Electoral (Voter's Choice) Amendment Bill 2019

Report No. 62, 56th Parliament Legal Affairs and Community Safety Committee March 2020 Legal Affairs and Community Safety Committee

Chair Mr MP, Member for Toohey

Deputy Chair Mr James Lister MP, Member for Southern Downs

Members Mr MP, Member for Mirani

Mr Jim McDonald MP, Member for Lockyer

Mrs Melissa McMahon MP, Member for Macalister

Ms Corrine McMillan MP, Member for Mansfield

Committee Secretariat

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Acknowledgements

The committee acknowledges the assistance provided by Mr MP, Member for Toowoomba South, Shadow Attorney-General and Shadow Minister for Justice. Electoral (Voter's Choice) Amendment Bill 2019

Contents Abbreviations iii Chair’s foreword v Recommendation vi 1 Introduction 1 1.1 Role of the committee 1 1.2 Inquiry process 1 1.3 Policy objective of the Bill 1 1.4 Private Member consultation on the Bill 2 1.5 Should the Bill be passed? 2 2 History of voting systems in Queensland 3 2.1 Types of voting systems 3 2.1.1 First-past-the-post 3 2.1.2 Optional preferential 3 2.1.3 Full (compulsory) preferential 4 2.2 Queensland’s history of voting systems 4 2.2.1 1860-1892 4 2.2.2 1892-1942 4 2.2.3 1942-1962 4 2.2.4 1962-1992 5 2.2.5 1992-2016 5 2.2.6 2016-present 5 3 Examination of the Bill 6 3.1 Background 6 3.2 The Bill 6 3.3 Advantages of optional preferential voting 6 3.3.1 Choice 6 3.3.2 Complementarity with compulsory voting 7 3.3.3 Lower informality rates than full preferential voting 8 3.3.4 Options for parties and candidates 9 3.3.5 Optional preferential voting may become de facto first-past-the-post system 9 3.4 Disadvantages of optional preferential voting 10 3.4.1 Exhausted votes 10 3.4.2 Optional preferential voting may become de facto first-past-the-post system 11 3.4.3 Entrenchment of two party system 12 3.4.4 Reduction in choice 12 3.4.5 Inconsistency between state and federal systems 12 3.5 Stakeholders’ recommendations 13 3.5.1 Numbers not tick or cross 13 3.5.2 Education 13 3.5.3 ‘Just vote 1’ campaigns 13 3.6 Matters outside the scope of the Bill 14

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3.6.1 Informal vote analysis report 14 3.6.2 Election advertising and preference deals 14 3.6.3 Conduct elections using first-past-the-post voting 14 3.6.4 Public confidence in the electoral system 14 4 Compliance with the Legislative Standards Act 1992 16 4.1 Fundamental legislative principles 16 4.2 Explanatory notes 16 Appendix A – Submitters 17 Appendix B – Witnesses at public hearing 18 Statement of Reservation 19

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Abbreviations

Bill Electoral (Voter’s Choice) Amendment Bill 2019

committee Legal Affairs and Community Safety Committee

CPV full (compulsory) preferential voting

EARC Electoral and Administrative Review Commission

ECQ Electoral Commission Queensland

FLPs fundamental legislative principles

FPTP first-past-the-post

LSA Legislative Standards Act 1992

MLA Member of the Legislative Assembly

MP Member of Parliament

OPV optional preferential voting

PCEAR Parliamentary Committee for Electoral and Administrative Review

POQA Act 2001

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Legal Affairs and Community Safety Committee iv Electoral (Voter's Choice) Amendment Bill 2019

Chair’s foreword

This report presents a summary of the Legal Affairs and Community Safety Committee’s examination of the Electoral (Voter's Choice) Amendment Bill 2019. The committee’s task was to consider the policy to be achieved by the legislation and the application of fundamental legislative principles – that is, to consider whether the Bill has sufficient regard to the rights and liberties of individuals, and to the institution of Parliament. On behalf of the committee, I thank those individuals who made written submissions on the Bill and those who gave evidence at the public hearing. I also thank Parliamentary Service staff and Mr David Janetzki MP. I commend this report to the House.

Peter Russo MP Chair

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Recommendation

Recommendation 2 The committee recommends that the Electoral (Voter's Choice) Amendment Bill 2019 not be passed.

Legal Affairs and Community Safety Committee vi Electoral (Voter's Choice) Amendment Bill 2019

1 Introduction

1.1 Role of the committee The Legal Affairs and Community Safety Committee (committee) is a portfolio committee of the Legislative Assembly which commenced on 15 February 2018 under the Parliament of Queensland Act 2001 (POQA) and the Standing Rules and Orders of the Legislative Assembly.1 The committee’s primary areas of responsibility are: • Justice and Attorney-General • Police and Corrective Services • Fire and Emergency Services.2 The POQA provides that a portfolio committee is responsible for examining each Bill in its portfolio areas to consider: • the policy to be given effect by the legislation • the application of fundamental legislative principles.3 Mr David Janetzki, Member for Toowoomba South and Shadow Attorney-General and Shadow Minister for Justice, introduced the Electoral (Voter's Choice) Amendment Bill 2019 (Bill) into the Legislative Assembly on 18 September 2019. It was referred to the committee the same day. The committee is to report to the Legislative Assembly by 18 March 2020. 1.2 Inquiry process On 20 September 2019, the committee invited stakeholders and subscribers to make written submissions on the Bill. Nine submitters contributed to the inquiry (see Appendix A for a list of submitters). The committee received a public briefing about the Bill from Mr David Janetzki MP on 14 October 2019. In correspondence dated 1 November 2019, Mr Janetzki MP provided further information in response to questions he took on notice at the briefing. The committee also received written advice on 15 November 2019 from Mr Janetzki MP in response to matters raised in submissions. The committee held a public hearing on 25 November 2019 (see Appendix B for a list of witnesses). The submissions, the correspondence from Mr Janetzki MP and the transcripts of the briefing and hearing are available on the committee’s webpage. 1.3 Policy objective of the Bill At present, full (compulsory) preferential voting (CPV) is used in Queensland state elections. The policy objective of the Bill is to reintroduce the optional preferential voting (OPV) system for state elections in Queensland. The explanatory notes state that the OPV system would: • restore public confidence in the electoral system by reintroducing a voting system recommended by the Electoral and Administrative Review Commission, which was established upon recommendation of the Fitzgerald Inquiry;

