Participation, Partisanship and the Electoral Reform Process

Rob Hoffman

Thesis submitted in total fulfilment of the requirements for the Degree of Doctor of Philosophy

Swinburne Institute for Social Research Faculty of Health, Arts and Design Swinburne University of Technology 2015 Abstract

This thesis is about the maximisation of electoral participation, and the ways in which the processes of institutional development impact upon this pursuit. It considers the interaction between electoral participation, electoral policy and the broader institutional context within which both are embedded. The core contention of this thesis is that development of electoral policy can only be explained with recourse to the influence and constraint exerted by the broader institutional structure, notably but not exclusively the partisan self-interest of those in control of the reform process. Further, this thesis argues that Australian electoral policy and the institutions of reform that produce it are failing to keep pace with the demands of contemporary electoral behaviour.

The thesis approaches these issues through a focus on three key facets of formal electoral participation – enrolment, turnout and formality. Through the analysis of contemporary trends in participation across these three facets, the thesis offers a broad illustration of the challenges facing Australian electoral democracy and the means by which they might best be addressed. Further, by examining the institutional structure within which participation occurs, with a particular focus on key policies and the processes that produced them, this thesis explains how the present situation has come to pass. In providing a detailed account of the institutional processes through which Australia’s electoral systems have developed, the thesis grants illumination to those with an interest in continuing to shape them into the future.

While Australia was once a world leader in democratic innovation, its electoral institutions have long since ossified, and now primarily reflect the interests of those who control their development and reform. Counter-productive policies are introduced and potential solutions resisted in pursuit of electoral gain. Yet those who drive reform do not act unconstrained. This thesis details the ways in which these processes may be disrupted by a vigilant public, willing to harness the authority of the Constitution, the judiciary and electoral administrators in the name of protecting and advancing democracy.

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Acknowledgements

A thesis is a strange beast, written alone yet with the indirect input of many. I am indebted to a wide range of people who have assisted me in various ways throughout my candidature.

To my supervisor Professor Brian Costar, for his advice, knowledge, bookshelf, and, when I packed up mid-candidature to go see the world, his patience.

To all involved at the Swinburne Institute for Social Research, particularly my fellow candidates, and to those in the broader University with whom I variously worked, studied and procrastinated, for making this a genuinely enjoyable way to spend half a decade.

To everyone who has been on the receiving end of an unsolicited email about an obscure point of electoral law or practice, and has taken the time to help.

To the many students I’ve taught over the past few years, who have provided a regular reminder that my work just might be of interest to more than a select few.

And, finally, to my partner Lauren, who has humoured me for five long years.

Thank you.

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Statement of Originality

This thesis is my own work and contains no material that has been submitted or accepted for any other degree, diploma or qualification in any university or equivalent institution.

It contains no material prepared or previously published by any other person, except where due acknowledgement has been made.

Where material contained in the thesis is based on joint research or publications, the appropriate disclosures have been made.

Rob Hoffman

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A Note on Terminology

Australia employs a number of electoral terms that differ from those used in other contexts. This thesis focuses on the Australian context, and makes extensive use of primary sources that employ Australian terms, and as such follows suit. They are explained in the text as they are introduced, but it is worth briefly considering them here.

Electoral enrolment is what is known elsewhere as voter registration.

Preferential voting carries a double meaning, referring both to all systems of preferential voting, and specifically to the local interpretation of the Alternative Vote, involving single- member-electorates and full, compulsory preferential voting. When contrasted with competing interpretations, this is more specifically termed compulsory preferential voting, with the traditional conception of AV being deemed optional preferential voting, and hybrid systems requiring a minimum number of preferences referred to as partial preferential voting.

Further, preferential voting brings its own terminology: the first-preference vote is the primary vote; the two-candidate-preferred vote is the final result following the elimination of all but two candidates within an electoral district; and the two-party-preferred vote is the result following the notional distribution of all votes to the two most successful parties or coalitions on a national or state-wide level.

Finally, formality (and its corollary, informality) refers to the requirements a completed ballot paper must adhere to in order to be admitted to the count.

Common Abbreviations

2CP Two-candidate-preferred vote 2PP Two-party-preferred vote AEC Australian Electoral Commission CPV Compulsory, full preferential voting JSCEM Joint Standing Committee on Electoral Matters JSCER Joint Select Committee on Electoral Reform OPV Optional preferential voting PPV Partial preferential voting PR Proportional Representation STV-PR Single Transferrable Vote Proportional Representation

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Tables and Figures

Unless otherwise noted, all tables and figures are the author’s own work. Electoral results are drawn from the various Commonwealth, State and Territory Electoral Commission websites1 and the University of Western Australia’s invaluable Australian Politics and Elections Database.2 Census data are drawn from the Australian Bureau of Statistics website.3 Opinion polling data are drawn from the Australian Election Study and Australian Candidate Study,4 and from Newspoll.5

List of Tables

4.1 Adoption of compulsory voting and parliamentary support 65 6.1 Support for Compulsion by Voting Intention 144 6.2 State Electoral Districts, 2005-2007 148 6.3 Variable definition 149

List of Figures

2.1 Range of feasible party behaviour 36 2.2 Types of electoral reform 39 3.1 Turnout and Labor vote share across State Assembly Elections (1910-1950) 66 4.1 Estimated enrolment rate, 1986-2009 79 4.2 Estimated enrolment rate, 2007-2014 80 4.3 Estimated enrolment rate by age, 2005 81 4.4 Coalition first preference vote, 1998-2013 82 4.5 ALP 2PP increase as a function of 18-24 year-old enrolment, 2010 83 6.1 Candidates’ support for compulsory voting, 1993-2004 143 6.2 Public support for compulsory voting, 1943-2004 143

1 http://www.aec.gov.au; http://www.elections.act.gov.au; http://www.elections.nsw.gov.au; http://www.ntec.nt.gov.au; http://www.ecq.qld.gov.au; http://www.ecsa.sa.gov.au; http://www.vec.vic.gov.au; http://www.elections.wa.gov.au. 2 http://elections.uwa.edu.au. 3 http://www.abs.gov.au. 4 http://aes.anu.edu.au. 5 http://www.newspoll.com.au. v

6.3 Model performance 150 6.4 Variable importance 150 6.5 Partial dependence 153 7.1 Sample Senate ballot paper 159 7.2 Total, accidental and intentional Informality, 2001-2010 165 7.3 Accidental informality against English Proficiency, 2010 166 7.4 Accidental informality against candidate count, 2010 167 7.5 Change in informality against change in nominations, 2010-2013 167 7.6 Informal vote, House of Representatives and Senate, 1972-2013 168 7.7 ALP first preference vote against total, accidental and intentional 171 informality, 2010 7.8 Change in Labor two-party-preferred vote and seat count by 172 percentage of Labor support in accidental informal vote 7.9 Primary vote as a percentage of two-party-preferred vote, 1946-2013 174 7.10 Three-cornered contests at Federal Elections, 1984-2013 174 7.11 Change in Labor two-party-preferred vote and seat count by rate 182 of preference exhaustion 7.12 Informality at Australian Capital Territory Elections, 1998-2012 189

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Table of Contents

Introduction 1

Chapter 1 The Problem of Participation 12

Chapter 2 Institutional Development 28

Chapter 3 Historical Context 47

Chapter 4 Electoral Enrolment 72

Chapter 5 Franchise Restriction and the Implied Right to Vote 97

Chapter 6 Compulsory Voting 128

Chapter 7 Preferences and Formality 156

Conclusion 192

References 196

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Introduction

This thesis is about the maximisation of electoral participation, and the ways in which the processes of institutional development impact upon this pursuit. It considers the interaction between electoral participation, electoral policy and the broader institutional context within which both are embedded. The core contention of this thesis is that development of electoral policy can only be explained with recourse to the influence and constraint exerted by the broader institutional structure, notably but not exclusively the partisan self-interest of those in control of the reform process. Further, this thesis argues that Australian electoral policy and the institutions of reform that produce it are failing to keep pace with the demands of contemporary electoral behaviour.

The purpose of this thesis is broad . Through an analysis of contemporary trends in electoral participation, it offers an examination of the challenges facing Australian electoral democracy, and the avenues by which they might be addressed. Further, the thesis explains how this situation has come about. Through an analysis of the institutional structure and its operation this thesis illustrates the institutional processes through which Australia’s electoral systems have been developed, granting illumination to those with an interest in continuing to shape them into the future. Through this combination, the thesis offers means to disrupt maladaptive policy in light of the history of pressure and constraint exerted upon the electoral reform process.

While the influence of constraining features, most notably that of partisan self-interest, is a well-established and unavoidable feature of any representative democracy, this thesis aims to provide the first thorough and complete account of how these constraints have played out with respect to electoral policy in the Australian context. Australia offers a fascinating opportunity for a broad case study into the development of electoral policy in a system which, with regard to participation, is approaching best practice, and yet remains one with significant limitations, as this thesis will detail. Such a study offers important insights both for those immediately concerned with Australian electoral processes, and for those looking to Australia as an inspiration – or indeed a cautionary tale – in pursuit of their own programs of reform. It is this void that this thesis intends to fill.

Further, by providing this thorough overview, the thesis also addresses some clear gaps in the prior research, contributing original research and analysis in hitherto underexplored areas. Most prominent are original insights in two areas, the limits of compulsion and the partisan impact of informality. First, in the discussion of the impact of compulsory voting in Chapter 6, the thesis presents a new analysis regarding the limits of compulsion with

1 respect to demographic groups who have previously been considered more likely to vote, but are also best equipped to address the costs of compulsion. This analysis challenges the accepted narrative regarding the efficacy of compulsory voting as a policy. Second, within the broad discussion regarding informal voting in Chapter 7, the thesis presents analysis regarding both the demographic influences on informality, and the impact of both informality and some common responses to it on partisan outcomes, supporting accepted understandings with new statistical evidence.

This thesis is built upon a particular conceptual framework. The central idea around which it revolves is that of electoral participation, in a particular form: the formal casting of votes in democratic elections by qualified electors. This intentionally excludes other facets of formal electoral participation and the electoral process more broadly. Of particular note are matters of extra-electoral political expression, the regulation of political finance and of candidates and parties more broadly, and the determination of electoral boundaries. While these are of undoubted importance to matters of participation, and indeed in some respects are fundamentally participatory, if only as a matter of scope their omission is a regrettable necessity – these areas demand theses of their own.6 In any case, formal electoral participation remains of central importance, as it is through this sole avenue that all voters may potentially express their will, regardless of resources.

Electoral Participation in Australia

Australia is notable in that it extends to its citizens both a right and a duty to vote. The right to vote derives from the requirement imposed by the Constitution of Australia that both the House of Representatives and the Senate be ‘chosen by the people’. Through a complex history of jurisprudence, these clauses have been interpreted as implying a number of requirements, chief among them that the capacity for the Australian people to vote cannot be restricted without ‘valid and sufficient reason’, in the pursuit of democratic ends. The duty to vote comes in the form of Australia’s long-established regime of electoral compulsion. Electoral participation in Australia involves three key stages – enrolment, turnout and formality – all of which are subject to some degree of compulsion. To comply

6 The regulation of political parties and political finance has seen significant academic attention in recent years, with the work of Graeme Orr and Joo-Cheong Tham providing thorough and definitive points of entry. See, for example, Orr 2010, The Law of Politics: Elections, Parties and Money in Australia, Annandale: Federation Press, and Tham 2010, Money and Politics: The Democracy We Can’t Afford, Sydney: UNSW Press. Electoral boundaries are perhaps less glamourous, but Jenny Newton-Farrelly provides an exhaustive analysis of the issue in the Australian context: Newton-Farrelly 2013, Fairness and Equality in Electoral Redistributions in Australia, PhD Dissertation, Swinburne University of Technology. 2

with their legal obligations, eligible individuals must enrol to vote, must turn out to vote, and must express a full sequence of preferences when voting.7

This thesis is primarily driven by concern over the rate of electoral participation in Australia. In light of the above this may sound odd, particularly given the widespread assumption that the problem was effectively solved by the introduction of compulsory enrolment in 1911 and compulsory voting in 1924. Ron Johnston and James Forrest exemplify this attitude in their discussion of electoral disproportionality under preferential voting, arguing that compulsory voting renders the consideration of abstention in Australia ‘redundant’.8 Indeed, the Australian electoral system has been presented as a ‘best-practice’ example in reform contexts, largely on the basis of its capacity for maximising participation.9

Consistently high levels of turnout at Federal Elections over the past three quarters of a century appear to support these positions. Voter turnout at Australian Federal Elections has averaged 94.9 per cent since 1925, and has never dropped below the 91.3 per cent recorded in that initial compulsory election. This strong trend has continued to the present day, with turnout for the House of Representatives reaching a high of 95.8 per cent in 1996 and averaging 94.4 per cent over the subsequent five elections.10

However, issues remain. The 2010 Australian Federal Election returned a rate of 93.22 per cent, the lowest since 1955, when the election was overshadowed by the Australian Labor Party splitting over the issue of Communism.11 The 2013 Australian Federal Election was a repeat performance, with a turnout rate of 93.23 per cent. State and Territory election turnout has exhibited similar trends, and at consistently lower levels. Over the past three decades, turnout peaked before the turn of the century across all State and Commonwealth jurisdictions bar the Australian Capital Territory, with an average decline since those highs of three percentage points.

Turnout cannot however be considered in a vacuum. It must be judged for what it is, just one of the three important facets of formal electoral participation, alongside enrolment and vote formality—the casting of ballots in strict accordance with Australia’s various

7 Whether this last requirement is a legal duty, or simply necessary for a ballot to be admitted to count, is unclear. This issue is discussed at length in Chapter 7. 8 Johnston and Forrest 2009, ‘Electoral Disproportionality and Bias under the Alternative Vote.’, Australian Journal of Political Science (44:3), 525. 9 See, for example, Hill 2004, ‘Compulsory Voting in Australia: A Basis for a ‘Best Practice’ Regime’, Federal Law Review (32:3), 379-497. Hill makes no claims as to perfection, but does present a particularly favourable view of the Australian system. 10 Unless otherwise indicated, turnout and formality figures throughout this thesis are for the lower house elected at the relevant Federal or State election. 11 Costar, Love and Strangio (eds.) 2005, The Great Labor Schism: A Retrospective, Scribe: Melbourne. 3

implementations of alternative or preferential voting.12 These measures are also in decline. The 2010 election saw informality increase by 1.60 percentage points to 5.55 per cent, at the time second-only to that observed in 1984.13 Again, this result was reinforced in 2013, with informality rising to 5.91 per cent. Likewise, some 1.5 million eligible Australians were estimated to be absent from the federal electoral roll in 2010, against a total enrolment of 14.09 million, with as many as half of them never having been present.14

Taken in concert, these figures—90.38 per cent enrolment, 93.22 per cent turnout and 94.45 per cent formality—indicate that at the time of the 2010 Australian Federal Election, one in five Australians were not formally participating in the electoral process. Were this abstention uniform it would not necessarily be of significant concern, beyond the issue of individuals shirking their legal obligation to participate. However, participation is unequally distributed across demographics, exerting a significant partisan bias, with a consequent impact on policy. Enrolment rates are disproportionately lower among the young, while informality rates are disproportionately higher among those from non-English-speaking backgrounds – two demographics that lean distinctly to one side of politics, and are in a position to benefit from policy were they to participate. This partisan impact would be further reinforced by patterns of turnout, were compulsion to be relaxed.

While demographics influence participation, electoral policy plays a vital role in reinforcing – or mitigating – this impact. Such is the case in Australia, with key policies, particularly regarding compulsion, central to any understanding of participation rates. Understanding where these policies derive from however requires consideration of a far broader context – the institutional structure surrounding the electoral apparatus.

Australian Electoral Institutions

A clear understanding of the Australian institutional context is essential to any understanding of policy outcomes and the processes that produce them. The Australian institutional context is relatively complex, with a number of key institutions playing important roles in electoral policy development.

Central to any understanding of policy outcomes is clear consideration of the intentions of those responsible for the development and introduction of policy. In Australia, as is the

12 Farrell and McAllister 2006, The Australian Electoral System: Origins, Variations and Consequences, Sydney: UNSW Press, 52-57. 13 The 6.39 per cent informality rate exhibited in 1984 is attributable to the introduction of above-the-line voting for the Senate. This episode is discussed at length in Chapter 7. 14 Australian National Audit Office 2010, The Australian Electoral Commission's Preparation for and Conduct of the 2007 Federal General Election, Audit Report, No.28 2009–10, Canberra: Australian National Audit Office, 74-89. 4

democratic norm, these policy levers are under the purview of elected politicians – self- interested partisan actors with clear and rational motivations for the pursuit of particular policy ends. Analysing the partisan impact of any policy – be it extant or proposed – is thus essential for understanding how the status quo has eventuated, why it persists, and how it is likely to evolve into the future.

Primarily, electoral policy is developed through the Commonwealth Parliament, through two vehicles – the Special Minister of State and their supporting department, responsible for the policy portfolio, and the Joint Standing Committee on Electoral Matters (JSCEM), responsible for scrutiny of the broader field.15 JSCEM conducts a regular review into the conduct of the previous Federal Election, scrutinising the performance of the electoral system and recommending reforms as necessary (or desired). Further, JSCEM scrutinises proposed legislation, and holds occasional inquiries into matters of particular topical interest. While a multi-party committee, JSCEM has been controlled by the party holding government since its inception, and as such tends to reflect the position of the government, often to the chagrin of its minority members. Thus, JSCEM’s majority and minority reports, and the proceedings of its inquiries, provide a revealing insight into the positions and workings of Australia’s political parties.

Governments cannot however act unconstrained. They are naturally restricted by other parties, though the collective interests of the Parliament as an institution and parliamentary parties as a collective often prevail. However, beyond the Parliament, governments must contend with a number of other interested parties: the judiciary, electoral administrators and the broader public. The High Court of Australia, acting as the arbiter of the constitutionality of legislation, exerts a powerful influence over electoral policy, most notably so in establishing the existence of the implied right to vote. This right may only be constrained with ‘valid and sufficient reason’ in pursuit of democratic ends, and as such acts to constrain the capacity for electoral policy to restrict participation.

Also exerting constraint, yet in a qualitatively different manner, are Australia’s electoral administrators.16 While operating as statutorily-independent, non-partisan custodians and implementers of the electoral system, administrators are also charged with a number of specific responsibilities, key among them in this context the maximisation of electoral

15 JSCEM’s roots can be traced to the Joint Select Committee on Electoral Reform (JSCER), established by the Hawke Labor government in 1983 to advise on a process of extensive electoral reform. JSCER itself advised that such a committee be made permanent, recommending ‘that the next and succeeding Parliaments appoint a joint Standing Committee to inquire into and report on all aspects of the conduct of elections for the Parliament of the Commonwealth and matters related thereto.’ Joint Standing Committee on Electoral Reform 1986, The Operation During the 1984 General Election of the 1983/84 Amendments to Commonwealth Electoral Legislation, Canberra: Parliament of the Commonwealth of Australia, xiii. 16 For a discussion of the role played by Australia’s electoral administrators, see Tham 2013, ‘Deliberative democracy and electoral management bodies: The case of Australian Electoral Commissions’, Election Law Journal (34:2). 5

participation and the minimisation of electoral fraud. Such imperatives naturally carry with them partisan impact, and so non-partisan administrators may find their duties aligning with or against the partisan interests of political parties.

Australia’s political parties operate in an electoral environment that, for all its faults, remains fundamentally democratic. They are responsible to, and hence to some degree responsive to the voting public. Any legislation must pay some respects to public sentiment, lest it push the bounds of democratic legitimacy to the point that a party risks electoral damage. The interaction between these actors – governments, other parliamentary players, the judiciary, electoral administrators and the public – goes much of the way to explaining policy outcomes.

Further, as a Federation, Australia features multiple layers of government, each with their own parliaments, constitutions, electoral systems, legislation and administrators, and corresponding institutional interests. The very nature of this federalism – the capacity for innovation and inspiration, as well as tension between differing systems across jurisdictions – is a significant contributor to the present situation at all levels of Australian electoral practice.

Beyond the realities of people, parties and institutional structures, two other broad features of institutional development must be taken into account. The first concerns the past. Electoral systems do not congeal out of a vacuum. They develop over time, reflecting the input of varied individuals and inspirations, and this history exerts significant influence over both present states of affairs and options for future reform. Indeed, much of Australian electoral practice is an inheritance from a bygone era, reflecting fortuitous developments in a vastly different institutional context. The history of compulsion in Australian electoral participation reflects this, being introduced in the early stages of Australia’s electoral development without particular debate, yet becoming over time one of the key pillars of Australia’s electoral democracy, both defining the present system and limiting its capacity to evolve.

The second concerns the future. Outcomes are not perfectly predictable. Policies may not function as intended, as has been the case with the Senate’s voting system. Partisan considerations may evolve over time, as with the impact of preferential voting. Further, seemingly small changes may have broad-ranging consequences, as was the case with a minor restriction on prisoners’ voting rights triggering a vast upheaval of the very idea of what the franchise meant in Australia. The capacity for situations to evolve in unexpected ways is vital for understanding and explaining the state of Australia’s electoral democracy.

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Approach and Structure

The centrality of these issues is reflected in the approach of this thesis. The primary concern is the maximisation of formal electoral participation. Participation therefore is the core thread around which this thesis is constructed, with due attention given in turn to each facet of participation. The role of institutional structure is interwoven throughout, as a means of explaining the history, present context and future prospects for electoral policy across each facet. From this, the thesis aims to draw conclusions as to the necessity of and prospects for reforms, and the means by which they may best be achieved, with particular reference to contemporary proposals. The thesis is not however intended as a mechanism for the advocacy of any particular partisan position or any specific reform. Indeed, the thesis endeavours to treat these proposals every bit as critically as the processes that have driven or stifled their development.

Without adopting a previously-defined methodological approach wholesale, this thesis builds upon the breadth of extant literature within two main fields, appropriate to its mixed analysis of electoral behaviour and institutional development. With regard to behaviour, the thesis builds upon the rich body of literature within the field of public choice theory, considering electoral participation an issue primarily of the costs and benefits stemming from an individual’s relationship with the surrounding institutional structure. With regard to institutions, the thesis draws upon the broad field of behavioural ‘new institutionalism’, considering institutions and institutional development within a context that emphasises both the motivations of individuals exerting control over the development of institutions, and the constraints inherent in the institutions themselves. Thus, the thesis continues in the tradition of those who have sought to combine institutionalist and behaviourist approaches to political science, emphasising the importance of both structure and agency, through the analysis of both the motivations and decisions of individual actors, as well as the constraining influences of surrounding institutional structures.

The structure of the thesis reflects these intentions. The early chapters establish a solid theoretical and historical grounding for the thesis, establishing a platform on which detailed analysis of the contemporary electoral context may occur. These chapters do not however serve as a discrete literature review. Rather, literature is progressively introduced through the thesis on a thematic basis, particularly with regard to contemporary policy and behavioural trends, as the broader argument develops.

Chapters 1 and 2 establish the theoretical basis for the thesis, covering the core areas of participation and institutional development. Chapter 1 focuses on the importance of electoral participation in both theory and practice. It provides a discussion of the rationale behind maximising participation, a brief examination of contemporary Australian trends in

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electoral participation, an overview of research regarding influences on participation, and a discussion of the applicability of this material in the Australian context. The chapter then considers the issue of compulsion, summarising the relevant academic debates. Chapter 2 is concerned with processes of institutional development. The chapter lays out the key influences over the reform process – the self-interest of actors with the capacity to influence policy, the constraining power of the surrounding institutional structure, and the role of accident and the unexpected. Finally, the chapter provides a brief consideration of the Australian institutional structure, and the applicability of these ideas in this context.

This thesis is concerned primarily with the modern context: the challenges facing Australia’s electoral democracy today, the history of electoral reform over the past two to three decades, and its prospects for the future. Yet, for the present to be understood, it is essential that the historical context be sufficiently explored. To this end, Chapter 3 provides an overview of the historical development of Australia’s electoral systems. It begins in the pre-Federation, Colonial era, and continues through to the beginning of the modern policy era in the 1980s. This chapter demonstrates both how the principles of institutional development have applied throughout Australia’s electoral history, but also how early developments have exerted constraint on later reform proposals. Through doing so, this chapter provides necessary context for the following chapters, while also reinforcing the position of the thesis as a whole.

The thesis then proceeds thematically, considering the interaction of theory with contemporary Australian practice across the three facets of formal electoral participation – enrolment, turnout and formality. The following chapters, forming the analytical heart of the thesis, focus heavily on the recent history of electoral reform, drawing extensively on the present electoral legislation, the proceedings and reports of the Joint Standing Committee on Electoral Matters, and analysis of voter behaviour in Australian elections.

Chapters 4 and 5 cover enrolment and the franchise, with two chapters dedicated to the area due to its foundational importance. Chapter 4 provides an overview of the legal context of enrolment, before focusing on trends in enrolment and their partisan impact. Following this, the chapter discusses the contemporary response to these trends, Direct Enrolment, and the partisan debates that have flared over it. Chapter 5 takes a contrasting position, examining historical attempts at franchise restriction, before discussing the unexpected Constitutional consequences such attempts have triggered. Taken together, these chapters demonstrate the influence partisan interests can exert over policy, the constraint the surrounding institutional structure places on partisan actors, and the power of the unexpected to turn out surprise outcomes.

Chapter 6 focuses on turnout, with specific recourse to the institution of compulsory voting. Following an overview of the legal context and an analysis of the partisan impact of

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compulsion, the chapter focuses on attitudes towards participation. While party attitudes reflect partisan interests, it is the broad public support for compulsion that is of particular interest, serving as it has to constrain opponents of compulsion. Finally, the chapter presents new analysis regarding the limits of compulsion, questioning accepted wisdom as to its efficacy. Chapter 7 considers preferential voting, and particularly its corollary, vote informality. The chapter opens with an overview of the legal context within which preferential voting operates, including an analysis of the unsettled legality of informality. The partisan impact of informality and preferential voting more broadly is then revealed, and employed to shed light on shifting partisan attitudes to the two dominant responses to informality – ticket voting and optional preferential voting – while also considering the practical constraints on both these and electronic voting as solutions to informality. Finally, a brief Conclusion considers what lessons may be drawn from the thesis.

The thesis draws on a range of source material. Statistical data are employed through the census to illustrate trends in participation. Demographic data are primarily drawn from the ABS Census, while electoral and enrolment data are drawn from Australia’s Commonwealth and State Electoral Commissions and the University of Western Australia’s Australian Politics and Election Database. Also relied upon on a number of occasions are public opinion polls on issues of policy and party support, drawn primarily from the Australian Electoral Study and from Newspoll.17 Prior academic work is employed extensively in establishing the theoretical grounding, in the fields of participation and institutional development, as well as with regard to trends in participation, the early development of Australia’s electoral systems, and where appropriate throughout the remainder of the thesis.

A range of primary sources are employed for the analysis of the institutional context in which both electoral participation and electoral reform occur. Historical and contemporary electoral legislation – both enacted and merely proposed – is relied upon heavily to establish clear legal contexts upon which further analysis can develop. Also essential in this respect is the history of jurisprudence, particularly by the High Court of Australia, regarding the interaction between the Constitution and electoral legislation. Proceedings and judgements of the courts are thus referenced extensively. The operation of Australia’s parties and parliaments is chiefly scrutinised through the analysis of the proceedings and reports issued by Australia’s electoral matters committees, as well as the parliamentary

17 A note on electoral and polling statistics: reflecting Australia’s preferential systems of voting, party support can be represented in two ways: as a first-preference or two-party-preferred figure. The first-preference or primary vote reflects that proportion of the electorate who have allocated their first preference (or have indicated their intention to do so) to a particular candidate or party. The two-party-preferred or two- candidate-preferred vote represents the end result of a preference distribution, with the preferences of all but the final two candidates progressively distributed as they are eliminated. A further variant, the notional two- party-preferred vote, illustrates the level of support for two particular parties or candidates, even when they are not the final two remaining in the count. This is particularly employed when electoral contests involve a final-two candidate who does not represent one of the two major political parties. Both measures are employed through this thesis, with the choice depending on the particular context. 9

debates regarding the ensuing legislation, which also reflect the influence of external actors through submissions and other contributions. Also relied upon are contemporary media reports, particularly when they feature direct quotes from political figures regarding policy proposals or debates. As well as providing a thorough historical overview of the processes of electoral policy development across a range of key policy issues, these sources provide a window into the professed positions of those in control of the electoral reform process, at the height of the partisan debate.

One obvious limitation of the thesis is its reliance on documentary sources and data, rather than original interviews with key participants in the processes it examines. To some degree this is an issue of scope, given the significant weight of statistical data, prior research and documentary sources already drawn upon. Further, the centrality of partisan self-interest is well-established, with the thesis intent more on demonstrating this through analysis of policy structure, development processes and electoral outcomes, rather than through the positions of actors. However, it is recognised that these positions are also of interest, and as such this decision is also a matter of priority. By providing a thorough account of institutional processes and outcomes, the thesis provides grounds for future work that questions key figures in light of the findings detailed herein.

Findings

This thesis establishes a clear pattern of institutional development. When granted the capacity to act, electoral administrators have proven themselves capable of radical institutional development, as have partisan actors when forced to react in moments of political crisis. However, as a general rule electoral reform occurs in a heavily-constrained environment. Reform options are limited from a number of directions – the demands of constitutionality and public legitimacy, the power of path dependency in restricting viable options, the role of unpredictability and accident as circumstances change and policies produce unexpected outcomes, and the role electoral administrators play in the implementation of policies. Further, the parallel systems demanded by the Australian Federation add a greater degree of confusion and constraint as differing institutions work at cross purposes.

Partisan self-interest nonetheless tends to prevail, with policy almost invariably reflecting the immediate institutional and electoral interests of those in control of the levers of reform, and parties’ policy positions clearly shifting in accord with evolving partisan interests. The sum of these findings depicts an electoral reform process unable or unwilling to meet the demands of contemporary electoral behaviour, with obvious policy proposals resisted for partisan reasons, counter-productive measures pursued, and a broader policy debate restricted by the weight of history.

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However, the thesis also illustrates means to disrupt that process. The implied right to vote enshrined in the Constitution allows a vigilant public to employ the judiciary to safeguard their rights and combat policies that would stifle participation. As Graeme Orr has noted, this is however merely a shield, not a sword, and cannot be expected to drive improvements to the electoral system.18 Rather, for the system to further develop, advocates for reform must learn to understand, embrace and exploit the partisan interests of those in control of the reform process. Further, the power of path dependence can be harnessed to help entrench reform, while the unpredictable, ever-evolving nature of electoral politics lessens the partisan impact of such collaboration, and Federalism provides multiple points of entry for reform. As this thesis illustrates, a clear appreciation of these concepts provides the best means to address the challenges facing Australian electoral democracy and achieve real, lasting change.

18 Orr 2011, ‘The Voting Rights Ratchet: Rowe v Electoral Commissioner’, Public Law Review (22:2), 89. 11

Chapter 1 – The Problem of Participation

It is clear from the evidence that the trend is for increasing numbers of otherwise eligible electors to remain outside the electoral system.

Ed Killesteyn, 201319

Understanding electoral participation is a central problem for political science. As mechanisms for the achievement of broad public consensus, democratic systems assume a high level of popular participation. However, much of the nuance of that participation remains in dispute, presenting both academics and electoral practitioners with a multi- faceted problem. Arguments over participation cover a number of key areas – justification of participation itself, explanations of observed patterns of participation, and particularly in the Australian context, debates over the validity of compulsion in participation.

This chapter serves as an introduction to the area, demonstrating the importance of the issue, and laying out the problems facing Australian electoral democracy with regard to its pursuit. The chapter provides an overview of the current state of research regarding electoral participation. Following a brief discussion of the moral and pragmatic bases on which the pursuit of participation is grounded, the chapter provides an overview of the broad body of research regarding the main influences on electoral participation in established democracies, highlighting the importance both of socio-economic and communitarian factors in driving participation. The applicability – and application – of this theory to the Australian context is then considered. The focus then shifts to the integral issue of compulsion in electoral participation. The chapter provides a summary of the academic arguments in favour of and in opposition to policies of compulsion.

Through this overview of the central issues of participation, this chapter defines the context within which the thesis is situated. In explaining why electoral participation is of central importance, and how electoral policy influences it, this chapter establishes a solid theoretical grounding and serves to illuminate the practical issues that dominate the thesis.

19 McGrath 2013, ‘Statistics show 25 per cent of young people failed to enrol to vote in September election’, ABC News, 21 August 2013. 12

Why Participation Matters

The idea of electoral participation is central to this thesis, and the problem of maximising participation is its primary focus. The case for participation is, to a degree, the case for democracy. This thesis does not intend to delve too deeply into philosophical arguments as to the validity of democratic systems. Rather, democracy is accepted as a good, if only as the least-worst of potential models for society. And indeed, as democratic systems rely on popular participation for both efficacy and legitimacy, participation is essential. In his Considerations on Representative Government, John Stuart Mill argued that popular participation in the state was integral to the operation of a fair and functional society:

[I]t is evident, that the only government which can fully satisfy all the exigencies of the social state, is one in which the whole people participate; that any participation, even in the smallest public function, is useful; that the participation should everywhere be as great as the general degree of improvement of the community will allow; and that nothing less can be ultimately desirable, than the admission of all to a share in the sovereign power of the state.20

But a mere capacity for participation is not enough. Political actors are as subject to rationality as the rest of us, and vote-seeking is very real. Consequently, where vote-seeking is an active imperative, political actors can be expected to cater to those who vote. Mill recognised this, arguing that:

We need not suppose that when power resides in an exclusive class, that class will knowingly and deliberately sacrifice the other classes to themselves: it suffices that, in the absence of its natural defenders, the interest of the excluded is always in danger of being overlooked: and, when looked at, is seen with very different eyes from those of the persons whom it directly concerns.21

And, more explicitly:

[T]he rights and interests of every or any person are only secure from being disregarded, when the person interested is himself able, and habitually disposed, to stand up for them.22

Mill’s argument holds to this day, and is an enduring theme in the literature on electoral participation. Half a century ago, v O. Key remarked in his classic study of politics in the

20 Mill 1861, ‘Considerations on Representative Government’, in Mill 1991 [1861], On Liberty and Other Essays, Oxford World’s Classics: Oxford, 256. 21 Ibid., 246. 22 Ibid., 245. 13

American South that ‘the blunt truth is that politicians and officials are under no compulsion to pay much heed to classes and groups of citizens that do not vote’.23 Towards the end of the twentieth century, Walter Dean Burnham remarked brusquely that ‘if you don’t vote, you don’t count’,24 while Martin Wattenburg framed it as an issue of simple rationality on the part of politicians in his reflection on the current plight of young non-voters:

Politicians are not fools; they know who their customers are. Why should they worry about young non-voters any more than the makers of denture cream worry about people with healthy teeth?25

These sentiments are reflected in research, with differing rates and patterns of participation displaying clearly identifiable consequences.26 High levels of participation have been observed to correlate with higher levels of welfare spending, with Alexander Hicks and Duane Swank for example finding a clear relationship between the two in their analysis of eighteen capitalist democracies.27 The explanation for this relationship lies in patterns of non-participation. Prompted by declining participation rates among lower-class American voters, Kim Quaile Hill and Jan Leighley investigated the link between lower participation among members of a particular segment of society, and the implementation of policies beneficial to that segment. 28 Analysing state-level politics in the United States, they found a clear relationship between class bias in participation and the generosity or otherwise of social welfare policies.

In a wide-ranging study on the impact of unequal participation on policy outcomes in the United States, William Franko delved further into the issue and made a number of interesting observations.29 Where many previous studies, such as that of Hill and Leighley, had focused on a particular facet of policy – namely monetary welfare programs – Franko considered the broad range of class-focused policy, including housing, education, healthcare, taxation and even electoral law. He found support for the previously-identified trend across all facets of policy. Further, he demonstrated that inequality in participation impacts not only the policy introduced, but even that merely considered by legislators. This research demonstrates the power of unequal participation as an ‘agenda-setting’ influence,

23 Key 1949, Southern Politics in State and Nation, New York: Knopf, 527. 24 Burnham 1987, ‘The Turnout Problem’, 99, in Richly (ed.) 1987, Elections American Style, Washington: Brookings Institution. 25 Wattenburg 1998, Turnout Decline in the U.S. and other Advanced Industrial Democracies, CSD Working Papers Series, Irvine: Center for the Study of Democracy, 14. 26 For a thorough, if older review of the issue of unequal participation, see Lijphart 1997, ‘Unequal Participation: Democracy’s Unresolved Dilemma’, American Political Science Review (91:1). 27 Hicks and Swank 1992, ‘Politics, Institutions, and Welfare Spending in Industrialized Democracies, 1960-82’, American Political Science Review (86:3). 28 Hill and Leighley 1992, ‘The Policy Consequences of Class Bias in State Electorates’, American Journal of Political Science (36:2). 29 Franko 2012, The policy consequences of unequal participation, PhD dissertation, University of Iowa. 14 narrowing the bounds of debate to those policies which benefit active participants in the electoral process.

Anthony Fowler offered further evidence to this end. 30 In his analysis of the introduction of compulsory voting in early 20th century Australia, he demonstrates a clear relationship between patterns of turnout and policy outcomes. While the historical Australian context is something of a special case, Fowler is right to note that this is of benefit to its explanatory power, as it offers an example of a marked increase in turnout encompassing the broader population, as opposed to the marginal cases often studied elsewhere.31 Turnout prior to the introduction of compulsion was heavily biased towards property-owning voters, with some 66 per cent of eligible property-owners turning out to vote as opposed to only 18 per cent of eligible non-owners. The introduction of compulsion quickly rectified this disparity, increasing turnout to 91 per cent,32 with a clear impact on partisan outcomes: the Australian Labor Party increased its vote and seat shares by 9 and 7 per cent respectively, sufficient to bring it to power in a number of jurisdictions.

Changes in policy soon followed. Through a comparative analysis at the international level, Fowler demonstrated that the introduction of compulsion brought with it a more than 40 per cent increase in Australian pension spending.33 Nor was this merely a result of Labor assuming control of government. Rather, marked policy shifts were observed across the political spectrum, as the non-Labor parties adjusted to the broadening of the active electorate. As Fowler explained:

The majority party’s platform changed dramatically after the adoption of compulsory voting for Federal Elections in 1924. In the 1922 election the Nationalist Party maintained power, announcing a conservative domestic policy: ‘‘First and foremost, we are against class legislation and class government’’ (Hughes, 1922). In 1925, the first election under compulsory voting, the Nationalist Party maintained power but shifted dramatically on these issues: ‘‘It has to be recognized that even under the conditions existing in Australia, the wages of our workers are not sufficient to enable them to safeguard against these evils [sickness, unemployment, and old-age]’’ (Bruce, 1925). In just a three-year span, the majority party made a clear turn toward progressive domestic policies, and the introduction of more working-class voters into the electorate and increased presence of the Labor Party may have provided impetus for such a change.34

30 Fowler 2013, ‘Electoral and Policy Consequences of Voter Turnout: Evidence from Compulsory Voting in Australia’, Quarterly Journal of Political Science (8:2). 31 Ibid., 161. 32 Ibid., 172. Fowler does however repeat the common mistake of focusing primarily on turnout, at the expense of enrolment and formality. 33 Ibid., 177. 34 Ibid., 174. 15

While he notes the possibility of this being mere coincidence, or related through some more tangential means, Fowler considered the weight of historical and statistical evidence sufficient to draw a clear thread through compulsion, significant increases in turnout, the electoral rise of the Australian Labor Party, and a clear shift in policy outcomes.35 As Fowler notes, the lesson is clear:

When near-universal turnout was achieved, elections and policy shifted in favor of the working-class citizens who had previously failed to participate. While Australia has largely resolved the problem, inequalities in voter turnout remain in most advanced democracies. Increased turnout has tangible effects on partisan election results and public policies, and those effects will benefit the disadvantaged subset of citizens who otherwise would have abstained from the political process.36

However, while these studies have demonstrated the undoubted importance of participation, what the process specifically entails is open to interpretation, and simply voting is not necessarily sufficient. As Ian McAllister noted, democratic systems rely for their success on a degree of awareness among voters:

One of the most important requirements for the functioning of representative democracy is the existence of informed and knowledgeable citizens. It is normally considered a pre-requisite to voting in a democracy that citizens have some basic information about how the system operates.37

This is not merely important for some abstract notion of democracy, or even as what Mill might consider some indication of moral fibre. At a basic level of interest-protection, a degree of awareness is required to ensure the votes of individuals will indeed go to those candidates or parties who will further their interests in the political sphere.

Influences on Participation

Given the demonstrated importance of electoral participation at both a personal and societal level, the necessity of individual involvement is clear. Further, voluntary, informed participation is the ideal, and there is a significant weight of theory written on just what drives this sort of electoral involvement. For the purposes of this chapter, and indeed the broader thesis, the focus is restricted to the rich public choice stream of literature. Public choice theory, as applied to electoral participation, argues that individuals weigh up the

35 Ibid., 177-178. 36 Ibid., 180. 37 McAllister 2011, The Australian Voter: 50 Years of Change, Sydney: UNSW Press, 56. 16 relative costs inherent in and benefits deriving from electoral participation, and the respective probabilities of incurring or receiving them, in what Costas Panagopoulos called the ‘calculus of voting’.38 While this predominantly refers to material interests, it can also cover more holistic aspects such as altruistic voting or obedience to authority that are not dependent on the election outcome. In one of its simpler forms, this calculus is represented as R = pB - C + D, where B represents the benefits of decisively influencing the election result, p the probability of this occurring, and C and D the respective costs and benefits of participation, regardless of the result. Accordingly, if R is positive, a rational actor is expected to participate. These costs and benefits can be broken down under two broad, complementary theoretical umbrellas.

The Resources Model of Participation holds that participation incurs a number of resource costs.39 These are the time, material resources and cognitive abilities required by voters in order to educate themselves about their political system, candidates and issues, and to enrol, turn out and vote. Accordingly, individuals with higher levels of socioeconomic status – through education, employment and income – can be expected to be more likely to be capable of addressing these costs, and therefore to exhibit correspondingly higher levels of electoral participation. It has been further suggested that rather than being a linear function of income, the effect of economic status on electoral participation is better understood as a binary difference between those who live in poverty and those who do not, with those individuals disadvantaged economically being significantly less likely to vote.40 This is perhaps common sense, as the economic barriers to electoral participation should be relatively easily surmountable in industrialised liberal democracies.

Balanced against these costs, the benefits of participation include any material gains brought by the success of a voter’s chosen candidate, as well as the broader applicability of knowledge gained in the process of participation. However, this is a simplistic approach and does not stand up to scrutiny. As has been long-observed, the odds of any one particular individual casting the decisive vote in an election involving, at the local level tens or hundreds of thousands, are simply so low that the benefits simply cannot match the costs, seemingly rendering participation counterproductive.41 Understandably, this conundrum has attracted significant attention from political scientists. As Keith Dowding puts it, ‘most of us vote, and those of us who are political scientists may have a special interest in this not being irrational.’42

38 Panagopoulos 2008, ‘The Calculus of Voting in Compulsory Voting Systems’, Political Behavior (30). 39 Verba and Nie 1972, Participation in America: Political Democracy and Social Inequality, Chicago: University of Chicago Press, 13-15. 40 Wolfinger and Rosenstone 1980, Who Votes?, New Haven: Yale University Press, 25-26. 41 Dowding 2005, ‘Is it Rational to Vote? Five Types of Answer and a Suggestion’, British Journal of Politics & International Relations (7:3). 42 Ibid., 455 fn. 8. 17

One explanation lies in resource costs carried by nonparticipation. In the Australian context this most obviously comes in the form of the regime of compulsory electoral participation, of which more in the following section. However, as international elections demonstrate, in the absence of compulsion substantial levels of turnout are still observed. A complementary explanation lies in the Communitarian Model of Participation.43 This theory argues that participation is motivated by two complementary pressures, those of community identification and community cohesion. According to the principle of community identification, the value inherent in cooperative social relationships, sustained over time as community interaction and interdependence, develops in individuals a level of identification with and rational self-interest in the ongoing structure and wellbeing of their immediate communities. As Geraint Parry and George Moyser put it, ‘concern for one’s community’ becomes ‘the motive, or the justification, for taking part in politics’.44 The principle of community cohesion operates in a similar manner. As well as providing personal incentives to participate, Donald Munroe Eagles and Stephen Erfles argued that group pressures arise within these same communities, developing the idea of electoral participation as a ‘civic duty’.45 These effects may extend beyond the confines of local communities and include broader norms such as national laws, which could explain the small but immediate increase in participation observed when compulsory participation laws are introduced even without associated enforcement or sanction.46

This effect of social capital overlaps with that of the costs and benefits of electoral participation most prominently in the area of population stability. Based as it is on established community networks, the development of social capital is fundamentally dependent on stability of population. The effect expressive and instrumental ties within the neighbourhood have in developing social capital and fostering a sense of community between individuals has been noted,47 as has the relationship between the length of an individual’s tenure in a neighbourhood and the quantity and strength of these ties.48 Similarly, a greater reported sense of community connectedness has been observed in areas with higher population stability.49

43 Parry and Moyser 1984, ‘Political Participation in Britain: A Research Agenda for a New Study’, Government and Opposition (19:1); Eagles and Erfle 1989, ‘Community Cohesion and Voter Turnout in English Parliamentary Constituencies’, British Journal of Political Science (19:1). 44 Parry and Moyser 1984, Op. Cit., 80. 45 Eagles and Erfles 1989, Op. Cit., 116 46 International Institute for Democracy and Electoral Assistance 2002, Voter Turnout Since 1945: A Global Report, Stockholm: International Idea, 110. 47 Bridge 2002, The Neighbourhood and Social Networks, Glasgow: ESRC Centre for Neighbourhood Research, 6-7. 48 Bridge, Forrest and Holland 2004, Neighbouring: A Review of the Evidence, Glasgow: ESRC Centre for Neighbourhood Research 49 Forrest, La Grange and Ngai-ming 2002, Neighbourhood in a High Rise, High Density City: Some Observations on Contemporary Hong Kong, Glasgow: ESRC Centre for Neighbourhood Research 18

As James Coleman argued, ‘individual mobility constitutes a potential action that will be destructive of the structure itself – and thus of the social capital dependent on it’.50 This is a multifaceted effect. In discussing the impact of migration on social networks, Venetia Evergeti and Elisabetta Zontini suggested that the act of migration erodes social capital not only for migrants, but for the communities they both join and leave behind.51 Even after the act of migration, recent migrants remain dependent on networks of solidarity and trust extending beyond the local community, potentially slowing their integration and the strengthening of social cohesion within the local area, while the social networks of those now in their immediate proximity suffer, albeit temporarily, until new relationships can be established. In situations of temporary or transitional migration, such as that undertaken by international students residing in Australia only for the duration of their studies, this creates a potent multiplier effect.

It is to be expected that length of tenure will increase proportionally with age, as will cumulative exposure to and familiarisation with the political system and this is born out in the findings that population age is among the strongest predictors of electoral participation.52 However, another facet of age is of special import. The semi-permanent presence of families has a significant influence on the development of a socially cohesive community, as children play a vital role as what Hugh Mackay called a ‘social lubricant’, facilitating population interaction and the establishment of social networks among adults through the participation of their children in schools, sports clubs and other community organisations.53

On a more practical level, population stability is also instrumental in terms of the costs and benefits of electoral participation. In the first instance, moving residence requires an individual to update their electoral enrolment. Research has repeatedly indicated that this is the single most significant barrier to participation among mobile electors.54 Further, Benny Geys noted that sustained residency breeds a familiarity with local issues and candidates – and presumably with local polling locations and procedures, lessening the costs of engagement in the electoral process, while lower outmigration reduces the effect of voters neglecting to participate in local elections that will not affect them once they have moved

50 Coleman 1990, Foundations of Social Theory, Cambridge, MA: Harvard University Press, 320. 51 Evergeti and Zontini 2006, ‘Introduction: Some critical reflections on social capital, migration and transnational families’, Ethnic and Racial Studies (29:6), 1030-1032. 52 Sigelman, Roeder, Jewell and Baer 1985, ‘Voting and nonvoting: A multi-election perspective’, American Journal of Political Science (29:4), 759-761. 53 Mackay 2009, ‘Real communities’, Griffith Review (24), 42-43. 54 Squire, Wolfinger and Glass 1987, ‘Residential Mobility and Voter Turnout’, American Political Science Review (81:1), 51-57; Highton 2000, ‘Residential Mobility, Community Mobility, and Electoral Participation’, Political Behavior (22:2), 116-17. 19

on.55 This last influence is however significantly decreased when the departees exhibit high levels of social capital.56

Compounding this, a new shift in urban form is occurring in Australia, with redevelopment of the inner suburbs of major cities focusing on high-density vertical expansion, in an attempt to limit urban sprawl. This ‘compact city’ is a relatively new phenomenon in Australian society, and despite rapid rates of growth – a fourfold increase in population is projected for some areas over the coming decades57 – high density apartment living is still seen as a temporary or transitional housing option, used by young adults in the period between leaving home and starting their own families, or by visiting tourists, business travellers and international students.58 The social and geographic mobility of these groups can only be expected to lessen their embeddedness in immediate geographic communities, decreasing both the pressure to vote and the benefits derivable from it, while also increasing the cost barriers to their participation in the electoral process.59

In combining these models, it is to be expected that marginalised, disengaged or disconnected segments of society, and those of low socioeconomic status, will be less likely to participate in electoral processes. The reality of Australian electoral behaviour conforms to these expectations. Rather than the missing one in five being distributed evenly across the population, patterns of under-representation are instead observed among specific demographic groups. The young, elderly, indigenous and homeless, voters with disabilities and those from non-English-speaking backgrounds all face structural barriers to electoral participation.60

Accordingly, efforts to increase participation attempt to address the deficiencies identified by these models through facilitating enrolment and voting and providing education on electoral processes. Enrolment programs focus on those facing difficulties complying with standard enrolment procedure, such as individuals with no fixed address or in remote rural areas, as well as on the young. These youth-oriented programs have traditionally focused on encouraging teenagers to enrol on or before their eighteenth birthdays, but have recently been extended to cover computerised Direct Enrolment.61 Voting assistance is available to those with language issues or disabilities, while mobile polling teams attempt to ease access

55 Geys 2006, ‘Explaining voter turnout: A review of aggregate-level research’, Electoral Studies (25:4), 644. 56 Dowding, John and Rubenson 2012, ‘Geographic Mobility, Social Connections and Voter Turnout’, Journal of Elections, Public Opinion and Parties (22:2). 57 Moore 2010, ‘South Brisbane, West End population to increase three-fold’, Brisbane Times, 9 February 2010. 58 Randolph 2006, ‘Delivering the Compact City’, Urban Policy and Research (24:4). 59 The implications of this trend are discussed at length in Chapter 6. 60 Joint Standing Committee on Electoral Matters 2007, Civics and Electoral Education, Canberra: Parliament of the Commonwealth of Australia; Joint Standing Committee on Electoral Matters 2009b, The 2007 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 145-172. 61 Brent and Hoffman 2011, ‘Electoral enrolment in Australia: Freedom, Equality & Integrity’, in Tham, Costar and Orr (eds.) 2011, Electoral Democracy: Australian Prospects. 20

costs for those in hospitals, nursing homes, prisons or remote areas of Australia. Education programs are tailored to and targeted towards specific groups, as well as the broader population. These programs have been effective, but there is always more to accomplish. Australia’s Electoral Commissions, while statutorily independent, are restricted in a number of ways. Most importantly they must comply with electoral law, which has, for example, limited their capacity to provide mobile polling booths in urban areas, as requested by advocates for homeless voters,62 and has restricted their capacity to adopt technological innovations such as electronic voting or Direct Enrolment without enabling legislation.63 Likewise, any projects must compete for scarce funding, and some services have suffered as a result.

Compulsion in Participation

However, one key contributor to participation remains underexplored: compulsion. Compulsion is central to any discussion of electoral participation in Australia, and integral to any conclusive evaluation of the topic. It is the central plank in Australia’s policy of encouraging electoral participation. Compulsion in Australia takes three forms, addressing the three facets of formal electoral participation – enrolment, turnout and formality. The specific legal context of these policies is detailed in chapters 4, 6 and 7. At this point, it suffices to provide a brief overview of Australia’s regime of compulsion. The basics are as follows:

- All eligible voters must register to be on the electoral roll, with Electoral Commissions now actively facilitating that process. While there is a penalty for non-compliance, for legal reasons it is not enforced.64 - All enrolled voters must turn out to vote at federal, state and local government elections, with the penalties for non-compliance initially taking the form of small fines, ranging from twenty to one hundred dollars depending on jurisdiction.65 - At the Commonwealth level and in most States, voters must record a full set of preferences in order for their vote to be admitted to the count. The ‘penalty’ for non-compliance, if it may be considered as such, is a wasted vote.

