SUBMISSION TO JOINT STANDING COMMITTEE ON ELECTORAL MATTERS CONCERNING CERTAIN ONEROUS PROVISIONS OF THE COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

by Peter Breen

The autumn sitting of the federal parliament in 2016 got off to a frosty start for independent and minor party candidates thinking about a tilt at a seat in the Senate later in the year. There were mutterings from the political pundits about legislation to freeze out the small players, but it seemed to be too late in the election cycle to do anything serious about the voting system. The Senate would just have to live with interlopers such as the motoring enthusiast party‟s . And then last week the government introduced the Commonwealth Electoral Amendment Bill 2016 into Parliament. Legislators confirmed the worst fears of potential independent and minor party candidates: the proposed new law unashamedly promotes the political interests of the Liberal Party of .

Above the line voting

The problem with asking voters to write „at least the numbers 1 to 6‟ in the boxes above the line is that the vast majority of voters will place the number 1 in one box only and it will be a valid vote. In this way the compulsory preferential voting system that has served us well for 30 years will effectively be turned into first past- the-post or winner-take-all voting. This means the major parties – the , Labor, the Greens and the occasional Xenophon – will dominate the ballot paper. Furthermore, as the dominant Coalition party and recipient of the largest number of primary votes, the Liberal Party of Australia will be the major beneficiary of this provision. Supporters of independents and minor party candidates will be sidelined. A sizeable proportion of electors which has been growing consistently for ten years and now stands at almost 25 per cent of the Senate vote will be disenfranchised.

In the same vein, allowing a tick or cross in a box above the line to be treated „as having written the number 1‟ in the box will further consolidate the Liberal Party‟s primary vote. An obvious solution to this problem – and a much fairer reform – would be to require voters to write „at least the numbers 1 to 6‟ in the boxes above the line and leave it at that. There should be no exceptions to this requirement. Anything less such as 1, 2, 3, 4, or 5 or a tick or cross should be an informal vote. Consistent with this provision which is based on the number of senators to be elected in a half Senate election there ought to be a further provision requiring voters to write „at least the numbers 1 to 12‟ in the boxes above the line in a full Senate or election.

For most of us deliberative democracy types, a one-in-the-box vote for independents and minor party candidates for the Senate (outside ) will finish up in the rubbish bin. A similar vote for the Nationals in will suffer the same fate as there is no joint Coalition ticket in the west. Over there, Liberals are already saying to the Nationals: “It will be better for the Coalition if you don‟t run.” The next thing Liberals will be saying is: “Let‟s have optional preferential voting in the lower house as well.” Even a casual observer of the electoral system will be aware that optional preferential voting in the upper house is the thin end of the wedge to changing the lower house voting system in favour of the party receiving the largest primary vote.

Below the line voting

Changes to the Senate voting system should be introduced gradually as esteemed psephologist Malcolm Mackerras often argues. Indeed, Mackerras points out that all party list voting systems in the Senate are probably in breach of section 7 of the Commonwealth Constitution which demands that elections be candidate based. An obvious and straightforward change to the Senate voting system is to encourage preference voting below the line by requiring voters to write „at least the numbers 1 to 6‟ in the boxes below the line and leave it at that. Apart from being a simple change, an opportunity would exist over the ensuing three years to educate voters on further changes such as abolishing altogether the horizontal ballot paper line.

The „line‟ is given a status it does not deserve in the proposed legislation. It is really an artificial construct of the 1984 amendments to the Senate voting system – what Mackerras calls a contrivance. A fair question is what purpose does the line serve on the ballot paper if the Parliament intends allowing voters to record a valid vote by marking just one box above the line or a seemingly endless list of candidates below the line? Far reaching changes to the voting system should be introduced slowly after politically objective due diligence and proper analysis of their implications. At

2 the moment, the government‟s proposed reforms assist voters who are Liberal Party supporters while those of us who would prefer to see wider representation of independent and minor party candidates in the Senate are placed at a serious disadvantage.