1 Parliament of Queensland Act 2001, s 88 and Standing Order 194. 2 Standing Rules and Orders of the Legislative Assembly, schedule 6. 3 Parliament of Queensland Act 2001, s 93(1).

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• give voters more options to express their political opinions, while preserving the voting choice available under full preferential voting; and • least likely lead the voter to invalidate his or her vote through numbering error because of its simplistic nature.4 1.4 Private Member consultation on the Bill The explanatory notes advise that the OPV system ‘was recommended by the post-Fitzgerald body, the “Electoral and Administrative Review Commission” which underwent a thorough consultation process’.5 1.5 Should the Bill be passed? Standing Order 132(1) requires the committee to determine whether or not to recommend that the Bill be passed.

Recommendation The committee recommends that the Electoral (Voter's Choice) Amendment Bill 2019 not be passed.

4 Explanatory notes, p 1. 5 Explanatory notes, p 2.

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2 History of voting systems in Queensland

The three voting systems that have been used in Queensland since 1860 are first-past-the-post (FPTP), OPV and CPV. The table below shows the periods in which the voting systems have been used in Queensland.6 An explanation of the various voting systems and the reasons for the changes in system are provided below the table.

Years Voting system in Queensland

1860-1892 first-past-the-post

1892-1942 contingent (a form of optional preferential)

1942-1962 first-past-the-post

1962-1992 full preferential

1992-2016 optional preferential

2016-present full preferential

2.1 Types of voting systems 2.1.1 First-past-the-post Under a FPTP voting system, the candidate who receives the most votes wins the election.7 The winning candidate does not necessarily have the support of the majority of electors as a victory can occur with around 35 per cent of the vote.8 2.1.2 Optional preferential Under an OPV system, a voter may: • vote for a single candidate only (sometimes called ‘plumping’), or • allocate partial preferences (say, two or three but not all candidates), or • allocate a full preferential ranking to all candidates.9

6 The table is based on information in: • Electoral and Administrative Review Commission, A history of the Queensland zonal electoral system (Draft only), August 1990, p 10 • Stephen Stockwell, ‘The impact of optional preferential voting on the 2001 Queensland state election’ in Queensland Review, vol 10(1), May 2003, p 156 • Mr Janetzki MP, Queensland Parliament, Record of Proceedings, 18 September 2019, pp 2926-2927 • Electoral Commission Queensland, ‘Queensland election 2001 ballot paper survey’, Research Report 1/2002, March 2002, p 1 • John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, pp 1-2. 7 Scott Bennett and Rob Lundie, ‘Australian electoral systems’, Research Paper No. 5, 2007-08, Parliament of Australia, 21 August 2007, p 7. 8 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, pp 3-4. See also Scott Bennett and Rob Lundie, ‘Australian electoral systems’, Parliament of Australia, Research Paper No. 5, 2007-08; submission 3, p 6. 9 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 2.

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If a voter only votes for a single candidate who receives a low number of votes in comparison to the other candidates, the voter’s vote is exhausted and does not play any further part in determining the final result.10 If no candidate gains more than 50 per cent of the first preference votes, then the least popular candidate is eliminated with any second preferences of voters who voted for that candidate being distributed among the remaining candidates. This process is repeated until the winning candidate is determined. It is possible for a candidate to be elected with less than 50 per cent of the vote.11 2.1.3 Full (compulsory) preferential Under a CPV system, a voter has to number all the boxes on the ballot paper in order of the voter’s preference.12 To win a seat, a candidate must secure an absolute majority (50 per cent plus one) of the vote. In the circumstance of no candidate having a majority of the primary vote, the candidate with the least votes is eliminated and their second preferences are distributed and so on until one candidate has an absolute majority.13 2.2 Queensland’s history of voting systems 2.2.1 1860-1892 FPTP was the first voting system used in the Australian colonies.14 It was used in colonial Queensland from 1860 until 1892 when contingent voting was introduced.15 2.2.2 1892-1942 Contingent voting is a form of OPV. It was used in Queensland from 1892 until 1942. Under a contingent voting system, if no candidate has a majority of the primary votes, the preferences from all but the two candidates with the most votes are distributed to the two candidates with the greatest vote.16 Queensland holds the world record for using a contingent voting system for the longest continuous time.17 2.2.3 1942-1962 The Labor Government, led by Frank Cooper, re-introduced FPTP voting in 1942.18 Professor John Wanna, a political scientist,19 contended that the change was made ‘to consolidate Labor’s grip on