All stages of the process of formal electoral participation in Australia are thus subject to some form of compulsion. The specifics of the legal responsibility imposed on Australian

62 Joint Standing Committee on Electoral Matters 2009b, Op. Cit., 168-170 63 See Chapter 4 for an extensive discussion of Direct Enrolment. Electronic voting is considered in Chapter 7. 64 And for reasons of common sense, as fear of penalty may dissuade late enrollers. The non-enforcement of compulsory enrolment is discussed at length in Chapter 4. 65 At the time of writing, the initial penalties for failure to vote without valid and sufficient reason were as follows: Commonwealth, Western Australia and the Australian Capital Territory, $20; the Northern Territory, $25; Tasmania, $26; New South Wales $55; South Australia $70; Victoria, $74; and Queensland, $100. 21

electors are not entirely clear – it is accepted that enrolment and turnout are required, and that votes must conform to particular rules to be counted, but there is some debate as to whether an elector’s legal obligation extends to the casting of a valid vote. This is discussed in depth in Chapter 7.

Compulsion in participation is an inherently contentious idea. It is something of a rarity in the international context, with only 29 countries worldwide featuring some form of compulsion,66 and of those only a handful falling as Australia does into the category of industrialised, affluent, liberal-democratic societies.67 While this scarcity alone is enough to prompt debate, as compulsion inherently involves restrictions on individual liberty arguments over such policies inevitably take normative forms. However, while moral arguments tend to dominate discussion of compulsion, the morality of compulsion is central neither to the argument of this thesis nor to the process of analysis, and as such does not play a significant role within it.68 Further, these arguments have been played out in public to a sufficient degree that a comprehensive re-hash would serve no vital purpose.69 And yet, it would be an oversight not to at least summarise the debate.

Most commonly, this debate takes the form of opponents condemning compulsion as an unjust restriction on individual liberty, while proponents contend that practical benefits outweigh this restriction. However, Sarah Birch has identified three broad areas of contention: arguments regarding the nature of democratic rights and duties; arguments about collective rationality and democratic legitimacy; and arguments as to the empirical effects of policies of compulsion.70 These will be considered here in turn.

Debate over the precise nature of democratic participation is not new. Reflecting a sentiment common at the time, Mill was adamant in his view of the franchise as a trust, demanding exercise in the broader social interest:

Those who say that the suffrage is not a trust but a right will scarcely accept the conclusions to which their doctrine leads. If it is a right, if it belongs to the voter for

66 Birch 2009, Full Participation, New York: United Nations University Press, 36. 67 The majority of countries featuring policies of compulsion are found in Latin America. 68 Indeed, the author is something of an agnostic on the matter, and this position is reflected in the thesis. 69 For a thorough overview of the debate, refer to the Birch chapter discussed below. For particular examples, consider the exchanges between Justine Lacroix, Annabelle Lever and Bart Engelen (Lacroix 2007, ‘A Liberal Defence of Compulsory Voting’, Politics (27:3); Lever 2008, ‘’A Liberal Defence of Compulsory Voting’: Some Reasons for Scepticism’, Politics (28:1); Engelen 2009, ‘Why Liberals Can Favour Compulsory Attendance’, Politics (29:3); Lever 2009, ‘Liberalism, Democracy and the Ethics of Voting’, Politics (29:3)), and between Lever and Lisa Hill (Lever 2010, ‘Compulsory Voting: A Critical Perspective’, British Journal of Political Science (40:4), 897-915; Hill. 2010, ‘On the Justifiability of Compulsory Voting: Reply to Lever’, British Journal of Political Science (40:4); Lever 2010, ‘Democracy and Voting: A Response to Lisa Hill’, British Journal of Political Science (40:4)). 70 Birch 2009, ‘Chapter 3: Normative arguments for and against compulsory voting’, Op. Cit., 40-58. 22

his own sake, on what ground can we blame him for selling it, or using it to recommend himself to any one whom it is his interest to please? 71

He continued:

His vote is not a thing in which he has an option; it has no more to do with his personal wishes than the verdict of a juryman. It is strictly a matter of duty; he is bound to give it according to his best and most conscientious opinion of the public good.72

The notion of voting as a duty as well as a right is not particularly controversial, and can be found in a broad range of literature, such as that regarding social pressures to vote discussed above. Where this becomes a point of contention is when that assumed duty becomes a legally-mandated obligation.

The classic position of opponents to compulsion holds that a right to vote necessarily entails a complementary right not to vote. Henry J. Abraham frames this argument as follows:

It is difficult to see how we can remain faithful to the principles of democracy by compelling people to exercise an ostensible privilege, that of voting, contrary to their will. Since the ability to vote is a privilege conferred upon the citizens, it ceases to be such when he is compelled to exercise it. How can he be deprived of his right not to vote?73

Proponents counter this position in a number of ways.74 First, a comparison is drawn between voting and the various other restrictions on liberty broadly accepted in liberal democracies – the requirements to pay taxes, to serve on juries and in the military, and to educate children, for example. Second, it is argued that voting is not an infringement of freedom of expression or thought so long as the capacity exists for a voter to cast a blank or spoiled ballot. This position was affirmed by the European Court of Human Rights in upholding Austria’s policies of compulsion.75 The third argument is more complex. Lardy disputed the existence of a right not to vote by distinguishing between two forms of freedom – as non-interference and as non-domination – and her position is worth quoting at length:

71 Mill 1991 [1861], Op. Cit., 354. 72 Mill 1991 [1861], Op. Cit., 354. 73 Abraham 1955, Compulsory Voting, Washington, DC: Public Affairs Press, 33. 74 For an example in the Australian context, see Hill 2004, ‘Is Compulsory Voting an Unjustified Burden on Personal Autonomy? Is There a Right Not to Vote?’, 154-173, in Brennan and Hill 2004, Compulsory Voting: For and Against, Cambridge, UK: Cambridge University Press. 75X v Austria, European Court of Human Rights, no.4982/71, Commission decision of 22 March 1972, Recueil 40, 50-52. 23

Those who argue for a right not to vote presume an underlying theory of liberty as non-interference. They assume this perhaps because the right to vote tends to be presented as an ordinary negative liberty, protecting against interferences by agencies of state. It has been argued here that compulsory voting may only be represented as an interference with liberty by mischaracterizing the sort of freedom which the right to vote represents. The right to vote is about freedom as non- domination. It is for those who oppose compulsion to demonstrate how it would threaten the liberty to which the right to vote relates. The liberty which the right not to vote asserts can provide only an inaccurate and impoverished account of the relation between freedom and voting. The liberty which the right to vote represents protects individual decisions about how to vote, and about what value to attach to the act of voting. It does not, however, grant those whom it recognizes as electors a freedom not to vote at all.76

The second area of argument identified by Birch is that of collective rationality and democratic legitimacy. Given the arguments for full participation, and the problems stemming from unequal participation, as discussed early in this chapter, the legitimacy of democratic decisions rests on a degree of popular participation. What degree of participation is required is up for debate, but the example presented by Birch of the 14 per cent participation rate at the 1843 Belgian general election adequately illustrates the problem.77 Dependent as they are for legitimacy on popular participation, democratic systems of government face collective action problems. While they can be seen as public goods, construing benefits broadly to society, they face the problem of free riders due to the paradoxes of participation individuals face, as discussed above.

Proponents of compulsion see such regimes as a way around this problem, by providing the necessary ‘nudge’ to ensure high levels of participation, and consequently ensuring the democratic legitimacy that flows from this. As Richard Katz suggested, ‘rational liberal individuals might choose to be coerced to vote so long as they were assured that others would be coerced as well in order to achieve the benefits of collective action’.78 Arguments against compulsion contend that such policies may undermine legitimacy, despite or even due to increased participation. Conceivably, the imposition of compulsion on an unwilling electorate could serve to undermine faith in the electoral system.79 Alternately, forcing uninformed or uninterested voters to the ballot box may serve to undermine the legitimacy of outcomes by introducing an element of randomness into the result.80

76 Lardy 2004, ‘Is there a Right not to Vote?’, Oxford Journal of Legal Studies (24:2), 15. 77 Birch 2009, Op. Cit., 45. 78 Katz 1997, Democracy and Elections, Oxford: Oxford University Press, 243. 79 Birch 2009, Op. Cit., 48. 80 Jakee and Sun 2006, ‘Is compulsory voting more democratic?’, Public Choice (129:1/2). 24

The third area framed by Birch is related, in that it focuses on practical results. It is well established that compulsion is effective at increasing electoral participation. Panagopoulos offers an appropriate example in his comparative analysis of the 27 democracies that featured some form of electoral compulsion during the 1990s.81 He concludes that while the efficacy of compulsion is heavily dependent on both the severity of sanction and the likelihood of its enforcement, a stringent system may be expected to increase turnout by some 25 percentage points.82

Yet the greater purpose of this increase remains open to some debate. Birch identifies two key areas of benefit – public engagement and broader political outcomes. In the first respect, proponents have presented compulsion as an antidote to the decline in public engagement in electoral politics seen in many democracies, Australia included. This might occur through some educative or developmental power of electoral participation with regard to individual participants, or through the fostering of electoral participation as a social norm.83 The counter-argument is that compulsion may not address the issues, but merely obscure them. Mark Franklin argued as such:

[Non-participation] reflects a paucity of choices or a lack of evident connection between electoral choice and policy change. Raising turnout by making it compulsory does not directly affect either of these critical variables but may mask their effects … with consequences for our ability to judge the success of other, more appropriate reforms.84

With regards to the final point, regarding broader political outcomes under compulsion, the position of proponents has been sufficiently covered by the discussion of the consequences of variations in participation earlier in this chapter. As Alberto Chong and Mauricio Olivera put it, those with the most to gain from voting are the least likely to participate under voluntary regimes.85 In the face of the evidence of both unequal participation and consequent outcomes, the opposing arguments are not entirely convincing. Largely, they take a similar form to that discussed above regarding the element of randomness introduced by disengaged or uninterested voters. It is however difficult to argue that an unpredictable result is worse than a systematically biased one.

81 Panagopoulos, Op. Cit., 2008. 82 Ibid., 466. 83 Mansbridge 1999, ‘On the Idea that Participation makes Better Citizens’, in Elkin and Soltan 1999, Citizen Competence and Democratic Institutions, University Park, PA: Pennsylvania State University Press; Hill 2006, ‘Low Voter Turnout in the United States: Is Compulsory Voting a Viable Solution’, Journal of Theoretical Politics (18:2), 218-219. 84 Franklin 1999, ‘Electoral Engineering and Cross-National Turnout Differences: What Role for Compulsory Voting?’, British Journal of Political Science (29:1), 206. Franklin later revised his position, finding attractive aspects to compulsion: Centre for Research and Information on Canada 2001, ‘Voter Participation in Canada: Is Canadian Democracy in Crisis?’, CRIC Paper No. 3, Ottawa: Centre for Research and Information on Canada, 35. 85 Chong and Olivera 2008, ‘Does Compulsory Voting Help Equalize Incomes?’, Economics & Politics (20:3), 393. 25

As far as the position of this thesis goes, compulsion in Australia is not considered a particularly objectionable impost. The requirement of electoral enrolment and yearly formal voting86 is not a significant restriction on liberty, while the penalty for failing to vote is not particularly harsh – an issue in itself, explored further in Chapter 6. Of greater concern to this thesis are the practical effects of compulsion in electoral participation, and of other measures that increase or dampen participation, and the relationship between these measures and the actors and processes that drive or stifle their adoption. As such, the attitudes towards compulsion of those actors with a capacity to alter the status quo – the political parties and voters of Australia – are of greater relevance, and are expanded upon in Chapters 4, 6 and 7, as they relate to specific policies impacting enrolment, turnout and formality.

Conclusion

The problem of participation is one of the central issues for political science, for no more elaborate reason than participation being a fundamental requirement for participatory, democratic systems of government. The importance of participation is premised not just on moral or philosophical arguments, but also on clearly identifiable outcomes stemming from unequal patterns of participation. Accordingly, the issue of electoral participation is central to this thesis, in that its primary focus is considering how participation in Australia might be maximised, and explaining why this has or has not been achieved.

This chapter considered the existing academic research on just what drives individuals to participate in the electoral process. From a rational choice perspective, the decision to participate can be reduced to a consideration of the respective costs and benefits of participation or non-participation. An understanding of these costs and benefits and of the capacities of individuals to recognise and address these is fundamental to understanding participation. Three factors are central to this logic, with the influence of socio-economic status, social cohesion and regimes of compulsion all central to explaining electoral participation.

This overview of the theory, arguments and prior research on the issue of electoral participation provides context for the central, practical issues of maintaining and encouraging participation on which this thesis focuses. The chapter considered compulsion in particular detail. Compulsion is a central, unavoidable feature of Australia’s electoral apparatus. The chapter discussed the academic debates over compulsion, which generally take the form of arguments regarding the nature of democratic rights and duties, about

86 Between Commonwealth, State and Local Government elections, referendums and the occasional by- election, this seems a reasonable upper limit. 26 collective rationality and democratic legitimacy, and concerning the empirical effects of policies of compulsion.

27

Chapter 2 – Institutional Development

The first rule of politics is you don't change the electoral system unless you think you can do better from it.

– Terry Cameron, 199387

In seeking to explain the current state and future prospects of Australia’s electoral institutions, this thesis focuses on the processes by which these institutions have developed. To this end, this chapter provides an overview of the key theoretical ideas that inform the direction from which this thesis approaches the challenges of electoral reform. Drawing on theoretical models of institutional and policy development, and of the operation and interaction of political parties, this chapter discusses the motivations and behaviour of the political actors central to the reform process and the role of extra-parliamentary influences. The chapter highlights the centrality to the institutional reform process of the ideas of intention, constraint and accident. These provide theoretical illumination for the issues discussed through the remainder of the thesis.

The Australian electoral system is what is termed an institution. Essentially, institutions are formal bodies or organisations, but more broadly can be described as the established body of law, practice and relationships that governs relationships within a particular field. When discussing the nature and capacity of the electoral system in terms of reform, the focus must fall upon the field of institutional development. There is a wide literature with a long history regarding institutional development, ranging from the early fascination of political scientists with the formal institutions of government in then-modern states – what is now known as ‘classical’ or ‘old’ institutionalism – to the later attempts to reconcile the study of institutions with behaviourist approaches to political science, which can be termed ‘new’ institutionalism.88

For the purposes of this thesis it is not hugely important to strictly adhere to any particular theoretical model or stream. Rather, three key observations regarding the nature of institutional development have been drawn from the broad field of new institutionalism: first, the role of intention, or the motivations of those actors central to the institutional reform process; second, constraint, or those structural limits on action inherent in the

87 Jemison, 1993, ‘Libs to dump compulsory voting amid Labor fears’, The Australian Financial Review, 24 November 1993. 88 For an overview of these ideas, see Bell 2002 ‘Institutionalism’, in Summers, Woodward and Parkin (eds.), Government, Politics, Power and Policy in Australia, 363-380. 28

institutional context; and third, the role of accident, central to which is the unpredictability both of the exact nature of reforms and of the future context in which those reforms will play out. The remainder of this chapter will discuss these key ideas, with specific focus on their relevance to the field of electoral reform, and to the institutional context of the Australian political and electoral systems.

Intention

Institutional change is often the result of deliberate intervention, through the exercise of power by what Robert E. Goodin termed ‘purposive, goal-seeking agents’.89 These agents might be individuals, groups or institutions themselves. In the case of electoral policy, in democratic societies control over the process is generally exerted by democratically-elected political actors, and the extra-parliamentary political institutions – generally parties – that they represent. Alan Renwick terms this process ‘elite majority imposition’, explaining it as one of competition among elites for control over the reform process.90 The contest for control over electoral policy is one waged by a small group of elected representatives, on behalf of their electors and extra-parliamentary networks of support.

Given the centrality of these political actors to the processes of policy it is essential to consider the theory regarding their motivations and behaviour. As the literature regarding this field is broad, the focus here is restricted to the rich rational choice tradition. The rational choice stream provides three ‘classical’ models of the competitive behaviour of political parties and actors. The aim of these models is to aid in the analysis of interparty electoral competition, and the mechanics of coalition formation and behaviour. These models are the vote-seeking party, the office-seeking party, and the policy-seeking party. Given the weight of literature, it is perhaps accurate to describe them as broad theoretical umbrellas. As Kaare Strom noted, theories of this ilk are particularly targeted at explaining behaviour in mature, politically-stable electoral democracies featuring parliamentary systems, such as Australia.91

The model of parties as vote-seekers is perhaps the simplest in terms of both argument and operation. Deriving from Anthony Downs’ original work on electoral competition,92 parties are viewed as what he termed ‘teams of men’ (sic), seeking to maximise electoral support for the purposes of controlling government. In Downs’ view, this is the sole objective of parties. There was little nuance to Downs’ original elaboration, and the idea was

89 Goodin 1996, ‘Institutions and Their Design’, 25 in Goodin (ed.) 1996, The Theory of Institutional Design, Cambridge, UK: Cambridge University Press. 90 Renwick 2010, The Politics of Electoral Reform, Cambridge, UK: Cambridge University Press, 11. 91 Strom 1990, ‘A Behavioral Theory of Competitive Political Parties’, American Journal of Political Science (34:2). 92 Downs 1957, An Economic Theory of Democracy, New York: Harper. 29

subsequently refined to account for the vagaries of electoral systems and behaviour.93 As such, the model can be better characterised as one of seat-maximisation. In such a system, the maximisation of seats within parliament is the primary aim of political parties.

While a vote-seeking or seat-seeking party aims to maximise electoral support in pursuit of political power, an office-seeking party seeks to maximise control of political office as a primary aim in itself. Office is defined as the private goods bestowed upon holders of offices of government, be they won through election, or through appointment by those who have won election.94 According to office-seeking theory, such positions are pursued purely for material gain, above and beyond any electoral or policy value they may hold. This model derives from coalition theory, and explains how coalition participants may aim to maximise their control of government portfolios over any other end. Similarly rooted in coalition theory is the model of parties as policy-seekers. This model argues that parties fundamentally seek particular policy ends, and will seek election, or join governing coalitions in the singular pursuit of particular policy objectives.

Taken in isolation, no one of these models is capable of explaining the full range of political behaviour. Strom noted a number of key limitations.95 The vote-seeking party model does not explain the occasional desertion of the centre by major parties, such as that committed by the British Labour party through its 1983 manifesto, popularly dubbed ‘the longest suicide note in history’.96 Nor can it explain the ongoing presence of the reliably- unsuccessful micro-parties common to most modern democracies, such as the hard-line Stalinist and far-right parties that persist on the ideological fringes of many liberal democracies, suggesting an attraction to policy purity over the supposedly fundamental demands of seat maximisation. A similar, if less extreme anomaly is the persistence of parties catering to small and declining social groups, such as the rural-based National Party of Australia.97 The office-seeking model fails when presented with the case of cross-bench parties refusing to enter coalition agreements with minority governments, or those parties which abandon coalitions mid-term. The policy-seeking model does not cater for those parties that sacrifice policy aims for the sake of electoral support or the trappings of office.

93 For an account of this process, see Strom 1990, Op. Cit., 566-567. 94 Political donations are key in this respect. For example, the 2012-2013 financial year saw some $55.85 million dollars donated to the Australian Labor Party, while the Coalition received $81.38 million. For understandable reasons, donations from business – as opposed to those from private supporters or affiliated entities such as trade unions – tend to disproportionately favour those parties who hold government or are expected to shortly assume power. Disclosure reports for Australian parties, candidates and donors can be found at http://periodicdisclosures.aec.gov.au/. 95 Strom 1990, Op. Cit. 96 Hope 2010, ‘Michael Foot: Labour's 1983 general election manifesto and 'the longest suicide in history’’, The Telegraph, 3 March 2010. 97 For further discussion, see Cockfield 2009, ‘A Rural Party in an Urban Nation’, 42-66, in Botterill and Cockfield (eds.) 2009, The National Party: Prospects for the Great Survivors, Sydney: Allen and Unwin. 30

These ideas are of course fundamentally reductionist, and rather than being viewed as necessarily competing models for the explanation of all behaviour, there is significant overlap. Ultimately, an actor must be elected in order to benefit from office or enact policy, and so in theory vote-seeking must precede office or policy seeking. Downs recognised this, with his focus on vote maximisation stemming from the following argument:

[Party] members are motivated by their personal desire for the income, prestige and power which come from holding office … Since none of the appurtenances of office can be obtained without being elected, the main goal of every party is the winning of elections. Thus, all its actions are aimed at maximizing votes.98

Further, as office benefits and policy influence both stem from government incumbency, they can be seen as goals that are often fundamentally compatible, if not interrelated or even interdependent. The case of electoral policy is also somewhat unique in that policy itself can directly influence the capacity of parties to attract votes—and of voters to cast votes. Kenneth Benoit framed it thus:

Electoral systems result from the collective choice of political parties linking institutional alternatives to electoral self-interest in the form of maximizing seat shares … A change in electoral institutions will occur when a political party or coalition of political parties supports an alternative which will bring it more seats than the status quo electoral system, and also has the power to effect through fiat that institutional alternative.99

Indeed, electoral policy can be seen as a zero-sum game, with policy shifts creating clear winners and losers. In this case, vote-seeking and policy-seeking can also be seen to be heavily interrelated. Yet while behavioural imperatives can work in concert, in other contexts they may be as fundamentally incompatible as the original theories can indicate. Parties hammering out coalition agreements—or factions jockeying for influence within parties—may be forced to choose between holding offices and winning policy concessions from their partners in negotiation.100

What drives actors to prioritise policy or office is more speculative. Party leaders are human and may hold particular personal desires towards the trappings of office or for the achievement of particular policy objectives. Beyond this, Strom suggests that both office- seeking and policy-seeking stem to a degree from the dependence of parties on extra- parliamentary sources of support.101 As successful political parties require extensive extra-

98 Downs 1957, Op. Cit., 34. 99 Benoit 2004, ‘Models of Electoral System Change’, Electoral Studies (23:3), 373-4. 100 Strom 1990, Op. Cit., 572. 101 Ibid., 574-579. 31 parliamentary organisations, the wants of these extra-parliamentary actors must be taken into account. Strom posits a distinction between hired ‘professionals’, such as those involved in marketing, advertising and polling, and the unpaid ‘activists’ who constitute the grassroots organisation. He suggests that professionals by their nature require monetary compensation, and as such push parties towards office-seeking in pursuit of such resources, while activists may be placated by nonmonetary compensation, in the form of promises regarding future policy directions.102 Consequently, party organisations reliant on capital or technology might be expected to conform to office-seeking behaviour more so than those reliant on labour, which would be expected to conform to policy-seeking behaviour.103

A further element of nuance must be introduced to the balance between vote-seeking and office or policy-seeking behaviour, through the qualification that meaningful, visible change is not necessarily required to meet these ends. Indeed, depending on context, maintenance of the status quo may well suffice. In the case of electoral reform, Benoit explained that when an electoral system sufficiently advantages incumbents, it generally will not change:

A change in electoral institutions will occur when a political party or coalition of political parties supports an alternative which will bring it more seats than the status quo electoral system, and also has the power to effect through fiat that institutional alternative. Electoral systems will not change when no party or coalition of parties with the power to adopt an alternative electoral system can gain more seats by doing so.104

Indeed, Renwick suggested that this is the central reason for stability in electoral systems:

Those who benefit most from the status quo and those who have the power to determine whether there will be a change or not are typically the same people.105

For purposes of vote-seeking, rather than aiming to implement any particular reform, control of policy in the face of an evolving situation may suffice. Indeed, ideas of electoral equilibrium suggest that a context of policy stability may well imply greater control by self- interested actors than does a context of policy evolution. The problem of attaining

102 Partisan supporters might support a given party out of simple, ‘rusted-on’ ideological affinity, but presumably this would diminish over time in the absence of any practical outcomes. 103 As a spoils-based, supra-parliamentary approach to political behaviour this is somewhat similar to the clientelism often observed in emerging democracies. Clientelist behaviour generally involves agreements between political actors and patrons, who in return supply the votes of the social blocs that make up their networks of patronage. However, in this case what is provided is instead the means to compete more broadly for votes. For a discussion of clientelism, see Ronegar 2004, ‘Political Clientelism, Democracy, and Market Economy’, Comparative Politics (36:3). 104 Benoit 2004, Op. Cit., 373-374 105 Renwick 2010, Op. Cit., 81 32 equilibrium is well summarised in the work of William H. Riker.106 Riker attempted to reconcile the two dominant traditions of political science, the central foci of which were respectively the study of political institutions and the study of public opinion.107 He represented these trends as intrinsically-linked attempts to pin down the elusive goal of political equilibrium. In the institutional sense, equilibrium would be found in stable, enduring institutions. The alternative tradition aimed to identify points of equilibrium in public opinion, wherein platforms that satisfied majorities of voters could be devised, and through optimal electoral institutions lead to equilibrium both in government and policy. The convenient, reductionist rule of thumb is that where institutions are constant, outcomes can be explained from opinions, and vice versa. Of course, outcomes are a function of both structure, in the form of institutions, and agency in the form of the individual opinions of the mass of voters, and neither are necessarily stable.

Without delving too deeply into what is some fairly heavy maths and game theory, the key point from this work is that equilibrium in public opinion is in effect impossible in any sufficiently large, fair system, for a number of key reasons. Primarily this is due to the problems inherent in aggregating a wide variety of opinions regarding a vast range of topics into discrete electoral choices. Put simply, no single party platform accords exactly to the desires of any significant quantity of voters – society is just too complex. Second, those desires can take the form of intransitive cycles of preference, bringing Condorcet’s Paradox into effect, wherein no single option can command majority support over each other individual option.108 Equilibrium therefore also fundamentally relies on the unpredictable prerequisite of a non-cyclical set of preferences. As Riker put it, ‘conditions for equilibria are so restrictive as to render equilibria virtually non-existent’.109

Riker concluded that over the medium term, disequilibrium – the potential for, even probability of the status quo being upset – is the ‘characteristic feature of politics’,110 and the natural state of any system that fairly reflects democratically expressed public opinion. As such, there will be a degree of instability or unpredictability inherent in any fair system. Where equilibrium of outcomes is observed over the medium term, it should therefore be considered at least as much a consequence of institutional, structural equilibrium as it is of equilibrium in public opinion.

106 Not to be confused with William E. Riker, white supremacist, or William T. Riker, Star Trek character. 107 Riker 1980, ‘Implications from the Disequilibrium of Majority Rule for the Study of Institutions’, American Political Science Review (74:2). 108 Further, Arrow’s Impossibility Theorem demonstrates that no fair method of summing individual preferences can avoid this problem of cyclical preference. Arrow 1950, ‘A Difficulty in the Concept of Social Welfare’, Journal of Political Economy (58:4). 109 Riker 1980, Op. Cit., 442. 110 Riker 1980, Op. Cit., 443. 33

Constraint

The second key idea is that of constraint. The intention of those in control of the reform process can act as a constraint both on the democratic preferences of the electorate, and on the efficacy of that process in achieving broader democratic ends. However, in the traditional sense the idea of constraint in institutional development refers more to the influence of external actors, of institutions, and of the nature of the reform process itself, on the mechanisms, options and outcomes of that process. While vote-seeking is rightly seen as a means to a policy- or office-focused end, public perceptions of abuse of office or policy may impact on parties’ capacity for future vote-seeking. Potential reforms must therefore be considered in light of their perceived legitimacy with voters and other involved parties. As Benoit suggested:

Some self-interest-maximising institutional changes will be excluded from consideration as being simply beyond the pale, according to the limits set by public acceptability, opposition threats to withdraw support for the democratic institutions, or the simple bounds of political propriety.111

Renwick expanded on the limits of legitimacy, posing two key questions – where are the boundaries between the legitimate and the illegitimate, and what constraining effect can perceptions of illegitimacy exert? Proposed reforms cannot stray too far from accepted norms of what is good in an electoral system. Renwick posited this idea of ‘good’ as primarily involving a set of broadly democratic ideals – ensuring fairness, representativeness and accountability in an electoral system, for example – backed up by a number of secondary considerations focusing on practicability, such as encouraging stability in government and ensuring some degree of administrative simplicity. Should a proposed electoral model or reform stray too far from these norms, it would be expected to meet a hostile reception from voters and other institutional actors, thus weakening the driving party’s position. Beyond these general ideals, the reception a reform receives can also be influenced by the historical-political context in which it is introduced. If a particular system is seen as responsible for particular political outcomes, be they positive or negative, its public standing can reflect this.

The second key question posed by Renwick concerns the constraint that perceptions of illegitimacy can exert. This is heavily dependent on context. At its most extreme, there will be reforms that, as Benoit intimated, will not even be considered by political actors no matter their practical outcome. As an example, Renwick presents the impossibility of re- introducing a winner-take-all party block vote system, due to its frankly un-democratic

111 Benoit 2004, Op. Cit., 385. 34 nature,112 while other untouchable reforms might include explicit mass disenfranchisement of voters or disqualification of opposition candidates. In terms of reforms that are acceptable to reform-driving actors, legitimacy constraints take two forms – constraint by institutional actors, such as opposition parties or the judiciary, and constraint by voters. While institutional actors may have the capacity to block reforms, either through parliamentary or legal means, even when they do not their opprobrium can amplify the contentiousness of a reform, increasing its capacity to agitate voters.

The constraining power of voters lies in their capacity to punish political actors at the ballot box. This power is therefore dependent on both electoral timing and competition with other issues relevant to the election. As such, the calculus of legitimacy would depend on the competition between issues for voter attention, the distance to the subsequent election (and hence the capacity for the issue to fade from memory or further competing issues to arise), and the existing reputation of the government.113

Given these constraints imposed by the perceived legitimacy of reforms, the balance between vote-seeking and other competing imperatives can therefore be seen as one between shorter and longer term demands. Zim Nwokora114 refined this idea, suggesting a distinction between individual political actors in the form of politicians and political candidates on the one hand, and political parties as institutions on the other. As these individuals necessarily depend on winning election for their immediate income, vote- seeking gains greater importance. Parties as institutions, while dependent on vote-seeking for the attainment of government (and in extreme cases, for existence), have a greater capacity to forgo future votes in favour of immediate office or policy ends. Renwick went further still, suggesting a number of motivations for individuals, with potentially-competing imperatives to re-election, intra-party power and influence in the broader political system, with the choice between these depending largely on the nature of the role a given political actor fills.115

In an attempt to address these contradictions Strom offered a unified model of political behaviour.116 He framed the three classical models as the extremes of potential party behaviour, and posited a spectrum across three variables, representing these competing imperatives. Essentially, this two-dimensional space represents the range of political motivations, and the way in which pursuit of one often necessitates sacrifice regarding others. This model is represented in a simple form in Figure 2.1.

112 Renwick 2010, Op. Cit., 60-61. 113 As different voters have different priorities, Renwick posits that a government with a pre-existing reputation for Machiavellian behaviour may have less to lose from the manipulation of electoral rules, as those voters turned off by such behaviour will have already departed. 114 Nwokora 2012, ‘The Distinctive Politics of Campaign Finance Reform’, Party Politics (20:6). 115 Renwick 2010, Op. Cit., 35-37 116 Strom 1990, Op. Cit. 35

Figure 2.1: Range of feasible party behaviour117

[Figure ommitted for copyright purposes. Refer to Strom 1990, Op. Cit., 572.]

With respect to the field of electoral policy, there is one more level of important complexity to consider. Electoral systems are, as Duverger noted, ‘strange devices—simultaneously cameras and projectors. They register images which they have partly created themselves’.118 To this end, control over electoral policy can satisfy both policy-seeking and vote-seeking imperatives. Indeed, through its capacity to alter the structure within which votes are attracted and cast, it is the sole area where policy that stretches the bounds of legitimacy, and would therefore be expected to be prejudicial to the attraction of votes, can still have a net positive impact on the vote-seeking capacity of parties.

As such, when it comes to electoral reform political actors can hold three aims, which may or may not be compatible with each other – vote-seeking, thereby maintaining electoral viability and allowing for the pursuit of both policy and office, and two distinct forms of policy-seeking. Policy-seeking could involve exerting control over the electoral reform process, to the end of maintaining or enhancing a capacity to maximise votes, or decreasing the capacity of opponents to do likewise. Alternately, it might take the form of pure policy- seeking, pursuing particular policies in the name of party members or supporters, which may or may not enhance vote-maximisation. In either case, given the capacity of electoral policy to alter the structural realities of the electoral process, the fundamental issue becomes a relatively simple question of whether any given policy direction can attract more support than it repels. This might occur structurally, by shifting the capacity to vote-

117 From Strom 1990, Op. Cit., 572. 118 Duverger 1984, ‘Which is the best electoral system?’, 34, in Lijphart and Grofman (eds.) 1984, Choosing an Electoral System: Issues and Alternatives, New York: Praeger. 36

maximise in favour of the incumbent, or through the vote-winning or resource-attracting qualities of the policy itself.

However, electoral reform does not necessarily eventuate solely from the actions of incumbent, power-maximising political actors, or from their interaction with the electorate. Beyond the constraining effects of perceptions of the legitimacy of reforms, a number of other factors may restrict the behaviour of self-interested political actors. First, parliamentary parties – and the broader coalitions they may form – do not operate solely in an atmosphere of competition. It is well established that the major players in two-party systems have a shared interest in maintaining their privileged positions. The cartel party thesis, for example, details how incumbent parties have exploited the resources of the state to this end.119 However, as John Uhr has noted, all parties, be they incumbent or insurgent, may be seen as facets of the Parliament as an institution in and of itself.120 Such an institution has concerns of its own – such as maintaining its centrality to the processes of government, and effectiveness as a tool for governance – and in this respect there may be significant common ground between all players who hope to operate within that institution, with regard to just what form democratic expression should take.121

On the other hand, politicians may lose control of the electoral reform process, to varying degrees. Broadly, power can be ceded to four non-parliamentary groups – the judiciary, experts, citizenry, and foreign powers. Actors may be invited into the reform process to provide impartial decision-making capacity on matters of partisan importance, or expert advice in cases of complexity. The Victorian Electoral Boundaries Commission (EBC), for example, consists of three members.122 The chairman is the Chief Judge of the Victorian County Court, granting the institutional legitimacy of the judiciary to the process of redistribution. The remaining members are the Victorian Electoral Commissioner and the Victorian Surveyor General, experts in fields central to the drawing of electoral boundaries. While bodies such as the EBC are statutorily independent and can impose their decisions upon political parties, ultimately they do so at the pleasure of the Parliament that authorised their existence, and maintains it by omission. Another example is the role played in the early development of Australia’s electoral systems by experts such as Edward Nanson,

119 Katz and Mair 1995, ‘Changing Models of Party Organization and Party Democracy: the Emergence of the Cartel Party’, Party Politics (1:1). 120 Uhr 2000, Parliament and the Design of the Australian Electoral System, Parliamentary Library Research Paper No. 29 1999-2000, Canberra: Parliament of the Commonwealth of Australia, 3. 121 See for example the argument of the responsible Minister on the introduction of the Commonwealth Electoral Act 1918: ‘it is our duty not to allow party or personal interests to touch too much the consideration of electoral methods, and to make, as far as political temperaments and motives may permit, Democracy effective for government.’ Commonwealth Parliamentary Debates (House of Representatives), 4 October 1918 (Mr Glynn). 122 http://www.ebc.vic.gov.au. The EBC is an independent statutory body responsible for the periodic drawing of electoral boundaries, under conditions set by the Parliament. 37

Catherine Helen Spence and Inglis Clark.123 Generally experts or judges-as-figureheads are invited in by a group holding power – one of the above, or politicians themselves. This form of input should therefore be understood as a judicial or expert advice, rather than imposition as such.

External actors may also be granted entrance to the reform process by the system itself. For example, in Australia the breadth of potential electoral policy is constrained by particular provisions of the Constitution of Australia. The judiciary may therefore be called upon in its conventional role as the arbiter of the law. Indeed, recent decisions of the High Court have led to a fundamental reframing of the bounds of electoral policy. This is discussed in greater depth in Chapter 5. Citizens also play an integral role in this process, as any court action must be brought by a plaintiff. More broadly, citizens could exert direct influence over electoral reforms through referendums. Significant elements of the electoral apparatus of New South Wales are enshrined in the State’s Constitution, put there by a popular vote and only able to be altered or removed in the same manner.124 However, in Australia – as is also common elsewhere – referendums are dependent on an Act of Parliament and as such any ceding of power is fundamentally a voluntary act on the part of politicians. The capacity for citizen-initiated referendums is rare, and their employment in electoral reform even rarer,125 to the degree that they are of no significant relevance to contemporary Australian practice.

Lastly, external actors may exert influence in periods where the traditional authority of parliamentary institutions is weakened. There have been cases where foreign powers have essentially imposed electoral systems on defeated or failed states, or negotiated them with local elites, such as in the post-Second World War period in Germany, Eastern Europe and Japan, or following the toppling of the previous non-democratic governments of Afghanistan and Iraq in the early 2000s. The relevance of this avenue to Australia is limited, as no foreign power has exerted significant influence over Australia’s electoral apparatus beyond the inspiration drawn from Britain and the United States in the gestational, pre- Federation period. Similarly, the citizenry as a mass have the theoretical capacity to demand reform via extra-legal means, but this is not something envisaged in contemporary Australia.

Broadly, Matthew Shugart attributed this capacity for external actors to influence the electoral reform process to the existence of structural weaknesses within existing systems.126 Where a system occupies an inherently extreme position, in terms of processes

123 The influence of the latter is indicated by the naming of Tasmania’s unique interpretation of STV after him. 124 Carney 2006, The Constitutional Systems of the Australian States and Territories, Cambridge, UK: Cambridge University Press, 195-196. 125 Renwick 2010, Op. Cit., 15-17. 126 Shugart 2001, ‘”Extreme” Electoral Systems and the Appeal of the Mixed-Member Alternative’, in Shugart and Wattenberg (eds.) 2001, Mixed-Member Electoral Systems: The Best of Both Worlds?, Oxford: Oxford University Press. 38 and outcomes, it becomes susceptible to reform via the cession of power to external actors, be it willingly on the part of elites, or through intervention by those actors. Reform can therefore occur in response to specific instances of systemic failure. This is similar in a sense to the problem of legitimacy, but it considers the legitimacy of existing systems and their outcomes, rather than that of proposed or recent reforms. The breadth of examples presented should be sufficient to demonstrate that electoral reform is not a process simply of elite-majority imposition by self-interested, power-maximising political actors. Nor however is it merely a reaction to a breakdown of existing institutional structures.

Figure 2.2: Types of electoral reform127

[Figure ommitted for copyright purposes. Refer to Renwick 2010, Op. Cit., 11.]

So far, this chapter has offered a number of perspectives on those actors who drive electoral reform. This has largely taken the form of the interaction between the self- interested political actors central to the reform process, and those peripheral actors that exert constraint upon them to varying degrees. This process has been recognised as a form of what is called path dependence, wherein the range of possible directions for institutional development or policy reform can be constrained by existing systems and past choices.128 Building on the work of Kathleen Thelen and Paul Pierson,129 Renwick identified three forms of path dependence relevant to the field of electoral reform – power-based, normative and utilitarian. Power-based path dependence refers to the capacity for those holding power to maintain the status quo and thereby derive benefit from an unequal system, while normative path dependence refers to problems of legitimacy, both of which have been

127 From Renwick 2010, Op. Cit., 11. 128 Renwick, Op. Cit., 79-84 129 Thelen 1999, ‘Historical Institutionalism in Comparative Politics’, Annual Review of Political Science (2); Pierson 2000, ‘Increasing Returns, Path Dependence, and the Study of Politics’, American Political Science Review (94:2). 39 addressed above. For the purposes of this chapter it was deemed appropriate to discuss them in the context of the intentions of those central to the electoral reform process, but the interpretation of them as forms of path dependence is fair, and simply reinforces the power of constraint over the processes of institutional development.

The remaining form, utilitarian path dependence, represents the initial interpretation of the theory, as drawn from the field of economics. According to this idea, early developments in a particular field can influence later options in a number of ways. Where a particular system requires significant investment on the part of producers and/or users, where significant network benefits derive from extensive market penetration, or where the prevalence of a system generates an expectation of the continuation of that system, a positive feedback loop can occur. The classic example of this process is the enduring success of the QWERTY keyboard layout – a technically inferior system that happened to best cater to the inherent limitations of the mechanical typewriter, and based on that early success has outcompeted more efficient alternatives to become the default system.130

In the context of electoral reform, the combination of the three forms of path dependence leads to a sort of institutional lock-in, where the status quo becomes particularly ‘sticky’. At its simplest, the status quo benefits incumbents, who as rational, self-interested actors, will be reluctant to pursue change. Second, short of significant crises of public confidence, any major change to the status quo will face problems of legitimacy. Beyond this, electoral institutions and the reform process are inherently complex, and as such politicians are dependent for much ‘developing’ work on supporting institutions – the public service, academia, and the broad ‘institutional memory’ of the field of electoral studies. Significant, systemic choices can therefore generally only be made from among those options that are broadly accepted by those supporting institutions. Finally, both the efficacy and acceptance of electoral systems depend heavily on public perception.

Accident

The third key idea in theories of new institutional development is that of accident. Simply put, sometimes things just happen, despite the best intentions of all those involved. You can never be entirely sure what you will end up with, nor can you be certain of the future context in which it will operate. As Goodin explains,

130 David 1985, ‘Clio and the Economics of QWERTY’, American Economic Review (75:2). 40

Institutions are often the product of intentional activities gone wrong – unintended by-products, the products of various intentional actions cutting across one another, misdirected intentions, or just plain mistakes.131

Even when an institutional design does successfully accord with the intentions of its designers, problems may still emerge. Drawing again on Riker’s ideas of disequilibrium in public opinion, it is impossible to predict with any degree of surety just what form the electoral context will take in the future. A policy that benefits political actors in the immediate term may become irrelevant or even harmful in the future. A prime example of this is the experience of optional preferential voting (OPV) in Australia.132 OPV was introduced in Queensland and New South Wales by Australian Labor Party governments intent on capitalising on the dependence of the opposition Liberal and National parties on each other’s preferences. However, the intervening decades have seen greater cooperation between the parties in New South Wales to avoid competing candidates, and a formal party merger in Queensland to form the Liberal National Party. Meanwhile, the rise of the Democrats and later, and more markedly, the Greens, has seen the ALP itself become dependent on third-party preference flows for election. A policy enacted in classic power- maximising fashion has, over time, come to exert the opposite effect. Failed or ineffectual policies may also have far-reaching consequences. Were it not for the Howard government’s restrictions on prisoners’ voting rights and on roll closure grace periods, it is questionable whether the High Court would have had the opportunity to discover the right to vote now deemed to be implied by the Constitution.133

This unpredictability as to the consequences of reform and the nature of future electoral contexts adds a further element of constraint to the reform process. As Renwick argued,134 where actors recognise that uncertainty of outcome is high, they may adopt one of two logical strategies. Actors might adopt a particularly conservative approach, in an attempt to exert maximum control over outcomes at the expense of limiting themselves to incremental reform. Such actors may therefor settle for extant, sub-optimal systems, opposing potentially beneficial reform in the name of avoiding risk. Alternately, actors might adopt an approach grounded in a Rawlsian veil of ignorance, attempting to design a system that will serve them under the maximum number of possible outcomes. Often this may take the form of what is called a ‘maximin’ approach – an insurance policy, of sorts – attempting to maximise the minimum return. By ensuring the best possible result from a hypothesised minimum level of support, the party is thus attempting to guarantee an ongoing role in an uncertain future. This second approach was commonly observed during the transition from Communism to new democratic electoral systems in Eastern Europe, where there was no

131 Goodin 1996, Op. Cit., 28 132 While a brief summary is offered here, the history of OPV is discussed in significant depth in Chapter 7. 133 Again, these issues are discussed in depth in Chapter 5. 134 Renwick 2010, Op. Cit., 56-57 41

status quo to adhere to, and uncertainty regarding party strength was very high even over the short term. While Colomer suggested that such an approach is also likely in established democracies,135 Renwick contended that the accompanying apparatus of stable party and electoral systems, combined with the modern obsession with polling and prediction, would lead to a bias towards the conservative approach.

There is one more important facet of institutional development that demands attention. Goodin was merely setting up an example of what he considered a fundamentally flawed argument when he wrote the following:

Sometimes institutions just emerge accidentally, in unintended ways, in response to some historical accident or another, sometimes they just evolve naturally, in unintended ways, according to some deeper logic of their own.136

And it is true that, as no institution exists or is developed in a vacuum, there is always some element of developmental intention and structural constraint at work. However, there are situations where those constraints are remarkably limited, and where the intentional influences stem from vastly different sources than those self-interested incumbents who will later come to dominate further development. This is particularly the case where there are no pre-existing incumbents, directly relevant institutions, or proven precursor systems to draw upon. An apt and underappreciated example of this is the early development of Australia’s electoral institutions.

Peter Brent, taking an approach grounded in path-dependency theory, found that the absence of institutional constraint at the critical junctures of the development process led to unprecedented innovations that would go on to influence the world-leading Federation- era Commonwealth electoral system.137 In essence, the inability of colonial institutions to address the challenges of electoral administration according to established British practice – namely through local government and the police forces – necessitated the development of entirely new methods by independent, non-partisan innovators, and through a ‘happy accident’ of circumstance the then-unique and world-leading bureaucratic model of Australian electoral administration was born. The role played by accidental, experimental and unconstrained innovation in the early development of Australia’s electoral systems has also been examined by David Farrell and Ian McAllister, in their overview of the important period following Federation which saw the introduction of such central features as

135 In Renwick 2010, Op. Cit., 57. 136 Goodin 1996, Op. Cit., 28 137 Brent, 2009a, The Rise of the Returning Officer: How Colonial Australia Developed Advanced Electoral Institutions, PhD Dissertation, Australian National University. A condensed version of Brent’s research can be found in Brent 2009b, ‘Stuck in a Rut: The Problem with Australia's Electoral Apparatus’, Australian Journal of Political Science (44:3). 42 compulsion and preferential voting.138 While the idea of accidental innovation in the absence of institutional constraint is not central to this thesis, it remains of importance, as when contrasted with the current reform process it highlights the importance of constraint as an explanation of policy equilibrium and the inadequacy of entrenched institutions in addressing contemporary challenges.

The Australian Context

The political context central to this thesis – the operation of Australia’s more successful political parties in the Australian electoral reform process – prompts a number of minor refinements. Given this context, this thesis focuses primarily on those parties and actors with a capacity to meaningfully exert control over the electoral reform process. These generally constitute what might be termed ‘parties of government’, or at least those parties that reliably influence the passage of legislation. Compounding this, the majoritarian electoral systems that return the Houses where most governments are formed in Australia reduce the opportunities for less-significant parties to bargain over electoral reform in the process of coalition-building or government-formation. Cross-bench parties have however had some influence on the electoral reform process over recent decades, most prominently in the form of the Australian Democrats and Australian Greens when they have held the balance of power in the Senate, but also more recently as the Senate’s particular interpretation of proportional representation has seen a broad range of ‘micro-party’ representatives win election. While these cases are given attention when appropriate,139 they are peripheral, and reactive, to the central processes of electoral reform, driven as they are by the parties of government and opposition. This thesis is therefore primarily focused on the capacities of major parties to exert control over the electoral reform process, and the consequences this has had for the operation and performance of Australia’s electoral institutions.

The particular nature of major parties alters what might be expected of them. If policy- seeking is a function of dependence on manpower, then the hollowing-out and declining membership of parties would suggest a drift away from policy-seeking behaviour.140 Similarly, with office-seeking being a function of dependence on capital, as a way to fund the professional and technological necessities of modern campaigning, it was hoped that the provision of public election funding would reduce this imperative. In recommending the

138 Farrell and McAllister 2005, ‘1902 and the Origins of Preferential Electoral Systems in Australia’, Australian Journal of Politics & History (51:2); Farrell and McAllister 2006, The Australian Electoral System: Origins, Variations and Consequences, 21-46. 139 Most prominently in the discussions regarding franchise restriction in Chapter 5 and the Senate’s electoral system in Chapter 7. 140 For a broad treatment of the hollowing out of the political process, see Mair 2013, Ruling the Void: The Hollowing of Western Democracy, London: Verso Books. 43 introduction of public funding, the Joint Standing Committee on Electoral Reform argued that it would:

1. remove the necessity or temptation to seek funds that may come with conditions imposed or implied; 2. help parties to meet the increasing cost of election campaigns; 3. help new parties or interest groups compete effectively in elections; 4. relieve parties from the “constant round of fund raising” so that they could concentrate on policy problems and solutions; and 5. ensure that no participant in the political process was “hindered in its appeal to electors nor influenced in its subsequent actions by lack of access to adequate funds.141

Had these outcomes eventuated a drift away from office-seeking behaviour would be expected. However, the intervening decades have seen the costs of campaigning and the level of private donations soar.142 While issues of party and campaign finance are beyond the scope of this thesis, the basic structural realities suggest a continuing relevance for office-seeking behaviour, balanced against the ever-present imperative of vote-seeking.

Much has been written on the way in which Australia’s electoral systems fostered its two- party system, not only through application of Duverger’s Law – the disproportionality inherent in majoritarian single-member electoral systems tending to produce two-party outcomes – but also in terms of the other early electoral systems in use in the Colonies and later at State and Commonwealth levels. Rydon for example examined how early multi- member electoral systems contributed to the rise of the Labor party, and how the later shift to block voting in the Senate further reinforced the position of the major parties.143

However, electoral systems do not materialise out of the ether, and even when they do take form in a somewhat haphazard and fortuitous manner, as was the case with Australia’s pre- Federation colonial models, they are not static, unchangeable edifices. A majoritarian electoral system may well have contributed to the development of a two-party political system. However, that two-party political system has in turn contributed to the maintenance, development and entrenchment of the majoritarian electoral system that fostered it. If, as Duverger noted, electoral systems are both cameras and projectors, registering their own images, then so are the political parties with which they form a symbiotic relationship.

141 Joint Standing Committee on Electoral Reform 1983, First Report, Canberra: Parliament of the Commonwealth of Australia, 153-155. 142 Hughes and Costar 2006, Limiting Democracy, Sydney: UNSW Press, 60-66 143 Rydon 1968, ‘Electoral Methods and the Australian Party System 1910-1951’, in Hughes (ed.) 1968, Readings in Australian Government, St Lucia: University of Queensland Press. 44

As Goodin suggests, the context in which institutional development occurs is central to finding solutions to these issues:

Thus, even within the realm of our institutional interventions, what we should be aiming at is not the design of institutions directly. Rather, we should be aiming at designing schemes for designing institutions – schemes which will pay due regard to the multiplicity of designers and to the inevitably cross-cutting nature of their intentional interventions in the design process.144

While Australia is still widely considered to be a world leader in matters of electoral management – and has at times thoroughly deserved this reputation – it is the intention of this thesis to demonstrate, building on these key theoretical ideas, that this has not necessarily been the result of particularly good planning, nor a commitment to upkeep or reform. Rather, the process of electoral system development and reform has from the very beginning been strongly influenced by the surrounding institutional context, taking the form of three interrelated processes: the institutional structure of the electoral system and reform process, the partisan self-interest inherent in the party system, and the problems of legitimacy which bind all political action.

Conclusion

This focus of this thesis is the capacity of the Australian electoral system and electoral reform process to address the demands of contemporary patterns of electoral participation. Electoral systems are institutions, and as such the fields of institutionalism and institutional development provide the insights necessary to analyse their operation. Institutionalism offers three key explanatory tools for the study of an evolving institutional, in the form of the way intention, constraint and accident have informed and continue to inform the development of Australia’s electoral apparatus. This chapter considered these tools in turn.

Intention is central to the institutional reform process in that institutional change is often driven by the intervention of purposive, goal-seeking agents, such as politicians and political parties. The motivations of these actors are key, and can be understood through Strom’s model of actors as driven by competing imperatives to seek votes, the trappings of office and the achievement of particular policy ends. The role of intention is also important in understanding how the policy equilibrium can be maintained in the face of evolving circumstances, particularly when the status quo benefits incumbent actors.

144 Goodin 1996, Op. Cit., 28 45

The second key tool is that of constraint. Constraint explains the influence of external actors, of institutions, and of the nature of the reform process itself, on the mechanisms, options and outcomes of that process. This chapter explored the way in which all political actions must operate within the bounds of legitimacy, exerted through the democratic expression of voters. It also considered the roles played by experts and the judiciary, as well as problems of path dependence and institutional lock-in.