Optional preferential voting

Soon after the 1999 state election, the Greens and Labor got together to scrap the Legislative Council group voting ticket. You can always have too much of a good thing, they said, and the tablecloth ballot paper was democracy on steroids. In 2003 the compulsory preferential voting system was replaced by a party list system or optional preferential voting (read „de facto first-past-the-post‟) which is what we have today in New South Wales. Now the Greens in co-operation with the government want to import the New South Wales optional preferential voting system into the Senate. But there are a couple of serious problems with this idea. The first is that the New South Wales quota of 4.45 per cent of the vote for an upper house seat does not transfer to the Senate (quota 14.3 per cent) in a way that allows a party like the Animal Justice Party for example to succeed at the federal level. The primary vote of 6 or 7 per cent which is the minimum required to have even a remote chance of federal success is a bridge too far for most independent and minor party candidates.

The second problem with importing the New South Wales upper house voting system into the Senate is a political one which is why the Labor Party no longer supports the recommendations of the joint parliamentary committee into the conduct of the 2013 federal election. What Sussex Street is now apprised of is the harsh reality that in any three-cornered contest between the Greens, Labor and the Coalition for the last Senate seat in each of the six states there will be an inbuilt and unavoidable advantage to the Coalition of up to 4 per cent. Within two or three half Senate elections (or one full Senate or double dissolution election) the Coalition could be expected to control the Senate.

Attempting to follow the modelling as to how the Coalition gets up to a 4 per cent advantage over Labor and the Greens in the proposed new Senate voting system in a three-cornered contest for the last seat in each state is difficult. But if the committee is interested, here are the figures as compiled by Graham Askey of the Renewable Energy Party. Let‟s assume a primary vote for the

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Coalition is 53.26%, Labor is 37.64% and the Greens is 9.1%. After five Senators are elected, the remaining votes for the last seat produce the following results:

Coalition 10.4%; Greens 9.1%; and Labor 9.08%.

Then, assuming an exhaustion rate of 85% and a „leakage‟ of 7% of shown preferences after Labor is excluded, the result is:

Coalition 10.4 + 0.1 (leakage) = 10.5% Greens 9.1 - 0.1 (leakage) + (0.15 x 9.08) = 10.36%

So, the Labor/Greens combined total of 18.2% (which with the group voting ticket easily elects the sixth senator) does not get in front of the Coalition‟s 10.4%. That represents a swing to the Coalition of almost 4%, an outcome that could occur in any state. Traditionally, it has been the third Coalition candidate likely to lose any contest for the last place in a state‟s Senate (witness Helen Kroger in and Sally Chandler in Tasmania in 2013) due to a preponderance of minor parties. But if the voting system is changed as proposed it will be the Greens in the firing line – the party most at risk of missing out in a three-cornered contest for the last Senate seat in each state.

For the Greens and Labor, competing against the Coalition on a level playing field in a Senate ballot will be possible if – and only if – they have their own coalition and field a joint party ticket just like the Liberal Party and the Nationals. This may be seen as a splendid prospect for the Greens because rusted on to Labor they get to share ministerial portfolios in a Labor government just as the Nationals do in a Coalition government. Without a joint party ticket or group voting ticket, however, the 85 per cent of electors who vote one-in-the-box above the line for Labor or the Greens may find their exhausted vote in the rubbish bin as it does not transfer to their second or third party or candidate of choice.

Party logos

The idea of party logos on the ballot paper gives a whole new meaning to party votes above the line. A party list system at a stretch could overcome the requirement for elections to be candidate based on the basis that the candidates are listed on the ballot paper below the line. Extending this concession to party

4 logos on the ballot paper seems to be too much to ask of a voting system that requires elections to be candidate based. Such a radical change to the voting system demands thoughtful consideration and much more time than a couple of days‟ deliberation with due respect to the committee. This is especially so given the fact that the Liberal Party of Australia is again the major beneficiary of the proposal. Only the Coalition has a joint party ticket in all states except Western Australia which means the Liberal Party gets two logos on the ballot paper in addition to the highest number of primary votes. Two logos instead of one will immediately attract the attention of voters in an unfair and cynical way that can only be described as misuse of legislative power.

