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Joint Standing Committee on Electoral Matters: Senate Voting Reform

Estimates & Committees
Lee Rhiannon 1 Mar 2016

On this day of the committee, Lee used her time to question various experts and stakeholders about claims that Senate voting reform undermines democracy. The answers received made clear that these reforms strengthen the power of voters to decide where their vote ultimately goes. With these changes, political parties will no longer be able to rely on backroom preference deals to corral votes. 

Those asked questions include:

Dr Kevin Bonham, psephologist

Antony Green, psephologist and commentator

Scott Mitchell, Federal Director of the National Party of Australia

Anthony Nutt, Federal Director of the Liberal Party of Australia

Paul Pirani, Chief Legal Officer of the Australian Electoral Commission

Thomas Rogers, Commissioner of the Australian Electoral Commission

Professor George Williams, Professor of Law, University of New South Wales

 

Senator RHIANNON: Mr Green, you would be aware that your name is often used to argue different cases, so I thought it would be useful to ask you something. Some have argued that the proposed Senate voting reform system that we are considering will deliver coalition Senate majorities. What do you think of that claim? Is it your view that the proposed changes will basically create a fair system-a fairer system than the current one?

Mr Green: The Senate is a proportional system, for if party wins a majority of the vote it has a chance of winning a majority of the seats. So for someone to say, 'Can you guarantee the coalition will never win a majority?' I say, 'No, I can't. If they win a majority of the vote they may win a majority of the seats.' Under more normal voting patterns the coalition does not get a majority of the vote. I counted it up and there are less than half a dozen instances in the last 25 years of them getting to 50 per cent in their own right in any individual state. In a double dissolution, where you are more likely to get a majority than a half-Senate election, that is the only time you would start seeing it as being a chance. It is much more likely that the coalition will win six seats at a double dissolution or three at a half-Senate election in each state. But I would point out that during the Howard government in 1996, 1998 and 2004 they won three of all of the vacancies in three states under the current system. All I am saying is that it would tend to produce the same thing as the current system.

Senator CONROY: One institutionalises it and one is a random event.

CHAIR: Senator Conroy, Senator Rhiannon has the call.

Mr Green: I will just say that under the current system what you can do is engineer preference deals and stop the system delivering a proportional result. If you can take a party with a very low vote and deliver them victory-

Senator CONROY: 42 per cent of the-

CHAIR: Senator Conroy, please do not interrupt Senator Rhiannon, who has the call.

Senator CONROY: Arguing at 50 per cent is misleading.

Senator RHIANNON: But going back to what you said in your response earlier, are you saying that under the changed system Labor would have picked up a seat in South Australia and WA?

Mr Green: Yes.

Senator CONROY: Agreed! No argument.

Senator RHIANNON: So with this statement that the coalition would be winning forever and ever, I think you are emphasising that it obviously depends on what the results of the elections are, how they run their election campaign and what the vote that comes in is.

Mr Green: Changing the numbers to six per half-Senate election in 1984 has created a situation where the Senate is always much more likely to be deadlocked with one party, if it does well at an election, winning half of the seats. In the case of the Howard government it won half of the seats for two elections in a row because it won two handsome victories. Back in the 1950s when Tasmania had a series of deadlocked parliaments because they were electing six members per seat, the solution was to go to an odd number so they do not get deadlocks in the same way. The Australian parliament went the opposite way, virtually deadlocking the Senate and making it very difficult for one party or the other to ever get a majority again since 1984.

Senator RHIANNON: Professor Williams, I just want to clarify something to understand your comments more thoroughly, because this-below-the line issue is incredibly important. Are you saying that when voters cast their vote, the ease or difficulty should be the same above the line or below the line so that it does not force voters to vote above the line or just go along with the selected order of candidates recommended by their preferred party? Is that the essence of that you are saying?

Prof. Williams: That is certainly one of the major arguments, yes, that a voter should have a free choice as to whether they want to vote for a party or a candidate and that the system should not be structured so as to make one of those, particularly candidate voting, so onerous that it puts it beyond the bounds of practicality. My point is that that is an ill-designed system, and hence that is why this committee reached a different solution. As to how that relates to the potential constitutional issues, as Malcolm Mackerras has indicated, the parliament must design a system that is directly chosen by the people; and a system that appears very much weighted one way rather than the other that is directing people away from voting for candidates is something that would raise some additional constitutional issues.

Senator RHIANNON: Dr Bonham, I think you have been advocating to ban just-vote-1 how-to-vote cards? Could you elaborate on that, please.

Dr Bonham: Yes. In states that have saving provisions-for instance, the ACT and South Australia-there are restrictions on advising voters to use them, because this can be used. For instance, you can run a siphon party that pretended to be a green party but wasn't and run a just-vote-1 campaign for it and steal votes from the Greens. It is important to strike a balance here between freedom of speech and discussion about political matters, including the quality of the electoral system, but I have recommended in my submission that it should not be allowed to issue a how-to-vote card that recommends that voters vote in a manner different to the instructions on the ballot paper and that it should also not be allowed to encourage people to do this or publish an advertisement that draws people's attention to the fact that they can do that. Basically, the idea should be that people will just vote 1 above the line but voters should not be encouraged to do that because, if voters are encouraged to do that, you may get higher exhaust rates than otherwise and those may be distributed unevenly between different parties. We have seen in the ACT that the rate of people just voting 1 and then exhausting their preference is very low.