Finally, the importance of accident cannot be overstated. Simply put, consequences are unpredictable. No one can be entirely certain that what they want in an institutional reform is what they will get, or even that what they get will achieve what they expect it to. Further, circumstances are always in flux and what benefits an actor now may not do so in the future. As a consequence, actors may adopt a conservative, risk-minimising approach to institutional reform. By contrast, situations may also eventuate in which institutional structure and constraint is remarkably weak, such as was the case with the early development of Australia’s electoral systems, and where dynamic and highly influential development may consequentially eventuate.

The theoretical ideas of institutional development discussed here serve to inform the broader approach of this thesis. The development of electoral institutions does not occur in a vacuum, and the broader institutional context must be carefully considered so as to fully understand its influence. The purpose of analysing the institutional structure and processes of development of Australia’s electoral system is to evaluate and explain both its historical development, and its capacity to address the demands of contemporary patterns of electoral participation. Which this in mind, the following chapter considers the problem of participation. Through doing so, it explains how and why individuals choose to participate in the electoral process.

46

Chapter 3 – Historical Context

It is [Australia] which has travelled farthest and fastest along the road which leads to the unlimited rule of the multitude.

– James Bryce, 1921145

In order to understand the means by which electoral institutions may be appropriately reformed, it is essential to gain a clear conception of how they came to take their present forms. To this end, this chapter provides an overview of the processes by which Australia’s electoral apparatus developed, from early colonial experimentation through to the last great wave of electoral reform at the beginning of the modern electoral era.

Indeed, Australia’s present electoral system owes much to those of its predecessors, the pre-Federation Colonies, and to innovation at the State level following Federation. Core features such as women’s suffrage, compulsion, the preferential vote and independent electoral authorities all arose at lower levels before their adoption by the Commonwealth. It is consequently essential to consider how and why these innovations first came about. These early developments are a textbook example of the power of constraint in institutional development – wild innovation in the absence of control, leading to a suite of entrenched options that both prompted later developments and restricted the accepted bounds of possibility. Further, the later development of Australia’s electoral system provides repeated examples of partisan self-interest exerting an influence over electoral policy. It is therefore no surprise that, as Uhr has remarked, the Australian system is such a compromise of ‘democratic ideals and partisan deals’.146

The history of electoral system development in Australia is one of waves of innovation, interspersed with periods of consolidation or stagnation. Uhr identifies three such waves: the consolidation and reform in 1918 and the early 1920s of the initial national electoral legislation, involving the first consolidated electoral act and the introductions of compulsion and preferential voting; the 1948 enlargement of the size of the Parliament, and the introduction of proportional representation in the Senate; and the in mid-1980s, further expansion of Parliament and the introduction of new supports for party voting and party financing. To these should be added a further two periods of innovation and development – the initial development of colonial electoral systems beginning in the mid-nineteenth

145 Bryce 1921, Modern Democracies: Volume II, New York: Macmillan, 166. 146 Uhr 2000, Parliament and the Design of the Australian Electoral System, i. 47

century, and their unification into a single Commonwealth electoral system – under a single Chief Electoral Officer – from 1902. Further, there are key aspects of reform that fall outside these discrete periods, most notably for this chapter the ongoing expansion of the franchise, which culminated during an otherwise-barren period for reform between 1949 and 1973.

This chapter examines the historical context of Australia’s electoral system and the key junctures in its development.147 First, it considers the initial stages of Australian electoral development – the democratisation of the Australian Colonies from the 1850s onwards, the colonial electoral heritage they bestowed upon the new Commonwealth of Australia, and the establishment of a uniform electoral system following Federation. Rather than mirroring Uhr’s three waves, the chapter then continues thematically, considering the development of three aspects of Australia’s electoral policies that are central to the approach of this thesis: the ongoing expansion of the franchise, the introduction of policies of compulsion, and the development of preferential voting. Each broadly reflects one of the three faces of electoral participation in Australia – enrolment, turnout and formality. Finally, the chapter examines how the High Court of Australia has shaped the nation’s electoral policies and institutions, through its role as interpreter of the Constitution of Australia.

In a broader sense, the chapter also serves as a link between the introductory, theoretical elements of the thesis, and its analytical bulk. The previous chapters discussed the theoretical bases for this thesis – the nature and importance of electoral participation and the principles of institutional development with respect to electoral institutions. This chapter demonstrates how these principles have impacted the evolution of the Australian electoral system from the very beginning. The remainder of the thesis employs these principles to illuminate the current construction and recent history of Australia’s electoral system, across the three facets of participation: enrolment, turnout and formality. This chapter serves as context for these chapters, explaining why and how the system came to take the form that it does. Yet taken as a whole, the purpose of the chapter is even greater. In tracing the development of Australia’s electoral apparatus, it demonstrates how great a share of the innovative practices Australia has relied upon for the maximisation of participation came about as non-partisan administrative measures, often before the party system solidified. Further, by laying out the changing context within which electoral policies have been developed, it suggests a certain futility in hoping such innovations will continue to blossom. The following chapters reinforce these themes.

147 Helpful timelines of Australia’s electoral development can be found in the Joint Standing Committee for Electoral Reform’s 1983 First Report, 1-33, and on the AEC website: http://www.aec.gov.au/Elections/australian_electoral_history/reform.htm 48

Australia’s Colonial Electoral Heritage

Uhr reflects a common sentiment when he writes of Australia has being long regarded internationally as ‘a laboratory for democratic political innovation.’148 Yet as the previous chapter detailed, institutional development is very much a matter of context, and Australia’s early electoral institutions provide ample demonstration. As Brent explains,

Institutions reflect the unique collection of experiences that comprise their history, and the nature of Australian settlement has left a lasting imprint on our electoral administration.149

As the justification for this thesis has detailed, this was a reputation earned through early innovation, however colonial Australia was not always at the forefront of democratic practice. For Brent, the role of the Colonies in the history of modern democracy has been both under and overstated.150 Until the 1850s, they lagged not only behind the global leaders of democratisation – France, Switzerland and the United States of America, for example – but behind even the United Kingdom, where the electoral system had been modernised through the ‘Great Reform Act’, the Representation of the People Act 1832.

In the early 19th century, power in the Australian Colonies was concentrated in the hands of the Governors, who ruled on behalf of Britain with few legal restraints. Yet the Colonies also offered a potent context in which to pursue reform. The contributing factors are manifold. The time of settlement is important. Coming as it did during the industrial revolution, the nature of the British society from which the first convicts and settlers were drawn is key. According to Rosecrance, the Australian settlements were ‘formed out of the crucible of British social ferment’, while for Louis Hartz the ‘radical setting of Australia enshrines, no less passionately than the United States enshrines Locke, the spirit of the Chartists.’151 For Brent, the influence of philosophical radicals espousing Benthamite utilitarianism is every bit as important, promulgating notions of equality and universal worth at a key moment in the development of Australia’s early electoral machinery. Shared aims of both Chartists and Radicals certainly inspired key features of Australia’s systems: adult male suffrage, equality of the vote and the secret ballot, for example.

148 Uhr 2000, Op. Cit., 4. 149 Brent 2009a, The Rise of the Returning Officer: How Colonial Australia Developed Advanced Electoral Institutions, PhD Dissertation, Australian National University, 13. 150 Ibid. 30-31. 151 Rosecrance 1964, ‘The Radical Culture of Australia’, 287, in Hartz (ed.) 1964, The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada and Australia, New York: Harcourt, Brace and World; Hartz 1964, ‘A Theory of the Development of the New Societies’, 4, in Hartz (ed.) 1964, Op. Cit. 49

Further, the influx of individuals and ideas forms only one part of the colonial context, which also offered a relatively unconstrained environment in which new ideas could incubate. There was no entrenched aristocracy exerting constraint through a hereditary House of Lords. There were no formal political parties. Indeed, there was very little by way of a tradition of government, beyond the colonial authorities, with the example of Britain not necessarily any more compelling than that of alternatives such as the United States of America.

As early as 1820 there was agitation in the largest Colony, New South Wales, for some level of representation. However, the issue was complicated by the fact that a large majority of the population were former convicts, who would not have been able to vote in England. When Australia’s first legislature, the New South Wales Legislative Council, was established in 1824, it was as an appointed, five-member advisory body to the Governor. The imminent ending of penal transportation eased the complications, and the Council was repeatedly expanded until in 1842 it became a 36-member body, of whom 24 were elected.

It was in 1850 however that the broader democratisation of the Colonies began.152 That year, the British House of Commons passed an Act for the Better Government of Her Majesty's Australian Colonies.153 This Act, which formally separated Victoria from New South Wales, extended, established or provided an avenue towards the power to legislate for elected assemblies for all of the established Colonies – New South Wales, Victoria, South Australia, Western Australia and Van Diemen’s Land (later Tasmania). The Colonies embraced this new power, with all bar Western Australia featuring bi-cameral legislatures by 1859, albeit with appointed members and property-restricted franchises for upper houses a common feature.154 Yet mass enfranchisement was fundamental, with manhood suffrage for lower houses being sufficiently widespread to qualify, as Colin Hughes puts it, as a ‘characteristic feature’ of these early systems.155

152 This did not always occur with the cooperation of those who held power. In 1848, the Lieutenant-Governor of Tasmania Sir William Denison wrote to British authorities, urging them to check the democratisation of the Colony. ‘There is an essentially democratic spirit which actuates the large mass of the community’, he wrote, ‘and it is with a view to check that spirit, of preventing it coming into operation, that I would suggest the formation of an Upper Chamber.’ Tasmanian Parliamentary Library 2005, Tasmanian Parliament, Parliamentary Backgrounder, 1. 153 Later termed the Australian Constitutions Act 1850. 154 The State assemblies were progressively democratised. Western Australia moved to election of Legislative Council members in 1893, when a gold rush surprisingly triggered a population threshold, while New South Wales did not abolish appointment until 1978. Of those states with property qualifications, Tasmania adopted universal suffrage in 1968 and South Australia in 1973. A number also followed the Australian Senate's transition to systems of proportional representation for their upper houses, most recently the Victorian Legislative Council in 2003. Conversely, Western Australia retains unequally-sized electorates, heavily favouring rural voters. Most dramatically, Queensland's Legislative Council was abolished in 1922. The Labor government convinced the Governor to appoint sufficient new members to grant them control, with Alfred James Jones, Leader of the Government in the Council, famously remarking that ‘until we had a majority here, it was obstructive, and now that we have a majority here it is useless.’ 155 Hughes, 1992, ‘The Bureaucratic Model: Australia’, Journal of Behavioral and Social Sciences (37), 106. 50

For Brent, this rapid expansion is central in explaining the administrative innovations that arose in Australia.156 Faced with sudden, mass enfranchisement, authorities were forced to turn to experimental, progressive means of enrolment and vote-taking. South Australia pioneered comprehensive, continuously updated rolls,157 which necessitated the world’s first permanent, salaried electoral officials, while Western Australia was driven by the tyranny of distance towards an early system of postal voting. These innovations proved necessary, with franchise restrictions being progressively relaxed, culminating with South Australia following New Zealand’s lead in 1895 and legislating for universal adult suffrage, thereby extending the vote to women, and Western Australia following suit in 1899.

The broader history of colonial Indigenous enfranchisement is however not a positive one. Broadly, Indigenous Australians enjoyed the same voting rights as their European counterparts in colonial Australia, albeit without any active encouragement to exercise them, and indeed often the opposite.158 South Australia was most inclusive, with Indigenous women enfranchised alongside their European counterparts in 1895. Queensland and Western Australia however expressly excluded the Indigenous in 1885 and 1893 respectively.159 However, whether this theoretical right to vote was taken up in any particularly broad manner is unknown. According to Peter Howell, no ‘full-blooded Aborigine’ is known to have pursued their right to vote in 19th century South Australia,160 however at least some Indigenous Australians voted as early as 1896 and for some years after at the Point McLeay polling station in the South Australian Division of Barker, where the majority of names on the roll were Indigenous.161

Indeed, any detailed information regarding patterns of electoral participation in colonial Australia is rare. Fowler has identified just two sources offering a socio-economic breakdown of participation, both from colonial Victoria, stemming from the 1877 colonial election and the 1899 referendum on the question of Federation.162 For the first source we must thank one Robert Clark, a working-class miner elected to the Victorian Legislative Assembly in 1877. On his election, Clark requested a report of voter turnout by ‘propertied

156 Brent 2009a, Op. Cit., 8. 157 Brent 2009a, Op. Cit., 15. These rolls were based on ten-yearly censuses, five-yearly habitation reviews, and continuous processing of updated enrolments. Other Colonies followed the British model, with at-best annual updates. At Federation, the Commonwealth built its electoral apparatus largely from the South Australian model and appointed that state’s senior electoral administrator as the new Chief Electoral Officer for the Commonwealth. 158 Australian Electoral Commission 2006a, History of the Indigenous Vote, 4. 159 Ibid. 160 Howell 1986, 'Constitutional and Political Development, 1857–1890' in Jaensch (ed.) 1986, The Flinders History of South Australia: Political History, Netley: Wakefield Press, 118. 161 Australian Electoral Commission 2006a, Op. Cit. 4. 162 Fowler 2013, ‘Electoral and Policy Consequences of Voter Turnout: Evidence from Compulsory Voting in Australia’, Quarterly Journal of Political Science (8:2), 164-168. 51 and non-propertied classes’.163 This report provided turnout data for 37 of the 55 electoral districts then in Victoria,164 containing some 170,000 eligible voters. These voters were classified as either propertied (including farmers, butchers, storekeepers and ‘gentle-men’) or non-propertied (labourers, servants, cooks, gardeners, et cetera). At the time, property- owners were automatically enrolled while non-owners were required to pay one shilling for the privilege. For each district, the 1877 report presented the approximate number of eligible-voters, of registered property-owners and non-property owners, and propertied and non-propertied voters. From these figures, Fowler derived the following statistics:

… only 18 percent of eligible non-property owners turned out to vote compared to 66 percent of property-owners. Given the burden of registration, only 32 percent of eligible non-property-owners bothered to pay the shilling and get on the roll. Even conditional on registering, only 57 percent of those individuals turned out. Surprisingly, property owners were more likely to vote than even the subset of non- property-owners who had paid to become registered. Put another way, property- owners comprised 84 percent of the electorate even though they only comprised 59 percent of the eligible voters.165

The second source regards the 1899 referendum on the question of Federation. While the referendum was expected to pass, the Victorian government hoped to ensure its legitimacy by ensuring a high level of turnout. To this end it offered an incentive to voters in the form of individual certificates and the recording of voters’ names in a commemorative book.166 This book features the names, occupations and locations of some 163,783 men. While enrolment was by this time both free and mandatory, there is no comparable list of all registered voters. However, Fowler compared a subset of those named in the book with the still-extant 1899 electoral roll for the Victorian city of Bendigo, a document featuring an even greater level of specificity regarding 3510 individual voters. From this comparison, Fowler determined that some 61 per cent of registered voters in Bendigo voted in the referendum, with property owners 10 percentage points more likely to have voted than occupiers, and property value also displaying a positive relationship to turnout among both owners and occupiers. Despite the narrowing of the enrolment gap through the introduction of mandatory, free enrolment, these results demonstrate that inequality in participation persisted. Further, while these results are respectively limited to Victoria and even more specifically to Bendigo, Fowler argues that there is no reason to believe that turnout inequality was restricted to these areas, nor that it should vary significantly across the rest of Australia.

163 Votes and Proceedings of the Legislative Assembly, 1877–78, Vol. 1, 767. Incidentally, Fowler is of the belief that this is the sole Australian electoral return to have ever offered a demographic breakdown of turnout 164 The majority of the remainder were uncontested, with sitting members unopposed for re-election and hence no votes being cast. This was a common occurrence in colonial politics. 165 Fowler 2013, Op. Cit., 166. 166 One wonders if this would have the same effect today. 52

The second half of the 19th century saw the introduction in the Colonies of three key electoral tools that would become core features of the later Commonwealth electoral system: the secret ballot, proportional representation and preferential voting, addressed here in turn. Secret votes were nothing new by this time. They had been employed in the United States, France, Switzerland and Belgium, with varying degrees of success. Nor was the idea of a universal secret ballot new. It had been popular with British liberals and progressives from the late 18th century, had been advocated in the House of Commons as early as 1833, was pursued by both Chartists and Radicals in the name of preventing bribery and coercion, and was rejected some 28 times by the House of Lords before it finally relented in 1872.

The limitations of existing attempts were however clear. Voters brought their own ballot papers to the polling place and deposited them without revealing their vote, but this in no way eliminated the possibility of disclosure, coercion or bribery – even involving the supply of pre-filled, easily-recognisable ballots by third parties – before attendance at the polls. Where Victoria departed from previous attempts was in pioneering the now-ubiquitous standardised, state-supplied ballot paper, on which voters indicated their favoured candidates but left no other mark. According to Brent, so significant was the idea that no- one had even suggested such a thing anywhere else, with the closest being an elaborate mechanical scheme proposed by Bentham.167 This simple change made the ballot truly secret for the first time.168 The power of the innovation was such that Tasmania and South Australia copied Victoria’s new system before it had even seen action, while what was now known as the ‘Australian ballot’ spread swiftly around the world.

The second mechanical innovation was that of preferential voting. In 1892, Queensland introduced a system of ‘contingent voting’, where electors were able – but not compelled – to rank candidates in order of preference. The government had initially proposed to adopt a runoff system as was then popular in Europe, but was persuaded that it would add unnecessary difficulty and expense to electoral administration, particularly in the then- common two-member electorates, and instead opted for an instant-runoff option.169 While predated by the single-transferrable-vote system used for proportional representation, this was the first implementation of preferential voting system for single-member electorates. The system remained in operation until 1942, when the Cooper Labor government,

167 Brent 2009a, Op. Cit., 140-143. At 158-159 he does however raise the possibility of something similar being in operation at some point in Belgium or the Netherlands. 168 Its ramifications may be even greater. Marian Sawer, for example, argues that the Australian ballot contributed to female suffrage by providing for a calmer environment at polling stations, more suited to 19th century attitudes towards women. Sawer 2001, 'Pacemakers for the world?’, 12, in Sawer (ed.) 2001, Elections: Full, Free & Fair, Annandale: Federation Press. 169 Farrell and McAllister 2006, The Australian Electoral System: Origins, Variations and Consequences, 25, 52- 54. One key difference between contingent voting and later systems is that all but the leading two candidates were immediately eliminated before preference distribution, rather than through a progressive distribution. 53

concerned by the flow of preferences against it at the previous election, returned to a simple plurality vote.170 Despite its eventual fate the contingent vote, through its inspiration for the Commonwealth’s later system of compulsory preferential voting, contributed heavily to the now common use of preferential voting at all levels of Australian elections.

The third key Colonial policy episode is the Tasmanian adoption of the Hare-Clark system of single-transferrable-vote proportional representation.171 The reform was championed by the Attorney-General, Inglis Clark as a way of addressing the classic problem of single- member plurality systems – systematic underrepresentation of minorities. However, recognising that opposition from rural politicians would be fierce, he restricted his proposal to those seats in Hobart and Launceston, hoping that in time the system would be extended across the Colony. An interesting feature of this system, introduced through an amendment to Clark’s original bill, was that voters were required to express preferences for a minimum of half the number of seats to be filled – an early example of partial preferential voting, combining degrees of both compulsion and optional preferencing. Hare-Clark was removed in 1901,172 but reintroduced in 1906 on a state-wide basis and remains in operation today. The Tasmanian system provided the example to the early Commonwealth that proportional representation could work, although it was not until 1948 that it was introduced for the Senate. Key features of the system have been repeated in later Australian implementations, including its use of the single-transferrable-vote, incomplete preferences, and the division of a larger jurisdiction into smaller multi-member electorates.

Federation and the first Commonwealth electoral system

As the Colonies moved towards Federation in the late 19th century, vast differences remained between their electoral policies, and attention turned to just how a uniform system could be established for the new Commonwealth. The first gentle steps came through the Constitution. Yet for such a fundamental document, it is somewhat light-on for specifics. A number of core principles were established through the constitutional debates of the 1890s, but the specifics of electoral systems were rarely broached. Brian Galligan and James Warden attribute this to contention over the issue of the franchise. 173 As South Australia and Western Australia had recently granted women the vote, it was judged that the safest way to avoid disenfranchisement was to leave electoral matters to the future Commonwealth Parliament. Likewise, it was thought that any attempts to impose a uniform electoral system on the various Colonies might threaten ratification of the Constitution. The

170 Wanna 2004, Democratic and Electoral Shifts in Queensland: Back to First Past the Post Voting, Canberra: Democratic Audit of Australia, 1. 171 Farrell and McAllister 2006, Op. Cit., 28-29. 172 The cause in the Electoral Act 1896 enabling its usage required yearly renewal and was allowed to lapse. 173 Galligan and Warden 1986, ‘The Design of the Senate’, 110, in Craven (ed.) 1986, The Convention Debates, 1891-1898: Commentaries, Indices and Guide, Sydney: Pearson. 54

broader document consequently reflects the intentions of the framers to leave the majority of the details to the new Parliament, through the oft-repeated motif of ‘until the Parliament otherwise provides’. As Gordon Stanley Reid and Martyn Forrest have noted:

The architects of the Constitution placed great faith in the capacity of the elected Senators and Members to design statute law for a system of representative self- government, notwithstanding that they would be legislating in their own interest.174

Direct election to the two Houses of Parliament is mandated,175 as is the distribution of seats to States – proportionate for the House of Representatives and equal for the Senate. Until the Parliament provided otherwise, the precise method of translating votes into seats was left initially to the whim of each individual State, on the condition that Senators be elected by each State as a single electorate.176 The franchise is broadly defined by Sections 30 and 8 through two key provisions, granting the power to the Parliament to legislate as to the qualification of electors, on the proviso that the same franchise applies for both houses, but basing the initial franchise on that of each individual State, albeit with a prohibition on multiple voting.177 The immediate intention of this last clause was, as Protectionist Senator Richard O’Connor later put it, to ‘take the sting out of the property vote in a great many of the States’,178 without expressly tackling property qualifications.

Given the limited nature of these provisions, the first election of the new Australian Commonwealth, the 1901 Australian Federal Election, was consequently conducted along differing lines, according to State. With regard to the franchise, Tasmanians remained subject to a property qualification, women voted only in South Australia and Western Australia, and while Indigenous Australians were theoretically entitled to vote in South Australia and Tasmania, it is unclear if any did. In all other States the franchise encompassed all male British subjects over the age of twenty-one.

The systems that returned the first members of the House of Representatives also varied. While most States operated under the enduring system of single-member electorates, both

174 Reid and Forrest 1989, Australia’s Commonwealth Parliament 1901-1988: Ten Perspectives, Melbourne: Melbourne University Press, 87. 175 Indirect election of Senators by State parliaments was proposed in the 1891 draft, but did not last. 176 This was also the backup arrangement for the House of Representatives, in the absence of any applicable State or Commonwealth law. 177 The Constitution also contains two provisions, strange to the modern eye, regarding the electoral impact of ethnicity and gender. In an attempt to discourage discrimination, Section 25 provides that those States that disqualify ‘all persons of any race’ from voting may not count them for the purposes of seat allocation. However, Section 128, dealing with Constitutional referenda, is a sop to those who resisted enfranchising women: any State where ‘adult suffrage prevails’ should have their referendum vote-count halved, so as not to overwhelm those that did not in the national-majority tally. 178 Commonwealth Parliamentary Debates 1902, 11450 (Senator O’Connor). Prior to Federation, Senator O’Connor had been a member of the constitutional and drafting committees at the Australasian Federal Convention. 55

South Australia and Tasmania employed State-wide multi-member electorates. South Australia employed a form of block-voting, while Tasmania used its home-grown Hare-Clark form of proportional representation. Further, Queensland employed the contingent vote, its early system of optional preferential voting.179

Following the 1901 election, the new Barton government quickly set about the work of establishing a uniform national electoral system, and looked to State practices for inspiration. A report by the first team of Commonwealth electoral officers, then part of the Department of Home Affairs, drew on South Australian and Tasmania voter registration schemes, South Australian and Victorian postal voting arrangements, and the adoption of a compulsory version of Queensland's preferential contingent-voting system wherever single- member electorates were in operation.180

The Barton government drew on this advice and proposed a pair of bills that would become the Commonwealth Electoral Act 1902 and the Commonwealth Franchise Act 1902. These bills built on the more progressive aspects of colonial practice, with some modification.181 For the House of Representatives, the draft Electoral bill proposed a system of preferential voting much like that in operation today. The system was described as ‘a modification of the Queensland practice, and an improvement upon it’,182 with the contingent system replaced by a fully iterative distribution of preferences. For the Senate, the bill proposed a system of preferential, proportional representation based on the Tasmanian Hare-Clark single- transferrable-vote (STV) system. However, again there were adjustments. While both systems retained optional preferences, the proposed Senate system allowed voters to strike out undesired candidates, with the implication that candidates neither preferenced nor stricken out would be deemed to be of equal preference.183 In addition, the Senate system adopted the Droop quota, and both systems turned to the Gregory method for the transferring of surplus votes.184

The bill was to be introduced in June 1901, five days into the sitting of the Australia’s first elected federal parliament. However, due to what the responsible minister, William Lyne called ‘the pressure of business’ in the House, the government was forced to wait until January 1902, and to introduce the bill into the Senate first. There, it was bogged down by debates over the more contentious proposed Senate system. These varied, including

179 A table of colonial systems can be found in Farrell and McAllister 2006, Op. Cit., 23. 180 Uhr 2000, Op. Cit., 10. 181 Farrell and McAllister, 2005, ‘1902 and the Origins of Preferential Electoral Systems in Australia’, 161-166. 182 Commonwealth Parliamentary Debates (Senate), 31 January 1902, 9534 (Senator O’Connor). 183 This foreshadows the debate surrounding ‘Langer votes’, discussed later in this chapter. 184 A system by which all votes of eliminated candidates are transferred at a fraction of their original value, according to the size of the surplus. Alternative methods involved transferring only the last ‘packet’ of votes, or of a random sample. For further discussion see Farrell and McAllister 2003, ‘The 1983 change in Surplus Vote Transfer Procedures for the Australian Senate and its Consequences for STV’, Australian Journal of Political Science (38:3). 56 fundamental objections to proportional representation, objections to the specific type of STV proposed – largely by supporters of the original Tasmanian system – and concerns over the inclusion of this specific reform within the broader bill. As the debate turned against the government, the block vote was proposed as the only alternative, and despite disagreement between the houses and a late rear-guard action in the direction of a limited vote system, threats to the entire bill eventually saw block voting implemented. With STV for the Senate defeated, the debate turned to the House. However, by this point the Labor caucus had decided to formally oppose preferential voting, over concerns of voter confusion between two differing systems. With no hope of the vote carrying, Lyne feigned a change of heart, and an amendment introducing a single-member plurality system for the House was carried on the voices. 185

The Franchise bill established an egalitarian franchise that extended the vote to all adults, including women, the Indigenous and other non-whites, on the simple qualifications of six- months residency and being ‘natural-born or naturalised subjects of the King’. The reasoning was straightforward, as the responsible Minister, Senator O’Connor argued:

I can see no reason in the world why we should continue to impose laws which have to be obeyed … without giving them some voice in the election of members who make those laws. It would be a great mistake from every point of view to have any portion of the community in such a position that, while it had to obey the laws, it would have no right to vote in the election of those who had to make the laws.

While the enfranchisement of women was successful, further enfranchisement did not survive contact with the Parliament. Voting rights for non-whites were restricted to those who held them prior to the passage of the amended Franchise bill. Both Acts as passed were shallow reflections of the aspirations contained within the original bills. As Uhr has put it:

…the Barton Government's highest hopes for innovative 'rules for representation' succumbed to emerging Parliamentary realities and the preference for the tried and tested rules of party convenience.186

The eventual Commonwealth Franchise Act 1902 was a restrictive document, both in nature and effect, and diminutive enough to be quoted here in its entirety:

1. This Act may be cited as the Commonwealth Franchise Act 1902, and shall be incorporated and read as one with the Commonwealth Electoral Act 1902.

185 For an overview of the bill’s journey, see Farrell and McAllister 2005, Op. Cit., 164-165, and Graham 1962, ‘The Choice of Voting Methods in Federal Politics, 1902-1918’, Australian Journal of Politics and History (8:2), 168-169. 186 Uhr 2000, Op. Cit., 1. 57

2. This Act shall not affect any election of a new member to fill Application of any vacancy occurring in the House of Representatives during the Act.

3. Subject to the disqualifications hereafter set out, all persons not under twenty-one years of age whether male or female married or unmarried: (a) Who have lived in Australia for six months continuously, and (b) Who are natural born or naturalized subjects of the King, and (c) Whose names are on the Electoral Roll for any Electoral Division, shall be entitled to vote at the election of Members of the Senate and the House of Representatives.

4. No person who is of unsound mind and no person attainted of treason, or who has been convicted and is under sentence or subject to be sentenced for any offence punishable under the law of any part of the King's dominions by imprisonment for one year or longer, shall be entitled to vote at any election of Members of the Senate or the House of Representatives.

No aboriginal native of Australia Asia Africa or the Islands of the Pacific except New Zealand shall be entitled to have his name placed on an Electoral Roll unless so entitled under section forty one of the Constitution.

5. No person shall be entitled to vote more than once at the same election.

Section 41 of the Constitution, as referenced in Section 4 of the Act, restricts the capacity of the Parliament to establish a franchise different from that of the States:

No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

The enfranchisement of women proved effective, with the remaining States soon following suit. New South Wales granted women the vote in 1902, followed by Tasmania in 1903, Queensland in 1904 and Victoria in 1908. Yet the disenfranchisement of non-whites endured. While the intention of the interaction between Section 4 of the Act and Section 41 of the Constitution was to at least protect the rights of those non-white subjects who had won the vote at State level, it proved ineffective.

A narrow interpretation of Section 41 was adopted under the Commonwealth’s first Solicitor-General, Sir Robert Garran, protecting the rights only of those who were already

58

state voters in 1901. Consequently the vast majority of non-white members of society were denied the franchise, although some Indigenous Australians did retain their rights. As late as the 1905 election, the majority of names on the electoral roll at the Point McLeay polling place in the South Australian electoral division of Barker were those of Indigenous people. Further, qualification was left at the discretion of electoral officials, who had the power to rule who was or was not Indigenous, meaning those who ‘lived like white people’ were sometimes permitted to vote.187

The Expansion of the Franchise

The first serious challenge to the restrictive interpretation of Section 41 came in 1924, when Mitta Bullosh, a British subject of Indian birth who had been accepted as a voter by Victoria,188 challenged the Commonwealth’s decision to deny his enrolment. He was successful in the District Court, and the Commonwealth government mounted but later withdrew a High Court appeal, under pressure from Britain and India.189 The Electoral Act was amended to reflect the ruling, but the expanded qualification was limited to the 2300 resident British Indians and a small number of naturalised ‘Asiatics’: 238 Syrians, 24 Palestinians and four Armenians.190

The non-white franchise saw significant expansion under the Menzies Liberal government.191 In 1949, the Commonwealth Electoral Act 1918 was amended to expressly grant the right to vote to all those who qualified at State level, which extended the vote to all Indigenous Australians outside Queensland and Western Australia. In 1961 the Act was again amended, this time granting the right to enrol and vote to all adults irrespective of their rights at State level. The amendment passed with little debate, with the government labelling the clauses ‘objectionable and outmoded.’192 Western Australia and Northern Territory followed suit that same year, while Queensland finally granted the Indigenous franchise in 1965. However, Commonwealth enrolment for the Indigenous remained optional – and indeed Sections 156 and 158 of the Act made it an offence to use any undue pressure or influence in encouraging the Indigenous to enrol – until 1983.

187 Australian Electoral Commission 2006a, Op. Cit., 5. 188 It should be noted that Victoria and New South Wales maintained an inclusive franchise throughout this period. 189 Australian Electoral Commission 2006a, Op. Cit., 6; Norberry, and Williams 2002, Voters and the Franchise: The Federal Story, Parliamentary Library Research Paper No. 17 2001-2002, Canberra: Parliament of the Commonwealth of Australia. 190 Commonwealth Parliamentary Debates (Senate and House of Representatives), 16 September 1925, 2499 (Mr Marr). 191 This was the only meaningful electoral reform of the era, and understandably so. As far as the Coalition was concerned, a 23 year stretch in power suggested an electoral system that worked quite well. 192 Commonwealth Parliamentary Debates (House of Representatives), 8 November 1960, 2549 (Mr Freeth). 59

The other major expansion of the franchise through this period was the Whitlam Labor government’s extension of the vote to 18 year olds in 1973. In lowering the age of attainment, Australia lagged behind comparable nations such as the United States, the United Kingdom, Canada, and even its closest neighbour Papua New Guinea. The issue had been a topic of some debate during the 1969 election campaign, due in no small part to the prevalence of issues directly impacting 18 to 20 year olds, most notably that of conscription for the ongoing war in Vietnam. During the campaign then Prime Minister John Gorton was asked whether 18 year olds would have the vote at the following election, to which he replied that he ‘believe[d] they will’, but that it was a matter of ‘getting uniformity with the States’. Yet, while the States began to expand the franchise individually, beginning with Western Australia in 1970 and South Australia in 1971,193 Gorton deflected accusations from then Opposition Leader Gough Whitlam that he had broken a promise on the matter and refused to pursue the issue, while his successor William McMahon declined to support a bill put forward by Labor, despite a majority in both houses supporting the move.194

The rationale for both parties was clear. As Fred Daly, Labor’s spokesman on electoral matters noted, the votes of 18-to-20 year olds would ‘make or break this Government’. In the event, maintaining the restrictive franchise was not sufficient for the Coalition to retain power. Labor assumed power at the 1972 election and soon introduced legislation to lower the voting age to eighteen. The Coalition opposition under Billy Snedden argued against the measure but allowed it to pass, while the later Fraser Coalition government showed no interested in repealing it.

With these gaps in the franchise filled, the vote in Australia has become near-universal, with only the long-extant disqualifications for treason or unsoundness of mind persisting. However, Australia’s colonial history has also led to one uncommon qualification – that of a small number of non-citizen British subjects who retain their historic right to vote. It was not until the 1983 electoral reforms that the fundamental qualification for the franchise moved from being a British subject to an Australian citizen. However, Section 93(1)(b)(ii) of the Commonwealth Electoral Act permits those who held the vote as British subjects at the time of the reform to keep it, on the proviso that they maintain their enrolment.195 As of 2008 some 162,928 British subjects remained enrolled, comprising more than one per cent of the roll.196

193 New South Wales passed legislation but did not enact it. 194 The Age 1972, ‘Vote-at-18 bill shelved’, May 12. 195 Costar and Mares 2011, ‘The Voting Rights of Non-Resident Citizens and Non-Citizen Residents’, in Tham, Costar and Orr (eds.) 2011, Electoral Democracy: Australian Prospects, Melbourne: Melbourne University Press. 196 Joint Standing Committee on Electoral Matters 2009b, The 2007 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 351. 60

As for Section 41 of the Constitution, it was not definitively interpreted until it came before the High Court in R. v Pearson; Ex part Sipka (1983). Four individuals qualified to vote in New South Wales challenged their exclusion from the Commonwealth franchise. The Fraser government’s early closure of the rolls had meant the four missed out on enrolling – one became naturalised in the interim, one turned eighteen, while the remaining two simply enrolled on the still-open New South Wales state roll. The High Court accepted the narrow interpretation that had persisted since Garran’s time, holding s41 to be a transitional provision, protecting only those rights as existed at the time of the initial franchise act. As Justices Gibbs, Mason and Wilson explained:

By virtue of s. 41, the Commonwealth law which first established the franchise could not have prevented any person who then had a right to vote at elections for the more numerous House of the Parliament of a State from voting at elections for either House of the Parliament of the Commonwealth. But once a Commonwealth law had been passed completely establishing the franchise, no person, not already qualified to vote at Commonwealth elections, could become so qualified by virtue of the Constitution alone. No future law could be said to prevent such persons from voting, since there was nothing in the Constitution or in the law that gave them a right to vote. This construction, which requires that the right to vote to which s. 41 refers must have been acquired by the persons concerned before the federal franchise was established, gives a narrow effect to s. 41.

Such a narrow interpretation was a necessary corollary of the Parliament’s constitutionally- mandated power to determine the franchise. As Justices Deane, Brennan and Dawson argued, if the State franchise was allowed to determine the Commonwealth franchise,

…the power conferred upon the Parliament to legislate for a uniform franchise would be destroyed. A Parliament of a State would be empowered to give the federal franchise to those whom the Commonwealth Parliament has excluded or disqualified, for example, property owners who do not live in the State, aliens, prohibited immigrants or convicts under sentence for more serious offences."

The final important reform to the franchise does not relate to the legal entitlement to vote as such, but rather to the practical means by which that entitlement can be accessed. Prior to 1983, the roll had been closed on the day the writs were issued. However, it had been convention that the election would be announced well in advance of the issuing of the writs. Between 1940 and 1983, the average length of this period of grace was some 19.61 days.197 In 1983, the Fraser government called a surprise election, issuing the writs on the same day, in an attempt to stop Bob Hawke from assuming the Labor leadership. However, Hawke had that very morning become leader of the ALP, and proceeded to win the election. In

197 Commonwealth Parliamentary Debates (Senate), 24 June 2004, 25079 (Senator Faulkner). 61 response to this breaking of convention, the new government’s newly-formed electoral committee, then called JSCER, recommended the establishment of a statutory period between the issuing of the writs and the closing of the rolls:

The Committee considers that the closing of the rolls almost immediately an election is announced, as occurred in February 1983, is not in the best interests of Parliamentary democracy. The Committee believes that a statutory minimum period should be provided before the rolls are closed after an election is announced. The Committee therefore recommends that section 45 be amended to provide that the Governor-General shall, by proclamation, announce the intention of dissolution and the dates proposed in connection with the election at least 7 days before the issue of the writs and therefore the closing of the rolls.198

This change, soon adopted, would later become a key battleground for those with the power to effect electoral reform, with dramatic consequences for the understanding of the franchise in Australia. This issue is discussed at length in Chapter 5.

Policies of Compulsion

The ease with which policies of electoral compulsion were implemented in Australia can seem remarkable to the modern reader. For Malcolm Mackerras and Ian McAllister, the introduction of compulsory enrolment in 1911 on a purely administrative basis ‘established the principle of compulsion’ and opened the door to later policies of compulsion in turnout and preferencing.199 Bureaucracy, they argue, was responsible, rather than politicians. Yet the broad acceptance of radical and utilitarian ideas in early Australian society, as discussed above, goes some way to explaining the nonchalant attitude that often met such proposals. Indeed, it is not too great a stretch to wind the clock back a good half century, and treat the introduction of the (compulsory) secret ballot as the first step in imposing mandatory electoral responsibilities upon the populace.

Proposals for compulsion in turnout arose at a similar time. The first legislation to this effect was proposed in Tasmania in 1862, with both Victoria and South Australia witnessing similar attempts prior to Federation.200 As Sarah John and Donald DeBats detail, such proposals were driven primarily by concern over the seeming indifference of the public toward elections, reflecting the same paternalistic, utilitarian attitudes as had driven the adoption

198 Joint Select Committee on Electoral Reform 1983, First Report, Canberra: Parliament of the Commonwealth of Australia, 110. 199 Mackerras and McAllister 1999, ‘Compulsory voting, party stability and electoral advantage in Australia’, Electoral Studies (18:2), 219. 200 John and DeBats, ‘Australia's Adoption of Compulsory Voting: Revising the Narrative - not Trailblazing, Uncontested or Democratic’, Australian Journal of Politics and History (60:1), 6-11. 62

of the Australian ballot. While these attempts were largely met with fierce opposition, the idea continued to be revisited, and found an influential champion in the Victorian Solicitor- General and future Prime Minister, Alfred Deakin.201 Deakin remained committed to the concept, and following Federation lobbied unsuccessfully for its inclusion in the initial Commonwealth electoral legislation. Coupled with the – again unsuccessful – proposal that compulsory preferential voting be included in the same act, a clear picture emerges of compulsion being treated as a viable electoral option through the period.

When compulsion did eventuate, in the form of compulsory enrolment in 1911, it was indeed primarily driven by electoral administrators. The policy had been recommended by the Chief Electoral Officer, R.C. Oldham, who thought the existing methods of roll maintenance inefficient and ineffective, while there were also concerns about postal and absentee voting in the absence of a comprehensive roll.202 ‘A thoroughly efficient roll’, Oldham argued, could only be ‘continually preserved under a system of compulsory enrolment, or by the employment of an army of electoral inspectors to continuously watch the movements of people throughout the Commonwealth’.203 Yet the policy saw some debate in Parliament, with the Fisher Labor government both defending the reform as a purely administrative measure, and framing enrolment as a civic duty akin to schooling and vaccination,204 while opponents questioned the practicality of enforcement, the risk of spoiled ballots, and the morality of forcing people to vote.205 The bill passed without amendment, and with the support of many in the Opposition, and compulsion had the intended impact, vastly increasing enrolment. The roll grew by more than a fifth, from 2,258,482 electors in April 1910 to 2,760,216 at the May 1913 Federal Election.206 The States quickly followed, beginning with Queensland in 1914.

It was also Queensland that first took the next step, extending compulsion to the act of voting in 1915. It appears to have been the last act of a desperate government, grasping (unsuccessfully) at any straw that might help it avert defeat. While the Commonwealth Labor Party paid close attention to the successes of its Queensland branch under the new system, the move was also seen as a natural corollary to compulsory enrolment.207 During the parliamentary debate over the 1911 Commonwealth reform, Senator St Ledger had raised that very point, arguing that while he opposed compulsion, compulsory enrolment

201 Deakin considered that he might fairly be thought of as the ‘stepfather’ of compulsory voting in Australia. Ibid., 7. 202 Farrell and McAllister 2006, Op. Cit., 123. 203 Oldham 1911, ‘Compulsory enrolment. Paper prepared by the Chief Electoral Officer.’, Commonwealth of Australia Parliamentary Papers (2:27), 161–162. 204 Commonwealth Parliamentary Debates (Senate), 19 October 1911 (Senator Pearce). 205 The arguments of Senator St Ledger are representative: Commonwealth Parliamentary Debates (Senate), 19 October 1911, 27 October 1911. 206 Mackerras &and McAllister 1999, Op. Cit., 219. 207 Joint Select Committee on Electoral Reform 1983, First Report, Canberra: Parliament of the Government of Australia, 9. 63 without compulsory voting was ‘like Hamlet with Hamlet left out’,208 while the idea of an amendment including such a provision was also floated.209

A 1915 Royal Commission ‘upon the Commonwealth electoral law and administration’ recommended its adoption, but divisions within Labor over whether compulsion should apply to all votes or only to referendums210 meant it was not introduced until 1924. Where compulsory enrolment had attracted at least some controversy, compulsory voting was by that time treated as a logical extension of a culture of compulsion211 that would aid the administration and defray the costs of elections, and was waved through the Parliament with bi-partisan support.212 As Farrell and McAllister explain:

…the entire 1924 debate in both houses took less than three hours - one hour and 26 minutes in the Senate, and 52 minutes in the House of Representatives - and no government minister spoke on the matter.213

That such a major policy shift should attract such little attention is remarkable. For Geoffrey Sawer, ‘no major departure in the Federal political system has ever been made in so casual a fashion.’214 However, as Fowler details, there was a clear partisan rationale for this notable level of cooperation:

The final impetus for compulsory voting involved partisan interests. The Labor Party on the left and the coalition parties on the right hoped to reduce a perceived advantage of their opponents. Coalition (non-Labor) voters were more likely to have cars so that they could drive themselves and others to the polling place. On the other hand, the Labor Party had a larger supply of campaign workers and therefore a more extensive effort to bring Labor supporters to the polls. In order to reduce this wasteful competition, both sides felt that compulsory voting would make them better off.215

The attraction was sufficient that the remaining States adopted the policy, with Victoria first in 1926, followed by New South Wales and Tasmania in 1928, Western Australia in 1936 and

208 Commonwealth Parliamentary Debates (Senate), 27 October 1911 (Senator St Ledger). 209 Ibid, (Senators Keating and Russell). 210 First World War conscription was the issue of the time, and given its universal consequences, the Parliament felt a legitimate resolution required the input of all Australians. 211 In this interpretation, compulsion becomes as much a part of the quintessential ‘Australian settlement’ as the key policy planks that stemmed from the electoral power of organised labour: protectionism, the living wage and the White Australia policy. 212 There was minor dissent. Senator Albert Gardiner (ALP) objected that ‘the opinions of the negligent and apathetic section of the electors are not worth obtaining’. Commonwealth Parliamentary Debates (Senate), 17 July 1924, 2183 (Senator Gardiner). 213 Farrell and McAllister 2006, Op. Cit., 125. 214 Sawer 1956, Australian Federal Politics and Law 1901-1929, Melbourne: Melbourne University Press, 237. 215 Fowler 2013, Op. Cit., 163. 64

South Australia in 1941. In every case compulsory voting was supported by a clear majority of the Parliament, as illustrated in Table 3.1.

Table 3.1: Adoption of compulsory voting and parliamentary support216

Jurisdiction Adoption First Use Support Government Queensland 1914 1915 47/72 Liberal Federal 1924 1925 75/75 Nationalist/Country Victoria 1926 1927 65/65 Labor New South Wales 1928 1930 90/90 Nationalist/Country Tasmania 1928 1931 30/30 Nationalist Western Australia 1936 1939 50/50 Labor South Australia 1941 1944 39/39 Liberal/Country

As with compulsory enrolment, the impact of compulsory voting was immediately clear, as Figure 3.1 illustrates. Turnout increased by an average of 24 percentage points, from 67 to 91 per cent. However, while both sides of politics had hoped to benefit, compulsory voting brought with it a clear partisan advantage. The average Labor vote increased from 44 to 53 per cent, with some 78 per cent of the new voters brought to the polls supporting Labor, an impact sufficient to dramatically alter the balance of power.217 The new electoral reality was reflected across the political spectrum, as Fowler explains:

The majority party’s platform changed dramatically after the adoption of compulsory voting for Federal Elections in 1924. In the 1922 election the Nationalist Party maintained power, announcing a conservative domestic policy: ‘‘First and foremost, we are against class legislation and class government’’ (Hughes, 1922). In 1925, the first election under compulsory voting, the Nationalist Party maintained power but shifted dramatically on these issues: ‘‘It has to be recognized that even under the conditions existing in Australia, the wages of our workers are not sufficient to enable them to safeguard against these evils [sickness, unemployment, and old-age]’’ (Bruce, 1925). In just a three-year span, the majority party made a clear turn toward progressive domestic policies, and the introduction of more working-class voters into the electorate and increased presence of the Labor Party may have provided impetus for such a change.218

216 Adapted from Fowler 2013, Op. Cit., 162. 217 Fowler 2013, Op. Cit., 171-172. 218 Ibid., 174. 65

Figure 3.1: Turnout and Labor vote share across State Assembly Elections (1910-1950)219

[Figure ommitted for copyright purposes. Refer to Fowler 2013, Op. Cit., 170.]

The graph presents the level of voter turnout (upper panel) and Labor Party vote share (lower panel) in every State Legislative Assembly election between 1910 and 1950. Hollow triangles indicate an election held before the adoption of compulsory voting in that State, while solid triangles indicate an election after the adoption of compulsory voting.

219 From Ibid., 170. 66

Vote-Splitting and Preferential Voting

The failure of the first Parliament to include some form of preferential voting in the first Commonwealth electoral system did little to impede the idea’s progress. Indeed, the debates at this critical juncture clearly had some effect, with the systems proposed in 1901 extremely similar to those eventually implemented some decades later. At the State level, experimentation continued, driven largely by the concerns of State Liberal parties over vote- splitting.220 While by late 1901 all states bar Queensland and South Australia – where contingent and block voting respectively were employed – elected their lower houses via a single-member plurality (SMP) system, by 1911 SMP was extinct at the state level. Tasmania had returned to STV in 1907, New South Wales adopted runoff voting in 1910, while Western Australia and Victoria turned to optional preferences in 1907 and 1911 respectively, and with compulsory preferences from 1911 and 1916.221

At the Commonwealth level however, there was little prospect of reform throughout this period. The Free Traders remained fervently opposed to preferential voting of all forms,222 and while Labor maintained a position of agnosticism towards single-member preferential systems, it remained strongly against STV. Indeed, Labor drew significant benefits from the majoritarian systems in place.223 Tighter discipline and a more cohesive party structure led Labor to establish more effective pre-selection processes, thereby avoiding vote splitting, in contrast to the less united anti-Labor forces. As a result, Labor more often than not won a proportion of seats significantly in excess of its proportion of the vote, especially under the Senate’s block voting system.

Foreshadowing the behaviour of Queensland’s non-Labor parties a century later, the anti- Labor parties responded in 1909 by merging, with the Protectionist and Anti-Socialist (formerly Free Trade) parties uniting under Alfred Deakin to become the Commonwealth Liberal Party. However, by 1910 the rise of the State-level precursors to the Country Party signalled a return to vote-splitting and triangular electoral contests. The Nationalists, successors to the CLP, revived the electoral reform agenda of the early Protectionists, and by 1917 the anti-Labor parties had obtained enough seats to force legislation through the parliament. In 1918, a number of by-elections brought the issue of electoral reform to a head.

Most notable was that of May 1918 in the Victorian seat of Flinders, where the Nationalist Party came to an arrangement (now known as the ‘Flinders Deal’) with the Victorian

220 Graham 1962, Op. Cit., 170. 221 Farrell and McAllister 2006, Op. Cit., 50-51. 222 Perhaps due to fears of preference-swapping between Labor and the Protectionists, or to hopes that a majoritarian system would force non-Labor voters to unify. 223 Ibid., 36-37. 67

Farmers’ Union to avoid facing another non-Labor candidate.224 In exchange for the free run, the party agreed to bring forward legislation introducing a preferential system for the lower house. As the aim of this new system was to avoid vote-splitting, it was based on those in operation in Victoria and Western Australia, and consequently involved compulsory preferences. The VFU withdrew their candidate late in the campaign,225 and despite his name remaining on the ballot paper and attracting a small number of votes,226 future Prime Minister Stanley Bruce was elected with a clear majority.

At a second by-election, conducted in the Western Australian division of Swan in October that year, efforts to dissuade the Country Party from standing a candidate were unsuccessful. As a consequence, the non-Labor vote was split between the Nationalists, the Country Party and an independent, and the Labor candidate was elected with just 34.4 percent of the formal vote. This result, and yet another by-election looming in the Victorian division of Corangamite, prompted the government to force those sections of the bill pertaining to preferential voting through the parliament, to the chagrin of the opposition. In the event the Nationalists still lost Corangamite, but to another VFU candidate.

This system of compulsory preferential voting has remained fundamentally unchanged for close to a century. The Flinders Deal and its aftermath illustrate the full spectrum of institutional reform – the thoughtful evaluation and design seen in the debates surrounding the initial bill in 1902, the regular return to those initially-rejected ideas, and the final adoption of what has become one of the key pillars of the Australian electoral system, as a ploy to protect a handful of key votes.

Meaningful reform of the Senate electoral system took longer. As with reform for the House, opposition to change slowed progress. However, as block voting produced hugely disproportionate seat counts, with the current government generally the beneficiary, there was no partisan benefit in any wholesale overhaul. This is not to say that the system stagnated. Indeed, limited reforms were implemented. In 1919, the Nationalists introduced an optional preferential block system, an overly-complex and confusing hybrid – Labor Senator Allan McDougal colourfully deemed it an ‘electoral abortion’227 – which served only to further entrench the ascendant party. Following a spike in informal voting from 3.9 to 8.6 percent at the new system’s first outing, the system was amended in 1922 to allow the grouping of candidates along party lines. The next reform occurred in 1934, when the Lyons UAP government introduced compulsory full preferencing, to bring the Senate system in line with that of the House. Compulsion in preferencing has since become entrenched, persisting through a number of key reforms, mostly prominently the eventual return to STV for the

224 Ibid., 38-39. 225 Duplain 1983, ‘Hall, John Joseph (1884–1949)’, Australian Dictionary of Biography, Canberra: Australian National University. 226 Graham 1962, Op. Cit., 1902-1918’, 173. 227 Commonwealth Parliamentary Debates, October 15 1919, 13322 (Senator McDougal) 68

Senate in 1948, driven as has so often been the case by the partisan concerns of a troubled government,228 and the introduction in 1983 of the ‘above the line’ option on the Senate ballot paper.

Compulsion and the High Court

The validity of compulsion, in both voting and full preferences, was first tested by the High Court in Judd v McKeon (1926).229 The appellant, one Ernest Edward Judd, was prosecuted for failing to cast a vote for the Senate at the 1925 Federal Election. Judd’s objection was predicated on two key arguments. First, that the constitutional guarantee that the Senate and House of Representatives be composed of members chosen by the people, as expressed in Sections 7, 9 and 24, implied the necessity of a desire on the part of the voter towards their choice. This was specifically relevant to Judd, who as a committed communist argued that he could not in good faith vote for any of the available candidates. According to Judd,

[T]he only candidates between whom I am asked to elect are candidates who, with their parties, work for capitalism, whereas my party and myself work for socialism and the ending of capitalism. I am prohibited by my party and its principles from voting for such candidates.