10 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 2. 11 State Library of New South Wales, ‘Voting and elections: Chapter 9 – How votes are counted’, https://legalanswers.sl.nsw.gov.au/hot-topics-voting-and-elections/how-votes-are-counted. 12 Electoral Commission Queensland, Voting system, https://www.ecq.qld.gov.au/how-to-vote/voting- system; Electoral Act 1992. 13 Stephen Stockwell, ‘The impact of optional preferential voting on the 2001 Queensland state election’, Queensland Review, vol 10(1), May 2003, p 155. See also, for example, Electoral and Administrative Review Commission, A history of the Queensland zonal electoral system (Draft only), August 1990, p 10. 14 Scott Bennett and Rob Lundie, ‘Australian electoral systems’, Research Paper No. 5, 2007-08, Parliament of Australia, 21 August 2007, p 8. 15 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. 16 Stephen Stockwell, ‘The impact of optional preferential voting on the 2001 Queensland state election’, Queensland Review, vol 10(1), May 2003, p 156. 17 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. 18 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. See also, Elections Acts Amendment Act 1942; Electoral and Administrative Review Commission, A history of the Queensland zonal electoral system (Draft only), August 1990, p 6. 19 John Wanna is a professor at Australian National University and holds the Sir John Bunting Chair of Public Administration. He is also the Head of Research at the Australia and New Zealand School of Government and Professor Emeritus at the Griffith Business School.

Legal Affairs and Community Safety Committee 4 Electoral (Voter's Choice) Amendment Bill 2019 power, following a flow of preferences away from Labor in the previous two elections and the loss of Cairns in a by-election’.20 2.2.4 1962-1992 The Coalition Government, led by Frank Nicklin, introduced CPV in 1962.21 According to Professor Wanna: … The Coalition assessed that with Labor divided after the acrimonious split of 1956-7 a full preferential system mopped up the independent conservative vote and maximized their chances of reelection. …22 2.2.5 1992-2016 Queensland returned to OPV (from CPV) in 1992 following a recommendation in 1990-91 by the Electoral and Administrative Review Commission (EARC). EARC recommended the re-introduction of OPV on the ground that electors should not be forced to support any party/candidate to whom they are opposed.23 At the time, none of the major parties favoured OPV and few lobbyists or interest groups endorsed it.24 In relation to EARC’s recommendation, the Electoral Commission Queensland (ECQ) stated in 2001: It is probably fair to observe that OPV was a surprise recommendation when recommended by the Electoral and Administrative Review Commission (EARC). As the then Government was committed to all of EARC’s electoral recommendations OPV was accepted, though in the Second Reading debate some disquiet was voiced about its presumed consequences.25 2.2.6 2016-present After 24 years of OPV, CPV was reintroduced by the Labor Government in 2016 with the intention to lower the number of informal votes and to create more consistency between the Queensland and federal electoral systems.26

20 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. 21 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. See also, Elections Acts Amendment Act 1962. 22 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. 23 Paul Reynolds, ‘The case of the exhausted voter: A longitudinal study of the operation of optional preferential voting in Queensland 1992-2001’, August 2001, p 1; Electoral and Administrative Review Commission, Report on Queensland Legislative Assembly Electoral System: Volume 1 – The report, November 1990, p 59. 24 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, p 1. 25 Electoral Commission Queensland, ‘Queensland election 2001 ballot paper survey’, Research Report 1/2002, March 2002, p 10. See also, Paul Reynolds, ‘The case of the exhausted voter: A longitudinal study of the operation of optional preferential voting in Queensland 1992-2001’, August 2001, p 1. 26 Hon Yvette D’Ath MP, then Attorney-General and Minister for Justice and Minister for Training and Skills, Queensland Parliament, Record of Proceedings, 21 April 2016, p 1373. See also, Electoral (Improving Representation) and Other Legislation Amendment Bill 2016 and Electoral (Improving Representation) and Other Legislation Amendment Act 2016.

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3 Examination of the Bill

The Bill proposes to amend the Electoral Act 1992 to reinstate OPV in Queensland state elections. This section discusses matters that were raised during the committee’s examination of the Bill. These include EARC’s OPV recommendation, the pros and cons of OPV, recommendations made by stakeholders, and matters outside the scope of the Bill. 3.1 Background As discussed above, OPV was introduced in Queensland in 1992 following a recommendation by EARC. EARC was concerned that under the CPV system, electors were: … required to record views they may not have, by ranking in order of preference all candidates offering in their electoral district. If they do not have a complete set of preferences they have either to invent preferences, or arbitrarily assign rankings to candidates about whom they know nothing and care less or accept that their ballot-paper will be excluded from the scrutiny. The Commission believes that it is not unreasonable or oppressive to require every adult citizen to play a meaningful part in the choice of their government ... But having required that duty be discharged, it is inappropriate for the electoral system to corrall votes on behalf of candidates or parties who electors do not wish to support but merely consider less objectionable than the other on the ballot-paper.27 OPV was used at Queensland state elections from 1992 to 2015. CPV was used at the November 2017 state election. 3.2 The Bill The Bill proposes to amend the Electoral Act to: • require an elector to vote by indicating the elector’s preference for only 1 candidate by placing the number 1, or a tick or a cross in the square opposite the name of the candidate. • alternatively, the elector may indicate their preferences for more than 1, but not necessarily all, of the candidates by placing the number 1, or a tick or a cross, in the square opposite the name of the candidate who is the elector’s first preference, and the numbers 2, 3 and so on in the squares opposite the names of any of the other candidates to indicate the order of the elector’s preferences for them. • provide that the ballot papers must contain sentences instructing the elector on how to vote.28 Mr Janetzki MP advised that the Bill ‘simply replicates’ provisions that were in the Electoral Act prior to the Electoral Act being amended in 2016 when CPV was re-introduced. Stakeholders’ views about the Bill were varied. Some stakeholders, such as Pat Coleman and John Mayo, were in favour of the Bill, while other stakeholders, such as Don Willis, had concerns about the proposed reintroduction of OPV. 3.3 Advantages of optional preferential voting Mr Janetzki MP and some stakeholders identified advantages of OPV as compared with CPV. 3.3.1 Choice Mr Janetzki MP asserted that OPV:

27 Electoral and Administrative Review Commission, Report on Queensland Legislative Assembly Electoral System: Volume 1 – The report, November 1990, p 59. 28 Explanatory notes, p 1.