CHAIR: Thank you.


Later on

Senator RHIANNON: As to the idea that people would be out there with just vote 1 cards, is there any incentive for people to do that considering, for the last spot, preferences most likely will be needed? You have given the examples from New South Wales. Is it likely that people would be issuing vote 1 cards? Is there any incentive to do that?

Mr Green: I did some modelling. There have been some attempts to try to encourage people to give preferences in the New South Wales upper house. It does not seem to have been particularly effective. At the last New South Wales election the highest rate of preferences was by the Greens. I cannot quite find my numbers here, unfortunately. Parties have tried to influence it. They have handed out how-to-vote cards with 1s and 2s or 1, 2, 3s. It has not been very effective in encouraging people to do that. I think there are some differences. The New South Wales ballot paper says just vote 1. So the instructions say that. The New South Wales ballot paper is not an attractive ballot paper. Even with the reforms, it is still a very large, what I like to call mutant lotto form, by the look of it, because of the sheer number of candidates that must be shown below the line.

Given that there is a higher quota and, therefore, the last spot is more up for grabs because you have got to get to a higher level of vote, it is in the interests of parties to try to encourage voters to give preferences. There may be some parties that want to punish another party by advocating 1. It is up to the parliament to decide how it wants to deal with that, whether it wants to stop just advocating 1.

Senator RHIANNON: So what you are saying is that the parties who give out how-to-vote cards, who are trying to get candidates elected, would have an incentive to give preferences?

Mr Green: It is. Some parties may find that it is more important they have a formal vote cast. Their first preference may be very large. Their second, third, fourth may be much smaller. I think it is up to the parties to decide how they do that. Certainly there is a lot more encouragement in this for parties to indicate preferences, to try and encourage voters to give preferences, because their preferences may be important. If it is a party which is just short of a third quota then probably their preferences are not going to be distributed-

Senator RHIANNON: But they will not know that until the election day.

Mr Green: They will have some rough idea-

Senator RHIANNON: It is a risk.

Mr Green: within a percentile. It would still be in the interests of all parties to indicate preferences.

Senator RHIANNON: Dr Bonham, the issue about other parties and the percentage comes up. I was interested in your comments on this. Can you elaborate on the idea that, while the collective category called 'other parties' may have won 23 per cent of the Senate vote in 2013, it is a false logic to argue that collectively that should be rewarded with 23 per cent of the seats for micro-parties? Is your contention mainly based on evidence that many of the micro-party voters prefer Labor, Greens or the coalition ahead of other micro-parties?

Dr Bonham: I had a look at what micro-party voters do in the House of Representatives where they do not have the guidance of above-the-line voting. I found that quite substantial numbers of micro-party voters send their preferences to Labor, the coalition or the Greens, even when there were other micro-parties still left in the count that they could send them to instead. The reason for this is pretty obvious. Micro-parties are a diverse bunch. Some are left-wing micro-parties; some are right-wing micro-parties; some are unclassifiable. Some of the left-wing micro-parties hate the ring-wing micro-parties and put them last, and vice versa. This idea that there was this monolithic group of 20-odd per cent of Australians at the last election-although that was higher than normal-who want any alternative to the major parties, whatever it is, is a complete furphy. On that basis, arguments that the system would result in underrepresentation of other parties I just do not think are sound.

They are not entitled to that level of proportional representation in the first place when they are not all the same thing. You cannot have everybody who gets half a per cent of the vote in the parliament.

Mr Green: I found the figures I was after. I have taken all of the above-the-line preference ballot papers in the New South Wales election. Of the coalition's votes, 5.5 per cent of all their votes exactly follow their how-to-vote card, which is 1 for the coalition and 2 for the Christian Democrats. The Labor party had a sequence of four: 1 Labor, 2 Greens, 3 Animal Justice and 4 Australian Cyclists. Some 4.2 per cent of Labor voters exactly followed that and 2.8 per cent just went 1 Greens. About five per cent of Greens voters went Greens 1, Labor 2. The party that had the strongest incidence of people following the how-to-vote card was the Christian Democrats, who had 11 per cent following it-1 Christian Democrats, 2 coalition. So the numbers are not very high, but that is in a system where there is a very high exhausted rate and it is not indicated to give preferences.


Later on

Senator CONROY: I have spent some time examining these issues over the many years I have been involved in politics-not just in parliament. I have probably only met 10 people-most of them have been in this room this morning-who truly understand how it works and who actually have a genuinely full understanding of how that system would work. So I am not sure that anything has changed. When I started learning about it myself all of those years ago, not that many people-and I am talking of very small numbers-understood the full way that the system worked, and I do not believe that it has changed.