Judd argued that such a dilemma left him incapable of fulfilling his constitutionally- guaranteed right to ‘choose’. The High Court was not convinced. They found that in no way did the sole availability of unpalatable options invalidate the nature of a democratic choice. As Justice Isaacs argued, ‘the compulsory performance of a public duty is entirely consistent with freedom of action in the course of performing it’.

Judd’s second argument was that this same ideological objection to the available candidates constituted the “valid and sufficient reason” demanded at the time by the then Section 128A (now Section 245) of the Commonwealth Electoral Act 1918 for non-voters to escape penalties. Again, the High Court disagreed. While the court stopped short of providing an official definition of this term, it was posited that valid and sufficient reasons might include serious illness or injury, competing public duties such as providing aid at an accident or preventing a crime, or prevention of participation through adherence to religious convictions. It was ruled however that conscientious objection was not a valid and sufficient reason for failing to vote. This topic has been revisited a number of times, both by the High Court, in Faderson v Bridger (1971), where the general theme of Judd v McKeon (1926) was

228 Uhr 1999, ‘Why We Chose Proportional Representation’, in Sawer and Miskin (eds.) 1999, Representation and Institutional Change: 50 Years of Proportional Representation in the Senate, Canberra: Department of the Senate. 229 Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380. 69

affirmed, and by various state courts.230 Compulsory voting was recently upheld once more in Holmdahl v Australian Electoral Commission (2012).231 Though again reinforcing the status quo, Homdahl is notable in that the argument that the right to vote carries a commensurate right not to vote, as discussed in Chapter 1, was central to the case. The High Court was not convinced.

A second key challenge to the principle of compulsory preferencing manifested itself in the person of Albert Langer. From 1986, Langer and others publicly advocated what became popularly known as a ‘Langer vote’. Taking advantage of the then-wording of Section 270 of the Commonwealth Electoral Act,232 voters could grant equal last preferences to a number of candidates. The vote would be counted as formal up until the equal preferences were not required, at which point the preferences were considered to be exhausted, the vote was reclassified as informal, and discarded from the count. Essentially, the loophole allowed optional preferential voting within a compulsory preferential system, with the qualification that exhausted votes were counted as informal, rather than as early preferences for ultimately unsuccessful candidates.

In response to the campaigns, the Keating Labor government amended the Act to include the new Section 329(A), which made it an offence to encourage voters to fill in House of Representatives ballot papers in any way other than as specified by Section 240, which mandated consecutive numbering. Langer appealed to the High Court,233 arguing that as duplicate numbering was a legally-valid method of choosing members of the House, Section 329(A) was an unconstitutional abuse of power on the part of the Commonwealth.

The court argued that Section 329A was entirely valid, as it protected ‘the method which Parliament had selected for the choosing of members of the House of Representatives’. This decision necessitated the definition of Section 270 as not specifying an alternative method of choosing, but rather being nothing more than a vote-saving measure. In the event, Section 329A was soon repealed on the advice of the Joint Standing Committee on Electoral Matters.234 Concurrently, Sections 240 and 270(2) were amended to remove the possibility of Langer votes in the House of Representatives being admitted to the count. However, courtesy of Sections 239, 270(1) and 270(3), Langer votes remain legally permissible for Senate ballot papers.

230 Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271; Lubcke v Little [1970] VR 807; Krosch v Springell; ex parte Krosch [1974] QdR 107; Douglass v Ninnes (1976) 14 SASR 377; O’Brien v Warden (1981) 37 ACTR 13. 231 Holmdahl v Australian Electoral Commission [2012] SASCFC 110; Holmdahl v Australian Electoral Commission & Anor [2013] HCATrans 72 (12 April 2013). 232 At the time, Section 270(3) read “In considering, for the purposes of subsection (1) or (2), whether numbers are in a sequence of consecutive numbers, any number that is repeated shall be disregarded.” 233 Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302. 234 Joint Standing Committee on Electoral Matters 1997, Report of the Inquiry into all aspects of the conduct of the 1996 Federal Election and matters related thereto, Canberra: Parliament of Australia, 27-33. 70

Conclusion

To achieve any meaningful understanding of contemporary electoral institutions, it is essential that we consider how those institutions came about. As Brent explains:

Desirable attributes that have come into being through particular historical conjunctures cannot be understood or replicated without a broader understanding of these historical contexts and institutional legacies.235

That so many of the key aspects of Australia’s electoral apparatus are rooted in its early development makes a keen appreciation of the circumstances of that development essential. This chapter has detailed the development of Australia’s electoral systems, from their early, experimental beginnings as the democratic expressions of nascent colonial societies through to the last great wave of reforms that established the modern Commonwealth electoral system. This context is vital for any understanding of Australian electoral policy and its potential for reform.

This chapter has detailed how the key planks of Australian electoral policy came about. This has served two purposes. It has provided the first practical example of how the key principles of institutional development have applied in the evolution of Australia’s electoral systems. The particular environment in the Australian Colonies, involving an atmosphere of intellectual ferment and an absence of structural constraint, contributed heavily to the innovative nature of Australia’s electoral systems. Over time, the growing influence of partisan actors began to exert itself over policy, but no more so than the heritage of earlier developments.

Secondly, this chapter provides important context for the remainder of the thesis. The following chapters discuss contemporary issues across the three facets of formal electoral participation – enrolment, turnout and formality. This chapter has detailed how the system within which these issues have arisen, and upon which any potential reform must build, has come about. This context is essential to any attempt to tackle such problems.

235 Brent 2009a, Op. Cit., ii. 71

Chapter 4 – Electoral Enrolment

…declining participation rates, in part caused and perpetuated by enrolment processes resulting from overly prescriptive legislation, present the most serious threat to Australia’s democratic model.

– Australian Electoral Commission, 2009236

Electoral enrolment is fundamental to the Australian electoral process. As the first of the three key facets of formal electoral participation in terms of the chronology of individuals’ access to the electoral process, enrolment is the foundational action on which formal participation is built. Further, for the purpose of this thesis the topic of enrolment serves as the first entry to the area of contemporary patterns of participation, political debates and policy responses. The following chapters consider issues of electoral enrolment, franchise restriction, compulsory voting and formality, and form the analytical heart of this thesis. While these chapters reflect the broad theoretical ideas that underpin this thesis, each also demonstrates a particular aspect of that theory – the constraint exerted over policy by electoral behaviour, the limits of both restricting and maximising participation, and the ways in which partisan imperatives can shift over time, with consequential implications for policy development.

The issues involved in Australian electoral enrolment reflect the three key aspects of institutional structure and development – the role of intention, of constraint and of accident. These roles are considered in depth over the following two chapters. The role of intention is represented through the dominant political debate over electoral enrolment policy, that between proponents of electoral inclusiveness on the one hand and electoral integrity on the other. According to this argument, a decision or compromise must be made between the competing objectives of maximising electoral participation and minimising electoral fraud. However, consistent with the position of this thesis, these arguments are representative of underlying partisan issues, with advocates of inclusiveness benefitting electorally from increased participation, while advocates of integrity benefit from restricted participation. These chapters demonstrate this argument through analysis of the contrasting policy positions regarding the tightening of the franchise and of enrolment requirements in the name of integrity, and the move to streamlined, responsibility-absolving enrolment

236 Australian Electoral Commission 2009, Submission to Australian Government Electoral Reform Green Paper – Sept 2009: “Strengthening Australia’s Democracy”, Canberra: Australian Electoral Commission, 6. 72 techniques in the name of inclusiveness, broadly aligning with partisan interests and coinciding with shifts in the political power balance.

The second key theme, constraint, is reflected in a discussion of what might loosely be termed institutional pragmatism. Australia’s electoral apparatus faces a number of evolving structural issues. This chapter discusses these as they relate to enrolment, in the form of changing patterns and declining rates of participation, which has led to increased demands on Electoral Commissions. Indeed, the changing reality of electoral participation in Australia has rendered many existing policies of maintaining enrolment ineffective, if not obsolete. Further, the challenges posed by these structural issues to some degree dictate the appropriate policy response, and while not necessarily outweighing ideological or partisan considerations, limit the potential efficacy of the range of possible policy alternatives. The role of accident is considered in depth in the following chapter, which concerns the Howard government’s attempts at franchise restriction, and the constitutional blowback they triggered.

This chapter focuses on electoral enrolment, both as a legal construct and as a specific problem demanding policy responses. First, the chapter considers the legal context in which Australian electoral enrolment currently operates. Following this an analysis of the observed patterns of electoral enrolment in Australia is presented. Finally, the chapter considers the current policy response to these patterns through an analysis of the introduction and development of systems of computer-assisted Direct Enrolment. This chapter demonstrates how contemporary patterns of electoral enrolment have forced a rethink in regards to electoral procedure. We are facing new problems and as a consequence require equally new solutions, of which Direct Enrolment is one.

Legal Context

The franchise in Australia is determined by two elements of law. Fundamentally, the High Court has in recent times interpreted the Constitution of Australia as containing an implied right to vote, bestowed upon the Australian people as a whole. This right has only recently been fully established in law, and the details and implications of this are considered in the following chapter.

At a more practical level, the mechanics of the franchise are laid out in the Commonwealth Electoral Act 1918,237 and it is with this that this section is concerned. The franchise in Australia is broadly restricted to citizens aged 18 years or over, with a number of notable

237 Itself drawing heavily from its predecessor, the Commonwealth Franchise Act 1902, as detailed in Chapter 3. 73

exceptions that both expand and restrict the franchise. Section 93(1) of the Act specifies those who are entitled to enrol to vote:

(1) Subject to subsections (7) and (8) and to Part VIII, all persons: (a) who have attained 18 years of age; and (b) who are: (i) Australian citizens; or (ii) persons (other than Australian citizens) who would, if the relevant citizenship law had continued in force, be British subjects within the meaning of that relevant citizenship law and whose names were, immediately before 26 January 1984: (A) on the roll for a Division; or (B) on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives) Act 1973 or the Northern Territory Representation Act 1922 ; shall be entitled to enrolment.

The provision for British subjects to vote is a peculiar artefact of Australia’s history as a British Dominion and earlier as a collection of Colonies.238 Despite federating in 1901 and establishing a separate Australian citizenship in 1949, Australia’s legal system was only fully severed from that of the United Kingdom in the 1980s, through the paired Australia Act 1986 (Cth.) and Australia Act 1986 (UK), prior to which a number of quirks remained. Of relevance here was the prior wording of the Electoral Act, which extended the franchise to all ‘British subjects’ – emigrants from the United Kingdom or another British Dominion or Colony – following six months of residency in Australia. Section 93(1) was amended into its current form in 1983, with the grandfather clause protecting the rights of those non-citizens who held the franchise at that time.

Specific restrictions to the franchise are detailed in Sections 93(7), (8) and (8AA), which deny the right to vote to those who would otherwise qualify. Section (7) restricts those holding temporary visas or who are considered ‘unlawful non-citizens’ under the Migration Act 1958. Sections (8) and (8AA) are more interesting, applying as they do to otherwise- qualifying citizens:

(8) A person who: (a) by reason of being of unsound mind, is incapable of understanding the nature and significance of enrolment and voting; or (b) has been convicted of treason or treachery and has not been pardoned;

238 For a broader discussion of this issue, see Costar and Mares 2011, ‘The Voting Rights of Non-Resident Citizens and Non-Citizen Residents’, 10-15, in Tham, Costar and Orr (eds.) 2011, Electoral Democracy: Australian Prospects, Melbourne: Melbourne University Press. 74

is not entitled to have his or her name placed or retained on any Roll or to vote at any Senate election or House of Representatives election.

(8AA) A person who is serving a sentence of imprisonment of 3 years or longer is not entitled to vote at any Senate election or House of Representatives election.

The compulsory element of enrolment is laid out in Section 101(1):

(1) Subject to subsection (5A), every person who is entitled to be enrolled for any Subdivision, otherwise than by virtue of section 94, 94A, 95, 96 or 100, whether by way of enrolment or transfer of enrolment, and whose name is not on the Roll, shall forthwith fill in and sign a claim and send or deliver the claim to the Electoral Commissioner.

Further sections extend this obligation to the updating of enrolment when an elector changes address, while since 2012 Sections 103A and 103B have allowed for the enrolment of electors to be initiated by the Commission without the consent of the elector, enabling the system of Direct Enrolment discussed later in this chapter. Section 155 details the closure of the rolls, dictating that the window for enrolment closes on the seventh day following the issuing of writs for an election.239

Exceptions to compulsion apply to specific groups of electors. Sections 94 and 94A refer to otherwise-eligible electors who are not Australian residents, Section 95 to residents of Norfolk Island, and Section 96 to itinerant electors. Section 100 permits citizens aged 16 years and over to be provisionally enrolled on a voluntary basis, with Sections 93(3) and 93(4) expressly denying the right to vote from such early enrollers until they reach the age of 18.

Finally, the Act lays out a number of mechanisms for the removal of electors from the roll. Sections 113 to 118 allow for objections to enrolment to be lodged on a number of grounds. Further, Sections 105 and 106 allow the Electoral Commissioner to order a voter removed from the roll if it should become apparent that they are not entitled to be enrolled, or the details under which they are enrolled are no longer correct.

239 This statutory period was introduced in 1983, after the government broke with convention and issued the writs on the day the election was called. Previous practice had provided an informal, 7-day grace period. This provision has been the subject of some contest, as detailed in Chapter 5. 75

Non-Enforcement

Despite electoral enrolment being compulsory, this is not enforced. Sections 101(7) and (8) of the Commonwealth Electoral Act 1918 prohibit the AEC from initiating or continuing legal proceedings against those who have become enrolled, despite previously having been in contravention of the act:

(7) Where a person sends or delivers a claim for enrolment, or for transfer of enrolment, to the Electoral Commissioner, proceedings shall not be instituted against that person for any offence against subsection (1) or (4) committed before the claim was so sent or delivered.

(8) If the Electoral Commissioner enters a person's name or address in a Roll under section 103A or 103B, proceedings must not be instituted against the person for an offence against subsection (1), (4), (5) or (6) of this section constituted by an omission occurring before that entry.

The rationale behind these sections is to avoid any disincentive to enrol among those who have previously not been enrolled. However, their practical effect is that non-enrollers are no longer pursued. The practice was largely abandoned in the 1980s as inefficient, as respondents could escape penalty by enrolling to vote after the AEC had undertaken a costly legal process. The AEC is understandably reluctant to publicise this lack of action due to the disincentive it may provide to those already reluctant to enrol. However, in evidence given before JSCEM in 2012, the AEC Chief Legal Officer Paul Pirani confirmed that no non- enrollers had been referred for prosecution in his five years in the position.240

Instead, the AEC pursues a policy of encouraging ‘voluntary compliance’, clearly communicating that new enrollers will not face any penalty regardless of their prior status:

Will I be fined if I haven't been enrolled in the past?

No. Even if you have not enrolled before, you can do so now and you will not be fined. The AEC encourages all eligible Australians to enrol to vote and keep their details up-to-date on the electoral roll.241

The AEC’s explanation of their position is as follows:

240 Official Committee Hansard (JSCEM), 8 February 2012, Reference: Electoral and Referendum Amendment (Maintaining Address) Bill 2011, 9 (Mr Pirani). 241 Australian Electoral Commission, n.d., Enrolment – Frequently Asked Questions, Canberra: Australian Electoral Commission. 76

Encouraging voluntary compliance reflects the practical reality that enforcement through prosecution is time and resource intensive and, as a consequence of subsection 101(7), ultimately unlikely to proceed to a prosecution…242

This has been a politically-contentious position, with the AEC attracting criticism from Liberal members of JSCEM for their inaction. In hearings regarding the 2012 Direct Enrolment bill, Bronwyn Bishop asserted to the AEC attendees that the reason the number of un-enrolled was growing was because ‘the AEC does not do its job’.243

The exception to this policy was a trial of more aggressive pursuit conducted by the Victorian Electoral Commission in 2009, in response to concerns raised by both the Victorian and Federal Parliaments.244 The VEC targeted a sample of 812 voters who were identified as having changed address without updating their electoral enrolment. This sample were contacted via a four-stage process – first and second reminder letters from the VEC, followed by another letter from the Victorian Government Solicitors Office, and finally a summons to appear in court. At every stage each elector was reminded of both their obligation and opportunity to enrol, and threatened with prosecution should they fail to do so. Ultimately, of those who could be contacted, over 99 per cent updated their enrolment, with only 5 fines successfully issued. The VEC concluded that while aggressive pursuit was successful in increasing enrolment, the process was expensive and resource-intensive and would benefit from the failure to vote being made an infringeable rather than a criminal offence, an alteration also supported by the AEC.245 An excerpt from the VEC’s report on the matter highlights the sheer inefficiency inherent in this method of pursuing non-enrollers:

Summonses were prepared by the VGSO and served on the remaining [twelve] electors. By the day of the trial, four electors had enrolled and another completed the enrolment form on the steps of the court (all these cases were withdrawn).246

However, the VEC also emphasised that its focus remained the efficient maximisation of enrolment, rather than the raising of revenue or prosecution of non-enrollers. This experiment has not been repeated, nor has the offence been altered. Rather, the focus has shifted to the introduction of systems of computer-assisted Direct Enrolment, as discussed below.

242 Australian Electoral Commission 2012a, Submission to the Inquiry by the Joint Standing Committee on Electoral Matters into the Electoral and Referendum Amendment (Maintaining Address) Bill 2011, 27 January 2012, 14. The AEC base this position on ‘the relatively low level of the maximum penalty, the requirements of the CCPM that is applied by the AFP and the Prosecution Policy of the Commonwealth’. 243 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 9 (Mrs Bishop). 244 Victorian Electoral Commission 2009, Position Paper: Compulsory Enrolment, Melbourne: Victorian Electoral Commission, 2-3. 245 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 13-14. 246 Victorian Electoral Commission 2009, Op. Cit., 3. 77

Compulsion in electoral enrolment has attracted very little by way of controversy. As discussed in Chapter 3, its introduction was a bureaucratic measure proposed by the then Chief Electoral Officer. While there was some opposition to its passage, it has endured for more than a century, with no attempts or even serious proposals made to relax compulsion in this respect. This is due to a number of factors, including the relatively low impost of enrolling, the lack of enforcement of compulsion and the bureaucratic benefit derived by Electoral Commissions. Further, the resource savings for political parties are particularly important, both through the easing the demands on parties to drive enrolment, and through the provision of a comprehensive database of electors for purposes of campaigning. Finally, universal electoral enrolment is vital to one further, non-electoral function played by the roll – its usage as a register of citizens eligible and liable to be called upon for jury duty.247

Patterns of Enrolment

Despite these limitations, the electoral roll remains the most complete, most accurate database of individuals available. It offers a definitive record of those who are enrolled to vote. Measuring those who are eligible to enrol but have not done so is, however, an entirely different matter. Put simply, it is something of a challenge. There is no comparably exhaustive database of those eligible to enrol on which to base such a comparison.

As such, for estimates of the rate of enrolment, and of the demographics of the non- enrolled, we rely on data published by the Electoral Commissions, and on the occasional analysis conducted by third parties such as the Australian National Audit Office (ANAO). These agencies rely in turn on matching the roll against less regular sources such as the five- yearly Australian Census, and against less complete databases such as those from the Australian Taxation Office, from education departments, or roads and traffic authorities. However, given the difficulties inherent in these exercises, these estimates are not definitive, with differing approaches and data sources leading to significant variance between analyses.

The AEC has had a target of 95 per cent enrolment for some decades now. Whether or not it has been successful in meeting this target is not entirely clear. The AEC assumed for a significant period that it was meeting its target. The Commission’s annual reports from 1999 to 2005 reflect this, reporting enrolment in the 94 to 96 per cent range. The Commission based these estimates on a number of approaches, including opinion polling, fieldwork, comparison with Census data and a contemporary audit by the ANAO. As illustrated in Figure 4.1, later Census-based analysis by the ANAO broadly accorded with this, estimating

247 See, for example, Section 11 of the Jury Act 1977 (NSW), which requires the Electoral Commissioner to provide to the Sheriff copies of the electoral roll for the purpose of preparing jury rolls. 78 an enrolment rate well above 95 per cent through to 1995, whereupon a slow decline set in, albeit not dipping below the Commission’s target until 2004.

However, around the middle of the decade new techniques employed by the AEC began to suggest a significantly lower enrolment rate. In March 2006 enrolment was estimated at 93.6 per cent, a figure revised further downwards to 91.1 per cent by the time of the 2006 annual report. Later AEC demographic analysis suggests that these new, lower figures were not the result of a sudden decline in participation, but instead reflected a reality of enrolment significantly lower than had been previously estimated. As illustrated in Figure 4.1, these new estimates extended as far back as 1997, with enrolment peaking above 93 per cent between 2001 and 2003, before slumping to a nadir of less than 90 per cent in 2010. Further, given the gulf between these estimates and the previously-published figures, it seems likely they reflect an earlier reality as well.

This brief overview is raised to highlight an important point – that caution should be exercised in how low enrolment rates in the present are presented. While they may appear to reflect a serious decline on historic rates, this is not necessarily the case. Rather, modern techniques of data collection and analysis may simply be better at uncovering the true state of enrolment in Australia, both now and in the recent past.

Figure 4.1: Estimated enrolment rate, 1986-2009248

[Figure ommitted for copyright purposes. Refer to Australian National Audit Office 2010, The Australian Electoral Commission's Preparation for and Conduct of the 2007 Federal General Election, Audit Report, No.28 2009–10, Canberra: Australian National Audit Office, 74.]

248 From Australian National Audit Office 2010, The Australian Electoral Commission's Preparation for and Conduct of the 2007 Federal General Election, Audit Report, No.28 2009–10, Canberra: Australian National Audit Office, 74. 79

In any case, whatever the precise enrolment rate before 2006, what has become apparent in recent years is that enrolment was and remains well below the 95 per cent target. As Figure 4.2 indicates, at its lowest point it was estimated that more than ten per cent of potential electors, or some 1.5 million people, were missing from the roll. Following the introduction of Direct Enrolment, discussed in the following section, there appears to have been some improvement, but the number of non-enrolled remains significant and well above the desired target rate. The capacity for Direct Enrolment to address this issue remains unclear. The AEC has projected that it will aid in the enrolment of just one third of the missing, and that to do so will take two to three electoral cycles.249 Whether this is accurate remains to be seen, but the Commission is right when it argues that Direct Enrolment is simply one extra tool in a broad suite for addressing the challenge of maximising electoral enrolment.250

Figure 4.2: Estimated enrolment rate, 2007-2014251

[Figure ommitted for copyright purposes. Refer to Australian Electoral Commission 2014, Annual Report 2013 -14, Canberra: Australian Electoral Commission, 27.]

249 Australian Electoral Commission 2013, Annual Report 2012-13, Canberra: Australian Electoral Commission, 3. 250 Official Committee Hansard (JSCEM), 2 February 2010, Reference: Implications of the New South Wales Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009, 2-3 (Mr Killesteyn). 251 From Australian Electoral Commission 2014, Annual Report 2013-14, Canberra: Australian Electoral Commission, 27. 80

The next challenge is the identification of those demographic groups which contribute to the under-enrolled. It has long been known that there are issues in marginalised segments of society, such as the indigenous, the homeless, and those in remote rural areas.252 However, none of these groups are sufficiently prevalent to explain the large number of ‘missing’ voters. Rather, the key demographic with regard to enrolment is younger voters. As Figure 4.3 illustrates, the estimated enrolment rate among 18 year olds in 2005 was dangerously close to a mere 50 per cent. Further, only 80 per cent of 19 year olds were enrolled, with the proportion not reaching 90 per cent until age 30 and the target rate of 95 per cent until age 50. As was discussed in Chapter 1, age has traditionally been seen as a strong predictor of electoral participation, including and perhaps especially enrolment. Simply put, those who are enrolled tend not only to vote but to stay enrolled, and with more opportunities to enrol over time it is more likely that an elector will do so.

Figure 4.3: Estimated enrolment rate by age, 2005253

[Figure ommitted for copyright purposes. Refer to Australian National Audit Office 2010, Op. Cit., 81.]

However, and while the limitations of earlier estimations have been addressed above, these figures represent a nominal decline on the estimated enrolment rate of 75 per cent among 18-19 year olds at the 1998 Federal Election.254 Further, they accord with the known limitations of the Continuous Roll Update (CRU) system, as detailed in the following section.

252 Joint Standing Committee on Electoral Matters 2007, Civics and Electoral Education; Joint Standing Committee on Electoral Matters 2009b, The 2007 Federal Election, 145-172. 253 From Australian National Audit Office 2010, Op. Cit., 81. 254 Australian Electoral Commission 1999, 1998-99 Annual Report, Canberra: Australian Electoral Commission, 16. 81

CRU proved more effective at removing mobile electors from the roll than in getting the un- enrolled on, two demographics that correspond with younger potential voters.

These patterns of enrolment go some way to explaining partisan attitudes to enrolment. While it can be difficult to reliably gauge party support among minority and marginalised groups, there is a clear trend among that largest contributor to the unenrolled, the young. As Figure 4.4 illustrates, the Coalition primary vote is consistently, significantly and perhaps increasingly lower among the 18-34 age group than the population as a whole.255

Figure 4.4: Coalition first preference vote, 1998-2013

Further, this gulf is sufficient that were enrolment among the young to match that among the broader population, the ALP would likely derive a small electoral benefit. At the time of the 2010 Australian Federal Election, within a total enrolment of 14.09 million, there were 1.52 million 18 to 24 year olds enrolled to vote from an estimated eligible population of around 1.9 million – a rate of roughly 80 per cent.256 Figure 4.5 illustrates the potential increase in the ALP two-party-preferred vote from varying levels of enrolment and degrees of support among this group, with all other demographics held equal.

These figures are small enough that they would not necessarily translate into seats. For example, while the 2010 national two-party-preferred result of 50.12 per cent to Labor was

255 As demographic breakdowns of election results are not possible, these figures are sourced from Newpoll’s election eve opinion polls. Further, the intersection in 2001 can be attributed to Newspoll’s overestimation of Coalition support at that election, with their final poll predicting a two-party-preferred vote of 53 per cent, against the 50.95 per cent observed. 256 Australian Electoral Commission 2010a, 2010 Federal Election Enrolment statistics, Canberra: Australian Electoral Commission; Australian Electoral Commission 2010b, Media Release: Young Australians encouraged to enrol to vote during National Youth Week 2010, Canberra: Australian Electoral Commission, 15 April 2010. 82 within the upper bounds of this range, the seat of Corangamite returned the narrowed margin, with a two-party-preferred result of 50.41 per cent to Labor, and the narrowest Labor loss was the 49.43 per cent attained in Hasluck. However, given the uneven distribution of such voters, and the capacity for close results, the possibility of fuller enrolment altering election results certainly exists.

Figure 4.5: ALP 2PP increase as a function of 18-24 year-old enrolment, 2010

Yet any such impact is both unclear and fluid, being a function not only of the attainable rate of enrolment, but also of the demographics of party support. Any derivable benefit relies on the continuing appeal of a particular party to the previously non-enrolled. Further, Ian Watson has noted that rather than this reflecting the old stereotype of growing conservatism with age, there is a generational cohort effect at work.257 While there is some shift to the Coalition across the first years of voting, the partisan division soon levels out. Instead, the strength the Coalition draws from the older vote represents the impact of the generation born before 1945, who have consistently voted for them in substantially greater proportion than any other. Indeed, this suggests that the Coalition’s problem is not with younger voters per se, but with a decline in the proportion of a particular older group. Should this trend continue, the gulf between the youth vote and the broader population will narrow over time, and attempts at increasing or restricting participation among younger voters will consequently offer less electoral appeal.258

257 Watson 2008, Is demography moving against the Coalition? Age and the conservative vote in Australia, 1987 to 2007, Hawthorn: Australian Policy Online. 258 Given the Coalition’s continuing electoral success it would be rash to predict any sort of demise. However, the true impact of this trend may be obscured by the broader electoral cycle, issues within the ALP and the increasing vote of minor parties at recent elections. 83

With respect to the stimulation of enrolment, the AEC has until recently focused primarily on programs of education, encouragement and facilitation, tailored for and targeted at particular problem groups. Youth-focused programs have traditionally focused on encouraging teenagers to enrol on or before their eighteenth birthdays, through means such as educational birthday cards, as well as through Commission involvement in outreach programs held in conjunction with schools, universities, youth radio stations and music festivals. More recently, the focus has shifted to programs of Direct Enrolment, as discussed in the following section.

However, the most effective driver of electoral enrolment has consistently been impending elections. During the seven day period between the issuing of the writs and closure of the rolls at the 2004 Federal Election, the last held before either the early closure of the rolls or Direct Enrolment were introduced, the AEC processed some 520,086 enrolment transactions, representing 17.5 per cent of those processed in that entire financial year, and of which 62,583 were new enrolments, representing 16.27 per cent of the growth in the roll since the prior election.259 Indeed, the power of impending elections to stimulate enrolment is sufficient that the AEC attributed declining enrolment in 2005-2006 and a subsequent increase in 2006-2007 to a respective lack and then abundance of State elections in the three most populous States.260 Combined with the demography and partisan leanings of the under-enrolled, this observation explains the importance of the date of the closure of the rolls, the debate over which is discussed in the following chapter. In short, with options ranging from election day enrolment to closure significantly in advance of fixed-term election dates, the capacity for policy to impact the reach of the franchise is significant.

The Move to Direct Enrolment

The dominant contemporary response to issues of under-enrolment has come through the programs known collectively as Direct Enrolment. 261 At its simplest, Direct Enrolment involves the broadening of responsibility and capacity for the initiation of electoral enrolment. Previously, the onus had fallen upon individual electors to comply with their legally-mandated responsibility to enrol by submitting a signed enrolment form to their Electoral Commission. Direct Enrolment programs alter this by allowing Electoral

259 Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 29-30. 260 Australian Electoral Commission 2006b, Annual Report 2005-06, Canberra: Australian Electoral Commission, 26-27; Australian Electoral Commission 2007, Annual Report 2006-07, Canberra: Australian Electoral Commission, 29. 261 The terminology is contested. The approach has been referred to as automatic update, but the AEC prefers ‘Direct Enrolment and Direct Update’ as the term automatic may incorrectly convey an absence of the stringent quality assurance and human oversight involved in the process. Australian Electoral Commission 2012b, Direct Enrolment and Direct Update: The Australian Experience, Canberra: Australian Electoral Commission, 8. 84

Commissions to initiate enrolment proceedings based on information gathered through data-sharing agreements with trusted sources, namely other government departments or agencies with comprehensive databases. Currently, such systems are in operation at the Commonwealth level and in the two most populous states, New South Wales and Victoria, with roll-sharing agreements and harmonisation legislation meaning that Direct Enrolment is in-effect in operation at all levels.262

Direct Enrolment was introduced first at the State level, via the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009 (NSW) in New South Wales and the Electoral Amendment (Electoral Participation) Bill 2010 (VIC) in Victoria. The Commonwealth soon followed, with the Electoral and Referendum Amendment (Maintaining Address) Bill 2011 and Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012 establishing a system of state-initiated enrolment and enrolment update.

This new approach was advanced primarily as a policy response to the problems of declining enrolment detailed in the previous section. To some degree, these issues are a function of historical enrolment practices, of which it is appropriate to give a brief summation at this point. From the 1970s until the late 1990s, the main source of enrolment information for Electoral Commissions was regular habitation reviews. Every electorate was periodically doorknocked, with names ticked off lists and change of address/enrolment forms supplied where needed. Other enrolment stimulation programs, which persist to this day, included the encouragement of electors to submit enrolment forms when they approached 18 years of age, changed their name or moved home, as well as the allowance of provisional enrolment for those aged between 16 and 18 years.

In late 1990s concerns over the decreasing economic efficiency of habitation reviews led to this system being replaced with the Continuous Roll Update (CRU) system. Based on similar trusted sources to those used by Direct Enrolment systems, the AEC verified its own data and identified individuals who were not enrolled but should have been, or who had moved house and not notified the AEC. With technological and lifestyle changes, this information became more accurate, but also tended to change more often. Following identification, individuals were targeted through direct mail-outs and specific habitation reviews, and encouraged to submit applications for enrolment.

However, these programs progressively became more expensive and less efficient. According to ANAO estimations, between 2004 and 2007 the unit cost per additional enrolment increased from $32.54 to $83.18.263 This system also featured another serious issue – following identification of an elector who had changed address, the AEC was

262 For a broad overview, see Ibid. 263 Australian National Audit Office 2010, Op. Cit., 97. 85 required to remove that elector from the roll if they failed to update their enrolment. In essence, under CRU the AEC became more effective at getting people off the roll than getting them onto it.264 In its submission to JSCEM’s earlier inquiry into the implications of the NSW SmartRoll system, the Commission explained that the declining enrolment rate was ‘in part caused and perpetuated by enrolment processes based on antediluvian mechanisms and overly prescriptive legislation’.265

Further, CRU was losing pace with the expectations of the public as to what the capacities of government agencies were and should be. The then Australian Electoral Commissioner Ed Killesteyn summarised the limitations of the CRU in evidence before JSCEM:

The evidence is already there in terms of the research that we have done, Senator, that people generally do not respond to the CRU letters. Our response rate at the moment is about 20 per cent. A lot of the research that we have done suggests that the motivation for people to get on the roll or indeed update their electoral roll details is based on notions that government data can be used by other agencies to update their address. There is even some research which suggests that electors believe that that is what is going on right now.266

The Chair of JSCEM, Labor MP Daryl Melham had gone even further, labelling paper-based enrolment requirements a ‘deterrent’ to a generation accustomed to electronic transactions.267 Evidently, a divergence had opened up between the expectations of the public and of the government regarding what the state should do to facilitate enrolment. Nor was this necessarily the result of changing public sentiment. As Chapter 3 detailed, the early history of electoral enrolment in Australia was one of the state taking pro-active steps to create a comprehensive electoral roll. There was consensus and an active self-perception to this effect among the political class, but that attitude has gradually faded. Direct Enrolment represents a return to this approach, with government initiation based on data- matching the modern, technological equivalent of policemen on horseback. The automation of enrolment processes was not however a radical step into the unknown. As Killesteyn highlighted during the same hearing in an exchange with Liberal Senator Scott Ryan, it had been on the agenda for some time:

The issue of direct update of the electoral roll has been discussed now for more than a decade. This is not a new issue. It was first raised in the public hearing of the joint

264 Brent and Jackman 2007, A Shrinking Australian Electoral Roll?, Discussion Paper 11/07 (June 2007), Canberra: Democratic Audit of Australia, 7-9. 265 Cited in Joint Standing Committee on Electoral Matters 2010, Inquiry into the implications of the Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Act 2009 (NSW) for the conduct of Commonwealth elections, Canberra: Parliament of the Commonwealth of Australia, 27-28. 266 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 4 (Mr Killesteyn). 267 Joint Standing Committee on Electoral Matters 2010, Op. Cit., iv. 86

standing committee inquiry into the 1998 Federal Election. In October 2000, the AEC outlined in its submission to the JSCEM inquiry into the integrity of the electoral roll that proposals for direct address update were under consideration by the Electoral Council of Australia. In its 2002 order report, the ANAO identified direct update as a mechanism capable of increasing the efficiency of the CRU process. The matter was then first raised by the joint standing committee in recommendation 6 of its report— [At which point Senator Ryan had heard enough.]268

Moreover, the use of shared data from trusted sources was already entrenched in the removal of electors from the roll. For example, registrars of births, deaths and marriages regularly provide the AEC with information regarding the recently deceased, who are then promptly disenfranchised.269 However, and as the following chapter details, the Howard Coalition government of the time had limited interest in easing access to the franchise. Two key changes were required for Direct Enrolment to gain traction. First, the 2007 Federal Election returned a new Labor government, more receptive to issues of enrolment modernisation. Indeed, throughout the period of the Howard government the Labor members of JSCEM had demonstrated a commitment to broadening access to the franchise. Representative of this position is a sentiment expressed in the dissenting report of JSCEM’s inquiry into the 2004 election, in response to the proposal to tighten closure of the rolls:

In an advanced democracy, particularly one which aspires to universal voting, the Parliament should be doing everything possible to see that the franchise is as wide as possible.270

Building on this, the newly Labor-dominated JSCEM recommended in its first inquiry following the change of government that automated update of the roll be investigated.

Yet what particularly drove Direct Enrolment at the Commonwealth level was its introduction by Labor governments in the two most populous states, New South Wales and Victoria. New South Wales was first to move, enacting its SmartRoll program in December 2009.271 The move had been initially driven by the NSW Electoral Commission, which had advocated for a smart system during the State Electoral Matters Committee’s 2006 Inquiry into Voter Enrolment.272 A pilot system had been developed and trialled, and following the 2007 NSW State election the committee unanimously recommended that it be brought into

268 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 11 (Mr Killesteyn). 269 Official Committee Hansard (JSCEM), 2 February 2010, Op. Cit., 15-16. 270 Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 361. 271 Australian Electoral Commission 2010c, Direct Enrolment and Direct Update: The Australian Experience, Canberra: Australian Electoral Commission, 10. 272 Joint Standing Committee on Electoral Matters (NSW) 2006, Inquiry into Voter Enrolment, Sydney: Parliament of New South Wales, 25-30. 87

full operation before the following election.273 In legislating for this, the State Labor government justified the legislation as a response to declining enrolment rates, arguing that electoral authorities had become ‘very efficient at taking people off the roll, but not at keeping them on’ and that enrolment processes ‘had not kept pace with technology’,274 while for the NSW Electoral Commission the current system was simply ‘not working’.275 Importantly, the legislation was passed with the support of the Coalition opposition, reflecting the bipartisan support during its introduction and trial, and the system survived a subsequent change of government at the first SmartRoll-enabled NSW State election in 2011.

The Labor government in Victoria soon followed, passing legislation to enable Direct Enrolment in August 2010. The system was initially more limited than that of NSW, reflecting the lack of an extensive trial period and perhaps the absence of bi-partisan support, and involved only the initial enrolment of secondary school students as they turned 18, based on data sourced from the Victorian Curriculum and Assessment Authority. The Opposition was less receptive than in New South Wales, voting against the legislation and raising a number of objections regarding accuracy, privacy, roll divergence, and even flagging an overarching opposition to compulsion.276 However, again the system survived a change of government, with the Coalition assuming power following the 2010 Victorian State Election.

The issue of roll divergence is an important one. The Commonwealth has bilateral agreements – joint roll arrangements – with each State and Territory for the provision of a single point of electoral enrolment, and in most cases the maintenance of a single, shared electoral roll for all three levels of government,277 effecting a collective policy Killesteyn dubbed ‘one roll, many elections’.278 The New South Wales legislation explicitly involved the alteration of that State’s joint roll arrangement with the Commonwealth, moving from a shared roll to a relationship based only on the sharing of information.279 This was necessitated by the lack of a Commonwealth-level allowance for state-initiated enrolment. While both New South Wales and Victoria sent Commonwealth enrolment forms to those they had directly enrolled, these suffered from the same limitations that had prompted the move to Direct Enrolment in the first place, and the consequence was a growing divergence between the State and Commonwealth electoral rolls. Essentially, a growing number of

273 Joint Standing Committee on Electoral Matters (NSW) 2008, Administration of the 2007 NSW election and related matters, Sydney: Parliament of New South Wales, 10-11. 274 New South Wales Parliamentary Debates (Legislative Council), 12 November 2009, 19518 (Ms Sharpe). 275 New South Wales Electoral Commission 2009, ‘Smart-roll legislation to streamline roll maintenance’, Media Release, 11 November 2009. 276 Victorian Parliamentary Debates (Legislative Assembly), 24 June 2010, 30-31 (Ms Asher). 277 Joint Standing Committee on Electoral Matters 2010, Op, Cit., 5-6 (Mr Killesteyn). 278 Official Committee Hansard (JSCEM), 2 February 2010, Op. Cit., 11. 279 Parliamentary Electorates and Elections Amendment (Automatic Enrolment) Bill 2009 (NSW), Part 4, Section 26; Joint Standing Committee on Electoral Matters 2010, Op, Cit., 6. 88

voters, being enrolled at the State level, wrongly assumed they were also enrolled at the Commonwealth level, as had previously been the case.

Occurring as it did in the nation’s two most populous States, this divergence forced the Commonwealth’s hand to some degree.280 While JSCEM had recommended a limited system of automated update in its report on the 2007 Federal Election,281 it was the recommendations of the Committee’s inquiry into the impact of the NSW legislation which called for the development of a system allowing both initial enrolment and enrolment update at the Commonwealth level, and which were heeded by the government.282 Melham justified this harmonisation in his foreword:

The NSW legislation could have significant implications for the conduct of Federal Elections if Commonwealth legislation is not amended to allow for similar provisions. Having two different enrolment regimes operating at the Commonwealth and State level creates the potential for elector confusion. Of particular concern is the scenario whereby voters in NSW are enrolled automatically for that state’s elections and mistakenly believe that they have also been enrolled for the purpose of Federal Elections.283

Yet, as the Committee’s Minority Report argued, and as was subsequently elaborated on by Senator Ryan, roll divergence is not in and of itself sufficient justification for significant alterations to the enrolment process.284 For example, were a single State to extend the franchise to sixteen year-olds, the threat of a split roll would not and should not necessarily force the Commonwealth into following suit. Rather, the issue of roll divergence provided further justification for a policy that enjoyed the support of the party holding government.

Direct Enrolment also enjoyed the strong support of the Australian Electoral Commission throughout this period. During JSCEM’s inquiry into the NSW legislation, the AEC indicated that it was ‘strongly supportive’ of the changes in that State and had been working closely with its NSW counterpart to ensure the success,285 while later the AEC advocated for Direct Enrolment at the Commonwealth level as a means of easing the responsibilities both of voters and of the Commission itself:

280 The same effect later occurred in reverse, with South Australia’s Electoral (Miscellaneous) Amendment Bill 2012, for example, removing the requirement for enrolees’ signatures, so as to maintain compatibility with the Commonwealth Roll under Direct Enrolment. 281 Joint Standing Committee on Electoral Matters 2009b, Op. Cit., xxx-xxxi. 282 Joint Standing Committee on Electoral Matters 2010, Op. Cit., xi. 283 Ibid., iii. 284 Ibid., 31; Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 11-12. 285 Official Committee Hansard (JSCEM), 2 February 2010, Op. Cit., 3 (Mr Killesteyn) 89

Direct update of enrolment will assist electors in complying with their legal obligation to transfer enrolment when there is a change in place of living, and avoid the practical limitations faced by the AEC when considering escalation of enforcement action.286

Yet the Commission was reluctant to allow itself to be framed as an advocate. During the public hearings into the Commonwealth bills, Killesteyn attempted to establish a distinction between policy and mechanical decisions regarding the implementation of policy, with Direct Enrolment merely a case of the latter:

But what I am putting to you is that this is a mechanism for dealing with a policy issue. This is not a policy issue per se. I would make a distinction in your question about what is a fundamental policy change versus simply a mechanism for delivering the policy that already exists. So my proposition is that, in the same way that we do habitation reviews, CRU activities and field activities, this is another way of delivering the policy [of compulsory enrolment].

…

As I have said, my view here is that this is a mechanism of delivering a policy which was established back in 1911, in the same way that the CRU activity is and in the same way that the person who knocks on a door and confronts an elector and says, ‘Are you enrolled or are you not enrolled?’ is.287

Killesteyn was also at pains to distance himself and the Commission from the suggestion that it was supporting any position beyond the pursuit of the best fulfilment of the Commission’s statutory responsibilities:

I just repeat: I am not advocating anything here. What I am seeking to do is to administer the Commonwealth Electoral Act, which provides that people should be on the roll, and to add to the tools that have been available to the Electoral Commission in a way which reflects modern expectations, modern technology and modern demographics.288

This distinction is problematic for two reasons. First, technical or administrative alterations can have profound consequences for policy. While Direct Enrolment is an evolutionary development over pre-existing mechanisms, both for the enforcement of the existing policy

286 Australian Electoral Commission 2012b, Op. Cit., 12. 287 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 11 (Mr Killesteyn) 288 Official Committee Hansard (JSCEM), 29 February 2012, Reference: Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012, 16. 90

of compulsory enrolment and for the pursuit of the Commission’s mandate of maximising participation, it is more than an incremental step. The data-matching aspects of the system may build on many of the existing CRU processes; however, the new capacity for the state to initiate the enrolment process represented a distinct development beyond the existing and long-established policy of elector initiation, even if it had been employed in the era of policemen on horseback. Indeed, while Killesteyn had attempted to distinguish a technical reform from a ‘fundamental policy change’ in this case, he had not previously shied from the term, labelling the New South Wales system ‘a fundamental change in the manner in which electoral roll administration has been engineered in Australia’ when JSCEM examined it.289

Second, while Commissions may wish to distance themselves from accusations or admissions of support for particular policies in the name of independence or impartiality, establishing such a barrier would involve a harmful disengagement from the policy process. As Joo-Cheong Tham has argued, this involvement is a key strength of the electoral reform process on the Australian model.290 Through both the provision of advice and the advocacy of policies, Commissions contribute to the deliberative power of the democratic process. Indeed, Tham suggests that Commissions may at times have a duty to advocate for particular policy ends in the fulfilment of their statutory roles as custodians of the integrity of the electoral process. Further, a focus on public advocacy helps avoid two dangers: that self-censorship may risk the integrity of the electoral system if matters are not raised due to the particular interests of parliamentary parties; and that the provision of private advice exclusively to the executive may compromise the independence or impartiality of the Commissions.

In any case, while Direct Enrolment enjoyed a weight of evidential justification and institutional and partisan support, the Coalition maintained its opposition to the policy. A number of concerns were raised, ranging from technical issues regarding accuracy, privacy and the untested nature of such a system, to philosophical arguments regarding the abrogation of electors’ responsibility to enrol, to attacks on the partisan motivation behind the change. The dissenting report to JSCEM’s advisory report on the Protecting Elector Participation bill is indicative of the Coalition’s position:

This legislation will severely damage the integrity of the Electoral Roll by adding new electors who may not be entitled to vote without their knowledge and potentially without their consent, should the elector not receive the Australian Electoral Commission ’s notice of enrolment. The Coalition believes it is an elector’s individual

289 Official Committee Hansard (JSCEM), 2 February 2010, Op. Cit., 3 (Mr Killesteyn). The change in tone is perhaps indicative of the developing tension between the AEC and the Coalition members of JSCEM, as discussed later in the chapter. 290 Tham 2013, ‘Deliberative Democracy and Electoral Management Bodies: The Case of Australian Electoral Commissions’, Election Law Journal (12:4), 394, 397-398. 91

responsibility to enrol to vote, notify the AEC if they change address and then to vote at elections. These are not onerous responsibilities and should remain with the individual elector, not the Australian Electoral Commission.291

The Commission argued consistently that concerns regarding accuracy, privacy and integrity were matters of mechanical implementation and would be addressed through appropriate checks and balances. Further, as the system built on existing CRU processes, it raised few new problems, while pre-existing systems at both State-level and in international contexts offered examples on which to build. Given the clear limitations of CRU, Direct Enrolment represented the best available means of meeting the demands of policy mandating compulsory, near-universal enrolment, in a society increasingly resistant to such imperatives. The philosophical objection to an abrogation of responsibility is more complex. In hearings regarding the Maintaining Address bill, Bronwyn Bishop – herself an opponent of compulsion – framed her objection on this basis:

I am arguing that the obligation of the individual elector shall be sacrosanct and the obligation to be properly enrolled remains with the elector and not with the intervention of a government agency which will see its workload reduced.292

While there is merit to the position, it has one fundamental limitation: regardless of any actor’s attitude to the issue, such abrogation is neither new nor rare.293 Rather, such interventions have been key features of routine individual-state relations in Australia for at least seventy years, in the form of periodic tax deductions, which are broadly accepted across both public and political spheres. Killesteyn made much the same point in evidence to JSCEM:

[T]he notion that the state can step in to enforce an individual's obligation is quite common. It applies, for instance, to the tax regime where individuals have an obligation to pay tax and the state steps in to force tax instalment deductions on a regular basis. The state steps in to apply superannuation deductions. The state steps in to require people to update their motor registry details. There are all sorts of examples where the state acts to enforce an obligation that exists on an individual citizen.294

291 Joint Standing Committee on Electoral Matters 2012, Advisory Report on the Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012, Canberra: Parliament of the Commonwealth of Australia, 44. 292 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 17 (Mrs Bishop). 293 Costar and Hoffman 2012, Democratic Audit of Australia: Submission to JSCEM January 2012, Hawthorn: Democratic Audit of Australia. 294 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 8 (Mr Killesteyn).

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While these various objections were repeatedly raised and addressed, a further, underlying motivation for the Coalition was evident throughout, as can be demonstrated by examples from the beginning and end of the legislative process. In its dissenting report to JSCEM’s advisory report on the Protecting Electoral Participation bill, the Coalition members blamed the push for Direct Enrolment squarely on partisan self-interest:

The Coalition has long opposed moves by the Labor Party and the Greens to introduce automatic enrolment and notes that this Bill is being introduced solely to improve the electoral prospects of both Labor and the Greens. This follows similar moves by the former Labor Governments in NSW and Victoria prior to their last state elections.295

Having failed to stymie its introduction, the party took their complaints to the media, with Shadow Minister Christopher Pyne accusing the government of manipulating the rules and ‘undermining democracy’ for partisan gain:

It's no surprise at all that Labor would try and find every trick in the book to increase their electoral clout. They are not supported in the electorate so they are trying to do things that they can to improve their chances with the electoral roll. The Greens are the same. Suddenly Labor thinks they are behind in the polls, why don't we do something to trick the voter, let's rort the roll, let's get an advantage over the Coalition, they've been doing it for decades and this is just their latest iteration.296

Yet, as the consistent support of the AEC had eased the development and passage of the new system, it likewise presented problems for this narrative of narrow self-interest. Bishop responded with a series of attacks on the AEC’s impartiality, 297 accusing it of sympathising with, if not overtly siding with Labor and the Greens – her preferred term being that they were in ‘lock-step’. She charged that the Commission advocated only ‘for the majority position’ of the Committee (that is, the position of the Labor government) and had a ‘cumulative’ history of bias towards Labor. The attacks culminated in a quite extraordinary allegation that the AEC had somehow transgressed beyond its remit in making submissions to JSCEM inquiries, despite a statutory responsibility to ‘provide information and advice on electoral matters to the Parliament’.298 Yet this was not the strangest episode. At one point, Bishop even seemed to threaten Killesteyn’s prospects of maintaining his position under a future Coalition government:

295 Joint Standing Committee on Electoral Matters 2012, Op. Cit., 44. 296 Vasek 2012, ‘Coalition labels voter law changes an attempted rort’, The Australian, 10 December 2012. 297 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 2-3 (Mrs Bishop), 18 (Mrs Bishop); Official Committee Hansard (JSCEM), 29 February 2012, Op. Cit., 10 (Mrs Bishop); Kelly 2013, ‘Lib fury as Labor ties up top AEC posting’, The Australian, 13 April 2013. 298 Commonwealth Electoral Act 1918, Section 7(1)(d). 93

Mr Killesteyn: I am not proposing to use tax records. Mrs Bishop: At the moment, but you can change your mind under this bill. Mr Killesteyn: But I am not proposing to use them. Mrs Bishop: You might not be there for very long.299

This also raises another, under-discussed issue: the transferral of discretionary power to the Electoral Commission and particularly the Commissioner – and hence, though rarely explicitly framed as such, away from the Parliament. The Coalition members of JSCEM had raised this briefly in their dissenting report to the inquiry into the NSW system, and had revisited the issue in the proceedings of later inquiries:

We are also concerned at the power given to the Electoral Commissioner to deem data sources ‘trusted’ in determining the use of such data in compiling the roll as a potential risk to the office. The inclusion of such data, if erroneous, would be extremely damaging to public faith in our electoral process. Furthermore, the inclusion of such data may well be controversial due to lack of faith in its inclusion or utilisation. Placing the Electoral Commissioner at the heart of such a potentially charged dispute can only damage the standing of the office and the AEC.300

While the Coalition expressed concern about the threat controversy might pose to the Commission’s perceived standing and its reputation for integrity and impartiality, that such a development could take place at all is significant in another respect. In shifting power to an unelected statutory authority, Direct Enrolment represents a further step in the de- parliamentisation of both the practice and development of electoral policy. Not only does it grant significant powers to Electoral Commissions in allowing the initiation of enrolment and granting discretion regarding the data used to support those processes, but this was a policy shift in which the Commissions themselves played significant parts.

