in the count. If a candidate with a very low primary did somehow win by a cross-party preference snowball in such a system, it would be because voters who did not give them their number 1 vote were nonetheless unusually strongly inclined to rank them very highly.

2. Outcomes are dependent on irrelevant events

The Western Australian 2013 preference distribution, especially, highlighted this problem. The makeup of the final two seats was eventually determined by the question of which out of Christians and the Shooters and Fishers party was excluded at an early stage of the count. Victory as a result of such a contest, between two parties that were neither in the race for a position themselves nor ideologically related to the parties contesting the final spots, had nothing to do with electoral merit Furthermore, other such contests at earlier stages, such as HEMP vs Animal Justice, were also resolved by small margins and could have gone the other way had certain parties made different preference decisions at seemingly arbitrary points.

In normal preferential multi-candidate elections this problem very rarely occurs, firstly because all parties with low primary votes will usually be eliminated sooner or later anyway, and secondly because even if there existed a network of similar parties that strongly preferenced each other, the exclusion of any would favour any other member of the network, so roughly the same sort of candidate would still be competitive. In the Senate system the idea that preferences flow between ideologically similar parties is often violated by preference deals.

Because it is so difficult to untangle the relationship between a party's votes and its outcomes, micro-parties are essentially groping around in the dark in attempting to strategise. They know that dealing with lots of other parties increases the chance of success, but ultimately which micro-party might succeed out of a number that have dealt together is a lottery.

3. Frequency of perverse outcomes

In many scenarios at the 2013 Senate election, parties might have won seats had their own position at stages in the count been worse, or lost them had they been better. For instance the Liberals would have won in had more of their voters mistaken the Liberal Democrats for them and voted Liberal Democrat instead of Liberal. The Sports Party would have won in had the Wikileaks Party not preferenced the Sports Party at a certain point in the count and instead preferenced the . The Greens would have won in Western Australia had a handful of their own voters instead voted for the ideologically opposed Australian Christians. The Palmer United Party would have been at risk of losing the seat they eventually won in Tasmania had enough voters who voted informal instead voted for PUP. The technical term for this sort of thing is “non-monotonicity”.

This is an occupational hazard in preferential elections - to a degree. Some examples include the 2009 Frome by-election in (the Liberals would have won had a handful of their voters instead voted Labor) and the 2010 Denison federal result (Labor would have beaten Andrew Wilkie had enough of their voters instead voted Liberal.) However, in such elections it is reasonably rare, and it is often possible for electors to foresee it and attempt to vote strategically. In this Senate election it was normal, happening in several states, often multiple times in the same state's count. It is virtually impossible for parties to strategise effectively when there is such a complex relationship between their vote and the result. Again, this is largely a product of group ticket voting; it is strongly connected to the problem above.

4. Oversized ballot papers

The system encourages large numbers of candidates. Large numbers of candidates resulted in oversized ballot papers with very small print. This had its maximum impact in , where the perfect storm of:

(i) the Liberal Democrats having a similar name to the Liberals (ii) the Liberal Democrats drawing first place on the ballot (iii) the drawing well away from the Liberal Democrats (iv) the sheer number of parties

... resulted in the Liberal Democrats winning a seat. Again, this has nothing to do with how good or bad a Senator will be; it is just a fact that he was astonishingly lucky to be elected as had any of (i) to (iv) not happened he probably would not have won.

5. Absurd preference deals and strategies

Pragmatic games of attempting to gain advantage saw many parties highly preference other parties that their supporters would oppose, or demote parties or candidates their supporters would view favourably. There were even cases of parties down-preferencing likeminded others not for pragmatic advantage at this election but apparently out of spite.

The most influential example of contrary preferencing involved Labor and the Greens preferencing Family First above less ideologically incompatible forces, resulting in the election of (SA) and nearly the election of Peter Madden (Tas). The views of Day on economic and social issues are strongly opposed to those of Labor and the Greens. The views of Madden on gay rights issues are in polar opposition to those of the Greens and would be deeply offensive to many ALP and Greens supporters.

Another notorious case involved the Animal Justice Party preferencing the Liberals ahead of the Greens in the ACT, though in the end this did not cause Simon Sheikh's defeat, as the Liberals would have won the seat thanks to below-the-line preferences anyway.

There were many contentious cases involving micro-parties, such as the Sex Party's high preference for One Nation in New South Wales, the Wikileaks Party's preferencing of the Nationals in Western Australia, and the LDP-allied cluster of micro-parties all failing to lodge their group tickets in (thus disadvantaging any parties they had dealt with).