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… allows a voter to express their true intention. They are not forced to preference a party or a candidate they have no interest in or liking for. An optional preferential voting system is extremely democratic in that it is the only electoral system that allows for people to express their disinterest in a candidate ... People are not forced to vote for every single candidate even though they have no liking for a particular candidate. It is the one electoral system that allows a voter to express their choice. …29 Some stakeholders commented on the choice that OPV provides to voters. Professor Orr, for example, submitted that OPV increases electors’ choices.30 He stated that ‘[t]he value of OPV in maximising electors’ choices was well put in the post-Fitzgerald, Electoral and Administrative Review Commission report of 1990.’31 In answer to a question on the representational aspect of OPV, Professor Orr stated: … In terms of representation, from a principled perspective if someone wants to vote Katter first or One Nation as a pox on the major parties, should we force them to preference Labor versus LNP? If a Greens voter is upset at the government’s position on Adani, should they be forced to preference between Labor and others, without the major parties necessarily having to appeal to those voters? That is the point of principle.32 In relation to OPV, Professor Orr said: … The simplest way to explain the principle is to draw on Gough Whitlam’s written line in his book called The Whitlam government on electoral reform that optional preferential voting is the one system that lets electors `express their indifference to candidates’.33 Ms Pink and Mr Cotter noted that EARC had endorsed OPV because CPV requires electors to give preferences to candidates ‘about whom they know nothing and care less or accept that their ballot paper will be excluded from the scrutiny’.34 Ms Pink and Mr Cotter submitted: ‘The principle that was stated is about freedom of choice, not forcing voters to express preferences that are disingenuous.’35 John Mayo and Bill Tait also supported the choice offered electors by OPV.36 Bill Tait submitted: … I … would … argue … that it is not merely “inappropriate” to so “corral votes”, but truly perverse, or … contrary to, the very fundamental elements of, a truly democratic process, of, free, fair, and democratic elections …37 3.3.2 Complementarity with compulsory voting Mr Janetzki MP contended that OPV complements compulsory voting: … I think optional preferential voting feeds into an environment where there is compulsory voting in Queensland. It gives the voter that additional choice that they can go in and express their true wish, and if they have a disinterest in certain candidates they do not even need to put a number

29 Public briefing transcript, Brisbane, 14 October 2019, p 3. 30 Submission 2, p 1. 31 Submission 2, p 1. 32 Public hearing transcript, Brisbane, 25 October 2019, p 12. 33 Public hearing transcript, Brisbane, 25 October 2019, p 11. 34 Submission 8, p 1 quoting Electoral and Administrative Review Commission, Report on Queensland Legislative Assembly Electoral System: Volume 1 – The report, November 1990, p 59 quoted in Parliamentary Committee for Electoral and Administrative Review, Report on an Electoral and Administrative Review Commission Report on Queensland Legislative Assembly Electoral System, February 1991, p 10. 35 Submission 8, p 1. 36 Submission 9, p 2; submission 5, p 1. 37 Submission 4A, p 8. Mr Heron (submission 1, p 1), on the other hand, submitted that the benefit of choice purportedly offered by an OPV system is not present for voters who do not understand the value of preferencing: … The contention that allowing OPV promotes freedom of choice is contradictory to the fact that if someone cannot understand how to number their preferences effectively, they will be unlikely to understand how their ballot is devalued by it. …

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beside their names. I think compulsory voting in Queensland is complemented by optional preferential voting because it gives that additional choice.38 Professor Orr similarly considered that OPV works well with compulsory voting: … Electors can rightly be led to the watering hole of the polls; they should not be forced to make choices they cannot in good conscience make. Enhancing choice in Queensland is important as we have a very flat constitution: no upper house or proportional representation, one ballot paper only every four years.39 3.3.3 Lower informality rates than full preferential voting Mr Janetzki MP noted that informality rates were lower in Queensland under OPV than under CPV: … What we saw between the 2015 state election—the last under optional preferential—and the 2017 state election was that in 2015 the informality rate was 2.11 per cent and in 2017, the first under compulsory preferential, it was 4.34 per cent. We did see a more than doubling of the informality rate.40 Antony Green (quoted in Mr Andrew McDonald’s submission) considered that the change from OPV to CPV at the 2017 election was the reason for the increase in the informal vote: It is without doubt that the increase in informal voting at the 2017 Queensland election was due to the re-introduction of full preferential voting.41 Mr McDonald advised that there were around 56,000 informal votes at the 2015 state election and over 122,000 informal votes at the state election in 2017.42 Mr McDonald calculated that 50,000 voters at the 2017 election unintentionally voted informally.43 He contended that the greater informal vote was the result of the change to CPV and that it had ‘disenfranchised many voters’.44 In support of his assertion that ‘OPV results in significantly lower informal rates than CPV’,45 Mr McDonald brought to the attention of the committee the informal voting rates in Victoria (CPV), NSW (OPV) and Queensland (OPV until 2016 then CPV): informal votes at recent state elections in Victoria have been 4.96, 5.22 and 5.83 per cent, compared with 3.2, 3.44 and 3.46 per cent at recent state elections in NSW, and 1.94, 2.15, 2.11 and 4.24 per cent at the 2009, 2012, 2015 and 2017 elections in Queensland.46 Mr McDonald submitted: The OPV system worked well. It has consistently produced a relatively low informal vote. It is in the interests of all constituents that OPV be restored. This Amendment will do the job. It is important that evidence supports the change.47 At the public hearing, Professor Orr stated: Antony Green, the electoral analyst for the ABC, asked me to say that he regretted that time pressure meant that he was unable to make a submission to this inquiry. When I discussed this— and he was happy for me to pass this on—he reiterated the findings of the Northern Territory Electoral Commission showing that, when the Northern Territory recently moved the other way— from compulsory to optional—it experienced a significant drop in unintended informal voting.