The only comparable, contemporary examples of the abrogation of power over electoral law by the Parliament are the move to independent electoral boundary-setting and the establishment of the statutorily-independent Electoral Commissions. However, both are qualitatively different, in that they occurred at a time when commissions did not exist in their present form, instead falling within the Minister’s department, and holding a purely

299 Official Committee Hansard (JSCEM), 8 February 2012, Op. Cit., 3. In April 2013, in one of the last acts of the outgoing Labor government, Killesteyn was reappointed to a second term before his initial five-year stretch had expired, ostensibly to ensure the office was filled during the upcoming election period. Bishop labelled the action ‘outrageous’, condemned the ‘overly comfortable’ relationship between the AEC and the government and promised a ‘hard review’ of the Commission. Kelly 2013, Op Cit. In the event, Killesteyn resigned following the loss of a crucial parcel of votes at the 2013 Australian Federal Election, an episode discussed in Chapter 7. Meanwhile, the Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2013 allowed the Australian Taxation Office to disclose protected information to the Electoral Commissioner for the purposes of Direct Enrolment. 300 Joint Standing Committee on Electoral Matters 2010, Op. Cit., 28. 94

managerial rather than custodial role. Further, they were changes driven by politicians, responding to the behaviour of their opponents and the demands of their voters. In this respect, the power granted to Commissions through the implementation of these policies reflects both a return to the pioneering age of policemen on horseback and a significant step into the unknown.

Conclusion

This chapter has discussed the realities of electoral enrolment in Australia, focusing on the formal and practical legal contexts, the observed patterns of electoral enrolment, and the ways in which the two combine to both constrain and prompt the development of electoral policy. A policy of compulsion that is not fully enforced due to its impracticality, and a pre- existing system of enrolment maintenance that has proved inefficient, if not counterproductive, have combined with demographic patterns of both under-enrolment and high social mobility among younger voters to create a situation in which two feasible options presented themselves – to establish a system of state-initiated Direct Enrolment, or to accept enrolment rates well below the long-term targets of the Electoral Commissions.

These circumstances reflect the broad theoretical ideas that underpin this thesis – that the intentions of partisan actors remain subject to forces beyond their control, through the constraining effects both of the broader institutional structure, and of the realities of participation among the voters policies impact upon. Continuous Roll Update was introduced in the name of the accuracy and integrity of the roll, but the particulars of its implementation meant this came at the cost of removing eligible voters from the roll. This reality prompted the transition to Direct Enrolment, and a fundamental shift in the relationship both between the state and individuals, and between Parliament and the electoral managers nominally subject to it. The implications of these readjustments may flow farther than the direct policy impact of Direct Enrolment on the unenrolled.

However, this chapter also reflects the realities of partisan control over the electoral reform process. Increased electoral enrolment has a small but recognisable partisan impact, and the attitudes of political parties reflect this. Those who do not benefit from a policy like Direct Enrolment have active incentive to frustrate its introduction. While State-level innovation and strong lobbying by commissions helped drive reform, it was not until a change of government at the Commonwealth level that such a move could eventuate.

Although Direct Enrolment was the central policy example in this chapter, it is representative of the broader debate between proponents of electoral inclusion and of electoral integrity, and of the partisan motivations that so often drive such positions. The issues raised apply equally to other issues of broad enrolment stimulation. A comparable

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case is that of Election Day enrolment, introduced alongside Direct Enrolment in New South Wales and Victoria, by Labor governments and with the support of Electoral Commissions. This development was not however mirrored at the Commonwealth level, despite a recommendation to that end by JSCEM,301 and Direct Enrolment mitigates the need for it to some degree by ensuring a more inclusive and up-to-date electoral roll.

While this chapter focused on the demands of electoral inclusion, and the ways in which policy to this effect is driven, policy is not always directed at maximising enrolment. The following chapter considers the alternative position, that enrolment may be frustrated in the name of electoral integrity, through a case study of the Howard government’s attempts at franchise restriction and the consequences thereof.

301 Joint Standing Committee on Electoral Matters 2011, The 2010 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 37. 96

Chapter 5 – Franchise Restriction and the Right to Vote

I am just a little surprised that Parliament has seen fit to attempt to override the Constitution, which in this respect at least was a little bit more enlightened.

– Justice Michael Kirby, 2007302

When considering the interaction between policy and participation, it is essential to note that as well as maximising participation, policy may serve to stifle it. This chapter focuses on one such case, illustrating the means by which partisan concerns may influence electoral policy at the expense of the electorate. However, it also illustrates the constraint exerted on reformers by key aspects of the broader institutional environment, establishing both limits on the action of those central to policy processes, and means by which those processes may be disrupted by external actors.

The role of electoral enrolment in defining the franchise renders it central to attempts at restricting electoral participation. Where the previous chapter discussed the mechanics of enrolment, this chapter focuses on the political and judicial processes by which enrolment law has been determined. Where Chapter 4 provided an overview of the evolution of the franchise through the Hawke government’s reforms of the 1980s, and Chapter 5 examined contemporary policy and the introduction of computer-assisted Direct Enrolment processes under both State and Commonwealth Labor governments in recent years, this chapter considers the intervening period, particularly focusing on the introduction of the Howard government’s 2006 enrolment changes and their later invalidation by the High Court.

Through an extensive case study of the introduction and invalidation of the Howard government’s 2006 electoral integrity laws, this chapter demonstrates how theories of institutional development can explain the evolution of electoral law. The chapter comprises the close analysis of two related processes. First, it considers the political debates surrounding the development and introduction of franchise-restricting policy, primarily through the reports and inquiries of the Joint Standing Committee on Electoral Matters (JSCEM), and of the debates on the floor of the Senate regarding the relevant bills. This provides illumination of the processes of institutional development as they relate to electoral reform, particularly regarding the intentions of those actors responsible for policy development, be they partisan or principled, and the constraining, path-dependent features

302 Roach v Electoral Commissioner & Anor [2007] HCATrans 276 (13 June 2007). 97 of the system. It also provides complement and contrast to the examination of the introduction of Direct Enrolment provided in the previous chapter.

Following this, the chapter examines the consequences of the collision between these policies and the Constitution as determined in the High Court of Australia. This example demonstrates the power of accident in institutional reform, as well as reinforcing the power of constraint. In this respect, the constraints of both legitimacy and Australia’s constitutional setup have handed particular enrolment policy initiatives a central role in determining the fundamental nature of electoral participation in Australia. As this chapter details, the Howard Coalition government’s attempts at restricting electoral participation, driven by both ideological and partisan considerations, provided the opportunity for an active and organised public, supported by well-resourced interest groups, to involve the judiciary in the electoral reform process. Through this intervention, the High Court determined that the Australian Constitution contained an implied right of electoral participation, bestowed upon the Australian people as a whole. In this way, what was a relatively minor package of reforms triggered an unforseen and broad-ranging revolution in the way electoral participation would thereon be understood and approached in Australia.

The debates over these policies involve substantial disagreement, reflecting the ongoing tension between advocates of electoral inclusiveness and electoral integrity. Essentially – and, considering underlying partisan motivations, somewhat theoretically – these competing positions involve slightly different emphases within a broader commitment to electoral democracy. For proponents of inclusiveness at its logical limit, of paramount importance is the access of the maximum possible number to the means of democratic self- expression, even when such inclusion may potentially impact the integrity of the process. Conversely, when the pursuit of integrity is taken to the extreme, the protection of the electoral process against corruption or fraud is paramount, even when doing so involves the abrogation or restriction of democratic rights. However, this chapter is not primarily concerned with demonstrating or challenging the validity of these arguments. Rather, the analysis of the processes by which these policies were introduced and then cast out serves to both illustrate the broader themes of the thesis, and to demonstrate how a position within this spectrum was reached, compatible with the constraints of both constitutionality and practical electoral behaviour.

Electoral Integrity

There had been extensive debates regarding Australia’s electoral apparatus throughout the 1990s and early 2000s, with a particular focus on the issue of compulsory voting. However, broader issues also came to prominence, culminating in a package of changes passed in 2006. The Electoral and Referendum Amendment (Electoral Integrity and Other Measures)

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Bill 2006 altered a number of aspects of Australia’s electoral machinery. Three key provisions are relevant to this chapter.303 First, the statutory seven day grace period between the issuing of the writs and closing of the rolls was effectively abolished. As was detailed in the previous chapter, this period had been established in 1983, formalising what had for some decades been convention. The rolls would now be closed at 8pm on the day the writs were issued for the vast majority of eligible electors.304 Second, the legislation re- established proof-of-identity requirements for electoral enrolment, requiring the provision of a driver’s licence number or the attestation of referees as to the identity of the applicant.

Finally, all prisoners serving a sentence of full-time imprisonment at the time of the election would be excluded from the franchise. They would be permitted to enrol and to remain enrolled, but could not vote. Prior to this, a similar restriction had existed for those serving sentences of three years or more. The issue of the prisoner franchise is considered at length in the following section.

These policies had been in development for a significant period of time, with the Coalition government making a number of attempts to establish them in law. Legislation to this effect had failed to pass the Parliament in 1998, 1999 and 2001.305 In 2004, the Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Act 2004 was passed but with heavy amendment by Labor, the Democrats and the Greens, who together formed a majority in the Senate. The early closure of the rolls was blocked, a proposed blanket ban on prisoner voting was effectively restricted to those serving sentences of three years or more, and limited identification or witnessing requirements for enrolment were introduced under a three-year sunset clause.

Both the identity requirement and the early closure of the roles were proposed in the name of electoral integrity. The debate over whether enrolment and voting processes should be tightened had been a longstanding one, with JSCEM’s report of its inquiry into the 1993 Federal Election describing it as the ‘perennial question’ facing the Committee.306 The Committee heard a number of allegations regarding electoral fraud, as well as evidence from the AEC regarding its investigations into the issue. The report described the AEC’s findings with regard to fraudulent enrolment:

303 Among a number of minor reforms, other important changes included alterations to provisional voting, which is discussed in chapter 8, and a major overhaul of the electoral funding and disclosure regime, which is beyond the scope of this thesis. 304 The exceptions were those potential electors who would turn 18 or be granted citizenship between the day the writs were issued and polling day. In this case the rolls closed three working days after the day on which the writs were issued. 305 The Electoral and Referendum Amendment Bill (No. 2) 1998 and Electoral and Referendum Amendment Bill (No. 2) 2001. The numbers reflect an established and sensible practice of introducing one bill containing technical amendments with cross-party support, and a second containing those changes likely to arouse controversy. It is these second bills that are generally of interest to this thesis. 306 Joint Standing Committee on Electoral Matters 1994, The 1993 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 29. 99

Following the 1990 election the AEC conducted a comprehensive audit of all late enrolments in six Divisions: two marginal seats held by the Government, two marginal seats held by the Opposition, and two safe seats as “control” Divisions. Of the 23,240 new enrolments investigated, there were just 72 cases (0.3 percent) where the voter had apparently wrongfully, though not necessarily fraudulently, enrolled. The 72 cases represented around 0.02 percent of enrolment for the election in those Divisions.307

Further, the AEC found that enrolment activity in the pre-election period tended to be lower in marginal than non-marginal electorates, challenging assertions of fraudulent enrolment activity in those electorates where it was more likely to make a difference.308 The AEC also made clear its opposition to any tightening of the enrolment period:

The AEC is firmly of the view that, in the absence of any evidence to suggest that the opportunity to enrol or correct enrolment details in the week prior to the close of the rolls is being significantly abused, the procedure introduced on the Committee’s recommendation after the 1983 election must be judged a success. It has guaranteed the franchise to large numbers of people who might otherwise have missed out on their votes, and has ensured more accurate rolls by guaranteeing people the opportunity to correct their enrolment details. Its elimination would reopen the door to sudden roll closes such as that of 1983, which cause the retention on the roll of a large number of out-of-date enrolments, and tend to force a large number of people to vote for Divisions in which they no longer reside.309

The Labor majority concluded that this lack of evidence meant no change to enrolment procedures could be justified:

...the Committee is opposed to the proposal that the rolls should close as soon as an election is called. Those advocating this course have nothing substantiated their case.310

...in the absence of any evidence that the electoral system is being abused, it is not appropriate that proof of identity be introduced for enrolment and voting purposes.311

307 Joint Standing Committee on Electoral Matters 1994, Op. Cit., 34. 308 Ibid., 35. 309 Australian Electoral Commission 1993, Submission to Joint Standing Committee on Electoral Matters, No. 120, Canberra: Australian Electoral Commission, 7. 310 Joint Standing Committee on Electoral Matters 1994, Op. Cit., 35. 311 Ibid., 37. 100

The Coalition members’ dissenting report did not dispute the dearth of evidence, but persisted in calling for a tightening of procedures, arguing that the existing system provided ‘opportunities for irregular and incorrect enrolment’.312 It stressed that the system appeared most vulnerable during the 7-day period between the issuing of the writs and the closing of the rolls, but did not recommend a return to the previous system. Rather, it recommended a return to subdivisional enrolment and voting,313 requirement for proof of identity and citizenship on enrolment, and supported the majority’s recommendation that the AEC move to a continuous roll update system.314

However, the dissenting report’s primary recommendation was the abolition of compulsory voting. It accused the AEC of resisting attempts to reduce the possibility of fraud, on the premise that due to compulsion, the law should make it as easy as possible for people to enrol and vote. Thus, the dissenting report argued ‘in practice compulsory voting underpins a system which has very few checks in place to prevent and detect fraudulent enrolment and voting’.315 The Coalition members did not however take issue with compulsory enrolment, and as compulsory voting is considered in depth in the following chapter, it is appropriate to leave the matter here.

With the 1996 change of government, the Coalition was in a position to push its claims for enrolment reform more forcefully. Electoral integrity became a primary focus of JSCEM’s inquiry into conduct of the 1996 election, forming the first chapter of recommendations. However, the inquiry did not differ markedly in its findings, with the majority report concluding that it ‘did not reveal improper enrolment or voting sufficient to affect any result at the election’.316 The report did however question whether the current procedures were even capable of detecting electoral fraud, and recommended a number of reforms,317 among them strengthened witnessing and proof-of-identity requirements318 for enrolment and for the AEC to investigate a return to subdivisional voting, as well as for the early closure of the rolls in a form similar to that adopted a decade later:

312 Ibid., 153. 313 Such an approach would revert to the pre-1983 model of electoral divisions being subdivided into areas containing ten thousand electors or less, with individuals limited to voting within their specific subdivision. JSCEM’s inquiry into the 1996 election considered even stronger limitations, with electors being assigned to single, specific polling booths. Joint Standing Committee on Electoral Matters 1997, Report of the Inquiry into all aspects of the conduct of the 1996 Federal Election and matters related thereto, Canberra: Parliament of the Commonwealth of Australia, 14-16. 314 Joint Standing Committee on Electoral Matters 1994, Op. Cit., 153-155. 315 Ibid. 1994, 153, 157. 316 Joint Standing Committee on Electoral Matters 1997, Report of the Inquiry into all aspects of the conduct of the 1996 Federal Election and matters related thereto, Canberra: Parliament of the Commonwealth of Australia, 5. 317 Ibid. 1997, 5-22. 318 These would have entailed the provision of original documents to the AEC, via intermediary agents such as Australia Post, at substantial cost to both enrollers and the government. JSCEM noted these practical concerns but was not deterred. 101

[The Committee recommends] that section 155 of the Electoral Act be amended to provide that for new enrolments, the rolls for an election close on the day the writ is issued, and for existing electors updating address details, the rolls for an election close at 6.00pm on the third day after the issue of the writ.319

The Labor members’ minority report was scathing in its disagreement:

The Majority Report has to be viewed in a broader context. That context strengthens the analysis that the Report is substantially dedicated to creation of obstructions to participation in our electoral processes by millions of Australians.320

The Committee has not been presented with any substantive material indicating the existence of electoral fraud. It has been limited to anecdote and hearsay. Despite a dearth of evidence that alleged loopholes are being abused, there are, in the Majority Report, serious new moves to complicate enrolment. The outcome will be discouragement of prospective and past re-enrolling voters.321

The emphatic conclusion is that under the guise of outlandish, unsubstantiated claims about the feasibility of fraud, vast numbers of Australian citizens will be deprived of a vote.322

The government adopted both the toughened enrolment criteria and the early closure of the rolls in its Electoral and Referendum Amendment Bill (No. 2) 1998, but its consideration was interrupted by the 1998 Federal Election. The bill was reintroduced later that year as the Electoral and Referendum Amendment Bill (No. 1) 1999. The Opposition was less than impressed at the haste with which this was done, without waiting for JSCEM’s regular review of the preceding election, at which such policy positions were generally debated and formulated. Labor Senator Chris Schacht was particularly critical:

…since this government got into office it has used [JSCEM] only on the basis of how it can shave the edge off improving the coalition's prospects at election time by the way the act is administered, the way it is changed. The sticky fingers of my colleague Senator Minchin, who in the last period of the government had some interest and responsibilities in this area, are all over this bill in finding ways to give an electoral advantage to the coalition.323

319 Ibid., 14. 320 Ibid., 119. 321 Ibid., 119. 322 Ibid., 123. 323 Commonwealth Parliamentary Debates (Senate), 17 February 1999, 2037 (Senator Schacht). 102

The early closure of the rolls was again blocked. The government had attempted to justify it on the basis that the grace period would no longer be required due to the simultaneous introduction of the new Continuous Roll Update system by the AEC,324 but the Senate was unconvinced. With the aid of independent Senator Brian Harradine, new witnessing and proof of identity requirements for enrolment were however introduced, but the government elected not to proclaim them until more detailed regulations had been accepted by the Parliament and the States, from whom complementary legislation would also be required.325

JSCEM’s inquiry into the conduct of the 1998 election reiterated the recommendations of the 1996 inquiry with regard to the early closure of the rolls,326 albeit embedded within a more measured report. The Labor members’ minority report again opposed it.327 The inquiry heard evidence regarding a number of allegations of electoral fraud. These included allegations of widespread multiple, ‘invalid’ and ‘illegal’ voting, of voting in the name of the deceased and of ballot tampering.328 In every case, the Committee dismissed the allegations, and concluded as follows:

All examples of electoral fraud provided to the Committee as part of this inquiry appear to be either based on hearsay or have a reasonable explanation.329

The frustration of the AEC at these regular accusations was evident in its submissions to the committee:

Since 1984, a parliamentary inquiry has been held into the conduct of every Federal Election. At each of these inquiries the possibility of fraudulent enrolment and voting has been investigated, and each time it has been concluded that no evidence was available to support allegations that widespread and organised electoral fraud had occurred to such an extent that the result of any of those elections was in doubt.330

However, further developments would shortly thrust the issue of electoral fraud firmly into the public eye. On 11 August 2000 in the District Court at Townsville, Karen Ehrmann pleaded guilty to some 24 charges of forging electoral enrolment forms and another 23 charges of uttering them - that is, passing on documents forged by others – and was

324 The mechanics of Continuous Roll Update are discussed briefly in the previous chapter. 325 Joint Standing Committee on Electoral Matters 2003, The 2001 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 37-38; Joint Standing Committee on Electoral Matters 2001, User friendly, not abuser friendly, Canberra: Parliament of the Commonwealth of Australia, 40-45. 326 Joint Standing Committee on Electoral Matters 2000, The 1998 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 14-15. 327 Ibid., 155-156. 328 Ibid., 91-97. 329 Ibid., 98. 330 Cited in Joint Standing Committee on Electoral Matters 2000, Op. Cit., 98. 103 sentenced to three years’ imprisonment, becoming the first Australian jailed for electoral fraud. Ehrmann was a former Townsville City councillor and Labor candidate for the State electorate of Thuringowa. The offences had taken place between 1993 and 1996 in the Townsville area and were committed for the purposes of influencing internal Labor Party pre-selection ballots. At her sentencing, Ehrmann alleged that the practice was widespread within the ALP, and particularly that faction aligned with the Australian Workers Union.331

Two similar cases had also come to light during this period. Shane Foster, a Townsville local councillor and assumed to be an accomplice of Ehrmann’s, had been convicted in March 1999 of 22 counts of forgery, and Andrew Kehoe, in an unrelated case, had in 1997 been convicted of 10 counts of forging and uttering in relation to the 1996 pre-selection for the State Electoral District of Townsville. All three cases had involved attempts to influence ALP plebiscites and pre-selections for local and state government candidacies through branch- stacking.332

In response to these and other allegations, the Queensland Criminal Justice Commission (CJC) launched what would be known as the Shepherdson Inquiry, an independent and broad-ranging investigation into electoral fraud in Queensland. The Inquiry uncovered a number of other cases involving similar circumstances – fraudulent enrolments for the purposes of influencing internal party ballots – and led to the resignations of a number of Queensland State Labor MPs, including the Deputy Premier Jim Elder.333 However, the Inquiry found no evidence of widespread fraud nor of any serious crisis of integrity, and its general conclusion was measured:

The information gathered during the Inquiry clearly established that the practice of making consensual false enrolments to bolster the chances of specific candidates in preselections was regarded by some Party members as a legitimate campaign tactic. No evidence, however, was revealed indicating that the tactic had been generally used to influence the outcome of public elections. Where it was found to have been used in public elections, the practice appeared to be opportunistic or related to the family circumstances of particular candidates rather than systemic or widespread.334

The Inquiry made a number of recommendations. While most focused on stiffer penalties for fraudulent enrolment and greater oversight of the internal ballots that had driven misuse of the system, it also recommended improved procedures for proving the identity

331 Queensland Criminal Justice Commission 2001, The Shepherdson Inquiry, Brisbane: Queensland Criminal Justice Commission, 1. 332 Ibid., 2. 333 Joint Standing Committee on Electoral Matters 2001, Op. Cit., 8; Balogh and Newman 2001, ‘Vote-rorts MPs escape prosecution’, The Australian, 20 January 2001. 334 Queensland Criminal Justice Commission 2001, Op. Cit., XIV. 104 and address of individuals during enrolment, a reform that the Coalition had been pushing at the Commonwealth level for some time.

Two other key reports coincided with the Shepherdson Inquiry, with both JSCEM335 and the Australian National Audit Office (ANAO)336 investigating the integrity of the electoral roll. The ANAO audit considered the accuracy and security of the roll, and the efficacy of the AEC’s roll management processes. Its conclusions were broadly positive, but also highlighted areas where improvements might be made:

The ANAO concluded that, overall, the Australian electoral roll is one of high integrity, and that it can be relied on for electoral purposes.

We concluded that the AEC is managing the electoral roll effectively. AEC policies and procedures can provide an electoral roll that is accurate, complete, valid and secure. In particular, the AEC has mechanisms in place to provide assurance that the names and addresses on the electoral roll are legitimate and valid; and that people who are eligible to vote are registered properly.

At the same time there are areas of AEC management of the roll that can be improved; in particular by better targeting and expansion of the data sources currently used to update the roll, by strengthening strategic relationships with key stakeholders, and by better identification and management of risks to the integrity of the roll.337

It also noted the limitations of enrolment policy, recognising the careful balance the AEC struck between enforcing the demands of the policy of compulsion and avoiding excessive intrusion into the lives of citizens, and suggesting that while the standing 95 per cent enrolment target had been satisfied, full participation was likely not attainable.338

JSCEM’s inquiry was nominally prompted by the same events as had triggered the Shepherdson Inquiry.339 Yet this Inquiry was also a continuation of the clear trend detailed above, where JSCEM had consistently focused on the issue of electoral integrity since the

335 Joint Standing Committee on Electoral Matters 2001, Op. Cit. 336 Australian National Audit Office 2002, Integrity of the Electoral Roll, Audit Report, No.42 2001–02, Canberra: Australian National Audit Office. 337 Ibid., 11. 338 Ibid., 11-12. 339 Joint roll arrangements mean any issue at State level would also impact the Commonwealth system, with the relationship with Queensland being particularly close, given Section 64(1)(a)(i) of the Electoral Act 1992 (QLD) explicitly refers to Commonwealth qualification as the basis for the franchise. 105

Coalition assumed government. This reflects the Coalition’s long-term focus on allegations of electoral fraud, even in the absence of evidence of any significant manipulation.340

The inquiry was controversial from the start, with the Opposition highly critical of the process on a number of grounds.341 While convention held that inquiries were referred to JSCEM by the Parliament, in this case the Special Minister of State had done so without consultation. Further, they argued that JSCEM had been politicised by the new chair, Liberal MP Christopher Pyne, who had sidelined a pending inquiry into funding and disclosure that would have questioned some Coalition practices, and targeted the integrity inquiry solely at the Labor party. The Minority Report detailed a range of complaints, summed up in a scathing critique of Pyne:

Under the partisan stewardship of Mr Pyne, JSCEM has become a biased and corrupted forum whose choice of witnesses and proceedings are governed by the short-term political interests of the Liberal Party. Predictably, JSCEM’s inquiry became more intent on pursuing a political witch-hunt into the Labor Party than investigating and properly assessing risks to the integrity of the electoral roll.342

In any case, the inquiry brought no great revelations to light. In evidence, the AEC submitted a list of all known cases of enrolment fraud for the preceding decade, listing 71 cases drawn from multiple sources, and ranging in the number of enrolments per case. From this data, the Commission estimated a fraudulent enrolment rate of one per 200,000 enrolments. Further, they noted that these enrolments were carried out primarily for the purposes of non-electoral identity fraud, with some evidence of fraudulent enrolment aimed at the manipulation of internal party ballots and of voting in more marginal electorates at elections.343 The AEC was also forthright in its opposition to the early closure of the rolls, suggesting any such move was both unsupported by evidence and would prove counterproductive to the stated aim of integrity:

Expert opinion within the AEC is that the early close of rolls will not improve the accuracy of the rolls for an election ... In fact, the expectation is that the rolls for the election will be less accurate, because less time will be available for existing electors to correct their enrolments and for new enrolments to be received. This expected outcome is in direct conflict with the stated policy intention of the Government to

340 In seeking to explain this recurring focus, Senator Faulkner suggested his opponents were motivated by a ‘rampant’, ‘unjustified paranoia’ about widespread electoral fraud, rather than any ‘real desire to improve the integrity of the electoral rolls’. Commonwealth Parliamentary Debates (Senate), 17 February 1999, 2066 (Senator Faulkner). 341 Joint Standing Committee on Electoral Matters 2001, Op. Cit., 91-98. 342 Ibid., 95-96. 343 And, infamously, one Curacao Fischer Catt, a household pet who spent a year enrolled in the division of Macquarie. Ibid., 15-16. For the comprehensive list, see Attachment 14 of the AEC’s submission to the inquiry. 106

improve the accuracy of the rolls. Further, it will undoubtedly have a negative impact on the franchise, an outcome which the AEC cannot support.344

While the Committee did not dispute the paucity of evidence, it was critical of the AEC:

The AEC indicated that in relation to enrolment fraud, its normal processes were very good and that it was confident it had a first class electoral roll. The committee believes that the AEC has to be careful that it is not too confident. A more circumspect attitude is more appropriate in the light of the Shepherdson Inquiry and this inquiry’s work. The AEC’s attitude leads the committee to question the adequacy of the AEC’s assessment of the risks in relation to the integrity of the electoral roll.345

Alongside a number of recommendations related to administrative processes, the report reiterated the two key planks of the Coalition’s enrolment policy – the early closure of the rolls and the introduction of the still-unproclaimed identity verification processes. The Minority Report, beyond its usual objections, made the point that the findings of the Shepherdson Inquiry did not back these moves. It quoted QCJC Prosecutor Russell Hanson QC, who in his closing submission to the Inquiry had questioned the efficacy of tougher identity checks:

The evidence suggests that in the vast majority of detected cases of false enrolment, a requirement for the person when initially enrolling to provide more detailed proof of identity would have had little impact on the conduct disclosed. It was at the point of change of enrolment that the possibility arose of false details being provided. The evidence is overwhelming that persons had originally been lawfully enrolled at an address at which they resided. Being lawfully enrolled, sometimes for many years, it is alleged they changed their enrolment to a false address to enable them to vote at a particular plebiscite.346

Despite failing to secure the assent of the States and Territories, the government persisted and implemented strengthened identity verification provisions through the Electoral and Referendum Amendment Regulations 2000.347 However, the Labor and Democrats Senators soon combined to pass a motion disallowing the Regulations,348 on a number of grounds: that they were unnecessarily bureaucratic; would potentially disenfranchise a large number

344 Australian Electoral Commission 2000, Submission No. 26, Canberra: Australian Electoral Commission, 63. 345 Joint Standing Committee on Electoral Matters 2001, Op. Cit., 19. 346 Cited in Ibid., 100. 347 Section 395 of the Commonwealth Electoral Act 1918 provides that the Governor-General, acting by convention on the advice of the Government, may make Regulations to give effect to the Act and that are not inconsistent with it. The relevant facet of these particular Regulations established those authorities permitted to witness proof of identity. 348 See Chapter 13 – Notices of Motion, in Laing (ed.) 2009, Annotated Standing Orders of the Australian Senate, Canberra: Parliament of the Commonwealth of Australia. 107 of voters; had not secured the cooperation of the States and Territories so risked the joint roll arrangements; and in any case would not necessarily enhance the integrity of the roll.349

And yet, all parties agreed on the necessity of strengthening enrolment requirements. Labor Senator John Faulkner advocated a simpler system based on the provision of a driver’s licence number, to be verified through data-sharing arrangements, and condemned the government’s failure to consider practicable solutions such as this.350 Democrats Senator Andrew Murray noted that the various investigations of roll integrity had left him with a view that tightening the roll was ‘advantageous’ and minimising the opportunity for fraud was ‘desirable’,351 but that the Regulations should be disallowed due to the way the Coalition had approached the problems:

[The] motives behind this are political, and the environment in which these have been generated is political, as is the failure to consider alternative means.352

Following the 2001 election, the moderate Liberal MP Petro Georgiou assumed the chairmanship of JSCEM, and the Committee’s inquiry into the conduct of the 2001 election offered a respite from the partisan obsessions that had dominated previous iterations.353 The Committee abandoned its previous adherence to early closure, flagging the danger of ‘unnecessarily disenfranchising voters by foreshortening the close of rolls’.354 It remained committed to strengthening identification requirements, but recognised that a stringent system was unlikely to meet with success. As the Report stated, ‘the dilemma facing the Committee is not whether there is a need for greater proof of identity for enrolment, but how to achieve this.’355

A combination of this willingness to compromise, and increases in the technological capacity of the AEC provided a way out. While similar in intent, the reforms as recommended reflected those previously proposed by the Opposition. The witnessing requirement would now require only fellow electors rather than persons in specified professional categories, and photocopies would suffice for the identity check, while data-matching would allow the provision of a driver’s licence number to be sufficient.356 The moderation and collegiality inherent in the Committee through this period is evidenced by the unanimity of the recommendations and the absence of a dissenting minority report, an otherwise reliable

349 Commonwealth Parliamentary Debates (Senate), 15 May 2002, 1608 (Senator Faulkner). 350 Ibid., 1609-1610 (Senator Faulkner). As with so many Australian electoral innovations, this approach originated from electoral administrators. 351 Ibid., 1611-1612 (Senator Murray). 352 Ibid., 1611 (Senator Murray). 353 Joint Standing Committee on Electoral Matters 2003, Op. Cit. 354 Ibid., 63. 355 Ibid., 44. 356 Ibid., 48. 108

fixture in JSCEM’s publications. Indeed, all that was offered were a collection of ‘supplementary remarks’ from the two Democrat Senators.357

It is worth contrasting Georgiou’s approach with that of Senator Eric Abetz, Special Minister of State from 2001 to 2006. Abetz was a fierce advocate of a number of electoral reforms, including the tightening of enrolment processes, the relaxation of funding and disclosure laws and the abolition of compulsory voting. His advocacy of the early closure of the rolls is illustrative. In 2004, he inferred that early closure carried no issues given that Australia’s ‘democracy survived over 80 years with the rolls closing on the day that the writs were issued’,358 conveniently ignoring the long-standing convention of a period of grace. He went further in 2005 in an address entitled – without a hint of irony – ‘Electoral reform: making our democracy fairer for all’, arguing that the then-current seven day period ‘does nothing for our electoral system other than increase opportunities for fraud or errors’,359 with the hundreds of thousands of enrolment transactions evidently serving no participatory purpose.

The approach of Abetz, and of the government more broadly, drew significant academic criticism. Colin Hughes and Brian Costar, for example, noted that Abetz’s public pronouncements were ‘misleading, to say the least’ and argued that ‘the likely advantage for the Coalition of an early close of roll is the only plausible explanation for that side of politics having seized upon the question and pursued it with such dogged tenacity for so long.’360 In any case, Georgiou did not last. He would not be reappointed to the Committee following the 2004 election, and in the meantime the government ignored this kinder, gentler JSCEM and persisted with its usual package of reforms.

The process by which the 2004 bill was considered is worthy of further attention. The Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004 was not referred to JSCEM for consideration. Given the similarity of the initial bill to the 1998 and 2001 attempts, and the clearly established positions of the key parties, this is somewhat understandable, but it represented a departure from standard practice and contributed to the mechanics of the bill as amended and passed.

Indeed, what this lack of committee consideration meant in practice was that, once it became apparent that non-Coalition Senators were receptive to some aspects of the legislation, the Senate debate itself took the form of an impromptu and disorganised committee.361 Senator Brown objected to the process throughout, and warned that its

357 Ibid., 269-298. 358 Australian Broadcasting Corporation 2004, Lateline, 14 June 2004. 359 Abetz 2005, ‘Electoral reform: making our democracy fairer for all’, Address to the Sydney Institute, 4 October 2005. 360 Hughes and Costar 2006, Limiting Democracy, 55, 57. 361 Commonwealth Parliamentary Debates (Senate), No. 8 2004, 24 June 2004, 25136-25168. 109 haphazard nature risked the legitimacy of the legislation, and by extension the electoral system. One denunciation is worth quoting at length:

We are dealing here with important electoral legislation on the eve of an election. It is absolutely imperative that the Senate is clearly informed about the ramifications of all the amendments, as well as the legislation itself. No committee has looked at this legislation; there has been no public input into this legislation; there is clearly confusion amongst members of the committee, including the government, on points as they arise; we have no running sheet; and there are handwritten complicated amendments being circulated in the chamber. I think the whole process is wrong and I object to it.362

The Senate again rejected the early closure of the rolls. However, reflecting the growing consensus, the Labor and Democrat Senators combined to amend the enrolment identification provisions back into the form unanimously recommended by JSCEM. Further, a three-year sunset clause was introduced after which the requirements would be revisited.363

The government persisted, and with the 2004 election granting it a majority in both houses, it found itself capable of passing its favoured reforms without opposition or amendment. JSCEM’s inquiry into the conduct of the 2004 election again returned to the issue of roll integrity. The recommendations364 including stiffening identification requirements beyond those introduced the previous year – which were yet to even be put into operation – and closing the rolls even earlier than had been previously advocated:

The Committee recommends that Section 155 of the Commonwealth Electoral Act be amended to provide that the date and time fixed for the close of the rolls be 8.00pm on the day of the writs.365

In removing the previously-proposed three day period of grace for those already enrolled, the recommendation went beyond even established party policy, as reflected in the Liberal Party Secretariat’s submission to the inquiry.

362 Ibid., 25159-25160 (Senator Brown). 363 Ibid., 25152-25154. This clause echoed an earlier proposal from the Democrats, offered during the debate over the 2002 Motion of Disallowance. Commonwealth Parliamentary Debates (Senate), 15 May 2002, 1612 (Senator Murray). 364 Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, Canberra: Parliament of the Commonwealth of Australia, xxv-xi. The committee also recommended a number of changes aimed at increasing participation, including the wider provision of enrolment forms and the further study of participation rates among marginal groups, which would lead to JSCEM’s 2007 Inquiry into Civics and Electoral Education. 365 Ibid., 36. 110

The Committee justified this on the grounds that the ‘flood’ of last-minute enrolment transactions – some 520,086 at the preceding election in 2004 – placed an intolerable burden on the AEC, and raised the potential for fraudulent enrolments to slip through the system.366 Further, the Committee argued that the period of grace served to encourage electors to ‘neglect their obligations in respect of enrolment’, and that despite no evidence surfacing of significant fraud, the role of the Committee was to prevent any such fraud before it was able to occur.367

In their dissenting report, the Labor members of JSCEM treated the supposed threat of fraud with derision, arguing that the lack of evidence stripped away all justification for the change:

The entirely theoretical threat of election results being corrupted through fraudulent enrolment does not outweigh the harm caused by potentially disenfranchising several hundred thousand voters.368

The government accepted the recommendations with minor changes,369 and referred the bill to the Finance and Public Administration Legislation Committee, which recommended its passage. Despite their fierce opposition through both Committees, the Labor, Democrat and Green opponents could do nothing to frustrate the passage of the bill, and on the 22nd of June 2006 the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006 became law.

One further historical feature of note is the support the government drew from the then Australian Electoral Commissioner, Mr Ian Campbell, throughout this period. On a number of occasions Campbell enunciated positions that represented stark departures from previous AEC recommendations with regard to the early closure of the rolls. During the public hearings for JSCEM’s inquiry into the 2004 election, he disagreed with the Deputy Chair’s suggestion that such a move would disenfranchise a larger number of potential electors:

Even with the seven-day close of rolls, I have no doubt that we now have people who try to enrol on days 8, 9 and 10. In that sense, wherever you draw a cut-off point, you will have people who, for whatever reason, did not get to enrol before the rolls closed—there is under current arrangements and there would be in any changed arrangements…

366 Ibid., 29-30. 367 Ibid., 35-36. 368 Ibid., 361. 369 The provision of a three-day period of grace for those turning 18 or attaining citizenship during the campaign. 111

My point is that I could not draw any conclusion that a change in the closure date of the rolls would automatically lead to a particular number of electors who want to vote not being able to vote.370

When the 2006 bill was under consideration by the Finance and Public Administration Legislation Committee, he suggested that early roll closure might be of benefit in that it would ease the workload of the AEC:

…the fact that we won’t have to process so many cards in that period after the issue of the writs will make our life easier and give us time to concentrate on the other issues we have to deal with in the preparation for the election.371

Further, on a number of occasions Campbell objected to the usage of the term ‘disenfranchisement’ to describe the impact of early roll closure, on the grounds that any electors excluded had been so on the basis of their own behaviour, through their failure to respect their legal responsibility to enrol.372

The regular invocation of the Commission throughout this period, generally by non-Coalition members of JSCEM, but in this case notably by those in the Coalition who had so often railed against its attitudes and practices, reflects a central aspect of the electoral reform process. Given the inherently partisan nature of all electoral law, the support of non- partisan experts such as electoral management bodies lends important legitimacy to policy proposals. Conversely, where such experts disagree with a position, they have been attacked as lax or even as engaging in partisan complicity themselves.

The Prisoner Franchise

The third key feature of the 2006 legislation was the restriction of the prisoner franchise. This provision is considered at length here, for two particular reasons. First, it serves as an appropriate case study for the broader ideas of institutional constraint that are fundamental to this thesis. In further demonstrating the evolutionary nature of policy, both as implemented and as proposed, it demonstrates the constraining power of path dependence. Likewise, that a restriction impacting relatively few individuals – albeit in a manner that fundamentally challenged their democratic rights – should have had such

370 Official Committee Hansard (JSCEM), 5 August 2005, Reference: Conduct of the 2004 Federal Election and matters related thereto, 55 (Mr Campbell). 371 Official Committee Hansard (SSCFPA), 7 March 2006, Reference: Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2005, 8 (Mr Campbell). 372 See, for example, Official Committee Hansard (JSCEM), 5 August 2005, Op. Cit., 59 (Mr Campbell), and Official Committee Hansard (SSCFPA), 7 March 2006, Op. Cit., 3 (Mr Campbell). 112

significant and largely-unforeseen consequences for Australian constitutional and electoral law is reflective of the power of accident in institutional development.

Second, as a small subset of potential electors, whether or not the franchise is extended to prisoners has little effect on partisan outcomes. At the time of the 2006 laws, prisoners comprised just 0.15 per cent of the potential voting population, and further were scattered across their ‘home’ electorates rendering partisan leanings even less relevant.373 While this may make it seemingly an issue of less relevance to this thesis, arguments regarding the merits of particular policy approaches to participation and the franchise on this topic might be considered less tainted by partisan considerations, and so it serves as an appropriate contrast. Indeed, it is one of the few areas of electoral policy where political actors seem reluctant to accuse their opponents of partisan motivations. As Senator Nick Minchin put it:

This is clearly a matter of policy. There are philosophical dispositions in relation to this issue, and I acknowledge the opposition from some quarters to this because of a different philosophical position.374

However, the prisoner franchise had seen significant debate and reform in the decades prior to the 2006 reforms, becoming what Graeme Orr and George Williams termed a ‘political tug of war’.375 Broadly, the debate formed around two contrasting views of the primary purpose of imprisonment, being either retributive or rehabilitative. Under a retributive conception, the vote is a privilege that may be withdrawn alongside other civil liberties as a consequence of serious breaches of social norms. From a rehabilitative perspective, civil duties such as voting form an important, continuing link to broader society for the incarcerated. Further, disenfranchisement serves as a prime example of ‘law and order’ politics, wherein popular public attitudes towards criminality can be addressed to manage public sentiment and for for electoral gain. With the academic literature being ‘almost universally’ in favour of prisoner enfranchisement,376 Coalition MPs instead made frequent reference throughout this period to the ‘pub test’, claiming broad public support for disenfranchisement.377 However, this thesis is less interested in the moral or political justification behind the enfranchisement or disenfranchisement of prisoners than in the political processes behind such moves, and in the legal and electoral consequences that ensued.

373 Orr and Williams 2009, The People’s Choice: The Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia, Election Law Journal (8:2), 130, 137. By comparison, the relevant figure for the United States was upward of 2.5 per cent. 374 Official Committee Hansard (SSCFPA), 16 June 1998, Reference: Electoral and Referendum Amendment Bill (No. 2) 1998, (Senator Minchin). 375 Orr and Williams 2009, Op. Cit., 129. 376 Orr and Williams 2009, Op. Cit., 129 (footnote 45). 377 See, for example, Official Committee Hansard (SSCFPA), 16 June 1998, Op. Cit., as well as discussion of the appropriateness of this as a basis for public policy during the same Committee’s consideration of the 2006 bills. Official Committee Hansard (SSCFPA), 7 March 2006, Op. Cit., 39, 94-96. 113

From the Federation period through to the Hawke government’s 1983-1984 overhaul, the prohibition was broad and vague, persisting from the original Commonwealth Franchise Act 1902 through to the Commonwealth Electoral Act 1918:

No person … who has been convicted and is under sentence for any offence punishable under the law of any part of the King's dominions by imprisonment for one year or longer, shall be entitled to have his name placed on or retained on any roll or to vote at any Senate election or House of Representatives election.378

In practice, prison authorities knew only of the actual sentences being served, so those serving sentences of under 12 months but for offences punishable with sentences of over 12 months were treated as being entitled to vote. However, with no statutory right of access to postal voting, nor the now-established practice of mobile polling booths, it was difficult for any prisoner to vote.379

This disqualification was one of the issues considered in the first JSCER inquiry in 1983. On its recommendation, the disqualification was altered to apply only to those convicted of offences punishable by sentences of 5 years or longer.380 Coupled with new, statutory access to postal votes, this brought the problems of gauging maximum possible sentence lengths to light. JSCER’s 1986 review of the 1984 reforms considered a number of practical reforms – that the disqualification operate by reference to the actual rather than maximum sentence and that it only apply to those in lawful custody – before recommending that the disqualification be removed entirely.381

An attempt to this effect was made in 1989, when the amendment was blocked by the Senate. In JSCEM’s report on the 1993 election, they reiterated the recommendation, on the basis that encouraging prisoners to observe their community obligations served a rehabilitative purpose.382 It is worth contrasting this with the position of the dissenting reports in both 1986 and 1994, which argued that ‘the concept of imprisonment – apart from any rehabilitation aspects – is one of deterrence, seeking by the denial of a wide range

378 Commonwealth Franchise Act 1902, Section 4; Commonwealth Electoral Act 1918, Section 39(4). 379 Joint Standing Committee on Electoral Reform 1986, The Operation during the 1984 General Election of the 1983/84 Amendments to Commonwealth Electoral Legislation, 34. 380 Commonwealth Electoral Legislation Amendment Act (1983), Section 33. Some years later Senator Robert Ray, a member of JSCER in 1983 and chair of the committee in 1986, made reference to a proposed two-year disqualification as part of the 1983/84 amendments. Official Committee Hansard (SSCFPA), 16 June 1998, Op. Cit., (Senator Ray). 381 Joint Standing Committee on Electoral Reform 1987, Op. Cit., 33-36. 382 Joint Standing Committee on Electoral Matters 1994, Op. Cit., 142-144. 114

of freedoms to provide a disincentive to crime.’383 They did not however call for total disenfranchisement, rather opposing any relaxation of the restriction then in operation.

The government moved to implement this proposal in 1995,384 but quickly withdrew in the face of media opposition. Instead, they adopted a proposal by the AEC that the provision be altered to disqualify only those actually serving sentences of 5 years or longer, and altered the Act as such.385 According to Minchin, it was in opposition to the initial 1995 proposal that the Coalition first settled on a policy of total disenfranchisement of prisoners.386 With the change of government in 1996, the newly Coalition-dominated JSCEM recommended total disenfranchisement. Their reasoning echoed that of the 1993 dissenting report, arguing that removing the franchise would serve an important deterrent effect, even for those with the poor timing to be imprisoned for a short sentence coinciding only with the election period.387

The Labor members’ minority report opposed the move on a number of grounds – including that it would be applied inconsistently given the realities of differing jurisdictions and sentencing outcomes, and the higher incarceration rates among indigenous Australians, that the restriction of a fundamental civil right over minor offences was unjust, disproportionate and unprecedented, and that disenfranchisement as a response to what might be considered legitimate forms of political expression, such as non-violent civil disobedience, was something of a perverse outcome.

The government accepted the proposal and included it in its package of electoral reforms. The Electoral and Referendum Amendment Bill (No. 2) 1998 was referred to the Senate Standing Committee for Finance and Public Administration (SSCFPA) for consideration. In advocating for total disenfranchisement before SSCFPA, Minchin mounted a strange argument, subsequently repeated on a number of occasions:

In this country we have the quite extraordinary anomaly that not only are prisoners entitled to vote but they are forced to vote. If they do not, they are guilty of an offence and, if they do not pay the fine, then they have their prison term extended, which strikes us as a most peculiar situation.388

383 Joint Standing Committee on Electoral Reform 1987, Op. Cit., 218; Joint Standing Committee on Electoral Matters 1994, Op. Cit., 165. 384 Electoral and Referendum Amendment Bill (No. 2) 1995. 385 Senate Standing Committee on Finance and Public Administration 1998, Report on the Provisions of the Electoral and Referendum Amendment Bill (No. 2) 1998. 386 Official Committee Hansard (SSCFPA), 16 June 1998, Op. Cit., (Senator Minchin). 387 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 131. 388 Official Committee Hansard (SSCFPA), 16 June 1998, Op. Cit., (Senator Minchin). 115

While Minchin’s committed opposition to compulsory voting (as detailed in the following chapter) appeared to have influenced his thinking, the idea that civil obligations should not extend to the imprisoned, quite apart from any justification on the basis of restricting rights, is an odd one.389

The submissions received by SSCFPA were unanimous in their opposition to total disenfranchisement. However, the Committee attributed this to the hasty process and recommended that bill be agreed to without amendment.390 While the bill lapsed due to the impending 1998 election, the government reintroduced it soon after parliament returned.391 Although further disenfranchisement was again ultimately rejected, Labor’s two- consecutive-election amendment almost passed. The Greens initially voted in support, on the mistaken understanding that prisoners disqualified under the existing provisions would retain their vote until the second applicable election, however once this came to light the amendment was recommitted and failed to pass.392

JSCEM revisited the issue in its inquiry into the 1998 election, and concluded that the prisoner franchise was a sensitive issue and not entirely worth the bother:

The Committee notes that this issue has been raised a number of times in the past as part of previous inquiries and any move to change the legislation has met with fierce opposition. … Although the majority of this Committee concurs with the previous Committee’s recommendation, it believes that the current legislation should stand until there is sufficient and widespread public support for a change.393

However, the government persisted and the provision reappeared in the ensuing 2001 bill, which again failed to pass the Senate. The issue fell by the wayside over the following years as electoral roll integrity became the central issue, as has been detailed above, and was not even considered in the Georgiou-chaired inquiry into the 2001 election, with only the Democrats mentioning reform through a commitment to total enfranchisement.

Over this period parliamentary opposition to disenfranchisement had however eased. While Labor continued to oppose total disenfranchisement, it accepted that ‘certain classes of prisoners should not be able to vote’, and instead argued that the parliament should be capable of distinguishing between major and minor crimes and legislating to that effect.394

389 Prisoners are not absolved of the responsibility to pay taxes, for example. The issue of disabilities imposed upon prisoners was discussed extensively in the proceedings of Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007); HCATrans 276 (13 June 2007). 390 Senate Standing Committee on Finance and Public Administration 1998, Op. Cit. 391 The Electoral and Referendum Amendment Bill (No. 1) 1999. 392 Commonwealth Parliamentary Debates (Senate), 17 February 1999, 2053-2055. 393 Joint Standing Committee on Electoral Matters 2000, Op. Cit., 90. 394 Commonwealth Parliamentary Debates (Senate), No. 8 2004, 24 June 2004, 25164 (Senator Faulkner). 116

The minority report of the SSCFPA’s consideration of the 1998 reforms had recommended a restriction based on a single parliamentary term, and Labor had proposed unsuccessful amendments in both 1998 and 2001.

This attitude allowed for the prospect of further restriction. In 2004, the government revived its usual package of electoral reforms before the impending Federal Election, and this time the prisoner franchise would finally be restricted. As discussed in the section above, the process by which the 2004 Bill was considered was somewhat haphazard. Amid the confusion, the Opposition moved its usual amendment, reducing the restriction to those serving a sentence encompassing two consecutive elections. The government accepted the amendment as ‘an improvement on the status quo’, and the bill was passed.395 Senator Faulkner later admitted to being ‘a bit surprised by the outcome’.396 He noted that he had moved an identical amendment twice previously, with regard to the 1998 and 2001 attempts, and on both cases it had been voted down, and that he had expected this to continue.

This amendment is key to later developments in that it established a roughly three-year threshold for disqualification. The wording of the clause was as follows:

A person who ... is serving a sentence of imprisonment which: (i) commenced on or before the return of the writs for an election for the House of Representatives or Senate; and (ii) continues at the issuing of writs for any succeeding election for the House of Representatives or Senate; is not entitled to have his or her name placed on or retained on any Roll or to vote at any Senate election or House of Representatives election.

While the intention was to exclude those serving sentences long enough to span a complete term of parliament, the wording meant that two elections held in quicker succession than usual would have seen those serving shorter sentences disenfranchised

In practice however, the Act as amended could not function. As it required a sentence to encompass two consecutive issuings of the writs, prisoners could not legally be excluded from voting until the writs had been issued, which left the AEC insufficient time to process this exclusion.397 In response, the Electoral and Referendum Amendment (Prisoner Voting

395 Ibid., 25158 (Senator Minchin). 396 Ibid., 25164 (Senator Faulkner). 397 Parliament of the Commonwealth of Australia 2004, Electoral and Referendum Amendment (Prisoner Voting and Other Measures) Bill 2004 Explanatory Memorandum, Canberra: Parliament of the Commonwealth of Australia, 2-3. This complication had been predicted by the government when it was proposed in 1999. Commonwealth Parliamentary Debates (Senate), 17 February 1999, 2049 (Senator Ellison). 117

and Other Measures) Bill 2004 was quickly prepared and passed, and through this the disqualification that features in today’s Act was introduced:

A person who ... is serving a sentence of 3 years or longer for an offence against the law of the Commonwealth or of a State or Territory ... is not entitled to have his or her name placed on or retained on any Roll or to vote at any Senate election or House of Representatives election.

This clause did not initially last long. With the double majority achieved in the 2004 election, the government again moved for total disenfranchisement. JSCEM added its recommendation,398 and with no prospect of opposition the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Bill 2006 was passed, denying the vote to all prisoners under sentence:

A person who is serving a sentence of imprisonment for an offence against the law of the Commonwealth or of a State or Territory is not entitled to vote at any Senate election or House of Representatives election.

The consequences of this move were profound. The ban on prisoner voting itself impacted a relatively small number of potential electors – some twenty thousand, an order of magnitude less than the hundreds of thousands impacted by the early closure of the rolls, albeit a qualitatively different form of disenfranchisement.399 However, it was the restriction on the prisoner franchise that was to provide the opportunity for franchise restriction to be tackled in the High Court.