Ultimately, the idea of group ticket voting works well if it is assumed that parties direct their preferences in a way that resembles what their supporters would do. But this is not the case; parties game the system for immediate or long-term tactical advantage or even direct preferences incompetently. Voters not wishing to spare the time to vote below-the-line have their preferences sent somewhere they had no idea they would go, and in many cases are not aware that their vote may be live at full value for a party they would never willingly support.

6. Greatly increased risk of a void result

Because outcomes can be sensitively dependent on early exclusions (see problem 2) and because early exclusions by definition involve candidates with few votes, there is an increased risk of elections that are determined by very close differences. We saw this in this election with the extremely close Shooters and Fishers/Australian Christians tipping point in WA (which potentially decided two seats), and also the very close Sex Party elimination in Tasmania, which eventually decided a seat for PUP rather than the Sex Party. Ultimately the WA election was invalidated because the loss of a comparatively small number of votes meant that the crucial tipping point could not be resolved. Very close eliminations increase the chance that even small irregularities in the count will be enough to invalidate the result., causing a by-election at vast expense and under politically unrepresentative conditions. Such irregularities can include mundane issues like admission decisions for absent votes, accidental double voting, votes not received in time through no fault of the voter, and so on, as well as more serious errors like the loss of ballot papers in this instance. It should not be assumed that any electoral process, however well managed, can always avoid issues affecting very small numbers of votes across millions of voters.

Eliminating group ticket voting would greatly reduce the chance of micro-close results that may fall within the margin of successful litigation, especially in cases of genuine error by electoral authorities.

I add a further issue with the Senate system that is not connected to Group Ticket Voting but that nonetheless undermines my own perception of the fairness of the system:

7. Inclusive Gregory

Inclusive Gregory is the system that determines how votes are allocated when a candidate exceeds their quota and has a surplus. What happens is that the total by which the candidate is over their quota is decided by the total votes held by the candidate. A notional quota remains with a candidate, and all their votes are redistributed at reduced value, being collectively worth one quota less.

So far, so good, but this system ignores the value that votes previously had as a result of being reduced in value at previous surpluses, and instead determines their value in the surplus based on the number of ballot papers showing particular values.

So, for instance, a vote for the ALP in a given state might help elect two Labor Senators out of a total of 2.3 quotas. The vote flows on and its new value is 0.3/2.3 = 0.1304 of a vote, with 0.8696 staying with the elected candidates. Some time later, the third Labor candidate is excluded, and their votes flow to a different candidate, say a Green, who crosses by 0.15 of a quota (0.85 of a quota in primaries plus 0.3 from the ALP surplus).

In a fair system the continuing votes flowing from the ALP surplus would now be worth 0.1304*(0.15/1.15) = 0.017 of a vote. Of the original one vote, 0.8696 stayed with the Labor Senators, and .1134 was used electing the Green. Most of the Green surplus would now come from the remainder of their votes when they crossed the line.

But in the Inclusive Gregory system, the Green candidate has 2.3 quotas of ALP ballots (by number of papers) and 0.85 quotas worth of ballots from other sources. This causes the on-flowing ALP ballots to be worth 73% of the Green surplus, and the other votes to be worth 27%, even though the value of those votes before the surplus was 26% and 74% of the Green total respectively. The effect is that the Labor ballots make a total contribution to the count of more than one vote each, and the Green ballots and other ballots reaching them make a total contribution of less than one vote each.

We go out of our way to eliminate malapportionment (eg through differently sized electorates) in the Lower House because it unfairly means some people's votes are worth more than others. Yet we tolerate a Senate system for calculating surpluses that makes some votes worth more than others, and we do so completely unnecessarily because trivial coding changes in computer calculations would fix it. Indeed, a more advanced system has long been used in National Union of Students elections around the country (although NUS ruins it by having a single down-the-page ballot order without rotation, in elections that are very prone to ballot order effects.) Part 2. Comments on possible solutions to Senate problem

Background on the existing system

The current system was introduced by the Hawke Government following its victory in 1983 and first used in the 1984 election. It replaced a system that had been in place since 1949.

The 1949 election was Australia's first Senate election to use proportional representation. Prior to that the Senate used a system very prone to electing slates of Senators from the winning party, and which often led to near-total domination by one party or other. The system that ran from 1949-1983 was much more proportional. It did allow for victories by minor party candidates, but they had to poll a substantial portion of a quota to have a chance. I have found no instance of a minor party candidate winning from less than half a quota - in the current situation, this would mean minor candidates would become competitive at around 7% of the state vote, or 3.8% for a .

