The most significant changes to the system for elections to the Australian Senate since 1984 received Royal Assent last week. Harry Hobbs and George Williams explain the background to the legislation, which will give voters more control over how their preferences are distributed. They argue that, in reflecting the principle that candidates should be elected based on the size of their vote rather than opaque preference deals, the changes are a major improvement.

After a marathon debate lasting over 28 hours, the Australian Senate has passed the most significant changes to its method of election since 1984. The changes are contained in the Commonwealth Electoral Amendment Act 2016, which was given Royal Assent on 21 March, just in time for the upcoming Federal election – though a quixotic High Court challenge to overturn the legislation has been launched.

The Australian Senate

The Senate differs from the House of Lords in several important respects. Australia’s upper house is an elected body. Section 7 of the Australian Constitution provides that:

The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

Since 1949 the Senate has been elected under a proportional voting system. As six Senators are elected for each state at each normal half-Senate election, a candidate requires 14.3 per cent of the vote to be chosen. A candidate who fails to reach this quota is excluded and their votes transferred to the voters’ second preference. This process continues until all six Senators have been elected. This proportional method of selection means that the government of the day typically does not command a majority in the chamber.

The Senate wields considerable legislative power. Section 53 of the Constitution forbids the Senate from introducing or amending laws appropriating revenue or imposing taxation, but importantly notes that ‘except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws’. As such, the Senate is not required to automatically pass any bill, even if it formed part of the governing party’s election promise. This is not an idle power. In the current parliament the Senate has refused to pass 41 government bills.

Background to the reforms

The Senate voting system was last amended in 1984 in response to a high number of invalid votes in the preceding election. These reforms were intended to make the ballot paper user friendly. Among other amendments, party names were included on the ballot and it was divided into two sections. The system directed a voter to mark either:

• Above the Line (ATL) boxes for registered political parties or groups of independent candidates that have lodged a Group Voting Ticket; or
• Below the Line (BTL) boxes for individual candidates, separated into column order.

ATL voting required a voter to place only a single first preference in a party’s box ATL. That party’s Group Voting Ticket then dictated the voter’s full preference flow for all candidates. In contrast, BTL voting required a voter to number all of the boxes BTL in a complete sequential order.

The health of an electoral system should be measured in its capacity to translate the will of the voters into electoral outcomes. While the system introduced in 1984 may have worked well in theory, it failed in the 2013 federal election:

• In Victoria, the Australian Motoring Enthusiasts Party received just 0.51% of the primary vote, but their candidate, Ricky Muir, was elected.
• In Western Australia, the Sports Party received just 0.23% of the primary vote, but their candidate, Wayne Dropulich was elected. However, because 1,375 ballot papers were lost by the Australian Electoral Commission, the result was voided and a Western Australia Senate election was rerun in 2014. Mr Dropulich was not successful at this election.

The fundamental problem with the 1984 system was the combination of a number of factors:

1. The rate of ATL voting in Australia is very high (96.5% in the 2013 Federal election), which gives considerable power to Group Voting Tickets;
2. Voters are not aware of their selected party’s Group Voting Ticket or do not fully comprehend the potential flow of preferences;
3. Loose party registration requirements allowed individuals to register multiple ‘front’ parties designed specifically to harvest first preference votes to then transfer to other parties in preference deals organised through Group Voting Tickets;
4. More micro parties meant more candidates listed BTL (110 in NSW in 2013), making ATL voting even more attractive, and it practically impossible for voters to make an informed choice when preferencing candidates.

As the Parliamentary Joint Standing Committee on Electoral Matters (PJSCEM) found in its report on the 2013 election, the 1984 system ‘distorted the will of the voters, made Senate voting convoluted and confusing, and corroded the integrity of our electoral system’. The PJSCEM recommended a series of changes to the Senate voting system.

The Commonwealth Electoral Amendment Act 2016

The new voting system is a major improvement on the previous system. It allows voters to control the flow of their preferences, and therefore electoral outcomes, rather than permitting these to be determined by political parties on their behalf.