It is worth noting that these complications were to some degree foreseen. As early as 1998 the original architect of the ban, Senator Nick Minchin, admitted that there were inconsistencies within the legislation. In testimony to the Senate Standing Committee on Finance and Public Administration, to which the Electoral and Referendum Amendment Bill (No. 2) 1998 had been referred, Minchin acknowledged a number of issues – that a person serving a short sentence during which an election fell would be more heavily penalised than a person serving a longer sentence between elections, and that variability between states on matters such as whether fine defaulters were jailed meant the restriction would be inconsistently applied. He argued, however, that ‘there is not much we here can do about that’, and that potential anomalies should not deter the government.400

During the debate over the 2004 attempt at restricting the prisoner franchise, Senator Bob Brown highlighted similar concerns at length:

398 Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, 129. 399 Ibid., 360; Orr & Williams 2009, Op. Cit. 128. 400 Official Committee Hansard (SSCFPA), 16 June 1998, Op. Cit., (Senator Minchin). 118

I think the formula that is now being adopted is open to challenge because it is not fair and equal across the board. If there is a short period between elections, a prisoner who is in for a short period will be deprived of the right to vote in both. If there is a long period then that same prisoner would not be deprived of the right to vote. This penalty happens to vary according to when exactly you get incarcerated. Surely, such an unfair piece of legislation cannot stand. It also means that if you happen to commit a crime and be incarcerated at mid-term, the penalty is less than if you happen to commit a crime and get incarcerated just before an election where you will then be deprived if you are there when the next election occurs. I think that the amendment that has been made here is fraught.401

His fellow Green Senator Kerry Nettle went further, distilling the issue in a simple yet prescient manner:

It is potentially even unconstitutional, given the implied right of all citizens to vote in our Constitution.402

It is to this implied right that the chapter now turns.

The High Court and the Implied Right to Vote

The case of the 2006 reforms is central to this chapter, and by extension the thesis, in that it demonstrates both the constraining features of Australia’s political and electoral institutions and the power of unpredictability and accident in institutional reform. Soon after its introduction, the High Court would deem two key features of the 2006 law to be invalid, on the basis that they violated the constitutional guarantee that the Parliament be chosen by the people of Australia. Roach v Electoral Commissioner (2007) invalidated the blanket ban on prisoner voting, while Rowe v Electoral Commissioner (2010) built on the precedent of Roach to invalidate the early closure of the rolls.403 Through these decisions, the Court would firmly establish in law an implied constitutional right to vote for the people of Australia, thereby profoundly altering the bounds of Australian electoral law and exerting a significant constraint on the capacity of the Parliament to restrict participation.

The prisoner franchise was the first to face challenge. In March 2007 Vickie Lee Roach, a prisoner legally barred from voting at the impending 2007 Federal Election, challenged the

401 Commonwealth Parliamentary Debates (Senate), 24 June 2004, 25165 (Senator Brown). 402 Ibid., 25149 (Senator Nettle). 403 Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162; Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1. 119 constitutional validity of the prohibition with the backing of the Human Rights Law Resource Centre,404 an interest group focused on the protection of human rights through legal action and advocacy. At the time Roach was serving a cumulative sentence of some six years of imprisonment for a number of offences. Her legal team challenged the provision on the following grounds:

Sections 93(8AA) and 208(2)(c) of the Act (a) are contrary to ss 7 and 24 of the Constitution; and/or (b) are beyond the legislative powers of the Commonwealth conferred by ss 51(xxxvi) and 30 of the Constitution; and/or (c) burden one or more of the following rights or freedoms that are implied in the Constitution: (i) the freedom of political participation; (ii) the freedom of politican communication; and are not reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutional prescribed system of representative government, and (d) are therefore invalid and of no effect.405

Sections 7 and 24 of the Constitution require that the members of both the Senate and House of Representatives be ‘chosen by the people’, while the interaction of Sections 30 and 51(xxxvi) grants the Parliament significant powers to legislate with respect to the qualification of electors through the clause ‘until the Parliament otherwise provides’.

The full bench of the High Court considered these various arguments in some depth. The case drew on the Court’s previous reasoning across a number of cases, regarding two key themes. The first was the relationship between the static text of the Constitution and the evolving nature of representative government. In Mckinlay v Commonwealth (1975), Justices McTiernan and Jacobs remarked in a joint, dissenting opinion that the universal franchise should be accepted both as a reality, and as a necessity for accordance with the wording of the Constitution:

For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be described as a choice by the people.406

Justice Murphy had concurred:

404 Now known as the Human Rights Law Centre, http://www.hrlc.org.au. 405 Human Rights Law Resource Centre 2007, Application for an Order to Show Cause, Melbourne: Human Rights Law Centre, 3. 406 Mckinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1. 120

It may have been accepted in 1900 that “chosen by the people” could exclude women and people without certain property. Women were then deprived of the vote in certain States and this was referred to obliquely in s 128 of the Constitution. Because of the silent operation of constitutional principles, this is no longer so. In 1975, any law of the Parliament which deprived persons of a right to representation or to vote on the ground of sex or lack of property would be incompatible with the command that the House of Representatives be directly “chosen by the people”. It would contravene s 24 and be thus unconstitutional.407

This sentiment has been re-affirmed a number of times. In McGinty v Western Australia (1996), Justice Gummow suggested a return to an age of attainment beyond 18 years would not be possible, while Justice Gaudron (dissenting) argued a restriction on the basis of ethnicity or education would be equally problematic. Further, Justice Gummow made note of the evolutionary nature of representative democracy, arguing that questions of validity were to be ‘determined by reference to the particular stage which then has been reached in the evolution of representative government.’408

In Langer v Commonwealth (1996), Justice McHugh supported Murphy’s position in firmer, yet distinct terms, noting that it ‘would not now be possible’ to exclude voters on the basis of their gender or on a property qualification, but also establishing a particular conception of the franchise as a collective right:

The words “chosen by the people” ... do not confer individual rights on electors. The “rights” conferred by the section are given to “the people of the Commonwealth” - not individuals, although by necessary implication a member of the public may bring an action to declare void legislation that is contrary to the terms of s 24 or what is necessarily implied by it. Whether or not a member has been “chosen by the people” depends on a judgment, based on the common understanding of the time, as to whether the people as a class have elected the member.409

The second key theme of precedent concerned what Justice Kirby termed ‘proportionality or… non-arbitrariness’. This was drawn particularly from those cases concerned with the implied freedom of political communication that had been established through Nationwide News Pty Ltd v Wills (1992) and Australia Capital Television Pty Ltd v The Commonwealth (1992), stemming from the same Sections 7 and 24 of the Constitution as were essential to Roach, and elaborated upon subsequently. Broadly, the Court accepted that these guarantees could be infringed upon for legitimate ends, and in Lange v Australian

407 Ibid. 408 McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 14. 409 Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302. 121

Broadcasting Corporation (1997) developed a two-part test by which the validity of infringements could be judged:

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government[?]410

Both parties accepted that the Commonwealth was restricted to some degree in its power to limit participation. An important distinction was drawn early in the piece between qualification and disqualification. As Justice Kirby put it:

Is it quite correct to say “expand the franchise”? The question before the Court, as I understand it, is not expanding the franchise. Your client as a citizen is entitled ordinarily to vote. It is a question of disqualification rather than qualification.411

While the Commonwealth disagreed with the distinction, it accepted the implication was that while the Commonwealth had the power to temporarily disqualify voters in certain circumstances, it would find it difficult, if not impossible, to roll back the requirements for qualification so as to exclude those who had previously qualified. Under sustained questioning from the bench, the defendant admitted that the Commonwealth’s power to disqualify voters was significantly limited, with no prospect of disenfranchisement on the basis of age, gender, ethnicity or property, and conceding that it likely could not to do even where the quantities involved were as small as the prison population, for example on account of their membership of a minor political party. It was suggested that the Commonwealth might have been able to rescind its 1973 decision to extend the franchise to eighteen year-olds soon after the fact, were it able to establish sufficient reason to do so. However, that moment had long since passed.412

Further, the defendant struggled to justify any substantial reason why all prisoners should be disqualified from voting, instead relying on the arguments that Section 30 of the Constitution granted the Commonwealth significant power to disqualify voters, albeit not on the bases questioned by the Court, and that the problem of arbitrariness caused by imprisonment for minor crimes was an issue with State sentencing laws, and should be divorced from the provisions in question. The Court also drew concessions from the plaintiff, who had initially argued that any prisoner disqualification should be deemed

410 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. 411 Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007). 412 Roach v Electoral Commissioner & Anor [2007] HCATrans 276 (13 June 2007) 122 invalid. After some hints as to the prospects of success of such an argument, this position was revised to one that accepted that a successful action might merely result in the re- imposition of the three or five year disqualification.413

Ultimately, the case hinged on the first question posed by the plaintiff – whether the disqualification of all prisoners violated sections 7 and 24 of the Constitution, which mandate that both the House of Representatives and the Senate ‘shall be chosen by the people’. The test applied took the form of two interrelated arguments, regarding the culpability of those excluded for minor offences, and the proportionality of disqualification as a response to such.

Drawing on these ideas, Chief Justice Gleeson ruled that the evolving nature of representative democracy meant that Sections 7 and 24 of the Constitution ‘have come to be a constitutional protection of the right to vote’. However, as Justice McHugh had argued in Langer, this right was conferred on ‘the people’ as a collective, rather than on individuals. Consequently the guarantee offered no protection from disqualification for individual electors, unless that disqualification would mean Parliament was no longer ‘chosen by the people’. Yet while Parliament retained the right to restrict the franchise, in order to safeguard the needs of representative democracy it must have sufficient justification to do so:

Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people.414

Chief Justice Gleeson argued that the 2006 blanket ban on prisoner voting failed this logical test:

The step that was taken by Parliament in 2006 of abandoning any attempt to identify prisoners who have committed serious crimes by reference to either the term of imprisonment imposed or the maximum penalty for the offence broke the rational connection necessary to reconcile the disenfranchisement with the constitutional imperative of choice by the people.415

413 Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007); HCATrans 276 (13 June 2007). Roach would still have been disqualified under the three year rule, but might have qualified under the five year rule, as none of her offences standing individually carried a sentence of over five years imprisonment. 414 Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162. 415 Ibid. 123

As sentences of fewer than three years were often the result of State-specific mandatory sentencing laws, a failure to pay pecuniary penalties or a geographic lack of alternative sentencing options, the disqualification of all sentenced prisoners arbitrarily imposed what became in practice property- or residency-based restrictions. Further, the joint ruling of Justices Gummow, Kirby and Crennan observed that the blanket prohibition imposed an additional ‘stigmatisation’ of prisoners by imposing a civil disability on them, beyond what was appropriate and adapted to the constitutional imperative. However, the previous three- year restriction stood as it reflected both the historical context of franchise restriction in the Colonies prior to Federation, and the view that certain crimes warranted the removal of individuals from all aspects of community involvement. 416

While significant, the consequences of the Roach decision are limited in a number of ways. That the right to vote is a collective rather than individual right limits its capacity as a tool for enfranchisement. As Orr and Williams have argued, it serves as a ‘shield’ rather than a ‘sword’, and a partial one at that. It does not provide an inalienable right to vote, with Parliament retaining the power to disqualify voters when it has substantial reason to do so, and ultimately Roach remained unable to vote until her release. Nor can it be used as a mechanism for expanding the franchise to include groups such as sixteen year olds or permanent residents, as they have never fallen within the group of ‘the people’ as conceptualised in the Constitution. However, as Orr and Williams note, the decision entrenches the votes of those who already enjoy it:

Under this approach, when the political process has granted the franchise to a group for a significant length of time, the right to vote of that group may become entrenched. The sphere of democracy may widen, but not so easily contract.417

One further aspect of Roach, while of little relevance to the outcome, is worthy of note in the context of this thesis. Early in the proceedings Justice Kirby was highly critical of the role played by the Electoral Commission in supporting the Commonwealth’s case, questioning ‘what interest the Electoral Commissioner has to disenfranchise many citizens of this country’ and whether it was proper that a body such as the Commission should ‘support the position of the Executive Government’.418 Given the weight of legitimacy the support of the Commission has lent to various parties and positions throughout the policy process, it is important to consider the bounds of probity, and whether the involvement of electoral management bodies in this respect risks undermining their own legitimacy and that of the electoral systems they manage.

416 Ibid. 417 Orr and Williams 2009, Op. Cit. 124. 418 Roach v Electoral Commissioner & Anor [2007] HCATrans 276 (13 June 2007). 124

The first test for the principles established in Roach soon followed. In Rowe v Electoral Commissioner (2010), the political advocacy interest group GetUp! backed two of its members – who had failed to enrol in time to vote in that year’s Federal Election419 – in challenging the validity of the early closure of the rolls, as established through the 2006 laws.420 The plaintiffs advanced similar arguments as were employed by Roach421 and elaborated upon by the judgement itself. They argued that the professed justification for the legislation – the motivation of early enrolment through the elimination of the peak enrolment period, and unsubstantiated warnings of possible electoral fraud – did not constitute ‘substantial reason’ for restricting the capacity of Australians to enrol, and that the measures went ‘beyond what is reasonably appropriate and adapted, or proportionate, to the maintenance of the constitutionally prescribed system of representative government’.422

Given the 2007 Federal Election had resulted in a change of government, with Labor returning to power, it must be qualified that the Commonwealth’s defence was somewhat half-hearted. It admitted that the amendments had not been justified on the basis of any substantial evidence of electoral fraud, and instead argued that they served as a ‘prophylactic’ measure.423 Further, it was contended that no rights were being infringed as voters only missed out through their own inaction. The Court was unsympathetic. As Chief Justice French noted:

An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if it serves the purpose of the constitutional mandate.424

While French acknowledged that there might be practical benefits in encouraging timely enrolment, he was clear in determining that the legal effect of the provisions was a clear diminishing in the pre-existing opportunities for enrolment, with the practical effect that a significant number of persons were deprived of a vote they would otherwise have held. Further, the amendment ‘addressed no compelling practical problem of difficulty in the operation of the electoral system’, and on this basis the law failed the Lange test and was struck down.425

419 Just how intentional this failure may have been is open to debate, if immaterial to the outcome. 420 http://www.getup.org.au. Concurrently, GetUp! also successfully challenged the Australian Electoral Commission’s rejection of electronic signatures on enrolment forms, opening the way for online electoral enrolment. Getup Ltd v Electoral Commissioner [2010] FCA 869 (13 August 2010). 421 And, not coincidentally, were represented by the same lead barrister, former Federal Court Judge Ron Merkel QC, acting again on a pro bono basis. 422 Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1. 423 Rowe & Anor v Electoral Commissioner & Anor [2010] HCATrans 205 (5 August 2010). 424 Rowe v Electoral Commissioner [2010] HCA 46. 425 Ibid. 125

While Rowe affirmed the principle established by Roach, of voting rights as what Orr has termed a ‘ratchet’,426 easy to expand but difficult to contract, it represents a key step beyond Roach and the prior reasoning it drew upon. In invalidating what was fundamentally a mechanical aspect of policy, the Court for the first time interpreted the Constitution as exerting constraint over electoral law beyond the question of who is or is not qualified to vote. The implications of this remain unclear, with Orr and Williams suggesting that such a position might serve to constitutionalise the secret ballot, and Anne Twomey questioning whether it mandates maximum participation, potentially through a requirement for regimes of compulsion.427

Conclusion

Through an extensive case study of the introduction and invalidation of the Howard government’s 2006 electoral integrity laws, this chapter has demonstrated how theories of institutional development can explain the evolution of electoral law. The role of intention is central in this chapter, and demonstrated through the extensive overview of the Coalition’s persistent attempts at restricting the franchise. Driven by ideological partisanship and electoral pragmatism, the Coalition persisted in their pursuit of these policy ends in the face of stringent opposition from opposing parties, academia and at times the Electoral Commission, as well as a marked lack of any evidential justification.

The two central policies addressed no pressing electoral need. Without evidence of widespread abuse, the early closure of the rolls served only to raise an additional barrier to voting to the hundreds of thousands of electors known to enrol or update their enrolment following the issuing of the writs. The blanket ban on prisoner voting did not deliver any immediate partisan benefit, although its utility as a populist vote-winner remains underexplored. However, in disenfranchising all of those serving sentences of imprisonment, it was an arbitrary abuse of parliamentary power.

While opposition both inside and outside the Parliament was surmounted through the achievement of a rare double majority in 2004, the success proved short-lived as the Coalition’s policy ran headlong into two key constraining features of the Australian political system: the High Court and the Constitution. The Court ruled the Constitution contained an implied right to vote for the people of Australia, and that the policies lacked sufficient justification to abrogate that right. Yet, though relying on individual plaintiffs exerting their constitutional rights, both Roach and Rowe reinforce the important role of advocacy and

426 Orr 2011, ‘The Voting Rights Ratchet: Rowe v Electoral Commissioner’, Public Law Review (22:2), 83-89. 427 Orr and Williams 2009, Op. Cit., 136; Twomey 2013, ‘Compulsory Voting in a Representative Democracy: Choice, Compulsion and the Maximisation of Participation in Australian Elections’, Oxford University Commonwealth Law Journal (13:2), 305-311. 126 interest groups, and of the broader public who support their continued operations. Without the financial and organisational support and legal expertise these bodies could provide, it is unlikely either challenge would have been viable.

That the initial case was triggered by the prisoner disqualification demonstrates the third key feature of institutional development – that of accident and unforeseen consequences. The disqualification of prisoners, though a restriction of fundamental democratic rights, was of relatively limited practical impact in that it directly concerned only a minor subset of the population. However, in doing so arbitrarily, it helped establish a principle that overturned the far more significant early closure of the rolls, and will exert great constraint on future attempts at restricting participation. Further, the three-year disqualification now in operation is itself a consequence of a strange chain of events – an initial proposal floated in a dissenting report, written into an amendment that was rejected a number of times before being unexpectedly accepted by a government unable to pass its own favoured policy, hurriedly revised when it became apparent the clause would not work, eliminated by a blanket ban, then returned by the High Court.

Finally, it is worth briefly contrasting the experience of early roll closure with that of Direct Enrolment, as detailed in the previous chapter. Both represent partisan attempts at influencing enrolment rates to an end of achieving electoral benefit. In this respect, they represent mirrors of one another. However, unlike early roll closure, Direct Enrolment enjoys the support of Australia’s Electoral Commission s, as well as complying with the constitutional imperative to avoid restricting electoral participation, if not to actively seek to increase it. That the natural partisan self-interest of one section of the political sphere accords both with the desires of the bureaucracy and the demands of the law is a significant and powerful political advantage.

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Chapter 6 – Compulsory Voting

…the major parties have conspired to use the law to do what in virtually every other democracy the parties themselves must do – namely, maximize voter turnout at elections.

– Joint Standing Committee on Electoral Matters, 1997428

Compulsory voting is one of the fundamental features of Australian electoral democracy. Further, being as it is a rare departure from accepted practice among developed liberal democracies, it is also one of the most visible and contentious aspects of the Australian electoral system. Where the previous chapters focused on compulsion in enrolment as a tool for maximising access to the franchise, compulsion in voting aims to maximise the exercise of the franchise, and in this sense represents a qualitatively different degree of state intervention. This chapter considers the issue of compulsory voting in depth. The ideas and debates discussed in this chapter reflect those of the broader thesis – that political attitudes to compulsion are broadly driven by partisan considerations, but also that the development, introduction and operation of policy are fundamentally constrained by the surrounding institutional context.

The chapter covers a number of key areas. First, it presents a brief analysis of the legal context in which compulsion operates, offering a perspective on just what is required by the policy. Through a comparison of public sentiment against the precise technical legal wording, this analysis highlights the constraining influence of another key feature of the Australian electoral system – the secret ballot – on the exercise and efficacy of compulsion. Second, the chapter considers the impact of compulsion, particularly with regard to its partisan effects on electoral outcomes. Where the similar exercise in Chapter 5 pondered the impact of full participation, this chapter takes the converse approach, providing an overview and interpretation of the existing research that has estimated participation rates and partisan outcomes in hypothetical, non-compulsory environments. This exercise provides illumination for the discussion of partisan attitudes in the following section. This third section provides an overview of the recent history of political debate regarding the policy, revealing the attitudes of partisan actors, and comparing them to the attitudes of the

428 Joint Standing Committee on Electoral Matters 1997, Report of the Inquiry into all aspects of the conduct of the 1996 Federal Election and matters related thereto, Canberra: Parliament of the Commonwealth of Australia, 26. 128

broader public. This demonstrates both the power of partisan self-interest in forming policy positions, and the limitations of such positions in the face of solidified public opinion.

Finally, quite apart from the philosophical or partisan considerations that dominate such debates, this chapter also investigates another important and under-appreciated facet of electoral policy – that of the limits of compulsion. The efficacy of policy is often significantly constrained by the behaviour of the individuals it is targeted towards, and this is very much the case with compulsion. Through an analysis of electoral behaviour in Australian state elections, this chapter demonstrates how the differing characteristics of compulsion- resistant, under-participating groups have combined to limit the efficacy of compulsion as a policy to maximise electoral participation.

The chapter is not however exhaustive, with a notable omission being the consideration of legal challenges to compulsion. Although these have primarily focused on compulsory voting, presumably due to sanctions being most common for violations of this facet of compulsion,429 the broader jurisprudence has already been discussed in Chapter 3.

Legal Context

The exercise of the vote in Australia is predicated on prior enrolment, as detailed in Chapter 4. Section 221 of the Commonwealth Electoral Act 1918 dictates that appearance on the roll at the time of an election is ‘conclusive evidence of the right of each person enrolled … to vote as an elector’. This provision is sacrosanct, to the extent that Section 361 prohibits the courts from inquiring ‘into the correctness of any Roll.’ Having gained the entitlement to vote, electors are then obliged to exercise this entitlement. Section 245(1) clearly defines this responsibility, mandating that ‘It shall be the duty of every elector to vote at each election.’ This is a near-universal obligation, which few exceptions. Section 245(4) absolves an elector’s failure to vote on the condition that the elector:

(a) is dead; or (b) was absent from Australia on polling day; or (c) was ineligible to vote at the election; or (d) had a valid and sufficient reason for failing to vote.

As detailed in Chapter 3, the term ‘valid and sufficient reason’ has been the subject of significant consideration by the High Court. Broadly, beyond unforseen physical restrictions imposed by accidents or competing obligations, this clause largely refers to religious but not to political objections to participation. In practice, most of those who do not vote are able to

429 The problems of enforcing compulsory enrolment and compulsory preferencing are discussed at length in Chapters 4 and 7 respectively. 129

avoid penalty. In 1996, for example, a total of 519,684 enrolled individuals did not vote. Of these, 29,129 paid a fine, 8,782 were summonsed to appear in court, while the remainder provided valid and sufficient reasons and were excused.430

While the wording of the Act seems clear, the precise nature of compulsory voting is the subject of some debate. It has been widely argued that compulsory voting entails nothing more than attendance at a polling place and having one’s name marked off the electoral roll.431 Beyond public acceptance, this sentiment has been expressed by what would be considered authorities on the matter – academics and politicians, including prominent members of JSCEM.

The Labor member’s dissenting report into JSCEM’s inquiry into the conduct of the 1996 Federal Election made this point bluntly:

The point should be made unambiguously that Australia does not have compulsory voting. The reality is that people are required to attend a polling booth.432

It is difficult to construe the wording of the Act – that ‘it shall be the duty of each elector to vote at each election’ (emphasis added) – to support such an interpretation. The term ‘vote’ necessarily carries with it further requirements than mere attendance at a particular physical location. Further, Section 245 must be read in conjunction with Sections 231 to 234, which set out the mechanics of the process of voting, requiring that as well as having their name marked off, each voter receive the relevant ballot paper(s), retire to a polling booth, mark their paper(s) and deposit them in the ballot box.

Yet there is some logic in this reading. It stems from two interrelated issues, reflecting the problems inherent in enforcing compulsion in voting under a system with a largely- inviolable secret ballot.433 First, under such a system the state’s capacity to deem whether or not any individual has fulfilled his or her duties beyond attendance at a polling station is necessarily limited. Under the present paper-based system, and without violating the secrecy of the ballot, the only further step the state could take would be greater rigour in

430 Mackerras and McAllister 1999, ‘Compulsory voting, party stability and electoral advantage in Australia’, Electoral Studies (18:2), 224. 431 Or, obviously, the record of having lodged a postal vote. 432 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 125. 433 Section 233 holds that votes must be marked in private and deposited without revealing their contents. There are however exceptions – Sections 234 and 234A contain limited provisions for voters who require assistance to mark their ballot paper, while the system of postal voting established through Part XV necessarily limits the capacity for the state to enforce secrecy. 130 ensuring that a ballot paper – be it blank, informally marked, or a valid vote – were deposited in the ballot box.434

The second issue is that of what precisely is required to fulfil the conditions of having cast a ‘vote’. If it is accepted that voting entails the lodging of a ballot paper, the question remains whether a blank ballot suffices, whether a full set of formal preferences must be recorded, or something in between. Given that these issues concern the mechanics of the contents of a ballot paper, they are considered in greater detail in the following chapter. Finally, the observation should be made that the softer interpretations of the obligations imposed by compulsory voting seem largely confined to supporters of the regime, while those opposed to compulsion have argued that it imposes a greater – and thus philosophically problematic – level of responsibility. These arguments are detailed in greater depth later in the chapter.

The Effects of Compulsion

As will have become apparent, this thesis is not hugely concerned with the moral or philosophical debates that tend to dominate discussion of compulsion. Rather, the interest in compulsion stems from its position as one of the primary drivers of participation, which itself is key in terms of both practical and partisan outcomes. With such an important and electorally-influential policy as compulsory voting, it is therefore essential to consider its impact, both in terms of participation rates and partisan outcomes. Where Chapter 4 considered the impact of increasing participation, this chapter approaches a similar exercise from a different perspective. Compulsion has been broadly effective, consistently ensuring levels of turnout above 90 per cent in general elections. Further, as this chapter later highlights, attempts at improving the efficacy of compulsion beyond this level face a number of structural constraints. In any case, the impact of any further small improvements pales in significance when compared to that of the broader policy of compulsion. As such, this section focuses on the impact of the current regime, through a comparison with estimates of participation and partisan outcomes under a hypothetical system of voluntary participation, rather than on the impact of a more effective interpretation of the current policy.

What, then, are the effects of compulsion in Australia? At face value, the answer seems clear. The 1925 Federal Election, the first held under a compulsory voting regime, recorded a turnout rate of 91.4 per cent, a stark contrast to the 59.4 per cent recorded at the previous, sans-compulsion election in 1922. Turnout has averaged 94.9 per cent since that

434 The Act holds that all papers must either be deposited, or if spoilt or discarded, returned to and cancelled by a polling official. This process could potentially be made more stringent through, for example, requiring the sighting of an official mark on the rear of the ballot paper before lodgment.

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election, and has never slipped below that initial result. Yet any such assumption must reflect an understanding of contemporary electoral behaviour, as the realities of participation have shifted dramatically over the past century.

As compulsion in Australia is so entrenched at all levels of electoral democracy and with limited fundamental variation between jurisdictions, it is not simple to address the question of the impact of compulsion. There are however two viable approaches. The first is international and comparative in nature, comparing similar polities with and without compulsion, and considering the impact of compulsion in countries that have introduced or abolished it. Panagopoulos offers such a contribution in his analysis of voter turnout across the 27 countries that featured compulsion in turnout at the national level during the 1990s.435 Controlling for economic conditions, the structure of governments and electoral systems, he found turnout under compulsion was heavily dependent on two key factors – the severity of sanctions for non-compliance and the degree of enforcement of those sanctions.436 Voters were seen to abstain least where penalties were strict and the likelihood of their enforcement high, and to abstain most where neither was meaningful. The largest effects were seen where penalties were both meaningful and likely, with little impact stemming either from severe penalties rarely enforced or significant penalties even if strictly enforced. As such, both sanctions and their enforcement should be considered as integral to any successful regime of compulsion. Panagopoulos classified Australia’s regime as featuring moderate penalties and strict enforcement, explaining its relative success.

Yet while significant impact is dependent on the particulars of the regime, the mere existence of a policy of compulsion also provides a small, positive effect on turnout,437 suggesting some degree of socialising effect, in the vein of the communitarian models of participation discussed in Chapter 1. This has even been observed between jurisdictions, with the 1924 introduction of compulsory voting at the Commonwealth level in Australia believed to be at least partially responsible for a marked increase in turnout between the 1925 and 1927 State elections in New South Wales, where compulsion was not introduced until 1928.438

The second approach involves a degree of estimation, using Australian survey data to posit a hypothetical level of participation under a system of voluntary voting. The Australian Electoral Study (AES), a broad public survey conducted following each Australian Federal Election, offers a suitable dataset for such a comparison. Seeking to determine the partisan impact of compulsion, Mackerras and McAllister drew on turnout and survey data from the

435 Panagopoulos 2008, ‘The Calculus of Voting in Compulsory Voting Systems’, Political Behavior (30), 455-467. 436 This research is however limited by its reliance on estimates of participation among the voting-age population, an approach that ignores the differing particulars of the franchise across jurisdictions. 437 International Institute for Democracy and Electoral Assistance 2002, Voter Turnout Since 1945: A Global Report, Stockholm: International IDEA, 110. 438 Mackerras and McAllister 1999, Op. Cit., 220-221. 132

1996 Australian Federal Election to estimate a baseline turnout value in a hypothetical non- compulsory environment.439 Based on a large majority of respondents to the 1996 AES answering that they would either definitely (68 per cent) or probably (19 per cent) have still voted had it been voluntary, the authors estimated a probable turnout rate of at least 87 per cent, a decline on the 95.77 per cent observed under compulsion, but still high by international standards. This estimate is however dependent on an approach that can be considered as simplistic, at best.

Simon Jackman disputed both the approach and findings, on two primary grounds:440 that those who respond to an electoral survey are more likely to be politically engaged and hence likely to vote;441 and that those who did respond are also likely to have over- estimated their own propensity to vote. Drawing on existing analyses of the effects of both survey non-response and vote over-reporting, he estimated a significantly lower rate of turnout, in the range of 55 to 70 per cent. This is more in line with what is observed in the comparable international examples across the anglosphere.

The estimation of turnout under voluntary voting is however but one facet in the work of both Jackman and Mackerras and McAllister. Indeed, it is treated as something of a means to an end, a tool by which to estimate the partisan and hence political impact of compulsory voting. Given what is known about the impact of unequal participation on both partisan and policy outcomes, this is a question of significantly greater import. In 1986, McAllister demonstrated a partisan effect to variations in turnout within the range observed under compulsion.442 Higher turnout favoured Labor, while the Coalition benefited from lower turnout. With recourse to British estimates of non-participation, he then extrapolated that this pattern would persist at lower levels of participation should compulsion be repealed, suggesting a significant benefit granted to Labor by compulsion.

Mackerras and McAllister estimated this benefit at around five per cent.443 Jackman concurred as to the direction of benefit, with some caveats as to methodology and scale. While a combination of his lower turnout estimate with the partisan estimates of others would produce thumping Coalition majorities, Jackman estimated a lesser – albeit still dramatic – impact, explained partially through estimated survey non-response among Labor voters, and partially through the electoral benefit the Nationals derive from compulsion.444 These findings echo those of Fowler regarding the impact of compulsion at its introduction

439 Mackerras and McAllister 1999, Op. Cit. 440 Jackman 1999, ‘Non-compulsory voting in Australia?: what surveys can (and can’t) tell us’, Electoral Studies (18:1). 441 Or, as he pithily put it, ‘while turnout is compulsory in Australia, responding to surveys isn’t’. Ibid., 29. 442 McAllister 1986, ‘Compulsory Voting, Turnout and Party Advantage in Australia’, Politics (21:1), 89-93. 443 Mackerras & McAllister 1999, Op. Cit., 228. 444 Jackman 1999, Op. Cit., 40-43. 133

on the Labor vote share, as discussed in Chapter 3.445 Further, such estimates provide a clear rationale for the partisan positions on compulsion discussed in the following section.446

Comparative, international analysis offers a different perspective. Through an analysis of the effects of turnout and compulsory voting across 49 countries – of which nine featured some form of compulsion – Christian Jensen and Jae-Jae Spoon found no support for the hypothesis that compulsion favoured parties of the ‘left’.447 However, their findings offered significant nuance. They suggested that increased turnout in the absence of compulsion does benefit parties of the left.

Meanwhile, what compulsion did appear to increase was the effective number of parties in parliament, and the ideological range of governments, primarily through a reliance on coalitions. Broadly this comes about due to those demographics primarily impacted by compulsion. Analysis of the effects of compulsion in Belgium and the Netherlands suggested removal of compulsion had an impact on turnout inversely proportion with individuals’ levels of education and interest in politics. This is to be expected, given the drivers of participation discussed above. However, when regimes of compulsion are combined with low-information or uninterested voters the effective outcome is the injection of a degree of randomness into the contest, as resource inequalities may decrease leaving smaller parties on a more even footing in the competition for votes.

The prime example of this is donkey voting, where those candidates at the top of a ballot paper demonstrably benefit,448 while smaller parties may also benefit from protest votes, by the mere fact of not being a recognisable player. There is an interesting dissonance here in that a party such as the Greens may benefit to a degree from these residual effects of compulsion while also being well placed to compete in a voluntary environment due to the high levels of socio-economic status and political knowledge among their broader voter base.449 Indeed, such complex outcomes may present dilemmas to those parties that benefit from one or other aspect of the effects of compulsion. As Jensen and Spoon noted,

445 Fowler 2013, ‘Electoral and Policy Consequences of Voter Turnout: Evidence from Compulsory Voting in Australia’, Quarterly Journal of Political Science (8:2). 446 Given that the most recent of these estimates rely on data nearing two decades old, and that much has happened in Australian party politics since this point, it would be a worthy exercise to revisit these approaches using contemporary data. This thesis is however not the place. 447 Jensen and Spoon 2001, ‘Compelled without direction: Compulsory voting and party system spreading’, Electoral Studies, (30:4). As much as the idea of ‘left’ and ‘right’ is a reductionist dichotomy of limited utility in the modern context, it proves thoroughly and stubbornly entrenched. In the Australian context, any discussion of ‘parties of the left’ refers primarily to the Australian Labor Party and the Greens, both broadly social- democratic parties, yet ones clearly distinct from each other. 448 Kelley and McAllister 1984, ‘Ballot paper cues and the vote in Australia and Britain: alphabetic voting, sex, and title’, Public Opinion Quarterly (48:2). 449 Tranter 2007, ‘Political Knowledge and its Partisan Consequences’, Australian Journal of Political Science (42:1). 134

‘advocacy of [compulsory voting] may therefore be bound up in the tradeoffs between vote- , office-, and policy-seeking strategies.’450

These findings are complex and multi-faceted, but raise an important qualitative distinction between compelled and voluntary turnout. While Mackerras and McAllister represent the dominant argument when they argue that ‘compulsory voting is a cost-efficient institutional remedy to the problem of low turnout in the advanced democracies’,451 Jensen and Spoon make a vital qualification:

[Compulsory voting] conditions the effect of turnout and turnout conditions the effect of [compulsory voting] … there is something qualitatively different about compulsory voting rules as compared to only increasing turnout.452

The participation achieved through compulsion is necessarily of a different nature to that achieved through voluntary engagement. For example, regimes of compulsion in enrolment, turnout and formality should be expected to lead to a decrease in the official, formal vote, even though the total number of votes cast may well rise. A simple reality of compulsion is that coercing people who do not want to vote to engage in some or all of the necessary steps will lead to a degree of intentional abstention and spoiled ballots. This is not necessarily a negative if it accompanies greater aggregate participation, but it is important to acknowledge it as a price that cannot be avoided. While the lack of comparative examples in terms of both preferential and compulsory voting makes analysis difficult, this phenomenon is discussed in greater depth in the following chapter.

Attitudes to Compulsion

Compulsion in electoral participation enjoys broad support in Australia among both the political class and the voting public, albeit a support marked by the strident opposition of a vocal minority. The attitudes of political actors reflect many of the arguments waged in the academic sphere, as discussed above, but also stray into more partisan territory. Given the impact of electoral policy, especially that concerning participation, on partisan outcomes, and the rationally self-interested nature of political actors, this is understandable and expected. It is however relatively rare to find concrete expressions of party policy on the subject, reflecting both the degree to which compulsion is entrenched in the Australian electoral system, and the marginal nature of electoral policy as an issue within the broader political contest. However, issues of compulsion – and electoral reform more broadly – are often raised in forums dedicated to the consideration of electoral matters, such as the

450 Jensen and Spoon 2001, Op. Cit., 709 451 Mackerass and McAllister 1999, Op. Cit., 218. 452 Jensen and Spoon 2011, Op. Cit., 708 135

Parliament of Australia’s Joint Standing Committee on Electoral Matters (JSCEM), and it is from these that much of the following material is drawn. And, given the central role played by JSCEM within the reform process, it is from their deliberation that much further public comment derives.

The strongest support base for compulsion today can be found in the Australian Labor Party. This support can be seen in the contributions of the Labor members of JSCEM to the reports of the committee’s inquiries into the conduct of Australia’s Federal Elections, at which compulsion is inevitably discussed. The 1997 minority report featured an unqualified commitment to compulsory voting:

Compulsory voting allows the entire electorate to feel that they have a degree of ownership in government and its decisions. People feel they are part of the loop and matter. It avoids the marginalisation, hostility and sense of remoteness found in the US. It simultaneously ensures that parties aspiring to govern must ensure that their policies appeal to an extremely broad spectrum.453

The ALP members of JSCEM returned to the issue in 2005, offering an extensive consideration of the issue. With reference to the challenges facing Australian democracy, they expressed their support for compulsion, while also recognising its limits:

The growing disengagement of many people, particularly young people, from the political process is a problem in Australia as elsewhere. We do not argue that compulsory voting on its own is the solution to this problem. We do argue that abolishing it would make the problem worse.454

There have been dissenting voices. Former Labor Senator Jim McClelland argued that while he had ‘swallowed the received wisdom’ that compulsion was favourable to Labor, he was of the opinion that this was less true than it had been in the past, and that the abolition of compulsion would coax politicians ‘out of their marbled palace to sell their wares in the real world’.455

Mainstream opposition to compulsion has however been concentrated within the Liberal Party of Australia. The party’s Federal Council, its highest forum, passed motions in 1988 and 1993 calling for the repeal of compulsion, which remained on the books until as late as 2005.456 While such resolutions are not binding on the parliamentary party, the issue has been raised within the Parliament. The inquiry of the Joint Standing Committee on Electoral

453 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 124. 454 Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, 373. 455 McClelland 1998, ‘Benefits for the electorate in non-compulsory voting’, Sydney Morning Herald, 17 November 1988. 456 Jackman 1999, Op. Cit., 30; Australian Broadcasting Corporation 2005, PM, Radio National, 4 October 2005. 136

Matters into the 1997 Australian Federal Election considered compulsory voting in depth. The majority report of its Liberal Party members was strongly against the notion of compulsion in voting:

If Australia is to consider itself a mature democracy, compulsory voting should be abolished. The assertion that voting is a "right" means little if one can be imprisoned for conscientiously choosing not to exercise that right - or rather, for conscientiously exercising the right not to vote.457

Indeed, the Committee recommended that the sections of the Electoral and Referendum Acts that entrenched compulsory voting be repealed. Curiously however, they also recommended that:

In the interests of effective management of the electoral system and maintaining accurate records of turnout, compulsory enrolment should be retained.458

This was despite the fact that failure to enrol remained an offence punishable by similar penalties, and does so to this day, albeit one that has not been enforced since 1984 due to peculiarities of the law.459 The recommendation to abolish compulsory voting was not followed by the government. The subsequent three JSCEM reports into Commonwealth elections conducted by the Howard Liberal government dominated Committee again considered the issue of compulsory voting – and in the report into the 1998 election, compulsory preferencing – but on each occasion recommended no action.460 The report into the 2004 election flagged the intention of the Committee to investigate the issue further, but no such inquiry eventuated before the change of government in 2007.

The most advanced attempts to abolish compulsory voting came from the Dean Brown Liberal government in South Australia. In 1994, the SA Legislative Assembly passed the Electoral (Abolition of Compulsory Voting) Amendment Bill, which would have achieved exactly what the title implied, repealing those sections of the electoral act which entrenched compulsory voting. They argued that the reform was about advancing a ‘basic democratic right’ and would ‘improve the political process’.461 The bill was however defeated in the Legislative Council by the opposition with the support of the Australian Democrats, with Democrats leader Andrew Elliott highlighting the hypocrisy of a conservative government claiming a commitment to civil liberties:

457 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 26 458 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 26-27. 459 For further discussion of this situation, refer to Chapter 4. 460 Joint Standing Committee on Electoral Matters 2000, The 1998 Federal Election, 120-121; Joint Standing Committee on Electoral Matters 2003, The 2001 Federal Election, 247-250; Joint Standing Committee on Electoral Matters 2005, Op. Cit., 183-204. 461 Griffin 1994, ‘To vote or not to vote?’, The Advertiser, 23 February 1994. 137

I find it interesting that the Liberal Party was happy to send people to compulsory attendance in Vietnam but they aren't willing to require people to attend the polls.462

Following this setback, the government made a second attempt to undermine compulsion by simply abolishing the penalties that were applied to non-voters, but were again stymied in the upper house.463 The initial bill was reintroduced in 1998 under Brown’s successor John Olsen, but abandoned without passage due to prorogation.464

Senator Nick Minchin was central to the anti-compulsion element within the party throughout this period. He was one author of the minority report of JSCEM’s inquiry into the conduct of the 1993 Federal Election, which argued that compulsion encouraged electoral fraud and called for its abolition,465 was Special Minister of State and a member of the committee which recommended abolition in the 1997 majority report, and while SA State Director was the driving force behind the SA Liberal Party’s position, which culminated in the Brown and Olsen governments’ attempted legislation.466 Minchin’s publicly-stated position can be summarised in the argument he delivered in an address to the constitutionalist Samuel Griffith Society in 2003, where he labelled the denial of the right to not vote an ‘iniquitous and offensive law’, an ‘affront to democracy’ and an ‘embarrassment’ to the nation.467 In 2005, Minchin expressed his hope that the government would take a policy of non-compulsion to the 2007 election:

Well, that the Government will decide to take to the people a policy of having voluntary voting in this country, and that if we win the next election that we would then seek to remove compulsion from the Australian Electoral Act.468

In response, the Prime Minister reiterated his personal opposition to compulsion, but suggested reform was unlikely while the policy enjoyed broad public support.469 Minchin did achieve one success, persuading the party and the Senate crossbenchers that the 1997 election of delegates to the 1998 Constitutional Convention should be conducted under a system of voluntary voting. The government required the support of the otherwise pro-

462 Lawnham 1994, ‘Optional Voting Proposal in Doubt’, The Australian, 28 January 1994. 463 Jemison, 1994, ‘SA Libs in in switch’, Australian Financial Review, 24 October 1994. The Shadow Attorney- General dubbed it a ‘terrible waste of parliamentary time’. 464 Legislative Council of South Australia, 1998, Statistical Summary, Adelaide: Parliament of South Australia. 465 Joint Standing Committee on Electoral Matters 1994, The 1993 Federal Election, 157. 466 Jemison, 1993, ‘Libs to dump compulsory voting amid Labor fears’, The Australian Financial Review, 24 November 1993. 467 Minchin 2003. ‘Voluntary Voting’, Proceedings of the Fifteenth Conference of The Samuel Griffith Society, Melbourne: The Samuel Griffith Society. 468 Australian Broadcasting Corporation 2005, PM, 19 September 2005. 469 Peatling 2005, ‘Howard rejects call to end compulsory voting’, Sydney Morning Herald, 5 October 2005. 138

compulsion Senators Bob Brown (Australian Greens) and Brian Harradine (Independent). Harradine also successfully moved an amendment clarifying that this voluntary voting served only ‘for a limited and temporary purpose’ and ‘should not be seen as a precedent for elections of members of parliament or for any other ballots including referendums’. 470 The ALP was less conciliatory, with Senator John Faulkner labelling it a ‘gross manipulation of the electoral process’, and the party seemingly willing to sink the prospect of progress towards the long-term party goal of a Republic for the sake of protecting compulsion, a telling illustration of the power of electoral policy over political priorities if ever there was one.471 The election of delegates to the 1998 Convention remains the only voluntary national election conducted in Australia for almost a century.472

Despite remarkably little by way of successful reform, the attitude persists within the Liberal Party. In the debate regarding Victoria’s Direct Enrolment legislation,473 Louise Asher MLA enunciated a formal opposition to compulsion on the part of the Victorian Liberal Party, then in opposition:

In this state and in this country we have a system of fining people if they do not vote. We have a system the opposition thinks goes too far - that is, people can be on the roll and fined for not voting, according to the technical words of the law, and we think that is wrong.474

And yet no such change was enunciated in official party policy, nor was attempted following the 2010 change of government in Victoria. Indeed, the lack of further attempts on the part of the Liberals demands explanation. Partly this may be due to divisions within government, given the commitment of the Liberals’ coalition partners, the Nationals, to compulsion.

Senator Ron Boswell articulated his party’s position in 2005, admitting that while compulsion might be beneficial to the Nationals, their position was based on a commitment to an ‘egalitarian Australia’, involving near-universal involvement in the political process.475 Further, Boswell rightly pointed out that electoral compulsion as practiced in Australia was a fairly limited impost:

It's not too onerous to ask people for about a half an hour once every three years to go and make a decision to support what party they want.476

470 Jackman 1999, Op. Cit., 33. 471 Jackman 1999, Op. Cit., 32. 472 Minchin 2003, Op. Cit. 473 Direct Enrolment is discussed at length in Chapter 4. 474 Parliament of Victoria, Legislative Assembly 2010. Parliamentary debates (Hansard), Book 9, 2572. 475 Australian Broadcasting Corporation 2005, ‘National Party opposes call to scrap compulsory voting’, AM, 4 October 2005. 476 Australian Broadcasting Corporation 2005, ‘Voluntary voting sidelined as electoral changes announced’, Lateline, 4 October 2005. 139

More recently, Nationals Senator Barnaby Joyce made a clear commitment to compulsion on pragmatic grounds, despite a recognition that the Coalition more broadly would benefit from voluntary voting. He argued that by ensuring a high degree of participation, compulsion both forced major parties to maintain a stable hand, and helped minimise the risk of extremist parties winning election.477

There is also a degree of support for compulsion within the Liberal Party, with former Liberal JSCEM chairs Petro Georgiou and Christopher Pyne representing two key arguments. For Georgiou, the acceptance and defence of a feature ‘ingrained in our political traditions’ was an innately conservative position to hold, besides which there was no ‘real evidence’ that the Liberal Party would benefit from a return to voluntary voting.478 Such a position is a natural response to the challenges posed by uncertainty.

For Pyne, the demands of pragmatism suggested a major party should support a policy that eased the resource demands of campaigning,479 reflecting the position articulated as a negative in JSCEM’s 1997 report that political parties had ‘conspired’ to save themselves the effort of mobilising voters,480 itself an echo of Minchin’s 1993 claim that major party agreement over compulsion amounted to a ‘bi-partisan conspiracy’.481 Given the relatively minor costs imposed by compulsion, there is also some reflection within the Liberal Party of Senator Boswell’s view. For example, following the 2013 Federal Election former Liberal Senator Amanda Vanstone remarked that ‘one can only wonder why some Australians still regard voting as some kind of imposition.’482

Further, there is a recognition that compulsion acts as a degree of safeguard against electoral fraud. As the majority report of JSCEM’s report of its inquiry into the conduct of the 1996 election argued:

However, proof of identity for voting may have to be examined more thoroughly if the government supports the abolition of compulsory voting, as recommended in Chapter Three. Over time, without proof of identity at the polling place there may be the potential for regular non-voters to be identified and to have votes improperly cast in their names.483

477 Australian Broadcasting Corporation 2013, ‘Barnaby Joyce supports compulsory voting in Australia’, AM, 14 January 2013. 478 Georgiou 1996, The Case for Compulsory Voting, Speech to the Inaugural Meeting of the John Stuart Mill Society, 29 October 1996, 6, 8. 479 Coorey 2005, ‘Libs seek voluntary vote’, The Advertiser, 27 April 2005. 480 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 26. 481 Jemison, 1993, Op. Cit. 482 Vanstone 2013, ‘At last, the grown-ups are back in charge’, The Age, 9 September 2013. 483 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 9. 140

And, curiously, when following the 2007 change of government the newly ALP-controlled JSCEM proposed in its report into the conduct of the 2007 Federal Election a loosening of various aspects of the electoral process to ease participation, the Liberal members of the Committee became vehement defenders of compulsion, arguing in the minority report as follows:

Australian citizens [must] undertake some basic tasks to meet their obligations in relation to the conduct of elections ... these requirements are the basic building blocks of our system of compulsory preferential voting. They are not onerous requirements. They represent the modest responsibilities of citizenship.484

Attempts at relaxation have also found little support among the various minor parties that have at times occupied the parliamentary crossbenches, particularly in the proportionally- elected Senate. The Australian Democrats, who sided with the ALP to block the 1994 attempt at reform in South Australia, were largely committed to compulsion.485 The Democrats were the most significant non-major party and crossbench presence in the period from the late 1970s to the early 2000s, and were a fixture on the Parliamentary Committees that dealt with electoral matters. The party’s position is clearly articulated by Senator Andrew Murray in his minority report on the inquiry into the 1996 election:

Compulsory voting is one of the hallmarks of Australian Democracy. Compulsory voting recognises that not only has voting moved from being a privilege to a right, but it is now very much a duty too. Compulsory voting is another area of democratic ‘best practice’ where Australia has led the world. Historically, it constitutes a significant part of the achievement of political rights and democratic government in Australia and of Australian electoral law. Abolition would have detrimental consequences for social, political and legal processes.486

With the decline of the Democrats the major crossbench presence was assumed by the Australian Greens. The Greens shared many similarities with the Democrats, including a socially-liberal policy platform, an educated and politically-motivated support base,487 and a commitment to compulsion in electoral participation. While then-leader Senator Bob Brown supported the one-off voluntary election at the 1998 Republican Constitutional Convention – in a mirror of the ALP’s position, because he felt a one-off compromise was worth it

484 Joint Standing Committee on Electoral Matters 2009b, The 2007 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 323. 485 A rare exception came when, following his retirement, inaugural party leader Don Chipp lamented the practical effects of compulsion, arguing that it served only to stir the ‘morons’ of society to travel to the polling booth. Chipp 1990, cited in Bennett 2005, Compulsory Voting in Australian national elections, Parliamentary Library Research Brief, No. 6 2005-06, Canberra: Parliament of the Commonwealth of Australia, 9. 486 Joint Standing Committee on Electoral Matters 1997, Op. Cit., 140 487 Tranter 2007, Op. Cit. 141

ensure progress towards a Republic – he felt the result vindicated compulsory voting and the Greens’ support thereof:

I changed votes because I believed progress to a republic should come before fears about the postal vote. The Opposition and the Democrats' Cheryl Kernot held out against the bill because they saw the voluntary postal vote for convention delegates as a Trojan horse being used by the Government against compulsory voting in Federal Elections. But if that was the Government's plan, it has backfired. The voluntary postal vote is a shambles. Australia's compulsory vote at the ballot box is safer than ever.488

The Greens continue to support compulsory voting, with Brown campaigning against the idea when it was floated by Liberal Party members in 2005, and at the State level arguing against any relaxation in Queensland and pushing for the extension of compulsion to local government elections in Tasmania.489 The party’s staunch support for the policy reflects an interesting caveat on the issue of partisan self-interest. While the demography of Greens support suggests that the party would derive some benefit from a relaxation of compulsion, as a minor parliamentary player they must also consider the fortunes of those parties with which they can most easily cooperate on policy issues.