38 Public briefing transcript, Brisbane, 14 October 2019, p 3. See also, submission 2, p 1. 39 Submission 2, p 1. Footnote in original omitted. 40 Public briefing transcript, Brisbane, 14 October 2019, p 3. 41 Submission 7, p 1. 42 Submission 7, p 1. 43 Public hearing transcript, Brisbane, 25 November 2019, p 7. 44 Submission 7, p 1. 45 Public hearing transcript, Brisbane, 25 November 2019, p 8. 46 Public hearing transcript, Brisbane, 25 November 2019, p 8. 47 Submission 7, p 2.

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The panel might want to look at the Northern Territory’s 2016 election report, which covered the relevant election after the move to OPV. At paragraph 3.9 the report said that, as envisaged by the Northern Territory Electoral Commission in its information paper prior to the change, the change to optional preferential voting reduced the informal rate from 3.2 per cent to two per cent. Further, the report stated that the decrease was more notable in remote divisions with a reduction in unintentional informal voting obvious there. It seems striking to me that the extra apparently wasted or informal votes between OPV and CPV was just over 50 per cent in both Queensland and the Northern Territory. I should note, though, for the benefit of the government that there is a way around this, which they ought to consider, and that is to have a generous savings provision as in, say, South Australia, for every vote that expresses at least one valid preference. …48 Mr Heron expressed support for an electoral system which results in less informal votes: … Not numbering all the boxes, an error in the numbering sequence or otherwise an occurrence of illegibility is not a valid argument for dismissing an elector's choice for representation. To dismiss a ballot when a reasonable person can clearly determine the intent of the elector is contrary to the very foundations of our democracy.49 Mr Janetzki MP stated that the benefit of a lower informality rate is that the wishes of more people are taken into account: … I am strongly of the view that optional preferential voting, as it drives down informality rates, means tens of thousands more people will have their vote counted and therefore will be included in the democratic process.50 3.3.4 Options for parties and candidates Professor Orr submitted that OPV increases options for parties and candidates ‘by expanding the range of preference recommendations they can make.’51 3.3.5 Optional preferential voting may become de facto first-past-the-post system An OPV electoral system is especially likely to become a de facto FPTP voting system when one or more political parties advocate that voters ‘Just vote 1’.52 Certain stakeholders supported the Bill because OPV may be regarded as a move towards an FPTP voting system. Mr Mayo considered that, in general, ‘a first past the post outcome more properly reflects the will of the people.’53 Mr Tait supported the Bill as ‘quite a laudable step, in the right direction’54 but considered that a FPTP voting system is better.55 Regarding the risk that OPV may partly devolve into a FPTP system, EARC stated: … The Commission considers that this phenomenon reinforces the view that under the current compulsory preferential system voters are being required to express views they may not have. Encouraging voters to express preferences is ultimately a matter for candidates and parties, not the electoral system.56

48 Public hearing transcript, Brisbane, 25 November 2019, p 11. 49 Submission 1, p 3. 50 Public briefing transcript, Brisbane, 14 October 2019, p 4. 51 Submission 2, p 1. 52 Submission 8, p 2. 53 Submission 5, p 1. 54 Submission 4A, p 65. 55 Submission 4A, pp 58, 65-66. 56 Electoral and Administrative Review Commission, Report on Queensland Legislative Assembly Electoral System: Volume 1 – The report, November 1990, p 59; submission 2, p 1.

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In relation to an OPV system partly devolving into a FPTP system, Professor Orr submitted: … as EARC said, that will by definition reflect electors’ choices or lack of them, and send signals about the nature of our party system and choices on offer. Queensland, it should be remembered, has the lowest number of registered parties of any State.57 3.4 Disadvantages of optional preferential voting Some stakeholders identified disadvantages of OPV as compared with CPV. 3.4.1 Exhausted votes Ms Pink and Mr Cotter acknowledged that under CPV there is the potential for ‘disingenous preferencing’58 but they were of the view that at least voters have an influence right through the voting process, unlike in OPV if a voter’s vote exhausts.59 An exhausted vote is one which shows no further valid preference for any candidate and must be set aside from the count.60 As noted in Mr Willis’ submission, a Commonwealth Parliamentary Library research paper advised that the presence of exhausted votes in an OPV system means that it is possible for a candidate to be elected without receiving a majority of the votes: Unlike full Preferential Voting where the winning candidate will eventually achieve an absolute majority of votes, under Optional Preferential Voting it is possible for a winning candidate to receive fewer than half of the votes left in the count. This is because some votes are exhausted, with no more preferences to distribute, and are removed from the count.61 With respect to exhausted votes, Robert Heron submitted: The strength of preferential voting … is that voters effectively vote against the party they most dislike by placing them last. It is the essential protection granted by it that would be undermined by the introduction of OPV.62 Mr Heron rejected the following position expressed by the AEC: Exhaustion is a standard feature of PPV or Optional Preferential Voting (OPV) systems. … While … an exhausted ballot paper may help to elect one or more candidates, once a ballot paper or vote exhausts it will not affect the election further except by helping to determine the quota. It is therefore easy to conceive of an exhausted ballot paper as lost or wasted, or to think of exhausted votes as being less effective than fully preferenced ballot papers. There is an argument that the more preferences there are on a ballot paper the more ‘effective’ or ‘powerful’ it is. However this is a subjective argument. An exhausted vote is by definition formal, and has expressed the electors stated preferences. An elector may reach the conclusion that if the candidates they have numbered are not elected, they do not wish their vote to assist in the election of any other candidates. This is, potentially, as valuable to an elector as their stated preferences.63