The Act introduces optional preferential voting. Instead of marking a single box, a person voting ATL is now able to mark at least six boxes, allowing – if they choose – more control over their preferences. Group Voting Tickets are abolished. The Act also simplifies BTL voting. Instead of being required to number every box BTL, a voter need only mark at least 12 boxes.

These reforms remove the incentive for individuals to register multiple micro parties designed to harvest preferences. Under this system, it is much less likely that candidates would be elected through miniscule first preference votes and high rates of transferred votes.

Additionally, party registration rules have been tightened to ensure that parties are real and genuine, rather than vehicles for electoral manipulation. A person may no longer be a registered officer of more than one registered political party, thereby limiting the ability of individuals to create multiple ‘front’ parties designed to harvest preferences, but not at the expense of unduly raising barriers to political participation

That said, as the marathon Senate debate indicated, not all parties supported the amendments. In short, concerns centred on the propositions that:

1. Voters for minor parties will be disenfranchised;
2. There will be a loss in political diversity; and
3. The exhaustion of preferences will entrench the position of the major parties.

These concerns can be dealt with quickly. First, it is true that in the 2013 election, minor parties received 23 per cent of the vote and won seven of 40 seats (17.5 per cent). However, it is not true that a person who votes for a minor party prefers all other minor parties to the three major parties. In evidence before the PJSCEM, Dr Kevin Bonham explained:

I analysed sample preference flows from micro-parties when their candidates were excluded from House of Representatives counts. In cases where a micro-party candidate was excluded from the count, I found that between 33% and 71% of preferences (varying by micro-party) flowed directly to one of the “big three” even when there was still at least one other micro-party in the count.

The reforms ensure that the electoral system more accurately reflects the will of the voter. Indeed, it will clarify whether a voter is, for example, voting 1 for a minor party, and 2 for a major party, or if the person does not want to vote for a major party at all.

Second, while diversity of political candidates and parties is integral to a robust democracy it makes little sense as a fundamental objective of an electoral system. Rather, an electoral system should empower voters and translate their wishes into electoral outcomes as accurately as possible. If voters desire diversity they may continue to vote for diverse candidates and parties; if those candidates receive a quota, they will be elected.

Third, leaders of the non-major parties have argued that abolishing GVTs and introducing optional preferential voting will lead to the exhaustion of votes (a ballot paper is exhausted when it has no preferences marked next to candidates still in the count). This is a real concern. As such, the ballot paper will instruct voters to number at least six boxes ATL and 12 BTL, so that their vote ‘has a reasonable life upon the distribution of preferences’, even though the savings provisions will mean that their vote counts if they decide to number only one or six boxes respectively.

High Court challenge

Concerned that the amendments will make it harder for them to remain in parliament, Senators Bob Day (Family First) and David Leyonhjelm (Liberal Democrats) have launched a challenge in the High Court of Australia. Their position is that any system that allows votes to be exhausted is inconsistent with section 7 of the Constitution’s requirement that Senators be ‘directly chosen by the people’.

The challenge is unlikely to succeed. The High Court has emphasised that the federal Parliament has significant leeway in determining the electoral system to be applied to the selection of members of Parliament. For example, in Langer v Commonwealth (1996) 186 CLR 302, Chief Justice Brennan stated:

Provided the prescribed method of voting permits a free choice among the candidates for election, it is within the legislative power of the Parliament.

Concluding remarks

There has been a longstanding concern that the Senate is unrepresentative. Until 1979 the Labor Party had included a section in its national platform advocating its abolition, and in 1921 the Queensland Labor government successfully abolished its Upper House. In 1992, then Prime Minister Paul Keating even referred to the Senate as an ‘unrepresentative swill’. The gaming of the Senate electoral system, brought home in the 2013 federal election, reinforced such concerns.

These issues have now been responded to appropriately by way of the most significant reforms to the method of voting for the Australian Senate in a number of decades. The changes reflect the principle that candidates should be elected based on the size of their vote, not on opaque preference deals.

About the authors

Harry Hobbs is a PhD Candidate at UNSW Law.

George Williams is the Anthony Mason Professor at UNSW Law. He will be the Dean of UNSW Law from June 2016.