With little opposition to compulsory voting beyond the Liberal Party, opportunities for its relaxation have been rare. Yet even when the party has been in a position to attempt reform without need of further support, it has proven reluctant to do so. This may in part stem from weakening support for abolition within the party. As illustrated in Figure 6.1, support for compulsion steadily increased within Coalition ranks throughout this period, to a point where the policy no longer enjoyed majority support within the party by the time they enjoyed majority control of the parliament.490 One plausible explanation for this shift might be increasing comfort with the status quo as the Howard Coalition government became entrenched in power. Unfortunately, the Australian Candidate Study ceased asking this question following the 2004 Federal Election, and it is as such not possible to see how attitudes responded to the Coalition’s return to opposition in 2007.491

488 Australian Greens 1997, ‘Vote Shambles Vindicates Senate Change of Heart – Brown’, Media Release, 9 December 1997, Canberra: Australian Greens. 489 Australians Greens 2005, ‘Abetz proposals aim to keep Liberals in office’, Media Release, 5 October 2005, Canberra: Australian Greens; Australian Greens 2013, ‘Queensland: the most unrepresentative parliament in five country comparison’, Media Release, 15 January 2013, Canberra: Australian Greens; Australian Greens 2012, ‘Opt-in compulsory local council voting a step forward’, Media Release, 21 September 2012, Canberra: Australian Greens. 490 This data is drawn from the Australian Candidate Study, which was not conducted in 1998. Liberal and National Party attitudes were disaggregated only in the 1993 iteration, which showed a small but significant difference, with 45.5 per cent of National Party candidates supporting compulsory voting, as opposed to 34.2 per cent of Liberal Party candidates. 491 Further, the utility of the available data is somewhat limited in that, with participation optional, respondents are something of a self-selecting sample. The overall response rate decreased from 63.0 per cent 142

Figure 6.1: Candidates’ support for compulsory voting, 1993-2004

Figure 6.2: Public support for compulsory voting, 1943-2004492

[Figure ommitted for copyright purposes. Refer to From Farrell and McAllister 2006, The Australian Electoral System: Origins, Variations and Consequences, Sydney: UNSW Press, 143.]

in 1996 to 53.6 in 2004, however among Labor candidates the decrease was from 67.4 to 49.7 per cent, and among Coalition candidates from 63.4 to 40.4 per cent. 492 From Farrell and McAllister 2006, The Australian Electoral System: Origins, Variations and Consequences, Sydney: UNSW Press, 143. 143

Beyond a lack of internal agreement, a further explanation for this lies in the constraint imposed by the demands of legitimacy. As Prime Minister John Howard recognised,493 any proposed relaxation of compulsion must surmount the broad and continuing public support these policies continue to enjoy. Opinion polls on the issue have consistently shown majority support for compulsion, with the percentage in favour never slipping below 60 per cent, and generally outweighing that percentage who oppose compulsion by a factor of two.

At the time of the attempted South Australian reforms, the Australian Democrats commissioned a poll which returned similar results, indicating 68 per cent of the public supported compulsory voting.494 Figure 6.2 illustrates this trend, demonstrating regular – and increasing – support for the existing regime.

Table 6.1: Support for compulsion by voting intention495

[Figure ommitted for copyright purposes. Refer to Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 197.]

Beyond this, more detailed polls have shown little difference in support based on voting intention. As Table 6.1 illustrates, both Liberal and Labor voters reported over 70 per cent support for compulsion in 2005. As Don Aitkin put it, compulsory voting ‘is in no sense seen

493 Peatling 2005, Op. Cit. 494 Penberthy 1994, ‘Lib anger at voluntary voting defeat’, The Advertiser, 16 May 1994. 495 From Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 197. 144 as an imposition on the electorate’,496 with Lisa Hill explaining this broad support with recourse to Australians’ lack of antagonism towards the state:

Australians have generally regarded the state in quasi-idealist terms as a benign provider of goods rather than an unwelcome imposer of restrictions. Australians have not, therefore, looked upon the compulsion to vote as particularly objectionable or onerous.497

Without the weight of public opinion providing any sort of mandate to relax compulsion, proposals to this end are susceptible to charges of self-interest. At the time of the 1994 SA legislation, ALP state secretary Terry Cameron accused the Liberal government of naked opportunism:

And while freedom of choice may be an argument they use, the first rule of politics is you don't change the electoral system unless you think you can do better from it - what's in it for them?498

Opposition leader Kim Beazley echoed this sentiment at the time of the federal Coalition government’s 2005 electoral reforms, the dialogue surrounding which included discussion of the issue of compulsion. Beazley accused the Coalition of manipulating the system for partisan gain, and in the process undermining public faith in Australia’s democratic institutions:

When governments do things like that they destroy people's confidence in democracy … I don't know what it is with these Liberals, but they spend their whole time trying to work out how to stop people from voting. They want to knock you off the rolls, they want to discourage you from attending the polls. What is it about them? They hate democracy?499

Even when no actual proposals are forthcoming, merely raising the issue of compulsion can open a party up to political attacks. In early 2013, the Newman government’s release of a

496 Aitkin 1982, Stability and Change in Australian Politics, 2nd ed., Canberra: ANU Press, 31. 497 Cited by McAllister 2009, ‘Elections and Electoral Behaviour’, 165, in Rhodes (ed.) 2009, The Australian Study of Politics, Melbourne: Palgrave Macmillan. The obvious counter-example is the Australia Card controversy, where opposition to a proposed national identity card rendered any attempt at a unified national identity scheme politically off-limits through to the present. As a consequence, Australia retains separate (albeit interlinked) systems for individual-state interactions regarding voting, taxation, social welfare, healthcare, education and vehicle licencing. See Greenleaf 1998, ‘Lessons from the Australia Card – Deus Ex Machina?’, The Computer Law and Security Report (3:6). This is perhaps the extreme case. There is, for example, significant public support for data sharing between government departments: Official Committee Hansard (JSCEM), 8 February 2012, Reference: Electoral and Referendum Amendment (Maintaining Address) Bill 2011, 9-10 (Mr Killesteyn). 498 Jemison, 1993, Op. Cit. 499 Peatling, 2005, Op. Cit. 145

broad-ranging discussion paper regarding all aspects of Queensland’s electoral system, including compulsory voting, attracted swift attention from senior ALP figures, with Acting Queensland Opposition Leader Tim Mulherin suggesting the government were ‘tampering’ with the system for political advantage,500 Prime Minister Julia Gillard accusing the Queensland government of selling out voters to cashed up interest groups, and Wayne Swan likening the move to the famously-corrupt Bjelke-Peterson era.501 It evaded their attention that discussion of compulsion was common practice for comprehensive electoral system reviews, as was the case with the Rudd Labor government’s second Electoral Reform Green Paper.502

For their part, Liberal Party advocates for reform either deny partisan motivation, or accuse Labor of a similar conflict of interest. JSCEM’s report into the 2004 election asserted that there was ‘no empirical evidence that a move to voluntary voting would favour one major party over another’.503 Minchin however was of the belief that ‘the Labor Party is a fierce defender of compulsion, because it is certain that it derives a partisan advantage from compulsory voting’.504 And, as is discussed in chapters 4 and 7, similar claims have been repeated in the ongoing debates over Direct Enrolment and optional preferential voting.

Beyond political arguments from the Opposition, without public support the legitimacy constraints inherent in any change to compulsion are significant. Future Premier of Victoria Jeff Kennett noted as far back as 1982 that abolition should only be attempted when there was widespread public support, 505 while Petro Georgiou argued that the party would face significant costs were it to attempt to abolish ‘a system that has the overwhelming endorsement of the Australian public’. 506 The lack of any meaningful attempts at reform since the 1990s suggests this realisation has set in more broadly.

The Limits of Compulsion

This chapter has thus far demonstrated two key aspects of compulsion: that, by markedly increasing turnout, the policy favours one side of the political divide; and that the attitudes of partisan actors towards compulsion derive heavily from this reality. However, one further aspect is worthy of significant attention – that of the practical limits of compulsion. This

500 Wardill, Vogler and AAP, 2013, ‘Queensland's Newman Government may dump compulsory voting at state elections’, Courier Mail, 3 January 2013. 501 Wroe, 2013, ‘PM vows to fight any Qld move to scrap compulsory voting’, Sydney Morning Herald, 4 January 2013. 502 Australian Government 2009, Electoral Reform Green Paper: Strengthening Australia’s Democracy, Canberra: Australian Government, 179-181 503 Joint Standing Committee on Electoral Matters 2005, Op. Cit., 200 504 Minchin 2003. Op. Cit. 505 Bennett, 2005, Op. Cit., 22. 506 Ibid., 21. 146

section presents a statistical analysis of voter absenteeism at Australian State Elections, and in doing so sheds light on those segments of society that are proving resistant to policies of compulsion. 507

As has been repeatedly demonstrated throughout this thesis, participation is on the decline in Australia. While the previous chapters discussed the challenges facing enrolment, this has been compounded by declining turnout, the causes of which remain under-explored. A hint as to this decline can be found in the results of some recent State by-elections. While by- elections in Australia have traditionally exhibited slightly lower levels of turnout than is observed in general elections, a number of recent by-elections have returned the lowest levels of turnout for several decades. These anomalous results have occurred across the country, but have as yet been confined to affluent inner-urban areas, with the 2007 Albert Park, Victoria by-election returning 70.7 per cent, the 2007 Brisbane Central, Queensland by-election returning 67.7 per cent, the 2012 South Brisbane, Queensland by-election returning 67.5 per cent and the 2006 Victoria Park, Western Australia by-election returning 64.0 per cent. By contrast, turnout in outer-metropolitan, regional and rural by-elections has remained relatively high, generally falling within the 80 to 90 per cent range.508

While these affluent, inner-urban electoral districts exhibit higher levels of turnout in State- wide general elections than in by-elections, they are still markedly below their respective State averages. Similarly, while inner-metropolitan electoral districts exhibit lower average levels of turnout than outer-metropolitan, regional or rural districts, these affluent areas are a step again lower. Table 6.2 illustrates the twenty mainland State electoral districts to have returned the lowest turnout in the 2005 to 2007 period. The immediately-obvious geographic and demographic profile common across many of them – a confluence of affluence and high social mobility in inner-urban areas – suggests that a single common trend may be the root cause of this turnout decline. This is of special interest and concern given that affluent areas have traditionally been seen as among the most likely to return high levels of voter turnout. Instead, it now appears that those we might have expected to be most likely to turn out are instead now forming a new and significant underrepresented group.

Table 6.2: State Electoral Districts, 2005-2007

507 This analysis has been published in more extensive form as Hoffman and Lazaridis 2013, ‘The Limits of Compulsion: Demographic Influences on Voter Turnout in Australian State Elections’, Australian Journal of Political Science (48:1). The broad research design, interpretation and discussion of results are the work of this author, while David Lazaridis was responsible for the design, operation and explanation of the statistical modelling. The tables and figures used in this section are adapted by this author from those created for the journal publication by Lazaridis. 508 As detailed on page v, electoral data throughout this thesis are drawn from the relevant Electoral Commission websites, and from the University of Western Australia’s Australian Politics and Elections Database. 147

Bottom 20 of 398 mainland state electoral districts by enrolled voter turnout, with geographic classification, rental rate and median individual income.

Voter Geographic Rental Median State Electoral District State Turnout Classification Rate Income

Central Kimberley-Pilbara WA 68.57% Rural 60.2% $636 Kenwick WA 70.57% Inner 25.7% $432 Moore WA 73.05% Rural 18.1% $442 Nedlands WA 80.07% Inner 36.3% $666 Cook QLD 82.38% Rural 51.3% $401 Sydney509 NSW 84.09% Inner 57.1% $852 Mount Isa QLD 84.64% Rural 37.3% $582 Brisbane Central QLD 84.71% Inner 56.7% $687 Melbourne VIC 84.84% Inner 64.9% $498 Prahran VIC 84.97% Inner 56.0% $745 Joondalup WA 85.28% Outer 24.0% $536 South Brisbane QLD 85.29% Inner 56.2% $563 Surfers Paradise QLD 85.52% Inner 38.0% $524 Albert Park VIC 85.72% Inner 53.5% $810 Cairns QLD 85.94% Regional 49.0% $499 Richmond VIC 86.02% Inner 53.7% $654 Giles SA 86.51% Rural 38.9% $380 Townsville QLD 86.52% Regional 44.8% $531 Mount Coot-tha QLD 86.54% Inner 45.5% $673 Malvern VIC 86.72% Inner 31.3% $700

Australia510 91.90% 28.1% $466

State electoral districts are an appropriate focus for a number of reasons. First, the starting point of this investigation was the abnormally low levels of participation exhibited in by- elections for several of these State electoral districts, and the decline in electoral participation linked to these areas has thus-far been most obvious at the subnational level of State government elections. Second, the social drivers of participation, as discussed in Chapter 1, largely operate at the level of the local community, with which State elections arguably have more relevance than Federal Elections. Third, focusing exclusively on State elections helps ensure the quality of both the data and the conclusions drawn from it, by allowing analysis of a greater number of districts than would a focus on a single Federal Election, while also avoiding the use of electoral results that were not recorded close to a

509 The electoral district of Sydney was created via redistribution subsequent to the collection of the 2006 Census. The demographic figures supplied here are those of its predecessor, Bligh. 510 The turnout figure for Australia is calculated from the sum of voters across the relevant mainland state elections. 148

five-yearly census collection date. After further refinement, based on issues of scale, electoral system comparability and population stability, a large yet manageable dataset – some 224 individual electoral contests, accounting for a population of approximately ten million – was constructed from the results of the 2006 state general elections held in Victoria, Queensland and South Australia, and the 2006 ABS Census. Drawn from the Census were demographic profiles of each state electoral district, covering fields such as age, ethnicity, education, income, dwelling type and so forth. These variables are detailed in Table 6.3.

Table 6.3: Variable definition Names and descriptions of the response and the fifteen predictor variables.

Variable Percentage of Description Turnout Total Enrolled Voters Turnout recorded at 2006 State elections State n/a Parent state of each electoral district Aged 0-17 Reporting Population Aged 0-17 years Aged 18-34 Reporting Population Aged 18-34 years Aged 35-54 Reporting Population Aged 35-54 years Aged 55+ Reporting Population Aged 55+ years Apartments & Units Reporting Dwellings Flats, units or apartments in a block of any size ATSI Reporting Population Identifying as of Aboriginal or Torres Strait Islander descent Citizenship Reporting Population Holding Australian Citizenship Electoral Enrolment Reporting Adult Population Estimated electoral enrolment Foreign Birth Reporting Population Born outside Australia & Territories Median Income n/a Median individual weekly income of SED population aged 15 and over Rented Dwellings Reporting Dwellings Rented dwellings Tertiary Education Reporting Adult Population Holding Bachelor degree or higher Unemployment Reporting Total Labor Force Reporting as unemployed 5-Year Stability Reporting Population Change of address between 2001 and 2006

To gain insight into how these demographic factors influence turnout, a multivariate analysis was performed using the method of Random Forests.511 Figure 6.3 provides a visual representation of the explanatory power of the analytical model, plotting predicted turnout levels against those actually observed. The trend line depicts a perfect 1:1 relationship for comparative purposes. While the largely negative residuals towards the lower end of the data range indicate an imperfect fit, the model is still very useful for the present purpose.

511 For an extensive discussion of the selections and mechanics of the Random Forests technique, please refer to Hoffman and Lazaridis 2013, Op. Cit., 36-37. 149

Figure 6.3: Model performance Comparison of the observed and predicted levels of voter turnout on the dataset (224 State electoral districts).

[Figure omitted for copyright purposes. Refer to Hoffman and Lazaridis 2013, Op. Cit., 38.]

Figure 6.4: Variable importance Mean Decrease Accuracy (%IncMSE) and Mean Decrease Gini (IncNodePurity) of predictors, in decreasing order from top to bottom.

[Figure omitted for copyright purposes. Refer to Hoffman and Lazaridis 2013, Op. Cit., 39.]

150

Two measures of variable importance were calculated. These measures – Mean Decrease Accuracy (%IncMSE) and Mean Decrease Gini (IncNodePurity) – demonstrate which demographic predictors have a strong relationship with voter turnout. This does not however necessarily entail a relationship of signficiant magnitude. It is important to make this distinction because a predictor might have a large ‘overall’ effect size, but be of little use for prediction and explanatory purposes due to its large variance. The results of this calculation are illustrated by Figure 6.4.

The results are intriguing. While indicators of social marginalisation such as age, foreign birth or unemployment might be expected to display high levels of importance, as per the traditional literature and the stated aims of electoral education and support programs, they did not. Rather, the most useful predictor across both measures was the level of rented dwellings in an electorate, closely followed by the level of adult electoral enrolment. Also important were rates of five-year population stability, the presence of apartments and units, and of individuals identifying as being of Aboriginal or Torres Strait Islander descent.

Figure 6.5 consists of thirteen partial dependence plots, depicting the marginal effect each predictor had on the response – voter turnout – when all other predictors were held fixed. The results are similar to those observed for predictor variable importance. The largest marginal effects observed between predictors and turnout came from the prevalence of rented dwellings, with a decline in turnout of more than two percentage points observed as the rental rate increased from 18 to 38 per cent of dwellings. Indeed, the rate of rented dwellings was the only predictor to display a large effect across all three States. The prevalence of units and apartments and the level of five-year population stability also displayed significant effects, albeit not to the degree demonstrated by rentals, with observed declines in turnout of less than one percentage point. Also important was the rate of electoral enrolment among the voting age population. An increase from 80 to 90 per cent in Queensland was matched by an observed increase in turnout of 1.5 percentage points, while increases in South Australia and Victoria from 85 to 95 per cent saw corresponding increases in turnout of one half of a percentage point.

Minor relationships were observed between turnout and several predictor variables – the rate of Australian citizenship, the proportion of the population in the 0-17 and 18-34 age groups, and the proportion of the population identifying as being of Aboriginal or Torres Strait Islander descent. However, these were of an even smaller degree. Other predictors displayed significant relationships only in specific States. For example, as the unemployment rate increased across Victorian electorates, turnout was observed to decline by close to half a percentage point, however no significant effect was observed in the other States.

It must be cautioned that as these results rely on aggregate-level data collected at a single point in time they are very much a blunt instrument. However, they help to illuminate

151 current trends and provide some pointers as to where we should be looking. That traditional drivers of participation such as income and education displayed little effect suggests that, through compulsion and programs of access and education, resource-based barriers to electoral participation in Australia have largely been surmounted, except among the most marginalised elements of the population. By contrast, the effects on participation of significant population turnover and high levels of rented dwellings echo the pre-existing literature, suggesting a continuing role for principles of social cohesion in influencing electoral participation.

However, this combination also conforms to what we know of affluent inner-suburban electoral districts. Similarly, informal estimations of electoral enrolment by district suggest these areas are as under-enrolled as traditionally-problematic remote rural areas. These findings present a picture of significant and increasing under-representation, both in terms of enrolment and turnout, among highly-mobile inner-suburban Australians.

152

Figure 6.5: Partial dependence Depiction of the marginal effect of each predictor on the response, overall and by State.

[Figure omitted for copyright purposes. Refer to Hoffman and Lazaridis 2013, Op. Cit., 40.]

153

Conclusion

This chapter has focused on what is the central policy of participation-maximisation, and one of the key pillars of Australian democracy as it stands, compulsory voting. Following a brief consideration of the legal context within which compulsion operates, the chapter explored the key themes of this thesis through the lens of turnout, exploring both the impact of compulsion on turnout and the attitudes towards it of those partisan actors central to the electoral reform process. In exploring the practical effects of compulsion, in terms of increasing turnout and altering partisan outcomes, this chapter demonstrated a clear motive for the political positions subsequently explored. However, the chapter also returned to the issue of constraint, explaining the marked longevity of a policy with a clear partisan bias through reference to the problems of maintaining legitimacy in the face of popular opinion.

The chapter then contrasted this discussion with new analysis on an underexplored topic – that of the limits of compulsion. These findings carry significant implications. First, they reinforce the growing idea that non-voters are not only the disadvantaged. Low levels of participation are now repeatedly being observed in areas with high levels of socioeconomic status, which have traditionally been seen as the most likely to display high levels of participation. Individuals in these areas are more than adequately equipped to participate in the electoral process, but appear to be actively choosing not to. More practically, current planning schemes encourage high-density developments, especially in inner-suburban areas, on the basis that they are vital for the containment of urban sprawl. However, it must be recognised that in their current form these patterns of development are detrimental to levels of social cohesion at the community level, with consequent implications for electoral participation.

While research and programs targeting traditionally marginalised groups are important and effective, what we are seeing in recent trends is a need to look beyond this at participation in the broader community, especially given the increasing social mobility of younger generations. As discussed in Chapter 4, the recent moves toward systems of Direct Enrolment, especially when extended to enrolment updates, seem to offer the best solution to problems of enrolment. However, automation is no magic bullet and residual problems remain for those underrepresented segments of the Australian electorate, both traditional and new.

Indeed, the low turnout observed in affluent inner-suburban areas may also indicate that the current regime of compelling sanctions is, while broadly successful, ineffectual for some segments of the electorate. International experience demonstrates that sanctions must be both significant and strictly enforced. With fines being initially small and subject to loopholes, it may be that for relatively-affluent individuals not only are the resource barriers

154 to participation insignificant, but so are those to nonparticipation. Increasing enrolment may simply lead to a reduction in turnout or formality, with no net benefit to participation. We are thus left in a difficult situation. Sanctions cannot be significantly increased without placing a punitive impost on those who face legitimate barriers to participation. Compulsion itself is an integral part of Australia’s electoral systems and retains popular support among both public and parties. This raises two key problems. First, given the long-observed relationships between demographic characteristics and partisan leaning, it may be that the inconsistent power of compulsion is serving to further its partisan impact. Second, and more seriously, if compulsion is proving ineffective then interest in electoral participation must be stimulated through interest in politics, the responsibility for which extends far beyond electoral administrators.

155

Chapter 7 – Preferences and Formality

The gradation of de-merits in everyone, including prospective parliamentarians, is infinite and so no one individual will compare identically with another – even in denigration.

– Justice William Crockett, 1970512

Preferential voting is a key feature of Australia’s varying electoral systems. First experimented with in the years before Federation, when a number of systems were introduced on a world-first basis, preferential systems are now in use at all levels of Australian elections. Preferential systems come hand-in-hand with another central idea – that of formality. Formality refers to the criteria a ballot must adhere to if it is to be admitted to the count. While spoiled ballots are a feature of all elections, formality is a problem of particular relevance to preferential voting systems, due to the increased complexity involved in casting a valid ballot.

The rate of vote formality is a growing issue in Australian elections, with recent elections at both Commonwealth and State levels returning some of the lowest levels of formality on record. This chapter investigates the issue of vote formality. First, it examines just what is required under Commonwealth electoral law, an area subject to some debate. The chapter then discusses the demographic patterns of informal voting and their partisan impact. Finally, the chapter examines at some length what potential responses and solutions to informality exist, so as to maximise electoral participation. In this respect, this chapter continues the theme of the thesis in examining problems of participation and how we might address them.

Yet it is in the partisan machinations behind the current situation that the issue of formality presents itself as a perfect culmination to this thesis. The key arguments of the thesis thus far have been relatively clear. Voluntary participation displays an unequal distribution, with certain demographic groups more likely to participate than others, a situation reflected in both electoral and policy outcomes. Further, one side of the political spectrum has displayed a consistent interest in maximising participation, while the other has worked to minimise it. However, there are two issues with this approach. First, it might conceivably be that differing approaches to electoral participation (or, on the part of the limiters, the fig-leaf of electoral integrity) happen to fit within broader ideological positions. Second, the thesis

512 Lubcke v Little [1970] VR 807, 811. 156 thus far has painted something of a one-sided picture, of one side of the political spectrum wholly commit to the cause of democracy, and the other approaching it something of a half- hearted, self-interested manner.

In light of the above this chapter offers an essential conclusion to the core of this thesis. Issues of preference and formality cast a searching light on the interaction between partisan self-interest and electoral policy, amply illustrating the inconsistent nature of parties’ positions on participation, both through time as their evolving interests prompt differing electoral policies, and across aspects of participation, where the price of increasing participation may be sufficiently detrimental to immediate electoral concerns as to dissuade its pursuit.

As formality, fundamentally intertwined with preferential voting as it is, interacts far more dramatically with partisan self-interest than any other electoral policy discussed thus far, it is of particular utility in bringing these issues to light. As this thesis has illustrated, the benefit parties derive from particular electoral policies is dependent on a number of factors revolving around the demographics of party support and electoral behaviour. All of these are changeable over time, as the specific characteristics of party support bases change. Further, the impact of preferential voting – and of particular implementations of such systems – can vary dramatically based simply on how a particular ideological support base is split between parties. The more a vote is split, the more any party dependent on that vote will benefit from compulsory full preferential voting, and the more it will suffer from the converse. Such a situation is not in any way a reflection of parties’ ideological positions, and as such it can and has changed dramatically over time, reflecting the internal politics of political movements. In Australia, both Labor and non-Labor sides of politics have at times been unified and divided, and as this chapter will demonstrate, their attitudes to preferential voting have predominantly been driven by their position – and that of their opponents – with regard to this simple calculus.

Legal Context

Formality is a term peculiar to preferential voting systems. In simpler, single-preference systems such as single-member plurality (SMP) or closed-list proportional representation variations, it is relatively difficult to cast an accidental invalid vote. To do so, a voter would have to express an unclear preference, perhaps through failing to clearly mark a vote or indicating more than one choice, or might include identifying information on the ballot paper, thus voiding the secrecy of the ballot.

In preferential systems however formality is more complex. In order to be admitted to the count, a vote must comply with the rules specific to the particular variety of preferential

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voting system in operation in that jurisdiction.513 At the federal level, a vote must consist of a full set of consecutively ranked preferences corresponding to the available candidates. The requirements of vote formality are set out in Sections 239 and 240 of the Commonwealth Electoral Act 1918. Section 240 is concerned with the casting of votes for elections to the House of Representatives:

(1) In a House of Representatives election a person shall mark his or her vote on the ballot paper by: (a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and (b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them. (2) The numbers referred to in paragraph (1)(b) are to be consecutive numbers, without the repetition of any number.

Section 239, concerned with elections to the Senate, is similar in intent:

(1) Subject to subsection (2), in a Senate election a person shall mark his or her vote on the ballot paper by: (a) writing the number 1 in the square opposite the name of the candidate for whom the person votes as his or her first preference; and (b) writing the numbers 2, 3, 4 (and so on, as the case requires) in the squares opposite the names of all the remaining candidates so as to indicate the order of the person's preference for them. (2) A vote may be marked on a ballot paper by writing the number 1 in a square (if any) printed on the ballot paper under subsection 211(5) or 211A(6). (3) Where a voter has marked a tick or cross in a square printed on a ballot paper under subsection 211(5) or 211A(6), the voter shall be regarded as having written the number 1 in the square.

The references to subsections 211(5) and 211A(6) refer to the ‘above the line’ mechanism for group voting tickets, whereby a voter need only make a single choice, with preferences then allocated according to the ticket lodged by the corresponding party or candidate group.514 Figure 7.1 shows a sample Senate ballot paper, illustrating the two methods of casting a formal vote.

513 For a comprehensive table of the formality requirements across the various Australian lower houses, see Australian Electoral Commission 2011, Analysis of Informal Voting: House of Representatives, 2010 Federal Election, Research Report Number 12, 29 March 2011, Canberra: Australian Electoral Commission, 45. 514 Confusingly, the term ‘ticket’ in the electoral context can refer both to a lodged list of preferences, and to all candidates running under a single party grouping in a proportional contest. For the purposes of clarity, the latter are referred to as ‘candidate groups’ throughout this chapter. 158

Figure 7.1: Sample Senate ballot paper515

[Figure removed for copyright purposes. Refer to Australian Electoral Commission, n.d., Behind the Scenes: Voting, Canberra: Australian Electoral Commission.]

In order to comply with the Act, and to have their vote admitted to the count for elections to either house of the Parliament, a voter must therefore cast a formal vote, comprising of a full set of consecutively ranked set of preferences accorded to the available candidates. There is one minor caveat; a vote will still be considered formal if the final preference is left unmarked. This is the case as it thought that it can be reasonably implied that the unmarked candidate is the voter’s final preference.

The Legality of Informality

While the above is clear enough, the interaction of Sections 239 and 240 with Section 245(1), where compulsory voting is enshrined, is less so. As discussed in the previous chapter the common assumption, and indeed the broadly accepted interpretation, is that the specific action demanded of voters by the regime of compulsion is limited in some key way – that it is only required to have one’s name marked off as having attended a polling booth, to accept a ballot paper, to deposit a ballot paper, or perhaps to mark said paper before deposition.516 Joan Rydon reflected this broad range of positions when she argued as follows:

515 From Australian Electoral Commission, n.d., Behind the Scenes: Voting, Canberra: Australian Electoral Commission. 516 For a range of such arguments, see those cited in Twomey 1996, ‘Free to choose or compelled to lie? – The rights of voters after Langer v The Commonwealth’, Federal Law Review (24:1). 159

Attempts to clarify the law by specifying that it is attendance at the polls which is compulsory have all failed. Officials constantly reiterate that "voting is compulsory" but "voting" is not defined. They reluctantly concede that is it not illegal to vote informally or return blank ballot papers, but they do their best to discourage such practices.517

A minimalist interpretation of compulsion is an important, excusatory caveat for the regime and its supporters, as Anne Twomey explained:

If a person has a legal right to vote informally and is therefore not compelled to vote for a candidate whom he or she does not wish to elect, then the argument that laws such as s 240, which regulate the formality of votes, are in breach of the principles of representative democracy, is weak. If, however, a person is under a legal obligation to vote in a formal manner by allocating preferences to all candidates, and if that obligation is backed by criminal sanctions, the argument is much stronger that such a law is in breach of the principles of representative democracy derived from s 24 of the Constitution.518

Yet such arguments are also raised by its opponents. If informal or blank voting is not mandatory, then compulsion merely serves to force uninterested voters to the polls with no net democratic benefit.519 However, a close reading of the Commonwealth Electoral Act provides sufficient evidence to mount an argument that ‘voting’ is defined, albeit across a number of sections, and requires that voters follow the full process of acceptance, valid preferential marking and depositing of ballot papers, or the postal voting equivalent.

Section 245(1) provides that ‘it shall be the duty of every elector to vote at each election’, while Section 245(15) provides that ‘an elector is guilty of an offence if the elector fails to vote at an election’. What must then be determined is precisely what is required for a voter to satisfy their obligation ‘to vote’.520 Sections 239 and 240, as reproduced above, specify that the voter ‘shall mark his or her vote on the ballot paper’, then detail the specific requirements for the process of marking for a valid vote in each house. Section 233, which

517 Rydon 1989, ‘Should Voting be Compulsory? Against’, 97, in Giles (ed.) 1989, For and Against: An Anthology of Public Issues in Australia, Milton: Brooks Waterloo. 518 Twomey 1996, Op. Cit., 211. 519 See for example the argument raised by the plaintiff in Homldahl v Electoral Commissioner 2012, that as secrecy rendered any requirement for marking a ballot was unenforceable, it should therefore extend that forcing those with no intention to mark a ballot to the polls should be found unconstitutional. Unfortunately it was not deemed necessary to rule on this point. 520 An earlier iteration of the Act was significantly clearer in its intent, with the old Section 128A mandating that it ‘shall be the duty of every elector to record his vote at each election’ [emphasis added]. In Holmdahl v Electoral Commissioner (2012), the plaintiff argued that removal of the verb ‘record’ indicated a relaxation of compulsion. Justice Gray disagreed, drawing on the relevant explanatory memorandum to interpret the change merely as attempt at making the Act gender neutral, with an unfortunate side effect on clarity. Holmdahl v Australian Electoral Commission [2012] SASCFC 110; 227 FLR 101. 160 deals with the secrecy of the ballot, also demands that each ballot paper be marked, then dictates that attendance voters ‘shall … deposit [their marked ballot papers] in the ballot box’. Indeed, the sole step in attendance voting that is not specifically mandated is that each elector shall attend a booth and have their name marked off on the roll.521

The absence of any specific provision for legal informal voting appears all the starker when compared with the system of compulsory voting in operation in South Australia. Section 85 of the South Australian Electoral Act 1985 specifically absolves those who deposit blank papers of any breach of compulsory voting:

(1) Subject to subsection (2), it is the duty of every elector to record his or her vote at each election in a district for which the elector is enrolled. (2) An elector who leaves the ballot paper unmarked but who otherwise observes the formalities of voting is not in breach of the duty imposed by subsection (1).

Further, South Australia’s vote saving provisions, as discussed below, also absolve those depositing incomplete ballots. However, the absence of any other such equivalent exemption leaves open the possibility that any who deposit defaced ballots are in contravention of compulsory voting.522

Despite (and indeed, reinforcing) this apparent dissonance between the wording of the Act and the broader understanding regarding the nature of compulsory voting at Commonwealth elections, the matter is yet to be decisively resolved by the High Court. Judicial opinion has erred towards a minimalist interpretation, with Justice Crockett in Lubcke v Little (1970) offering one extreme, in his consideration that all that was required was acceptance of a ballot paper.523 In Faderson v Bridger (1971), Chief Justice Barwick went a little further, expressing the opinion that both marking and deposition of the ballot were required, but that ‘of course there is no offence committed by not marking the ballot paper in such a fashion that the elector's vote is in law a valid vote.’524

This sentiment was reflected in Langer v Commonwealth (1996), with Justice McHugh noting that breaches of Section 240 were not made subject to sanction and, despite the use of the mandatory ‘shall’, the section should not be read as imposing a legally enforceable duty.525 For Justices Toohey and Gaudron, Section 240 ‘does not operate to require a voter to fill in a ballot paper in the manner described in that section or indeed at all’, with the requirements

521 Yet JSCEM, reflecting the common understanding in their report on 2001 election, somehow construed Sections 231 to 233 to mandate attendance but not the marking of votes, despite the converse being present in the text. Joint Standing Committee on Electoral Matters 2003, The 2001 Federal Election, 247. 522 A contrary conclusion was however reached in Douglass v Ninnes (1976), discussed below. 523 Lubcke v Little [1970] VR 807. 524 Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271. 525 Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302. 161

of formality rather applying only for a vote to be admitted to the count. Twomey was critical of the process by which these judgements were reached, arguing that the Langer decision should have hinged fundamentally upon the legality of informality.526 If it were only through the now-abandoned Section 270(2) – the enabler for the equal-preference ‘Langer vote’ – that an elector could legally avoid voting for objectionable candidates, any prohibition on the encouragement to vote in this manner should have been found in breach of the implied freedom of political communication. Yet the decision was not framed in this manner, and as such did not settle the question of whether it is legal to vote informally, and if not, whether such a prohibition is constitutionally valid.

The debate is to some degree rendered moot by the secrecy of the ballot. In considering the South Australian provisions in Douglass v Ninnes (1976)527 Justice Hogarth was of the opinion that compulsory voting provisions ‘could not be intended to impose a duty on the returning officer with which it would be impossible to comply’, and should rather be interpreted as requiring only what the officer could reasonably corroborate, ‘relating to those who have duly obtained their voting papers and, possibly, placed them in the appropriate ballot box’.528 Indeed, for Justices Gummow and Bell in Rowe v Electoral Commissioner (2010), ‘the secrecy which attends this system makes the description ‘compulsory attendance’ more appropriate than ‘compulsory voting’.’529

For J. G. Starke, to whom an expansive interpretation of compulsion appeared ‘beyond all doubt’ according to the wording of the Act, this inconsistency makes the regime of compulsion as applied a discriminatory, ‘wrong law’, because it punishes some abstainers and absolves others based on the method of rather than justification for abstention.530 Yet so long as returning officers have no means of determining the contents of a vote or of conclusively linking it to a voter, compulsory voting provisions cannot practicably be interpreted as demanding full, formal adherence.

O’Brien v. Warden (1981) offers a rare example of judicial support for the contention of this section.531 Chief Justice Blackburn, freely admitting that his position might be seen as ‘heresy’ among the judicial fraternity, argued that the compulsory voting provision of the Australian Capital Territory, and by extension that of the Commonwealth it aped, required that ballot papers be ‘marked in a way that is not informal’. He acknowledged that the

526 Twomey 1996, Op. Cit., 210-212. 527 Douglass v Ninnes (1976) 14 SASR 377, 335. 528 The case also raised another interesting dissonance: New South Wales’ compulsory voting provision requires every elector ‘to record his or her vote’, but imposes a sanction only those who fail ‘to vote’, a semantic difference that might excuse those submitting blank or spoiled votes. Twomey 2004, The Constitution of New South Wales, Annandale: Federation Press, 335-336. 529 Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1. 530 Starke 1985, ‘”Compulsory” voting under the Commonwealth Electoral Act 1918’, Australian Law Journal (59), 130-131. 531 O’Brien v Warden (1981), 37 ACTR 13. 162

secrecy of the ballot would largely preclude the evidence required for any conviction but did raise the possibility of self-incriminating confessional evidence. Yet the utility of the ‘Australian’ secret ballot derives every bit as much from no voter being able to prove the content of his or her own vote, as from its protection from the prying eyes of others. While there are some gaps in this secrecy – provisions for in-person voting assistance exist, there is no mechanism for ensuring the secrecy of the postal ballot, and modern portable technology provides a relatively simple means of recording the contents of an attendance vote for demonstration after the fact – these exist only on the periphery of electoral practice.

However, a far greater disruption looms on the horizon: electronic voting. Such systems suddenly provide the means to assess the validity of a vote without compromising its secrecy. Indeed, it is not difficult to imagine a hypothetical system that would not record a voter as having fulfilled their obligations until they had cast a valid vote.532 Conversely, any system that allows informal votes could conceivably find an Electoral Commission in breach of its own Act, should a close election result with a substantial informal vote prompt a High Court challenge to a system that allowed a voter to act contrary their own responsibilities.533 Any move to electronic voting must therefore be approached carefully, with due consideration paid to how voting systems treat informal votes,534 and more importantly, how the Electoral Acts treat the act of voting.

It remains unclear how the Court would approach such a situation. Twomey suggested that, while the matter was not central to the case, the obiter dicta of Judd v McKeon (1926), the High Court’s foundational statement of support for the constitutionality of compulsion, indicate that ‘had the Court been asked to consider the conviction of a person for voting informally, it would have been likely to uphold the power of the Commonwealth Parliament to enact such a law, as long as the voter was given a free choice between candidates.’535 In any case, should the realities of electoral practice cease to offer protection for informality, voters cannot turn to moral arguments for protection. Judd made it abundantly clear that objection to one or more candidates was neither valid nor sufficient reason to abstain.536 As

532 Indeed, a recent AEC tender for a electronic voting system for use in non-parliamentary elections specifically required the capacity to ‘prevent the ability to cast an informal vote’. Taylor 2013, ‘AEC seeks e- voting system’, ZDNet, 4 April 2013. 533 Verifiable voting implementations, such as the VEC’s pilot vVote system are of particular concern in this respect. vVote supplies voters with a ballot receipt displaying the list of lodged preferences, both to check against the vote as it is cast, and for later verification of its inclusion in the count. While it is stripped of candidate names and effectively ordered randomly, so as to maintain the anonymity of the vote, it suddenly grants all voters the entirely-legal capacity to prove a blank or informal vote after the fact. 534 Current systems, such as those in operation in the Australian Capital Territory as an option for all voters, and in Victoria and Tasmania for voters with disabilities, present an alert prompt before acceptance of an informal vote. 535 Twomey 1996, Op. Cit., 211 fn. 67. 536 Judd v McKeon (1926), High Court of Australia. 163

Justices Knox, Gavan Duffy and Starke explained in their ruling, it is enough that a voter be offered a choice, regardless of the attraction of any of the options:

In common parlance “to choose” means no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available. As an illustration of the meaning of the corresponding noun “choice” the Oxford Dictionary quotes the phrase “I have given thee thy choice of the manner in which thou wilt die”, and this use of the word seems to exclude the idea that a right of choice can only be said to be given when one or other of the alternatives submitted is desired by the person who is to exercise the right, or, in other words, to choose between them.537

Or, as Justice McHugh succinctly put it in Langer, ‘Members of Parliament may be “chosen by the people” even though “the people” dislike voting for them.’538

Trends in Informality

The increasing rate of vote formality at Australian Federal Elections is a growing concern, with recent contests displaying the lowest levels of formality on record. Informality has almost tripled over the past three decades, from just 2.09 per cent at the 1983 Federal Election, to 5.91 per cent in 2013.539 Following elections, Australia’s Electoral Commissions undertake analytical surveys of informal ballots so as to determine trends within the broader rate of informality. These surveys provide clear information as to the nature of spoiled ballots. However, due to the nature of the secret ballot, it is difficult to draw further conclusions as to the intentions of the voters who cast informal ballots. Assumptions can however be made, and as such the AEC’s informal ballot analyses categorise votes as ‘assumed unintentional’ or ‘assumed intentional’ informal ballots. The specifics of the AEC’s categorisation are as follows:

- Ballot papers with incomplete numbering, non-sequential numbering, ticks and crosses and those where the voter had been identified are assumed to be unintentionally informal (i.e. it is assumed that all voters with ballot papers in these categories intended to cast a formal vote).

537 Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 (11 October 1926).. 538 Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302. 539 Electoral and Census data used throughout the chapter are drawn from the sources detailed earlier in the thesis, on page v. 164

- All other informal ballot papers (including blank ballots and those with scribbles, slogans and other protest vote marks) are assumed to be intentionally informal (i.e. it is assumed that these voters intended to cast an informal vote).540

While for the sake of both brevity and clarity these categories will be referred to hereon simply as accidental and intentional informality, it is essential that the assumption involved is noted, as there are reasonable explanations that might move informal votes between categories. A ballot featuring a single preference only, for example, might well represent an intentional rejection of compulsory preferencing, rather than an ignorance of its demands. In any case, this split is important as it reflects two different responses to the electoral system. First, there is a subset of voters disenfranchised by the complexity inherent in the system. Second, there is a subset of voters voluntarily abstaining in response to some aspect of the electoral system – an objection to compulsion or to the choices on offer, dissatisfaction with the broader processes of democracy and government, or a lack of interest in the electoral process, for example.

These categorisations in turn follow their own distinct trends. Indeed, as Figure 7.2 illustrates, the broader pattern of increasing informality appears to be driven primarily by assumed intentional informality. Accidental informality may even be on the decline, but the slack has more than been taken up by ballots deliberately spoiled or left blank.541

Figure 7.2: Total, accidental and intentional informality, 2001-2010

540 Australian Electoral Commission 2011, Op. Cit., 6. See pages 46-51 for a full description of the various categories. 541 Unfortunately, the sample is somewhat limited. The AEC only published informal ballot studies from 2001 onwards and as such earlier qualitative data on informality is not available. 165

As with other facets of non-participation, the problem of addressing informality is in reality two problems – of addressing a form of intentional abstention, and of addressing a form of accidental disenfranchisement. As an issue, accidental informality can and should be addressed. A number of explanations have been posited for the accidental spoiling of ballots, with evidence stronger for some. AEC analysis has identified three key factors – lower levels of English language proficiency, higher numbers of candidates on the ballot paper, and disparity between Commonwealth and State electoral systems, particularly when elections occur at close proximity.542

Lower English skills display a clear relationship with assumed accidental informality, as illustrated by Figure 7.3. Further, the AEC hypothesise that lower English proficiency serves to amplify the impact of other influences, such as the candidate count on the ballot paper. Figures 7.4 and 7.5 illustrate the impact of candidate count. While candidate count does not display a clear relationship with the informality rate, a demonstrable relationship appears between the change in candidate count and the change in the informal vote, reflecting its nature as a second-order influence.543

Figure 7.3: Accidental informality against English proficiency, 2010

542 Australian Electoral Commission 2011, Op. Cit., 34-38. 543 Candidate-count also appears to display a relationship with choice of voting method in the Senate. Plausibly, States and Territories with lower populations consistently attracting lower numbers of nominees encourages higher rates of below-the-line voting. 166

Figure 7.4: Accidental informality against candidate count, 2010

Figure 7.5: Change in informality against change in nominations, 2010-2013

Evidence for the role of system disparity is mixed. In New South Wales and Queensland, where optional preferential voting is employed for the State lower houses, the percentage of incompletely-numbered ballots at Federal Elections is significantly higher than the national average. Indeed, as discussed later in the chapter, a clear shift in Queensland’s Federal informal vote rate can be observed around the time of its introduction of OPV at State-level in 1991, and particularly following Labor’s 2001 ‘Just Vote 1’ campaign.

167

Conversely, in Tasmania and the Australian Capital Territory, where lower houses employ systems involving both proportional representation and non-compulsory preferential voting, the rate of incomplete ballots is significantly lower than the national average.544

The idea is however aptly demonstrated by perhaps the most powerful example of accidental informality, revolving around the 1984 changes to the Senate ballot paper. Prior to 1984, the Senate’s STV voting system had been unnecessarily complex, requiring voters to rank tens of candidates, without the aid of any sign of party affiliation on the ballot paper. This led to high rates of informality, both deliberate and accidental, given the difficulties, both practical and political, of ranking a large number of candidates the voter could be expected to know little about. With respect to easing the process of participation for voters, the 1983 reforms were thus long overdue. Further, with informality disproportionately higher among traditional Labor demographics, the new Hawke Labor government had a clear partisan rationale for action.

The changes allowed candidates to be grouped according to party, but most importantly it allowed voters two methods of voting. They could continue to rank all candidates individually, or they could now indicate support for a party’s vote ticket – that is, a predetermined flow of preferences – with a single vote ‘above the line’. Figure 7.6 illustrates the disparity in formality rates between the House of Representatives and Senate prior to the reform, as well as the impact of the change on vote formality for both houses.

Figure 7.6: Informal vote, House of Representatives and Senate, 1972-2013

544 Australian Electoral Commission 2011, Op. Cit., 36-38. Tasmania requires a minimum of five preferences, while the ACT encourages a number of preferences equal to the number of vacancies but requires just the one. 168

Above the line voting had the effect of slashing informality in the Senate vote, yet, perversely, it also led to increased informality in the House of Representatives vote in 1984, as confused voters mistakenly believed they could indicate a single preference on their House papers. While this subsided over the subsequent elections as voters became used to the differences between the systems, confusion between systems still drives a significant percentage of single-preference only informal ballot papers in the House of Representatives. At by-elections, without the confusion of a simultaneous vote, this percentage has been observed to decrease markedly. At the 2005 Werriwa by-election, for example, single-preference-only ballots decreased in real terms from 2,482 to 927, and as a proportion of all informal votes from 36.9 per cent to 9.1 per cent.545

If there is one way to sum up these issues, it is a clash between a complex, inflexible system, and a certain proportion of voters who have difficulty interacting with it. In other facets, the broad principle has been that if the state is to impose an obligation to participate, it should make that participation as simple as possible. This has not always been the case when it comes to Australia’s preferential systems of voting.

Intentional informality is more problematic. It is an issue of particular concern among certain key demographics, for example Indigenous Australians,546 yet also one that cuts across the population. While it difficult to read too deeply into the motives of intentional informal voters – just what is the meaning of a penis scrawled across a ballot paper? – the broad themes are clear. Intentional informality can be attributed to a lack of interest in electoral and political processes, to a lack of options on the ballot paper,547 and to moral objections to compulsion.548 While compulsion may incentivise voters to involve themselves in electoral processes – and thereby gain an understanding of them – it can do little to address the latter complaints. Some voters will adhere to the law, and total participation will increase. However, as highlighted in previous chapters, compulsion also serves to merely alter the form an element of ‘structural’ abstention takes. Thus, any ‘manufactured’ increase in enrolment or turnout, that is, through a policy of compulsion or automation, should therefore be expected to decrease formality. The percentage of the roll casting formal votes may decline, while the total number of formal votes increases.

The explanation for the current, growing rate of informality is mixed. Again, there is a structural influence, particularly in the latest election – Direct Enrolment and the growing

545 Green 2011, ‘Informal Voting - Two Ways of Allowing More Votes to Count’, ABC Elections, 28 February 2011. 546 Clarke 2013, ‘Electoral Commission works to stop Indigenous informal vote’, ABC News, 27 August 2013. 547 Beyond any relationship between intentional informality and candidate count in the House of Representatives, there is a clear disparity between turnout for the House and for the Senate, where a significantly greater range of choice is on offer. In 2013, some 96,061 more Senate votes were cast, despite all voters receiving both ballot papers. 548 Indeed, a combination of the first and last of these positions could conceivably also be arrived at by way of there being too many options on the ballot paper. 169 number of voters it has added to the roll. It seems likely that Direct Enrolment has driven an increase in both intentional and accident informality. Newer voters with less experience of preferential systems of voting may be more prone to mistakes, while some percentage of those enrolled will have had no interest in voting and instead submitted blank or spoiled ballots.549 Compounding this is the miserable state of contemporary Australian parliamentary politics. Being far from the focus of this thesis, it is sufficient to note that recent years have seen the utter exhaustion of Australia’s two-party political system writ large, with major parties and their leaders plumbing record depths of unpopularity, and a former Leader of the Opposition consequently advocating massed informal voting as a legitimate act of protest.550

Why, then, if the causes of informality are readily apparent, has there been little legislative effort at reform? As has been the case throughout this thesis, partisan self-interest offers a clear explanation, albeit one rendered more complex by the practical realities of preferential voting. The partisan impact of informality is relatively clear. There is a longstanding trend that the Labor vote is inextricably linked to the rate of informality.551 Figure 7.7 illustrates the relationship at the 2010 Federal Election. The pattern is interesting, reflecting two trends – a small, positive relationship between the Labor primary vote and the informality rate across most electorates, and a much larger relationship in a small subset of electorates, which are also those displaying the highest rates of informality. As the figure further illustrates, this ‘double trend’ is significantly more distinct in the presumed accidental informal vote than in the presumed intentional informal vote.

These electorates largely fall within western Sydney, a highly multicultural region, concentrating the influence of English proficiency.552 The sum of this data is that a particular Labor-leaning demographic is significantly more susceptible to accidentally voting informally, which is to be expected given what is known both about informality and about the demographics of Labor’s support, drawing as it traditionally has on those from lower socioeconomic and migrant backgrounds.

549 A higher than usual rate of new voters, unused to preferential systems of voting, might also be expected to contribute to accidental informality. 550 Levy 2010, ‘The Latham factor? Informal vote spike sparks AEC probe’, Sydney Morning Herald, 22 August 2010. 551 See, for example, Snider 1979, ‘The partisan component of the of the informal vote’, Politics (XIV:1). 552 The region is also of historical importance to Labor, and as such has been the subject of unfortunate political obsession by recent Australian governments. 170

Figure 7.7: ALP first preference vote against total, accidental and intentional informality, 2010

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Figure 7.8: Change in Labor two-party-preferred vote and seat count by percentage of Labor support in accidental informal vote

With accidental informality concentrated so heavily in Labor seats – in 2010, Labor won the top 11 and 18 of the top 20 seats for accidental informality – the impact is relatively minor. Yet, were accidental informality to be largely eliminated through some form of vote-saving measure, be it optional preferences, ticket-based or otherwise, it is reasonable to expect that Labor would see some electoral benefit. Figure 7.8 illustrates the hypothetical change in the notional Labor two-party-preferred vote and seat-count at the 2010 election resulting from a complete elimination of accidental informality, against varying rates of assumed Labor two-party-preferred support within the accidental informal vote.553 What is less obvious is why Labor has done so little to address the issue, when there are clear practical solutions to accidental disenfranchisement. The answer lies in the conjunction of these solutions and the practical realities of preferential voting.

Responses to Informality

Any response to informality must address the known issues that drive informality. Informed intentional informality554 – that is, informality deriving from a protest against compulsion or the options on offer – cannot be addressed by electoral reforms other than through a radical overhaul of the broader electoral system. For example, a move to a voluntary,

553 The 2010 election is preferred to 2013 or indeed any other poll simply due to it being a particularly close result, highly sensitive to any change in vote. This election of course also returned four independent candidates and one Green. Their seats are distributed here according to the notional 2PP count. 554 I offer my apologies to the reader for the alliteration. 172 entirely proportional, non-preferential system would likely slash informality, but is such a huge departure from existing and historical practice in Australia as to warrant no further attention here. Further, where informality stems from disillusionment or disinterest with the broader political sphere, the responsibility and any potential solution lie beyond the sphere of electoral reform. Programs of education and voting assistance offer some benefit, yet are already extensive, and thus any further push faces the problem of diminishing returns.

The ‘low-hanging fruit’ is to be found in the area of accidental informality, which can be addressed through a variety of mechanical means. Further, given the Australian state compels its citizens to participate, there is arguably a responsibility to better address this disenfranchisement, much as has been done in the areas of turnout and more recently enrolment. However, of as much practical importance as the utility or indeed morality of any mechanical response to informality is its partisan impact. As with other mechanisms discussed in this thesis, party attitudes towards any change to the present electoral apparatus reflect the partisan experiences of parties under that system. In this case, the prospects of both ticket voting and optional preference voting are intimately connected to the partisan impact of compulsory preferential voting. In short, any party dependent on preferences has a vested interest in maintaining those preference flows. Over recent decades, such a situation has increasingly come to apply to the Australian Labor Party, as their reliance on preference flows from third parties has increased.555 Figure 7.9 illustrates this trend, with Labor declining from an almost total lack of preferences received in the 1950s, to relying on preferences for almost thirty per cent of its two-party-preferred vote at the 2013 Australian Federal Election.

The figure somewhat understates the historical reliance of the Coalition on preferences, as it does not distinguish between its constituent parties. It does however clearly highlight the electoral benefit it drew from the Great Labor Schism of the 1950s to 1970s, as well as an increasing reliance on preferences over recent decades, albeit not to the same degree as Labor. Further, Figure 7.10 illustrates the Coalition’s belated response to preferential voting, demonstrating the decline in three-cornered contests – that is, contests featuring two competing Coalition candidates. Recognising the danger of preference leakage under a split vote, the Coalition’s parties have largely, though not completely, agreed to avoid running candidates against one another. The sum of these trends is that, over the past three decades, the reliance of the major parties on preference flows has essentially reversed.