From 1949-1983 voters were required to vote in modern below-the-line style, numbering effectively all boxes. There's a view that towards the end of this system's life, increasing minor party diversity was driving the informal rate upwards and that ballot papers were being flooded with spurious micro-parties for this reason, but looking at the most populous state, NSW, it seems that there was not that strong a corellation between candidate numbers and informal rate over time. The highest informal rate in NSW was in 1961, 12.7% with just 25 candidates; in 1983 it was 11.1% with 61.

What is clear is that the system always had an unacceptably high national informal rate. This averaged 9.7% in elections held concurrently with House of Representatives elections and 6.6% in those not.

The other problem with the system was that the distribution of individual preferences was extremely tedious. Even running a similar system by computer, as was done nowadays, with all votes distributed would involve a massive increase in data entry load. The impracticality of individually distributing millions of papers (often repeatedly) in the larger states meant that papers to be distributed had to be selected randomly. In the case of very close counts, like the 1980 WA count, this introduced the risk that the winner of the last seat was winning because of which votes had been randomly chosen and that a different random selection might create a different result.

The central problem

The central problem of Senate system design is how to trade off three goals:

A. High formality: Excluding those voters who deliberately vote informal (eg by submitting a blank ballot) we would like to capture as much voter intention as possible, since if there is a significant rate of unintentional informal voting, there is the possibility that the election result will be skewed. Especially, Labor supporters are in principle more likely to vote informally if the system is complex or onerous than voters.

B. Full preferencing: Ideally we would like to encourage voters to direct preferences all the way down the ticket and not to exhaust their votes. If there is a high exhaust rate then competing parties with similar ideas effectively "split the vote" because there is only a weak preference flow from one to the other when one is eliminated (this is seen with the Greens and Labor under Hare-Clark with semi-optional preferencing in Tasmania, and is one reason why the close federal 2PP vote in the state is not a portent of a similarly even State election). C. Voter control over preferences: Ideally we would like the flow of preferences to reflect what voters actually want, rather than an assignment of preferences that they are not aware of, would not understand if they were aware of it, and would not accept if they understood it.

The current Senate system delivers on A and B but disastrously fails on C. It replaces a system that delivered on B and C but seriously fell down on A.

Proposed reforms – simpler reforms (supported)

The following are two basic reforms that I think have been shown to be desirable:

* Require a candidate to have nominators who are resident within the state in which they are standing. This would discourage micro-parties from nominating candidates not resident in the state simply to buy a seat at the preference-dealing table in that state. The number of nominators could be a set number per state or could be on a pro-rata or partly pro-rata basis.

* Disallow anyone from acting as the registered officer for multiple parties.

* Replacing the Inclusive Gregory system for Senate surplus calculations with a more accurate system such as Weighted Inclusive Gregory.

As for the more general problem of the overall voting system, my preferred solution is the following, followed by some comments about other solutions that I generally do not support.

Proposed solution: Optional Above The Line Preferencing, with Semi-Optional Below The Line

I believe the best approach to the problems caused by group ticket voting at this election is to partly sacrifice full preferencing in order to restore voter control over preferences, while at the same time not greatly increasing informality.

I recommend as follows:

* Voters may vote above the line. A voter voting above the line can just vote 1 or can preference as many other parties as they wish. Such a vote flows through all members of each preferenced party in order, exhausting when it has no more parties to go to. This is similar to what happens in Hare- Clark in Tasmania – many voters choose to vote for one party only, then exhaust their vote.

* Voters may vote below the line, but are required to number a specific minimum number of boxes for their vote to count. Six has been widely suggested though I believe four would actually be adequate and perhaps preferable (and for a full Senate election, twelve would be suggested but I would consider eight sufficient.) The reason for requiring that a minimum number of boxes be numbered (not just 1) is that otherwise major parties could suffer from exhaust caused by voters just voting 1 for their most popular candidate.

On the matter of a specified minimum number of boxes, it is very unlikely that any single party will win more than four seats in a state at a half-Senate election. However, parties are likely to run as many candidates as a voter needs to vote for for a valid vote. Extra candidates slow the processes of counting. For this reason (and also to reduce informal voting) a requirement to vote for at least four candidates might be better than requiring six.

* Formality provisions similar to those currently extant should be maintained for cases where the voter genuinely attempts to number the minimum number of boxes but makes a mistake (such as repeating a number early in the sequence.)

Proposed solutions: Threshhold for election (not supported)

A common proposal has been that parties need to poll 4% of the vote to have a candidate elected. There have been some suggestions that this is unconstitutional since bulk exclusion would be applied to parties rather than candidates, and the Constitution refers to voting for candidates.