57 Submission 2, p 1. Footnote in original omitted. Northern Territory has a lower number of registered parties: Graeme Orr, public hearing transcript, Brisbane, 25 October 2019, p 12. 58 Submission 8, p 2. 59 Submission 8, p 2. 60 Australian Electoral Commission, Glossary https://www.aec.gov.au/footer/Glossary.htm#e. See also submission 8, p 2. 61 Scott Bennett and Rob Lundie, ‘Australian electoral systems’, Parliament of Australia, Research Paper No. 5, 2007-08; submission 3, p 4. 62 Submission 1, p 1. In contrast, Mr Tait submitted that a last preference in a CPV system is ‘practically useless or merely symbolic’: submission 4A, p 15. 63 Australian Electoral Commission, Exhaustion: Senate ballot paper study 2016, p 8. Footnotes in original omitted.

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3.4.2 Optional preferential voting may become de facto first-past-the-post system Certain stakeholders had reservations about the Bill because OPV ‘can devolve into a virtual de facto version of a first-past-the-post system’.64 Ms Pink and Mr Cotter noted that this particularly happens if it benefits one of the major parties to call on voters to ‘Just vote 1’.65 Mr Willis advised that one of the concerns raised in submissions to the Parliamentary Committee for Electoral and Administrative Review (PCEAR) about EARC’s OPV recommendation was that it would ‘lead to de facto “first past the post” voting’.66 He also noted that EARC rejected FPTP voting because it does not sufficiently ensure fairness between political parties.67 Mr Willis quoted Professor Wanna in support of his argument against OPV: … optional preferential voting risks becoming a de facto first-past-the-post system—in which candidates can be elected with around 35 per cent of the formal vote. Optional preferential voting has the potential, then, to inflate majorities while penalising the most divided side of politics. If voters deliberately choose to ‘just vote one’ (plumping) and intend their vote to exhaust if their candidate comes 3rd or worse, then this does not undermine democracy. However, if voters simply follow party instructions to vote for one candidate and out of ignorance or unfamiliarity do not allocate preferences, then if their votes exhaust this could be a denial of a true democratic outcome.68 Mr Willis also quoted a 2013 electoral reform discussion paper published by the Department of Justice and Attorney-General: A key issue with OPV is that it has the potential to become a de facto ‘first past the post’ system. Preferences can be quickly exhausted where a large number of voters choose to vote ‘1’ only. This is particularly problematic where a large number of candidates are contesting a seat. In such a circumstance, it would be possible for a candidate to be elected with only a small proportion of the vote, which could leave the majority of the population unrepresented.69 Mr Willis considered that the possibility that a candidate may win an election with less than half the vote is undemocratic. He stated: While we should always be open to improving our voting system, it is difficult to see how reverting to a system known for its potential to produce undemocratic electoral outcomes would be in the best interests of voters and democracy in general. … under OPV a candidate could win with less than half the votes. With this potential for someone to be elected on less than 50 per cent of voter support it could be argued that OPV strikes at the basic operating rules and conventions of Queensland’s Westminster system, most notably the majoritarian principle.70

64 Submission 8, p 2. See also, submission 1, p 3; submission 3, p 3. 65 Submission 8, p 2. 66 Submission 3, p 4. 67 Submission 3, p 4. See also, Electoral and Administrative Review Commission, Report on Queensland Legislative Assembly Electoral System: Volume 1 – The report, November 1990, p 58. 68 John Wanna, ‘Democratic and electoral shifts in Queensland: Back to first past the post voting’, pp 3-4; submission 3, p 4. 69 Submission 3, pp 4-5. See also, Department of Justice and Attorney-General, Electoral reform: discussion paper, January 2013, p 37. 70 Public hearing transcript, Brisbane, 25 November 2019, p 5.

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3.4.3 Entrenchment of two party system Ms Pink and Mr Cotter were of the view that OPV ‘could further entrench the two-party system, and facilitate minority rule where a party without a plurality of support could control a majority of the seats in the parliament.’71 Mr Willis also commented that OPV helps the major parties: … Most parties in QLD and NSW encourage people to "vote 1", for only one candidate. By not encouraging people to pass their votes on to the other minor parties and eventually the major parties, they assist the major parties in holding on to power. They prevent the minor party voters from pooling their vote, encouraging the minor party votes to be fragmented and never pose a threat to the major parties. The Greens for example are only a minor party compared to Labor and Liberal. Compared to most Australian political parties they are a very large party and gain a lot of ground by being ranked second, third etc above Labor and Liberal. The Greens and Family First benefit far more from Australia's traditional (compulsory) version of preferential voting than the two major parties …72 3.4.4 Reduction in choice Mr Willis submitted that it has been argued that choice has been reduced in Queensland under OPV. … Given the well-known objections and concerns about OPV’s undemocratic potential and risk, it is surprising these issues were not addressed during the bill’s introduction. What was emphasised at that time was the need to enshrine voter choice by reinstating OPV. This is ironic in light of an article I have read which suggests that OPV has actually contributed to a reduction in voter choice by the decision of the former Liberal and National parties to merge into one party, the LNP, to mitigate the electoral impacts of OPV on those parties.73 3.4.5 Inconsistency between state and federal systems CPV is used at federal elections so, if the Bill were to be passed, there would be an inconsistency between state and federal systems, and possibly confusion for voters and as a result a higher informal voting rate at federal elections.74 Mr Willis noted that the PCEAR ‘was somewhat reserved about EARC’s OPV recommendation’,75 one of the reasons being inconsistency with the federal electoral system. Mr Willis quoted from the PCEAR’s Report on an Electoral and Administrative Review Commission Report on Queensland Legislative Assembly Electoral System: The Committee sees merit in the recommendation for optional preferential voting which does not force voters to declare preferences they do not have in order to avoid having their vote declared invalid; however the Committee considers that there is a strong argument in favour of compulsory preferential voting in that it would be consistent with Commonwealth electoral law and thus avoid confusion and resultant voting invalidity. …76