555 Or more accurately, from those voters who gave their first preference to third-party candidates. 173

Figure 7.9: Primary vote as a percentage of two-party-preferred vote, 1946-2013

Figure 7.10: Three-cornered contests at Federal Elections, 1984-2013

As accidental informality stems largely from voters failing adhere to the demands of compulsory preferential voting, so any solution must address this failure. There are two broad categories into which such attempts may be grouped. The first consists of attempts to aid voters in meeting the demands placed upon them by preferential voting. This includes education and awareness programs, as well as mechanisms for aiding voters during the act of voting, up to and including electronic voting. These offer the potential to also benefit those parties dependent on preferences, by minimising the accidental informal vote.

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Those responses in the second category approach the issue from the opposite direction, proposing instead to lessen the demands of preferential voting. The two dominant proposals in this respect are ticket voting and optional preferential voting. Both systems fundamentally alter the nature of preferential voting, by changing the manner in which preferences are expressed. This presents the potential for significantly greater partisan impact, and it is consequently these proposals that have seen the greater level of political attention and debate. The following sections consider the mechanics and history of ticket voting and optional preferential voting. They provide an overview of their uses and limitations, as well as analysing their partisan impact, and the consequent self-interest on display in the positions parties have taken regarding them.

Ticket Voting

Ticket voting involves the provision by candidates or parties of their favoured preferential rankings of those candidates standing for election. Such a system can take two forms – what might be termed ‘formal’ and ‘informal’ ticket voting556 – depending on whether voters are given an explicit choice of adhering to a ticket. Under a system of formal ticket voting, such as that employed in Australian Senate elections, voters are explicitly informed that their vote will follow a lodged ticket, and in this case given the alternative of instead expressing their own preference. By contrast, informal ticket voting involves the ‘saving’ of votes, by treating incomplete ballots as if they followed a lodged ticket, without the express consent of the voter.

A system of informal ticket voting, in the form of ‘vote saving’ provisions, represents the simplest alteration to the existing practice of compulsory preferential voting for the purposes of admitting otherwise informal ballots to the count. Under such provision, all parties and candidates are entitled to lodge a ticket of preferences, and any incomplete ballot that follows that ticket to the point of preference exhaustion is deemed to follow that ticket in its entirety. Such a system is in operation in South Australia, with Section 93 of the South Australian Electoral Act providing that any vote with at least one preference indicated, including via a tick or cross, and on which all indicated preferences accord with a lodged preference ticket, should ‘be taken to have been marked in accordance with that ticket’. The South Australian system has the effect of saving roughly half of all ballots that would otherwise be deemed informal.557 Such a system would have a similar impact at the

556 Somewhat confusingly, it must be admitted, given the dominant usage of these terms within this chapter and the broader field. 557 Around one-fifth of informal ballots feature ‘unacceptable’ preferencing – that is, incomplete preferencing that does not accord to a lodged ticket – with the majority of the remainder being blank or featuring only messages. Joint Standing Committee on Electoral Matters 2011, Op. Cit., 130. 175

Commonwealth level, with estimates suggesting as much as 42.12 per cent of the informal vote at the 2010 Federal Election would have become admissible under such a provision.558

Yet the South Australian system also has significant issues with transparency. Sections 76(1) and (2) dictate that voters must cast a vote in line with the demands of full preferential voting, while Section 126 prohibits any public advocacy of the marking of ballots in any other manner.559 The intention of Section 126 is to insulate the broader system against any drift away from compulsory, full preferential voting, but in practice it serves to render the vote savings clause a ‘secret’ provision. It is entirely plausible that some voters who cast incomplete ballots have their votes ‘saved’ and distributed in a manner contrary to their intentions and without their knowledge. While this number would be very small – analysis suggests a mere 6.2 per cent of saved ballots at the 2010 South Australian election would have had even their second preferences examined560 – the very real potential remains for a decidedly non-democratic interpretation of votes.

For those who administer the system, the strengths outweigh the weaknesses. Indeed, the system was developed and driven by electoral administrators, operating under loose direction from the State government to draft a new electoral act. The guiding principle was one of ease of access:

...with a compulsory system every effort should be made to make it as easy as possible for an elector to comply with the legislation and in doing so be as effective as possible in casting a meaningful vote.561

The particulars of the system – that it captures that significant proportion of the accidental informal vote, single-preference ballots – make it uniquely appealing to any party dependent on preference flows, with a substantial accidental vote among a core demographic, or as is the case of the Australian Labor Party, both. Indeed, the Labor- majority JSCEM recommended its adoption in 2011, and would have done so earlier were it not for unfounded concerns that it might open the door to a de-facto optional preferential system.562 Conversely, the Coalition members of JSCEM argued against the proposal on a number of grounds: that it was less effective than OPV at including informal votes; that the ‘saving’ of votes fundamentally involved ‘tampering with the method of counting votes and ‘deeming’ votes to have been cast when that has not occurred’; and that such a practice might well prove to be Constitutionally unsound, on the basis that those whose votes were

558 Ibid., 139. 559 While clearly impinging upon the implied constitutional right to free political communication, the precedent of Langer would see this clause upheld, were it to be challenged. 560 Ibid., 135. 561 Ibid., 135. 562 Ibid., 145-146. 176

distributed according to an unpublicised ticket system could not be said to have ‘chosen’ where their vote might end up.563

The second form of ticket voting, with tickets expressly opted into by voters, poses no such problem. Indeed, the ticket voting system employed in the Senate was expressly deemed constitutional by the High Court in McKenzie v Commonwealth (1984), almost immediately upon its introduction.564 Yet, while the Labor majority argued that this decision would protect a House of Representatives system run along South Australian lines, they neglected the key distinction – that Senate voters are explicitly informed that a single-preference vote will be distributed according to a party-lodged ticket.

The Senate system, as described earlier in the chapter, offers voters the choice of two alternative voting methods – an above the line, single-preference indication of support for a party-supplied voting ticket, or a below the line full, compulsory expression of preferences. Such systems are useful where there are a large number of candidates, such as in multi- member electorates attracting a range of parties each standing multiple candidates, and particularly where full preferencing is required. They drastically simplify the process of voting and slash the rate of informality, as the case of the Senate discussed above amply demonstrates. However, while legally-sound and highly effective at minimising informality, ticket voting in such a system as is employed in the Australian Senate introduces one fatal flaw – it allows, even encourages, the election of candidates from vanishingly small first preference votes.

The electoral system employed in the Australian Senate is a unique construction. It features a single-transferrable-vote incarnation of proportional representation, coupled with compulsory, full preferential voting, and the aforementioned optional voting tickets. Both proportional representation and preferential voting encourage the participation of minor players by enhancing their prospects of winning election, or at least of impacting the contest. However, the introduction of tickets creates a situation where cascading preference flows can see minor candidates reach the quota necessary for election – 14.29 per cent of the vote in standard, half-Senate elections – from mere fractions of the popular, first preference vote. This in turn encourages more minor candidates to stand, amplifying the problem.

Minor parties and independent candidates have been winning election to the Senate for decades, most notably the Democratic Labor Party, the Australian Democrats, and the Australians Greens and its forerunners. Notable independents, such as Tasmanian Senator

563 Ibid., 191-197. 564 McKenzie v Commonwealth [1984] HCA 75; (1984) 59 ALJR 190. 177

Brian Harradine565 and South Australian Senator Nick Xenophon have also parlayed extra- parliamentary or State-level profiles into successful independent Senate campaigns. However, it was in 2004 that the first candidate won an unexpected election through ticket- directed preferences. Senator Steve Fielding, of the embryonic Family First party, was surprisingly elected from just 1.88 per cent of the first preference vote. Through fortunate preference flows, he remained in the count sufficiently long enough to overtake the third Labor candidate, receiving that party’s preferences upon exclusion, and beating the Greens – who had polled 7.67 per cent of the first preference vote – to the final Victorian Senate seat. With Senator Fielding representing a conservative, Christian party, he was significantly more sympathetic to Coalition policies, and Labor consequently learned from their mistake, with tighter preference exchanges with the Greens becoming the norm. However, with the Labor vote increasing, it was the Coalition who became vulnerable to being squeezed out. The 2010 Federal Election saw Democratic Labor Party candidate John Madigan win the preference lottery from a first preference vote of 2.33 per cent, helped by a favourable ballot draw, well ahead of the ALP. Madigan edged out Fielding among a number of other competitors to overtake the third Coalition candidate and win the final seat on Coalition preferences. Notably, a key bundle of preferences came from the Australian Sex Party, a party heavily backed by the adult industry, with a platform focusing against censorship and regulation, diametrically at odds with those of the staunchly Catholic, ‘unashamedly pro-life’ DLP.566

By 2013 the penny had dropped, with candidate and party nominations counts exploding. In New South Wales, 110 candidates from 44 parties stood for election, with the ballot paper reaching the maximum printable width of one metre, necessitating the text be shrunk to the degree that magnifying sheets had to be made available for voters. Further, these minor players began to explicitly work together, forming a ‘minor party alliance’, setting up front parties, and enlisting expert help to devise preference flows that would maximise the probability of one candidate striking it metaphorically rich.567 With several other insurgent parties further muddying the preferential waters, a number of candidates won surprise electoral victories. In New South Wales, the libertarian Liberal Democratic Party gained a seat largely through a favourable ballot draw, which saw its ticket placed first, far ahead of the Liberal Party, and consequently profiting at its expense. In South Australia, Family First returned to the Senate from a first preference vote of just 3.76 per cent. Yet it was in Victoria and Western Australia that the issues with ticket voting became most apparent. Ricky Muir of the Australian Motoring Enthusiasts Party harvested sufficient preferences to win election from just 0.51 per cent of the first preference vote. Further, had the Australian

565 Albeit beginning his parliamentary career at a double-dissolution, and in an era where half-Senate candidate counts in Tasmania barely reached double figures. 566 Fyfe 2010, ‘Red-leather day for the DLP’, The Age, 12 September 2010. 567 Maley 2013, ‘Optional Preferential Voting for the Australian Senate’, Electoral Regulation Research Network/Democratic Audit of Australia Joint Working Paper Series, No. 16 (November 13), Melbourne: Electoral Regulation Research Network. 178

Electoral Commission not misplaced a crucial bundle of votes, leading to the Western Australian count being cast out, it is probable that Wayne Dropulich of the Australian Sports Party would have graced the red leather of the Senate from a first preference base of just 0.26 per cent – fewer than 3000 votes in an electorate of 1.45 million, and the 21st of 27 parties.

To some degree this is democracy and preferential voting at work. There is no doubt that these candidates were fairly elected under the rules in operation. Yet it also equally clear that such outcomes do not represent a clear interpretation of the wishes of the electorate. In the case of Western Australia, the original result hinged on just 14 votes at the 139th count of the preference distribution, separating two candidates, neither of whom could win election. The outcome of that contest would however set in motion a complex chain reaction of candidate eliminations and preference distributions, determining which of two distinct candidate pairings won the final seats.568

It might be argued that voters have a responsibility to understand the ticket they are opting in to, and how their vote might consequently be distributed. Yet, regardless of the opinions of the learned Justices in Judd v McKeon, a voter cannot be expected to be able to express an honest, preferential ranking of all 43 groupings – more than a few of them front parties with misleading names set up solely to harvest preferences – that stood for the 2013 Senate election in New South Wales. Nor can they be expected to understand the intricacies of preference distribution down to the minutiae of weighted or unweighted Gregory methods. Compulsory voting in such a system places unreasonable demands on voters, yet in ceding control from voters to parties, ticket voting is an unsatisfactory solution.

Without any recourse to principle, an instinct for self-preservation has seen the major parliamentary players turn their attention to the issue. Ticket voting may cede control to parties, but as far as the major players are concerned it is now ceding it to the wrong parties. A number of possible solutions have been floated, with the dominant suggestion being replacing ticket voting with some form of party-based, above-the-line preferential vote. Yet compulsory preferencing would simply revert to the problem of candidate overload experienced prior to the reforms of 1984 – by way of example, at the last half- Senate election before those reforms, in 1980, every State and Territory featured less individual candidates than there were candidate groups at the corresponding 2013 Senate contest.569

568 Green 2013, ‘Western Australia Senate Count - Summary of the Distribution of Preferences’, ABC Elections, 3 October 2013. 569 180 Senate candidates stood in 1980, and 529 in 2013. Accounting for the small increase in the size of the Senate, the ratio of candidates to seats increased from 5.29 to 13.22. 179

Rather, to replace ticket voting without reverting to a system that serves only to increase accidental informality, any above the line would need to leave preferencing at least partially optional. It is to the convoluted history of this interpretation of preferential voting that the chapter now turns.

Optional Preferential Voting

Systems of optional preferential voting (OPV) – what is referred to in other contexts as the Alternative Vote – relax the demands of preferential voting, by lowering the required preferences for a ballot to be admitted to the count. Under OPV, a voter can provide as many or as few preferences as they wish. As votes are counted and losing candidates are eliminated, any vote that runs out of preferences, becoming ‘exhausted’, is discarded. In one fell swoop, OPV renders the vast majority of accidental informal votes admissible to the count. Incomplete or non-sequential ballots are valid until the point at which clear preferences end; indeed, any ballot on which at least one preference can be identified can be counted. Further, if a blank ballot is an acceptable – and legal – action under compulsory voting, OPV completes the response to accusations that compulsion violates freedom of conscience, by allowing electors to cast votes only for those candidates of which they approve. In this respect, it addresses both the majority of accidental informal voting, and potentially some element of intentional informal voting.

A variety of systems of OPV are in operation in Australia, across a number of jurisdictions: the single-member-electorate Legislative Assemblies of New South Wales and Queensland; the multi-member electorate Legislative Assemblies of Tasmania and the Australian Capital Territory and Legislative Council of Victoria; and in the State-wide electorate Legislative Council of New South Wales.570 Despite this widespread usage, OPV represents a significant departure from existing Commonwealth electoral policy. From the introduction of compulsion, it has been the responsibility of all Australian voters to express a preference regarding all candidates on offer, whether they approve of said candidates or otherwise. Any relaxation of that policy, be it in enrolment, attendance or preferencing, represents an undermining of the theoretical argument behind compulsion. For Ben Reilly and Michael Maley, compulsory voting and compulsory preferences are inextricably interlinked, to the degree that OPV represents a challenge to the entire institution of compulsion:

570 A comprehensive table of the various systems employed through the history of each parliament can be found in Farrell and McAllister 2006, The Australian Electoral System: Origins, Variations and Consequences, Sydney: UNSW Press, 50-51. New South Wales is particularly notable in that OPV is Constitutionally-enshrined, meaning attempts at resolving system disparity are more likely to succeed from the Commonwealth’s end. 180

[I]f it were to be conceded that voters have the right to be indifferent in regard to a subset of candidates, it would seem to follow that voters have the right to be indifferent in regard to all candidates.571

Such logic conjures up Starke’s categorisation of compulsory voting as a ‘wrong law’, albeit in a different manner – while OPV may see one element of compulsion relaxed, others remain enforced, depending this time upon the opinions of voters rather than the method of their abstention. However, it might be argued that the responsibility of Australia’s electorate to ‘choose’ its representatives can be adequately satisfied by the indication of a single preference. Indeed, there was certainly nothing unconstitutional or philosophically unsound about the single-member-plurality systems in wide operation in the years immediately following Federation.

OPV has also attracted criticism on practical grounds. One key argument is that OPV risks becoming a de-facto system of first-past-the-post, as high rates of preference exhaustion mean early count leaders are far more likely to win election. Vote exhaustion has generally fallen within the range of 10 to 12 per cent of the total formal vote, but has risen in recent elections, with the 2012 Queensland State Election returning a vote exhaustion rate above 20 per cent. Indeed, in divisions where the final candidate pairing included at least one non- ALP, non-LNP candidate, the exhaustion rate rose to 28.6 per cent. Further, these figures reflect a far greater underlying rate of potential exhaustion, as they account for only those votes which were distributed.

Of greatest concern is the practice known as ‘plumping’, where voters indicate only a single preference. Analysis of the 1999 NSW State Election suggested some 55 per cent of all ballots took this form, while recent Queensland elections have seen the proportion of single-preference votes rise above 60 per cent.572 This was a key concern for JSCEM when it recommended against the adoption of OPV:

…there is a strong chance that an optional preferential system will eventually lead to voters casting only one preference as the realisation sinks in to the voters that to indicate second and subsequent preferences will decrease the possibility that their most preferred candidate will win.573

571 Reilly and Maley 2000, ‘The Single Transferable Vote and the Alternative Vote Compared’, 44, in Bowler and Grofman (eds.) 2000, Elections in Australia, Ireland and Malta under the Single Transferable Vote: Reflections on an Embedded Institution, Ann Arbor: University of Michigan Press. 572 Farrell and McAllister 2006, Op. Cit., 93-94; Queensland Department of Justice and Attorney General 2013, Electoral Reform Discussion Paper, Brisbane: Queensland Government, 36. 573 Joint Standing Committee on Electoral Matters 2000, The 1998 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 113. 181

While such behaviour is a perfectly valid political expression, it consequently deprives OPV of one of the key features of CPV – that winning candidates are supported by a majority of the electorate. However, the claim of CPV is not as strong as it might be – neither enrolment nor turnout is universal, meaning few winning candidates can claim majority support. Further, given that, as was argued in Judd v McKeon, a voter need not support either candidate in order to make a choice between them, claims of majority support under systems of compulsion appear somewhat fanciful.

Regardless of any issues of legitimacy, the more pressing impact of plumping is on the fortunes of parties reliant on preference flows. It is an inherent feature of OPV is that a certain proportion of votes will exhaust rather than be distributed to one of the final two candidates, as they would under CPV. The rate of vote exhaustion can be significant. According to Farrell and McAllister, at the 1999 NSW State Election some 55 per cent of ballots featured just a single preference, while one in eight ballots exhausted before the end of the count. Further, this latter figure while steady through the intervening decade, jumped to 20 per cent at the 2012 NSW State Election.

This simple reality dictates that OPV carries with it significant partisan implications. By way of example, Figure 7.11 illustrates the hypothetical decrease in the Labor two-party- preferred vote and seat count at the 2010 Commonwealth election by the rate of vote exhaustion, assuming uniform exhaustion across all voters.

Figure 7.11: Change in Labor two-party-preferred vote and seat count by rate of preference exhaustion

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While Labor are the most susceptible in the current political environment, any party dependent on the flow of preferences from smaller players will suffer under OPV, as this history of the policy amply illustrates. While also pursued at the Commonwealth level by the Whitlam Labor government in the 1970s to end the influence of the Democratic Labor Party, and introduced by the Wran Labor in New South Wales to capitalise on the split Coalition vote in triangular contests, it is Queensland’s experience of the policy that provides the most thorough practical example. OPV was introduced in Queensland in 1992, on the recommendation of the Electoral and Administrative Review Commission (EARC), following its review of the State’s electoral system. While the EARC was established in response to concerns over the fairness of the system,574 in this case its reasoning derived from the ethical issues inherent in compulsory voting:

...under the current compulsory preferential system voters are being required to express views they may not have. Encouraging voters to express preference is ultimately a matter for candidates and parties, not the electoral system.575

The Goss Labor government had further incentive to act. Queensland’s conservative parties were then in bitter opposition to one another, a result of the National Party’s dominance under Premier Joh Bjelke-Petersen and his subsequent, and dramatic, fall from grace.576 Grasping the opportunity to capitalise on the split vote, Labor adopted the recommendation. While the conservative parties would come to terms and briefly hold government in a hung parliament between 1996 and 1998, the government was beset by scandals and was swept from power at the 1998 State election. Notably, 1998 also saw a significant transferral of both support and seats from the Liberal and National Parties to the One Nation Party, a nativist and anti-political grouping led by the dis-endorsed former Liberal Pauline Hanson. The new Labor Premier Peter Beattie capitalised on these divisions, mounting a highly successful ‘Just Vote 1’ campaign ahead of a landslide win at the 2001 State election.577 His strategy saw the rate of single-preference voting leap, from 20.70 at the 1995 election to above 60 per cent in 2001.578

574 Queensland’s electoral districts displayed significant malapportionment in favour of rural voters. While popularly known as the ‘Bjelkemander’, the system originated under the Hanlon Labor government, being subsequently adjusted in favour of the National Party following the change in government. The fluid partisan impact and motivations involved in this issue foreshadow those regarding OPV. 575 Quoted in Hurst 2010, ‘The No. 1 reason for Labor to worry’, Brisbane Times, 10 September 2010. 576 By way of example, of the 97 seat-level contests in Queensland at Commonwealth elections between 1984 and 1993, just five did not see Liberal and National Party candidates running against one another. Green 2013, ‘The Disappearance of Three-Cornered Contests at Federal Elections’, ABC Elections, 12 December 2013. 577 Wanna and Williams (eds.) 2005, Yes, Premier: Labor Leadership in Australia's States and Territories, Sydney: UNSW Press, 82-83. Labor had trialed such a strategy to good effect at the Mulgrave by-election in late 1998. 578 Electoral Commission of Queensland, Ballot Paper Survey Report: State General Election, 2009, Brisbane: Electoral Commission of Queensland, 8. Unfortunately, no such statistics exist for the 1998 election. 183

The ‘Just Vote 1’ campaign caused collateral damage at the Commonwealth level, with Queensland’s informal vote increasing from 3.33 at the 1998 Australian Federal Election to 4.83 in 2001. Informal ballot analysis points the finger squarely at Beattie – the proportion of informal votes featuring only a single preference was 46.42 per cent in Queensland, compared to an average across the other States and Territories of 30.68 per cent. While the absence of informal ballot analysis prior to 2001 does not allow for this increase to be clearly defined, subsequent elections saw Queensland’s percentage steadily decline, reaching 32.2 per cent in 2010, approximate to the 31.8 per cent observed in New South Wales, where a similar system operates at State level, and with the average across the remaining States and Territories just 21.81 per cent.579

Labor’s beneficial relationship with OPV would not however persist. One Nation’s success proved short-lived, with the party collapsing amid fractious infighting, while the Liberal and National parties, reconciled to one another and alive to the danger of vote-splitting, came to an agreement that saw the number of three-cornered contests slashed. This relationship progressed, eventually culminating in the merger of Queensland’s Liberal and National parties to become the Liberal National Party of Queensland in 2008.

Over the same period, Queensland saw the Greens increase their vote just as they had across the country, jumping from 2.51 per cent in 2001 to 6.76 per cent in 2004. Further, while much of the rapid increase in the Greens vote elsewhere can be explained by the demise of the Australian Democrats, the earlier party had never gained much traction in Queensland, amplifying the impact on Labor. Further, Labor’s own vote was in free-fall, declining by almost half between 2001 and 2012, as voters turned to the Liberal National Party, the Greens and another anti-political insurgency, this time led by the colourful rural independent and former-National Bob Katter. Within less than a decade, the reliance of Queensland’s major parties on preference flows had essentially reversed, leaving Labor highly susceptible to the kind of vote exhaustion they had themselves encouraged.

Facing almost certain defeat at the 2012 Queensland State Election, Premier Anna Bligh publicly mused about a return to compulsory preferences. Naturally, Bligh explained that rather than base partisan self-interest, she was driven by concern over Queensland’s high informal vote in Commonwealth elections, caused as it was by confusion between two disparate systems.580 Bligh commissioned a review from the Attorney-General, but subsequently abandoned the proposal under pressure from the Opposition and the

579 Dick 2011, Attorney-General's Report to Cabinet on Optional Preferential Voting in Queensland, Brisbane: Queensland Government, 8; Australian Electoral Commission 2011, Op. Cit., 71-78. 580 Barrett 2010, ‘Bligh floats voting changes to boost poll chances’, The Australian, 10 September 2010. Beattie, by then safely removed from the pressure of the polls, advocated that the issue be instead addressed by all jurisdictions turning to OPV. 184 public.581 With the Liberal National Party winning the subsequent election in a landslide, OPV remains securely entrenched.582

Indeed, rather than any rolling back of OPV, it seems more probable that it will be introduced elsewhere. While some elements within the Liberal Party – largely the same that have consistently opposed compulsory voting – have consistently advocated for OPV for House of Representatives election, it is for the Senate that OPV now appears most likely to be introduced. JSCEM first seriously considered the matter following the surprise success of Family First at the 2004 Australian Federal Election. The Coalition majority recommended the abolition of ticket votes, but with the retention of above-the-line voting, coupled with compulsory preferences.583 While accepting the need for reform of some kind, the Labor members were in strong opposition to the proposal, instead recommending OPV. While the proposal was made before the recent proliferation of micro-parties, the Labor members correctly recognised that compulsion in preferencing among the up to 29 candidate groups that ran in 2004 would increase the complexity in voting to a degree that would drive a greater level of informality. Further, they contended that CPV would open the door to ‘ballot flooding’, the practice of registering dummy parties to increase the likelihood of accidental informal votes.584 In any case, the government rejected both proposals on the basis that any change would confuse voters.

Following the 2007 change of government Labor proved equally resistant to change. The Greens proposed a partial-preferential voting (PPV) solution – a variant on OPV, requiring a minimum number of preferences, usually equivalent to the number of vacancies but in this case being four candidate groups – but the bill was rejected, again on the grounds that it would increase informality.585 With the matter considered and cast aside, JSCEM’s inquiry into the 2007 Federal Election barely touched on Senate voting, restricting itself to a brief consideration of Senate informality, and a dismissal of concerns about the particulars of

581 Wardill 2011, ‘Government dumps bid to alter voting’, Courier Mail, 17 February 2011. The official argument, that no link could be drawn between State OPV and Commonwealth informality, derived primarily from the observation that non-OPV South Australia also saw high informality. Suffice to say it does not bear scrutiny. 582 The Queensland Liberal-National government issued a broad-ranging discussion paper in 2013 that canvassed a number of potential reforms, from the reversion to compulsory preferencing to a relaxation of compulsory voting. The result legislation was however largely restricted to matters of voter identification and political finance. Queensland Department of Justice and Attorney-General 2013, Op. Cit.; Electoral Reform Amendment Bill 2013 (Queensland). 583 Joint Standing Committee on Electoral Matters 2005, The 2004 Federal Election, Canberra: Australian Electoral Commission, 205-232. 584 Ibid., 374-375. They raised the example of the 1974 double dissolution, where ten vacancies attracted 73 candidates, ‘most’ of the 18 candidate groups being allegedly set up by the New South Wales Liberal Party to drive up informality among Labor voters, and the 12.3 per cent rate arguably costing Labor a seat. 585 Joint Standing Committee on Electoral Matters 2008, Advisory Report on the Commonwealth Electoral (Above-the-Line Voting) Amendment Bill 2008, Canberra: Parliament of the Commonwealth of Australia. 185 preference surpluses.586 For the House, Labor recommended a return to the de-facto-OPV vote savings provisions that had been a feature of the act prior to Albert Langer’s campaign, coupled with a strict prohibition on any advocacy of voting in such a manner – a restriction, as the Opposition noted, entirely incompatible with the realities of the internet age.587 Further, as detailed in the previous section, the proposal was based on a fundamental misunderstanding of the South Australian vote savings provision, which Labor did in fact prefer and would propose following the 2010 election.

Despite another surprise Senate win at the 2010 election, JSCEM paid no heed to the issue.588 Only when preference harvesting reached critical mass in 2013 did the Parliament’s major players became enlightened to the power for Senate ticket voting to undermine their influence, and granted some urgency to addressing the matter. Following the election, both the Greens and independent Senator Nick Xenophon proposed bills that would introduce OPV above the line, and for once the major parties took them seriously. The customary post-election JSCEM was fast-tracked, with an interim report tabled that dealt specifically with the Senate voting system.589 The bi-partisan report was not even vaguely subtle, opening with the combative contention that ‘the 2013 Federal Election will long be remembered as a time when our system of Senate voting let voters down’. The Committee recommended a number of reforms, most notably the introduction of OPV above the line and partial-preferential voting (PPV) below it.590 Senator Xenophon, in his additional comments, expressed his hope that the opportunity would be grasped to put aside party loyalties and reforms the Senate system for the betterment of Australian democracy:

As the Committee’s report states, the Senate’s voting system has always been subject to political manoeuvring, at least to some extent. It is my view that it is time to move past this and establish a system free from party politics and gaming of preferences through group voting tickets. The Senate voting system should be used by voters, not by parties or those with vested interests.591

586 Joint Standing Committee on Electoral Matters 2009b, The 2007 Federal Election, Canberra: Parliament of the Commonwealth of Australia, 227-228, 308-317. That no micro-party candidate won election in 2007 may have been a contributing factor to this lack of attention. 587 Ibid., 331. 588 With Labor and the Greens having negotiated a tight preference swap it was of little immediate relevance, while the Coalition were perhaps preoccupied by their opposition to Direct Enrolment. 589 Joint Standing Committee on Electoral Matters 2014, Interim report on the inquiry into the conduct of the 2013 Federal Election: Senate voting practices, Canberra: Parliament of the Commonwealth of Australia. 590 The remaining recommendations focused on tightening the requirements for party and candidate nomination, while thresholds were considered but deemed both unnecessary and potential problematic in Constitutional terms. 591 Xenophon 2014, ‘Additional Comments – Senator Nick Xenophon’, in Joint Standing Committee on Electoral Matters 2014, Op. Cit., 65-67. 186

Yet such an opportunity would not have arisen had the interests of the major parties not been so visibly threatened. Further, as Brian Costar notes, the very situation that has made reform a party priority also serves to stymie its potential:

Unusually for JSCEM, this was a unanimous report, so we would expect any legislation based on it to easily pass both houses. But there is a snag. The micro- parties have threatened to punish the government by voting against it if it tries to introduce OPV, but if it doesn’t, it risks a repetition of 2013 at the next election. The bill, as they say, is "on hold".592

Senators from micro-parties are every bit as alive to their own partisan interests as those from the established players, and so long as they control the balance of power in the Senate they are in at least some control of their destinies. With State elections now experiencing the same proliferation of candidates,593 something will however have to give.

In any case, while OPV might solve some of the issues involved in the Senate voting system, it would also introduce its own. The mechanics of single-transferrable-vote implementations of proportional representation (STV-PR), dominant in Australia, complicate matters. Under STV-PR, candidates are elected based on their attainment of a ‘quota’, a set fraction of the total votes cast. Under the commonly used Droop system, a quota is determined by dividing the total formal vote by the number of vacancies, plus one. With compulsory preferencing, this ensures that every candidate attains the same level of support, while the final eliminated candidate cannot possibly have reached a quota of their own.594 However, as votes exhaust under OPV the total formal vote decreases, leading to shrinking quotas. The common response, as was recommended by JSCEM for the Senate, has been PPV.595 PPV has has not however proven particularly effective, particularly as the seat-count increases. In New South Wales, the 21 vacancies at each half-Council election produce an initial quota of 4.55 per cent, but as votes exhaust the final candidate is routinely elected from a far lower quota. At the 2011 State election, five candidates remained in the race for the final four vacancies at the 308th step in the count. With the lowest eliminated, the remaining four candidates were elected from 0.896, 0.727, 0.569 and 0.563 of a quota respectively, plus the undistributed 0.556 of the unlucky fifth. Yet, as Michael Maley argues, a shrinking quota is not necessarily an inferior alternative to any system in which a candidate reaches a quota courtesy of ‘ballot paper numbers written insincerely and/or at random by voters who have

592 Costar 2014, ‘In the Senate, below or above the line, you decide’, The Age, 4 July 2014. 593 The 2014 Victorian State Election saw Legislative Council Nominations leap from 207 to 351. 594 The specifics of preference transfer weighting undermine this ideal somewhat. See Farrell and McAllister 2003, ‘The 1983 Change in Surplus Vote Transfer Procedures for the Australian Senate and its Consequences for the Single Transferable Vote’, Australian Journal of Political Science (38:3). 595 This is the requirement in the Legislative Councils of New South Wales and Victoria and the Tasmanian House of Assembly. 187

in fact run out of genuine preferences.’596 Further, when combined with above-the-line OPV, as is the case in New South Wales, PPV requires parties to stand a minimum number of candidates, despite the vanishingly small probability of those at the bottom of the ticket being successful. In turn, this increases the degree of difficulty for below the line voting.

Rather than attempting to minimise the occurrence or impact of shrinking quotas, one alternate proposal embraces them. A reiterative counting system essentially restarts the count from the beginning following the exclusion of every unsuccessful candidate, lowering the quota for election for all candidates and ensuring all vacancies are filled from the same number of votes.597 Such a system would be entirely impractical for a hand-count. STV-PR preference distributions in Australia are predominantly computerised however, and so while such a system would require that the counting software be re-written, but beyond that would add no more complexity to the count. Where the added complexity would be felt is in public understanding of the system, further adding to the arcane, black box nature of STV- PR processes and outcomes. This is however the reality of STV-PR: it is inherently complex and packed with issues to which there are no simple, compromise-free solutions.

Electronic Voting

Electronic voting offers a means to vet the formality of ballots before they are deposited, without requiring any alteration to the underlying system of compulsory preferential voting.598 Such systems also provide the capacity to supply explanatory material and electronic ballots in a broad range of languages to all voters. While there have been some trials of electronic voting in limited contexts – for voters with disabilities, at international polling stations, and for serving defence personnel599 – the only system in widespread operation in Australia is that of the Australian Capital Territory. First introduced at the 2001 Territory election, the system now accounts for one quarter of votes cast at that level. The specifics of the system serve to almost completely eliminate accidental informality: the machines allow only formal or blank votes to be cast, with blank ballots requiring an additional scan of an electronic barcode as confirmation.600 A further category of informality is ‘discarded’ votes, where voters are marked off on the roll and handed a barcode for the

596 Maley 2013, Op. Cit., 18-19 597 Meek 1994, ‘A New Approach to the Single Transferable Vote’, Voting Matters (1). 598 Such a feature has been suggested by the current Minister for Communications, Malcolm Turnbull. Australian Broadcasting Corporation 2013, ‘Malcolm Turnbull suggests electronic voting to reduce number of informal ballots’, ABC News, 10 September 2013. 599 For an overview of such trials at the Commonwealth level, see Joint Standing Committee on Electoral Matters 2009a, Report on the 2007 Federal Election electronic voting trials, Canberra: Parliament of the Commonwealth of Australia. 600 Elections ACT 2014, The electronic voting process, Canberra: Elections ACT. Informality is also already minimised through OPV. The ACT Legislative Assembly is elected via a Hare-Clark system of STV-PR, with as many preferences as there vacancies officially encouraged, but only a single, unique first preference required. 188

entry of their vote, but do not proceed to successfully use a voting machine. While it is conceivable that some voters may accidentally cast a blank ballot, or may find themselves unable to scan their barcode, the vast majority of electronic informality in the ACT may be deemed intentional.

Figure 7.12 illustrates the trends in formality observed in ACT elections since the introduction of electronic voting. The most distinctive trend is that of informality in the paper vote cast at e-voting enabled polling places – that is, a self-selecting sample of voters who choose to vote via paper means. Three explanations suggest themselves: that those voters who struggle with the demands of preferential voting may also feel intimidated by electronic voting; that those voters who cast intentional informal votes as a protest may quite enjoy the opportunity for creative expression, pencil-in-hand; and that those voters who simply intend to deposit a blank ballot may not see the point in bothering with a voting machine, or may not realise it allows a blank vote to be cast.

As to the impact of electronic voting in reducing accidental informality, it has clearly declined in ACT elections. However, such a trend has also been observed at the Commonwealth level, as was illustrated earlier in the chapter. Finally, the overall informality rate has also declined, in contrast to the Federal level, where informality has increased in line with broader national trends. However, this might equally reflect the differing sentiments of Canberrans to their Territory and Commonwealth governments. In the absence of a larger sample it is difficult to draw any firm conclusions.

Figure 7.12: Informality at Australian Capital Territory Elections, 1998-2012

189

Yet, while electronic voting may offer some benefits, and indeed is perhaps an inevitable evolution of the process of voting, it introduces a vast range of new and problematic issues. Beyond the questions of legality raised earlier in the chapter, electronic voting involves a significant logistical cost and introduces unprecedented concerns for electoral security.601 These issues are of great complexity, and it is not the place of this thesis to enter the debate. Rather, they must simply be noted so as to illustrate that, while electronic voting may be of some utility in tackling informality, significant challenges remain to be overcome before it can be employed on a widespread basis.

Conclusion

This chapter has considered preferential voting in the Australian context, with a particular focus on the key issue that accompanies it – informality. While preferential voting is an integral feature of Australia’s electoral systems, the complexity it adds to the process of electoral participation means it is fundamentally tied to a substantial rate of accidentally- spoiled ballots. In examining the causes and partisan impact of informality, and the potential solutions to it, this chapter further illustrates the key arguments of the thesis. Indeed, given its complexity, the puzzle of addressing informality exemplifies these arguments. Fundamentally, electoral apparatus do not exist in a vacuum. They are shaped by, interact with and in turn influence the surrounding institutional context.

Preferential voting is entrenched in Australia because of early experimentation in the unconstrained colonial context. However, it is now a structural feature of an ossified system, difficult to alter, with responses to informality limited by the broader institutional context – the requirements of the existing Electoral Act and the Constitution, the problems posed by disparate systems at State level, the demands of voters, and the electoral interests of the partisan actors in control of the reform process.

A number of solutions to informality have been proposed, but all pose issues of their own. Ticket voting take power from voters, and in PR systems can lead to perverse outcomes. OPV lessens majoritarian tendencies and lowers quotas through vote exhaustion, and poses a challenge to the legitimacy of compulsion. Electronic voting faces legal questions, and raises fundamental issues of logistics and security. Further, any electoral policy will have some impact on the capacity for voters to participate, and as this will be distributed unequally across the electorate, a consequent partisan influence. In turn, this influence drives partisan interest in both the status quo and the future prospects of the system.

601 The Electoral Council of Australia and New Zealand offers two reports on matter: Electoral Council of Australia and New Zealand 2013, Internet voting in Australian election systems, Canberra: Electoral Council of Australia and New Zealand; and Barry, Dacey, Pickering & Byrne 2001, Electronic Voting and Electronic Counting of Votes: A Status Report, Canberra: Electoral Council of Australia. 190

Patterns of informality display disproportionate partisan weight, with core Labor constituencies displaying significantly higher rates of accidental informality. Yet parties must also deal with conflicting imperatives. Labor, being dependent on preference flows, are left in a bind by the realities of preferential voting, as the simplest solution to informality – optional preferential voting – would leave them at a significant electoral disadvantage.

As with all electoral policy, any response to informality must thus consider a number of factors – efficacy in minimising informality, compatibility with the broader institutional context, and partisan impact. While all three are vital, it is the last that fundamentally determines whether or not a policy is to be pursued. Yet partisan effects are fluid, changing as the political context evolves, and so parties’ positions on policies shift over time. The case of optional preferential voting – first introduced by Labor governments to capitalise on a divided conservative vote, yet now a thorn in the side of a preference-dependent party – aptly demonstrates this, dispelling any notion that the confluence of ideology and partisan self-interest is anything but a marriage of convenience.

191

Conclusion

It recurs as a theme in colonial and national history in which the differing interest groups, factions and parties, for widely differing and not infrequently political self- serving reasons, advanced successive measures allegedly aimed at achieving and maintaining a stable and democratic electoral structure.

– Joint Select Committee on Electoral Reform, 1983602

This thesis has examined the interaction between electoral participation, electoral policy, and the institutional context in which both are fixated. With a focus on three key facets of formal electoral participation – enrolment, turnout and formality – the thesis has identified the primary challenges facing Australian electoral democracy and considered potential policy solutions. Alongside this, the thesis has illustrated the means by which the present situation has come about, through an investigation of the broader institutional structure and the processes of institutional development as they relate to Australian electoral democracy.

A picture has emerged of an electoral system struggling to keep pace with the demands of contemporary electoral behaviour, with participation declining across the board despite the best efforts of electoral administrators. Low enrolment rates, particularly among the young, have prompted a new approach to enrolment processes in the face of fierce partisan opposition. Turnout is falling despite compulsion, with a new trend of non-participation observed among groups previously expected to be among those most likely to vote. Finally, formality is also at all-time lows, with solutions to accidental informality resisted on partisan grounds, and a more alarming trend of intentional informality reflecting fundamental dissatisfaction with the electoral options presented.

In seeking to explain this situation, the thesis has established a clear pattern of institutional development. The contemporary electoral reform process is a heavily-constrained path, restricted in a number of fashions. The demands of constitutionality and public legitimacy, the competitive and dissonant nature of the Australian federal system, the restrictive power of path dependency and the unpredictability of future outcomes all serve to constrain the electoral reform process. Indeed, even the key role played by electoral administrators serves to both direct and limit the path of reform. However, partisan self-interest exerts the

602 Joint Select Committee on Electoral Reform 1983, First Report, Canberra: Parliament of the Government of Australia, 1. 192 greatest influence over policy, with outcomes overwhelmingly reflecting the electoral interests of those in control of the reform process.

The particular policy case studies employed through this thesis serve to illustrate these realities, with each demonstrating particular aspects of the present environment. The debates over Direct Enrolment highlight the capacity for partisan interests to stymie an obvious practical solution to problems of participation. Despite electoral enrolment being nominally compulsory, enrolment processes have demonstrably failed to meet the demands of contemporary electoral behaviour. As population mobility has increased, existing systems proved more successful at getting people off the roll than onto it. With younger voters disproportionately impacted, this pattern exerted a clear partisan influence, in turn creating incentives for parties to pursue – or resist – potential solutions. Direct Enrolment presented a means to address shortfalls in enrolment, through granting the state the capacity to initiate enrolment without the consent of voters. Yet, despite the support of electoral administrators and indeed the expectation of voters, the Coalition resisted the policy for obvious reasons of electoral self-interest, and it was not until a change of government that enrolment processes could be modernised.

The Howard Coalition government’s attempts at franchise restriction – and the spectacular manner in which they backfired – illustrate the power of unpredictability and the danger it poses to careless reformers, partisan or otherwise, as well as the difficult situation parties may find themselves in when systemic constraints run at cross purposes to their immediate electoral interests. Having achieved a rare double majority at the 2004 Federal Election, the Coalition enacted two longstanding commitments – the early closure of the rolls upon the calling of an election, and a blanket prohibition on voting by prisoners. Early closure, though advanced in the name of electoral integrity despite no supporting evidence, carried a clear partisan motive. Total prisoner disenfranchisement however was a purely punitive measure with minimal electoral impact, yet as an inherently unjust policy invited challenge. Indeed, the High Court subsequently cast it out, in the process establishing the existence of an implied right to vote in the Australian Constitution, and in doing so not only paving the way for a subsequent challenge to early closure but establishing clear limits on any future attempts at franchise restriction.

While the Howard government was temporarily successful in restricting enrolment and prisoner voting, a third key Liberal Party policy – the relaxation or repeal of compulsory voting, again a move with clear partisan rationale – did not eventuate. Explanations can be found in the broad support compulsion enjoys, not only from opposing parties, but from the Liberals’ coalition partner the National Party, among the broader public, and even from some elements within the party who recognised the logistical benefits of having the state motivate voter turnout. The continued existence of compulsion reflects the limited utility of attempting policy reform in the face of significant opposition, and the competing electoral

193 demands pragmatic politicians may face from the mechanical impact of electoral policies and the popular response to them.

Compounding the partisan impact of compulsion is the growing realisation that its impact may be more limited than previously understood, reflecting the difficulty in applying a uniform policy across a disparate electorate. Recent electoral results suggest particular demographics – the young, mobile, affluent and well-educated – are proving resistant to compulsion. Worryingly, this is a group that had previously been seen as being better equipped to meet the costs of participation. As it turns out, they are also better equipped to meet the costs of non-participation.

Some are not so well equipped to meet the demands of electoral policy. The corollary of preferential voting, informality, reflects the inherent difficulties introduced by elaborate methods of voting, with a system intended to maximise voters’ capacity to participate now serving as a tool for accidental disenfranchisement. Further, with the impact weighing disproportionately on particular demographics, the side effects carry clear partisan implications. However, the potential responses to informality are equally bound up in problems of partisan interest, with both ticket voting and optional preferential voting having significant electoral implications.

Ticket voting, involving a transferral of power away from voters, has long been popular with parties eager to control the flow of preferences. Yet recent elections have seen large groups of minor players strike elaborate preference arrangements, with cascading votes sufficient to elect one of many from remarkably low primary votes. This subversion of the old order has seen parliamentary rivals recognise their shared problem and move to resolve it, demonstrating the capacity for the Parliament and its constituent parties to exert a collective institutional self-interest. However, the insurgent players are equally aware of the situation, and holding as they do crucial votes in the present Parliament, have no intention of reforming themselves back out of power.

Finally, the curious history of optional preferential voting amply displays the manner in which partisan interests evolve over time as electoral realities shift, with policy positions consequently following suit. In its modern incarnation, OPV was first introduced by Labor governments to capitalise on Coalition rivalry and vote-splitting. Yet, with the conservative parties making peace – and in Queensland, merging – and the rise of the Greens leaving Labor dependent on preference flows, the balance has shifted to a point that OPV now exerts a greater partisan impact than does informality, and has consequently become a favoured policy of the Coalition.

In sum, these cases illustrate an institutional environment in which partisan self-interest is the key motivation behind policy support and development. It is however also one in which

194 central actors must deal with a wide variety of constraints, exerted by the Constitution and the courts, electoral administrators and the competing jurisdictions within the federal system, the public and its evolving demography, and the weight of history. By contrast, the initial stages of Australia’s electoral development present as an innovative and experimental environment, largely free of constraint, with electoral administrators left – and indeed, relied upon – to devise the best means to meet the practical challenges of administering a nascent democracy. From this environment came such key pillars of Australian democracy as the secret ballot, compulsion, preferential voting and independent electoral administrators.

However, to yearn for a return to such freedom is impractical. From an early stage, partisan self-interest came to dominate the reform process. Such an outcome was inevitable, and appears irreversible. Instead, if the challenges facing Australia’s electoral democracy are to be met, the centrality of inherently-partisan actors – and hence of partisanship – must be accepted. It is up those who hope to influence policy to understand the interests of those who control the policy reform process, thus enhancing the capacity to both resist and where appropriate exploit partisan interests. As well as detailing the mechanisms by which partisan interests are exerted through the electoral reform process, this thesis also illustrated the means by which they may be disrupted.

The implied right to vote granted by the Constitution bestows a vital shield upon the public, should they be willing to wield it in protection of their franchise. However, this is of utility only in preventing policy that would actively stifle participation. If it is agreed that the maximisation of electoral participation is a good thing for Ausralian democracy, every effort must be made to disrupt the efforts of those who seek to minimise participation on partisan grounds. An activist approach is required, but it must also be supported by a thorough grasp of the institutional environment. The expertise of electoral administrators must be harnessed in support of superior policy outcomes, and the authority of the judiciary employed in their defence. The partisan interests of those in control of reform processes must be fully understood, and when appropriate exploited in the name of reform. It is only through careful consideration of the constraining structure within which policy develops that meaningful reform may be advanced and entrenched.

195

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Periodicals and Media Reports

Australian Broadcasting Corporation 2004, Lateline, 14 June 2004 Australian Broadcasting Corporation 2005, PM, 19 September 2005 Australian Broadcasting Corporation 2005, ‘National Party opposes call to scrap compulsory voting’, AM, 4 October 2005 Australian Broadcasting Corporation 2005, PM, 4 October 2005 Australian Broadcasting Corporation 2005, ‘Voluntary voting sidelined as electoral changes announced’, Lateline, 4 October 2005. Australian Broadcasting Corporation 2013, ‘Barnaby Joyce supports compulsory voting in Australia’, AM, 14 January 2013 Australian Broadcasting Corporation 2013, ‘Malcolm Turnbull suggests electronic voting to reduce number of informal ballots’, ABC News, 10 September 2013 Balogh, S. and Newman, G. 2001, ‘Vote-rorts MPs escape prosecution’, The Australian, 20 January 2001 Barrett, R. 2010, ‘Bligh floats voting changes to boost poll chances’, The Australian, 10 September 2010 Clarke, A. 2013, ‘Electoral Commission works to stop Indigenous informal vote’, ABC News, 27 August 2013 Coorey, P. 2005, ‘Libs seek voluntary vote’, The Advertiser, 27 April 2005 Costar, B. 2014, ‘In the Senate, below or above the line, you decide’, The Age, 4 July 2014 Fyfe, M. 2010, ‘Red-leather day for the DLP’, The Age, 12 September 2010 Green, A. 2011, ‘Informal Voting - Two Ways of Allowing More Votes to Count’, ABC Elections, 28 February 2011 Green, A. 2013, ‘Western Australia Senate Count - Summary of the Distribution of Preferences’, ABC Elections, 3 October 2013 Green, A. 2013, ‘The Disappearance of Three-Cornered Contests at Federal Elections’, ABC Elections, 12 December 2013 Griffin, K. 1994, ‘To vote or not to vote?’, The Advertiser, 23 February 1994 Hope, C. 2010, ‘Michael Foot: Labour's 1983 general election manifesto and 'the longest suicide in history’’, The Telegraph, 3 March 2010 Hurst, D. 2010, ‘The No. 1 reason for Labor to worry’, Brisbane Times, 10 September 2010

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Jemison, S. 1993, ‘Libs to dump compulsory voting amid Labor fears’, The Australian Financial Review, 24 November 1993 Jemison, S. 1994, ‘SA Libs in in switch’, Australian Financial Review, 24 October 1994 Kelly, J. 2013, ‘Lib fury as Labor ties up top AEC posting’, The Australian, 13 April 2013 Lawnham, P. 1994, ‘Optional Voting Proposal in Doubt’, The Australian, 28 January 1994 Levy, M. 2010, ‘The Latham factor? Informal vote spike sparks AEC probe’, Sydney Morning Herald, 22 August 2010 McGrath, C. 2013, ‘Statistics show 25 per cent of young people failed to enrol to vote in September election’, ABC News, 21 August 2013 McClelland, J. 1998, ‘Benefits for the electorate in non-compulsory voting’, Sydney Morning Herald, 17 November 1988 Moore, T. 2010, ‘South Brisbane, West End population to increase three-fold’, Brisbane Times, 9 February 2010 Peatling, S. 2005, ‘Howard rejects call to end compulsory voting’, Sydney Morning Herald, 5 October 2005 Penberthy, D. 1994, ‘Lib anger at voluntary voting defeat’, The Advertiser, 16 May 1994 Taylor, J. 2013, ‘AEC seeks e-voting system’, ZDNet, 4 April 2013 The Age 1972, ‘Vote-at-18 bill shelved’, May 12 Vanstone, A. 2013, ‘At last, the grown-ups are back in charge’, The Age, 9 September 2013 Vasek, L. 2012, ‘Coalition labels voter law changes an attempted rort’, The Australian, 10 December 2012 Wardill, S. 2011, ‘Government dumps bid to alter voting’, Courier Mail, 17 February 2011 Wardill, S., Vogler, S. and AAP, 2013, ‘Queensland's Newman Government may dump compulsory voting at state elections’, Courier Mail, 3 January 2013 Wroe, D. 2013, ‘PM vows to fight any Qld move to scrap compulsory voting’, Sydney Morning Herald, 4 January 2013

Court Judgements and Transcripts

Douglass v Ninnes (1976) 14 SASR 377 Faderson v Bridger [1971] HCA 46; (1971) 126 CLR 271 Getup Ltd v Electoral Commissioner [2010] FCA 869 (13 August 2010) Holmdahl v Australian Electoral Commission [2012] SASCFC 110; 227 FLR 101 Holmdahl v Australian Electoral Commission & Anor [2013] HCATrans 72 (12 April 2013) Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 Krosch v Springell; ex parte Krosch [1974] QdR 107 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Langer v Commonwealth [1996] HCA 43; (1996) 186 CLR 302 Lubcke v Little [1970] VR 807 McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 14 McKenzie v Commonwealth [1984] HCA 75; (1984) 59 ALJR 190 Mckinlay v Commonwealth [1975] HCA 53; (1975) 135 CLR 1

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O’Brien v Warden (1981), 37 ACTR 13 Roach v Electoral Commissioner [2007] HCA 43; (2007) 233 CLR 162 Roach v Electoral Commissioner & Anor [2007] HCATrans 275 (12 June 2007); HCATrans 276 (13 June 2007) Rowe v Electoral Commissioner [2010] HCA 46; (2010) 243 CLR 1 Rowe & Anor v Electoral Commissioner & Anor [2010] HCATrans 205 (5 August 2010) X v Austria (1972), European Court of Human Rights, no.4982/71, Commissio2/71, Commission decision of 22 March 1972

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