This could perhaps be repaired by excluding all candidates who had less than 4% of the vote after the distribution of all party surpluses. This would also eliminate leftover major party candidates if, for instance, a major party had 3.1 quotas for 4 candidates.

However I am not keen on a threshhold solution for the following reasons:

(I) While it is deeply unlikely that candidates polling below the threshhold will ever win by genuine voter intention, I would prefer that that be a matter decided by voter choice rather than automatic exclusion.

(II) A threshhold solution would not address the problems of deceptively-named parties funnelling preferences away from other parties, or of parties directing preferences away from likeminded parties out of spite.

(III) Depending on exact details of the system, it would not necessarily resolve any of problems 2-5. (Perhaps a bulk exclusion of below-threshhold candidates with simultaneous distribution of all their preferences would eliminate most of the issues.)

(IV) Threshhold systems can produce unsatisfactory outcomes if many small parties compete for a similar vote. Especially, a party with support close to the threshhold level could be targeted by non- genuine parties aiming to take enough of its vote to knock it out of the count.

Proposed solutions: Hare-Clark with Robson Rotation (not supported)

There has been some support for replacing the Senate system with Hare-Clark as seen in the Tasmanian and ACT parliaments. This would have the benefit of eliminating the feeling of powerlessness that voters have over outcomes (created by the high percentage of above-the-line voting meaning that those preselected by their parties to high positions are certain to win.)

However, effective competition between candidates of the same party (as in Tasmania and the ACT) works best in relatively small electorates. For multiple Labor or Liberal candidates to compete against their own party in a state the size of NSW would require massive campaign spending by individual candidates, strongly loading the system in favour of wealthy party members and incumbents.

An additional problem is that having an election entirely as below-the-line voting with each voter expressing multiple preferences would be very expensive and time consuming to count.

I am also not sure that this would lead to great improvements in candidate quality. A key difference between the Senate and the Tasmanian system is that the Senate elections are run simultaneously with House of Reps elections, so a lot of the talent pool contests the latter. Would major parties actually preselect several good candidates for Senate positions under Hare-Clark, or just a few big guns and a bunch of token candidates (in order to reduce leakage at exclusions)? Proposed solutions: D'Hondt, Sainte-Lague etc (not supported)

There has been some interest in the possible application of European-style divisor systems to Australia (with the abolition of preferences). However these systems work best when there are a large number of seats being elected at once, whereas Australia has effectively several different Senate elections for six seats each. A nationwide proportional system suited to such methods would require a referendum which would reduce the Senate power of the smaller states, which would most likely block it for that reason.

In examining the possibility of applying divisor methods (specifically Sainte-Lague) to half-Senate elections, I have found there is high risk of unsuitable results. For instance it is quite easy to achieve a 4-2 left-right (or right-left) split under this system, even if the two-party preferred vote is quite close in a state. This happens whenever one major party slightly outpolls another, and the highest-polling minor party polls around 8-9% and is from the same side of politics. Application of such a system in both 2010 and 2013 would, on the votes cast, have given Labor and the Greens a blocking majority as an average of one close election and one decisively won by the other side. This concept is therefore unsuitable for elections.

Proposed solutions: Banning parties with similar names (not supported)

The upset victory of the Liberal Democrats in New South Wales has prompted scrutiny of whether they should be allowed to run with a name that seems to invite confusion with the Liberal Party, or whether the terms “Liberal” and “Labor” should be quarantined against similar confusing titles.

I do not support quarantining such names, because I believe that a party should not be able to lay claim to a given ideological label perpetually simply because it had that label first. This is especially so as the Liberal Party's links to liberal ideals, and the Labor Party's links to its roots, are both matters that are often debated.

I have no objection to the proposal that parties securing over a certain percentage of the vote (say 4%) secure selection in the earlier columns on the ballot paper. Alternatively, it is possible that other reforms will trigger a reduction in party numbers and eliminate the potential for oversize ballots to increase the confusion caused when parties have similar names.

Proposed solutions: Raising deposits or registration limits (not supported)

There have been some proposals to discourage micro-parties from contesting by raising deposit limits or raising registration threshholds. Apart from supporting a requirement that candidates be nominated by voters in their own state, I don't support this idea. I like the idea that a party can, starting from very little, attempt to enter the political marketplace and try to win support for its ideas, and grow over a series of elections. We shouldn't be attempting to drive genuine candidates out of elections simply because the presence of a large number of them threatens the integrity of a flawed system. Instead we should have a system that is open to any number of candidates without their presence having the potential to damage outcomes.