71 Submission 8, p 2. 72 Don Willis, Tabled Paper 1 of 2, p 4. 73 Public hearing transcript, Brisbane, 25 November 2019, p 5. See also, Tabled Paper, Don Willis, 1 of 2. 74 See for example, Hon Yvette D’Ath MP, then Attorney-General and Minister for Justice and Minister for Training and Skills, Queensland Parliament, Record of Proceeding, 21 April 2016, p 1373. Note however that Andrew McDonald considered that ‘it is not the job of the state government to reduce the informal voting rate of the federal parliament. The Queensland parliament is responsible to the electors of Queensland.’: Public hearing transcript, Brisbane, 25 November 2019, p 8. 75 Submission 3, p 1. 76 Parliamentary Committee for Electoral and Administrative Review, Report on an Electoral and Administrative Review Commission Report on Queensland Legislative Assembly Electoral System, February 1991, pp 11-12.

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Mr Willis also noted that two National Party PCEAR members, Mark Stoneman MLA and Tony FitzGerald MLA, made a number of arguments against OPV in their dissenting report, including that it was undesirable to have inconsistency between the federal and state electoral systems.77 3.5 Stakeholders’ recommendations 3.5.1 Numbers not tick or cross Professor Orr recommended that the Bill be amended to give voters only the choice of writing a number, not a tick or a cross, opposite the name of a candidate on a ballot paper. Professor Orr considered that this would be simpler and would reduce the risk of voters using ticks or crosses in other (national or local) elections.78 Professor Orr noted that New South Wales, which uses OPV, only requires the use of numbers.79 Professor Orr added: The Queensland Act need only reinforce the old rule about formality of votes (‘the intention of the elector’). For example by clearing instructing the ECQ and Courts that a clear intention includes a ‘tick or a cross’ instead of the number ‘1’ in the box beside a candidate.80 3.5.2 Education Mr Heron and Professor Orr commented on education in their submissions. Professor Orr recommended that education should be provided to voters about the value of preferencing: ‘Concerns that some electors might waste the full value of their vote by exhausting preferences should be dealt with by greater electoral education …’81 He submitted that money should be earmarked ‘to the ECQ to advocate that electors express as many preferences as they can have along the lines of, “The more you number, the more your voice may be heard.”’82 Mr Heron advocated encouraging full preferencing but acknowledged that people are entitled not to preference more than one candidate under OPV: Fully preferenced voting must be encouraged as providing the maximum level of choice and political engagement in order to ensure the Commonalty is represented by their most preferred candidate and not by their least preferred candidate. It would be irresponsible and disloyal for any public servant to represent a less than fully preferenced ballot as a preferable or equally effective expression of their political rights. The choice to do so however must be respected as an equally valid expression of their political rights.83 3.5.3 ‘Just vote 1’ campaigns Professor Orr recommended that there be ‘strong rules against “just vote 1” campaigns dressed up to look like ECQ advice’.84 Professor Orr advocated the Bill be amended: … to include an offence of mimicking Electoral Commission of Queensland colours on material to avoid the Chisholm nonsense that the Victorian Liberals perpetrated and to minimise the risk of ‘just vote one material’ masquerading as EQC advice.85

77 Parliamentary Committee for Electoral and Administrative Review, Report on an Electoral and Administrative Review Commission Report on Queensland Legislative Assembly Electoral System, February 1991, Appendix J, p 5. 78 Submission 2, p 2. 79 Submission 2, p 2. 80 Submission 2, p 2. See also, public hearing transcript, Brisbane, 25 October 2019, p 13. 81 Submission 2, p 2. 82 Public hearing transcript, Brisbane, 25 November 2019, p 11. 83 Submission 1, p 4. 84 Submission 2, p 2. 85 Public hearing transcript, Brisbane, 25 November 2019, p 11.