Then there is the issue of the limited time available between now and the next election to consider the party logo design process. Which Christian group can claim the cross, for example, and who gets to depict the Australian flag? What sort of image can the Pirate Party convey to draw voters‟ attention away from other parties? How many voters will mark their ballot papers based on party pictures and how could such ballots be fairly described as candidate based? And the last question is why should several parties deciding to run together on a joint ticket not obtain the electoral benefit of each of their party logos appearing on the ballot paper? The obvious answer to this last question is that in order to be consistent with the rest of the legislation, the party logo provisions should favour the Liberal Party of Australia which is unlikely to appear on a joint ticket with any other party other than its Coalition partner the Nationals.

Constitutional validity of the bill

In 2007 the Human Rights Party commenced proceedings in the Federal Court to question the methodology used by the Australian Electoral Commission (AEC) to register political parties. Although the court found that the AEC did have the right to determine the way political parties were to be registered, the party registration procedure became fairer and more nuanced following the decision. The judge hearing the case refused to make an order for costs. This case demonstrates that a challenge to legislation with reasonable prospects can be a useful exercise win, lose or draw.

Any challenge to the constitutional validity of the Commonwealth Electoral Amendment Bill 2016 would focus primarily on whether

5 the bill establishes a voting system that contravenes section 7 of the Commonwealth Constitution. Does the bill by facilitating above the line voting „for a party‟ make the new law inconsistent with the constitutional requirement for senators to be directly chosen by the people? Only one decision of the High Court (McKenzie v Commonwealth of Australia (1984) 59 ALJR 190) has squarely addressed this question, deciding that the system of above the line voting is consistent with representative democracy.

To address the issue of above the line voting from the perspective of representative democracy or representative government, however, could be said to have approached the argument at the wrong level of abstraction. The High Court subsequently held in McGinty v Western Australia (1996) 186 CLR 140 and Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 that it is an error to test the validity of a law by reference to general conceptions of representative democracy and representative government. The starting point must be the constitutional text. And, in the case of section 7, the constitutional criterion is one of „direct‟ choice. Further, McKenzie was not concerned with the validity of the statutory scheme which will be in place if the Commonwealth Electoral Amendment Bill 2016 is enacted.

The validity of the electoral scheme which will be in place after the amendments made by the bill must be assessed as a whole and as a matter of substance. So assessed, the scheme the bill establishes goes too far and can properly be characterised as a scheme of indirect election. It can be expected that many – perhaps even the substantial majority of electors – will vote above the line. In most cases, above the line voting will be for a registered political party. That party will have selected the identity of its senators and the order in which they will appear on the ballot paper. An above the line vote constitutes, by legislative specification, a vote for the party-selected candidates in the party-selected order. Although an elector must notionally vote for at least six above the line groups, in substance the scheme permits an elector to vote for just one party. That elector‟s vote will be formal; it will be a vote for just one party; and for the party-selected candidates.

Finally, voting may be by reference to a political party logo: in practical terms, that may be expected to increase the likelihood that an elector will vote above the line and can be said to have voted for a party as distinct from an individual Senate candidate. The scheme, in purpose and likely practical effect, will result in more above the line voting

6 which, in turn, will result in more voting for parties as distinct from individuals. The scheme is one of an ex ante electoral college or appointment system in which the electoral college is the political party‟s internal method of selecting candidates and their order.

Conclusion McKenzie was a single judge decision of the High Court on the constitutional implications of above the line party voting, the plaintiff was unrepresented, and although persuasive, the case is not an authoritative decision of the Full Court on the validity of the proposed new law. Furthermore, the Commonwealth Electoral Amendment Bill 2016 makes no changes to below the line voting so that there is no realistic alternative for electors who want to cast their ballot for candidates rather than parties. The addition of party logos to the ballot paper gives another level of unreality to the bill. As the major beneficiary of the bill, the Liberal Party of Australia has given itself a leg up in Senate elections, and the question arises whether there is some constitutional limit which prevents Parliament from enacting unfair and imbalanced electoral laws.

Peter Breen 29 February 2016

Peter Breen is a former minor party representative in the New South Wales Legislative Council, the former secretary of the Human Rights Party and currently he is the national convener of the Renewable Energy Party.

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