So I accept the point that is being made-that others have come in. I characterise it when I have these discussions as, 'All that Glenn Druery worked out was how to game the system the same way Tony Nutt and Gary Gray did for years.' They got a group of people in a room and said, 'As long as you don't give a preference to the Greens, to Labor or to a Liberal, one of you in this room-and I don't know which-will get elected.' Has that been really any different to when you used to go and offer somebody, 'We'll give you our fifth preference in return for your second preference,' or, 'We'll give you our ninth preference in return for your third preference'.

Senator RHIANNON: That is the system you would like to keep going?

CHAIR: Senator Rhiannon, Senator Conroy has the call.

Senator RHIANNON: You are actually setting out the case of the problem that we have.

Senator CONROY: I am just asking: is that essentially what has happened at the moment? The total number of people who would fully understand the way the science and the math works would be a very small number. Is that a fair call, in your experience?

Mr Nutt: The number of people amongst general electors in the wider community who would understand the detailed mathematics and processes of group voting tickets would be limited.

Senator RHIANNON: Some have argued that the proposed system of Senate voting reform that is set out in the bill will deliver the coalition a Senate majority. Some have gone so far as to say that it would be locked in-and I acknowledge the interjection from Senator Conroy, because he is the main proponent of this-that there will forever be 38 coalition senators. Is that your analysis?

Mr Nutt: Respectfully, if I could work out how Australians were going to vote in the future, I would be on a desert island-

Senator Conroy interjecting-

CHAIR: Senator Conroy, I would ask that you do not interrupt the witness.

Senator CONROY: Oh, Tony!

Mr Nutt: I take no offence at Senator Conroy-we are both vigorous participants in the political system. You cannot know, because it is dependent on what voters will do, and voters over time change their mind. Voters have elected Senator Nick Xenophon. Voters identified and over time began to support the Greens. Voters decided, at a certain point, not to support the Democrats, having earlier supported them. There is change in the political system. The Palmer United Party emerged at short notice and secured parliamentary representation. Electors have a funny way of making up their own mind, thanks very much, about what they are going to do. You can look at scenarios, but I always find that, at best, scenarios just create interesting intellectual discussion.

I do not think-answering the senator's question-that this change will advantage the coalition in terms of locking in some sort of position. What it will do is advantage electors so they will be the ones making the decisions rather than people like me. There is some open source material, speculation by academics-people like Antony Green. I think Mr Gray said in his remarks in the House last week that he had had the Parliamentary Library look at some things. There are different debates, but I do not see any evidence that anyone is going to have any locked-in positions-certainly in terms of control of the Senate.

Senator RHIANNON: You would be obviously be aware that there will be instructions on the ballot paper, if the legislation goes through, to number at least six boxes. There has been some speculation today and previously that some people may advocate 'just vote 1'. Do you think that is likely to happen? Would there be an incentive for people to give preferences? Is there a requirement to put something in legislation to ensure that does not happen?

Mr Nutt: The parliament has not yet decided the matter. If the parliament were to decide the matter on the basis of the recommendations made by the government, it would be the intention of the Liberal Party to recommend preference allocation from 1 to 6. It would then be for the electors to decide whether they wanted to follow our recommendation or someone else's. There is a savings provision if people just vote 1, and there is obviously the option to go below the line, with the additional changes in the legislation that will reduce informals below the line from about two per cent at the 2013 election to about one per cent. There is an enhancement below the line for voters in terms of ensuring that their votes remain valid, and there is an enhancement above the line-and certainly it would be the intention of the Liberal Party to recommend preference allocation for at least 1 to 6. We will have a how-to-vote card, the Greens will have a how-to-vote card and everyone else will have a how-to-vote card, but it will be up to the elector to make that decision. I am not sure that it is necessary to make it an obligation; I think the legislation as proposed is satisfactory.


Later on

Senator RHIANNON: Mr Mitchell, there has been some speculation here today and some commentary that some people may advocate 'just vote 1'. Could you comment on whether you think that is likely and whether measures should be taken to ensure that that does not happen?

Mr Mitchell: I am not really sure that I feel confident to speculate on what people may or may not do down the track, but the current proposal is where the Electoral Commission will advise people to vote 1 to 6 above the line, and I am quite confident that most people will do that.

Senator RHIANNON: So, with regard to just voting 1, that is not something that the National Party would entertain saying to people?

Senator O'SULLIVAN: That is not within his providence to answer.

Senator RHIANNON: I was just asking the question. The National Party would not be advocating 'just vote 1'?

Mr Mitchell: The National Party will be advocating for a vote of 1 to 6 above the line, strongly.

Senator RHIANNON: Some have argued that the proposed system, the Senate voting reform changes that we are looking at in the bill, would deliver the coalition Senate majorities forever and a day. What is your response to that, please?

Mr Mitchell: I am never going to underestimate the ability of Independent senators or others to get candidates elected. I am not really in a position to speculate on how many seats one party or another might not win. At the end of the day, this new system is going to make it imperative for us all to get out and work hard to earn our votes.

Senator O'SULLIVAN: Hear, hear!

Senator RHIANNON: So what you are really saying is that the changes push it back onto the politicians and the candidates to get out there and have real engagement with real people-

Senator O'SULLIVAN: That's a novel idea.

Senator RHIANNON: to win votes; is that what you are saying?

Mr Mitchell: That is correct.

 

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