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3.6 Matters outside the scope of the Bill 3.6.1 Informal vote analysis report Mr McDonald recommended that the committee seek an informal vote analysis report from ECQ in relation to the 2017 election ‘to inform it properly for the report which comes out in March 2020’.86 3.6.2 Election advertising and preference deals Ivan McKay supported the Bill but considered that ‘a much clearer and transparent choice for all voters would be truth in advertising purchased for, and/or during, political voting periods.’87 He elaborated: This would include upfront and advertised declarations of preferential 'deals' by any party with any other party, and significant penalties (eg very large fines and disqualification of candidate) for any party or candidate whom does not align preferences as declared; This should include mandatory deadlines and methods to declare such agreements between parties and candidates for preference deals Such deadlines should be available within a reasonable timeframe for voters to be able to access and make an informed decision (eg not within the last 24 hrs of election day but at least 7 days beforehand) Such methods to advertise should be mandatory for any how to vote card, on their website(s), smartphone apps, and newspapers88 3.6.3 Conduct elections using first-past-the-post voting Mr Tait supported the Bill but recommended that a committee inquiry be conducted with a view to examining the re-introduction of a FPTP voting system.89 3.6.4 Public confidence in the electoral system Ms Pink and Mr Cotter advocated wider changes to the electoral system. Restoring public confidence in the electoral system requires addressing the actual issues undermining the confidence which come down to the disconnect between how the electorate votes and the composition of the resulting parliament. The lack of proportional representation, a clear correlation between votes and representation is of far greater salience than compliance with the recommendations of a 30 year old report.90 Mr Cotter commented that the electoral system has not changed to reflect changed conditions: … I am talking about changes in the proportion of the vote. The proportion of the vote for major parties combined has gone down. LNP and ALP are both sitting on a bit over a third of the vote and then about a third of the vote is not the major parties. That has not been reflected in the parliament. There is one green representing 10 per cent of the population. There is one One Nation person representing 13 per cent of the population. The system has not changed to reflect that. When the EARC made the report they said essentially there are not any minor parties so we do not have to change the system to take account of them. The voters have moved, the system has not, the parliament has not.91 Ms Pink and Mr Cotter recommended:

86 Public hearing transcript, Brisbane, 25 November 2019, p 7. 87 Submission 6, p 1. 88 Submission 6, p 1. 89 Submission 4A, p 66. 90 Submission 8, p 3. 91 Public hearing transcript, Brisbane, 25 November 2019, p 3.

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• regular reviews of the functions of the electoral system and the ECQ by a citizens jury of registered voters appointed by sortition • the committee consider the merits of changing to a proportional system such as the mixed member proportional system used in New Zealand or the Hare-Clark electoral system used in Tasmania and the Australian Capital Territory.92

92 Submission 8, pp 4-5.

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4 Compliance with the Legislative Standards Act 1992

4.1 Fundamental legislative principles Section 4 of the Legislative Standards Act 1992 (LSA) states that ‘fundamental legislative principles’ (FLPs) are the ‘principles relating to legislation that underlie a parliamentary democracy based on the rule of law’. The principles include that legislation has sufficient regard to: • the rights and liberties of individuals • the institution of Parliament. The committee has examined the application of FLPs to the Bill. No issues of FLPs were identified. 4.2 Explanatory notes Part 4 of the LSA requires that an explanatory note be circulated when a Bill is introduced into the Legislative Assembly, and sets out the information an explanatory note should contain. Explanatory notes were tabled with the introduction of the Bill. Two observations might be made. Firstly, s 23(1)(f) of the LSA requires explanatory notes to provide a brief assessment of the consistency of the Bill with FLPs and, if it is inconsistent with FLPs, the reasons for the inconsistency. Here, under the heading Consistency with fundamental legislative principles, the explanatory notes state only this: ‘The Bill is generally consistent with fundamental legislative principles.’93 A statement that a Bill is ‘generally’ consistent implies a degree of inconsistency, but the explanatory notes do not detail any inconsistency nor provide any reasons for any inconsistency. Secondly, s 23(1)(g) of the LSA requires explanatory notes to provide a brief statement of the extent to which consultation was carried out in relation to the Bill. Here, under the heading Consultation, the explanatory notes state only this: The OPV system was recommended by the post-Fitzgerald body, the ‘Electoral and Administrative Review Commission’ which underwent a thorough consultation process.94 This statement does not address the matter of any consultation on the Bill, as required by s 23(1)(g). Section 23(2) provides that if an explanatory note does not include the information mentioned in s 23(1), it must state the reason for non-inclusion. The notes otherwise contain the information required by Part 4 and a sufficient level of background information and commentary to facilitate understanding of the Bill’s aims and origins.

93 Explanatory notes, p 1. 94 Explanatory notes, p 2.

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Appendix A – Submitters

Sub # Submitter

001 Robert Heron

002 Professor Graeme Orr

003 Don Willis

004 Bill Tait (Jnr) Esq

004A Bill Tait (Jnr) Esq

005 John Mayo

006 Ivan McKay

007 Andrew McDonald

008 Alexis Pink and Neil Cotter

009 Pat Coleman

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Appendix B – Witnesses at public hearing

Private capacity • Alexis Pink and Neil Cotter • Don Willis • Andrew McDonald • Professor Graeme Orr

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Statement of Reservation

The LNP members of the Legal Affairs and Community Safety Committee support the intent of the Electoral (Voter’s Choice) Amendment Bill 2019.

A democratic voting system is essential to restoring public confidence in Queensland’s electoral system. The re-introduction of optional preferential voting (OPV) will achieve this by empowering electors to vote for who they choose, while preserving the option for electors to vote under a full preferential voting system. People should have the right to vote for as many candidates as they want – you shouldn’t have to vote for someone that you don’t support.

The LNP committee members believe that electors should have the liberty to vote for who they choose, rather than be compelled to vote for candidates that are at odds with their values and who they would ordinarily not vote for.

The Fitzgerald Inquiry reforms established the Electoral Administrative Review Commission (EARC), which recommended OPV (Report on Queensland Legislative Assembly Electoral System, p.59). However, the Palaszczuk Labor government’s 2016 amendments shamefully scrapped the longstanding voting system of OPV and trashed Fitzgerald reforms in the process. This undemocratic move was done with 18 minutes notice and no consultation or committee review. It was political opportunism at its very worst.

OPV is undoubtedly the most democratic voting system which must be restored to preserve democracy and restore public confidence in Queensland’s electoral system

James Lister MP James (Jim) McDonald MP Deputy Chair Member for Lockyer Member for Southern Downs

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