Notes on a new Senate

Well, new at least in a loose sense – 36 of the 76 members of Australia’s Senate commenced their terms this week, 12 of them new and 24 re-elected. They will sit for the first time on Monday. Strictly speaking, there is only ever a “new” Senate after a double dissolution; continuity in the Senate is a key part of the Australian constitution, although good luck finding a mainstream journalist who understands that.

Unless one of the parties concerned has a change of heart, this should be the last time (as noted in Tuesday’s Crikey editorial) that we seat senators elected by Australia’s strange method of automatic ticket preferencing. The Joint Standing Committee on Electoral Matters has recommended, with the support of the Coalition, Labor and the Greens, abolition of the system and the introduction of ordinary optional preferential voting both above and below the line (for parties and for individual candidates respectively).

As with many innovations, the defects of automatic ticket voting (introduced in 1984) did not become apparent immediately. Perhaps because they were accustomed to the system where they had to use how-to-vote cards to induce their voters to cast formal votes, parties at first used their tickets to direct preferences in much the way that their voters would have wanted.

The first serious sign of what the new system could do came in 2004, when the Victorian ALP did a preference deal with the Assemblies of God party, Family First, and secured the election of Steve Fielding, who started with only 1.9% of the vote, ahead of the Greens candidate – an outcome that was presumably not what the vast majority of Labor voters would have preferred.

Where major parties went, minor parties followed. As it became clear that the system could be gamed, weird and wonderful preference deals proliferated and Senate elections took on more of the appearance of a lottery. With big prizes at stake, more and more candidates threw their hats into the ring, making ballot papers larger and more complicated.

This had two effects. Firstly, the idea of voting below the line became even more daunting, so the chance of enough voters taking that option to frustrate a preference deal became ever more negligible. Secondly, even above the line voting became difficult, with the right party hard to find, so parties that bore a similar name to a major party – such as the Liberal Democratic Party or the Democratic Labo(u)r Party – could reap a huge bonus from confused voters on the occasion that they drew a more favorable ballot position than their semi-namesakes, producing more anomalous results.

Abolishing automatic ticket preferencing is an unequivocal gain for democracy. Votes will go where voters choose to send them, not where party bosses, major or minor, want them to go.

Of course, no-one pretends that the parties who have belatedly come to support change are acting from pure and disinterested motives. As usual, self-interest is their primary guide. But this is one of those occasions – uncommon, but not unknown – where partisan self-interest coincides with democratic principle.

More depressing is the way that the minor parties have lined up against the change. One might have hoped that with small bands of activists principle might sometimes trump expediency. But they appear to be presenting a united front against democracy, simply because they have benefited from the present system. Glen Druery, who has been responsible for many of the most outlandish preference swaps, told the Age that “if there is one thing that will unite the crossbench, it’s adopting these changes. It will unleash a storm.”

No doubt, our electoral system is unfair to minor parties in a host of ways. It’s understandable that they might feel they should try to hold on to anything they can get that goes the other way. But the problem with automatic ticket preferencing is that it’s arbitrary. It doesn’t just give a boost to minor parties in general; it sets up a lottery, and rewards only parties that are willing to participate – in effect, those parties that are the least principled, since they have to be willing to preference other minor parties regardless of policies or ideology.

The only real way to defend the system is to say that a lottery is a good thing, and that it results in “ordinary” people getting into parliament in a way that otherwise would not be possible. And indeed there’s much to be said for some sort of random selection of legislators – it is, after all, how we pick juries.

But if that’s what we want, we should do it properly and honestly, rather than by this strange backhanded method that gives so much power to party bosses and their associated preference wizards.

Electoral reform is much more often talked about than accomplished, so it’s still by no means certain that abolition of automatic ticket voting will go ahead. And even if the change is made federally, similar systems still survive for the state upper houses in Victoria, Western Australia and South Australia.

For more on the issue, don’t miss Antony Green’s analysis of how the same change has worked in New South Wales and William Bowe’s original trenchant report on the JSCEM’s recommendation. The latter provides a compelling reply to those who fancy that the minor parties are offering what voters want:

By breaking the nexus between preference negotiation and electoral success, the new system will give minor players new incentives to forge coalitions, identify leadership figures with electoral appeal, and engage with voters in a meaningful way. In doing so it could even revitalise the broader campaign process, and in some small way redress the sense of alienation that undoubtedly exists among much of the electorate.

4 thoughts on “Notes on a new Senate

  1. Charles, I have long thought that preference “deals” among party bosses in Senate elections is unconstitutional. Section 7 of the Constitution states that Senators shall be “directly chosen by the people of the State, voting, …” Having party party bosses direct preferences, rather than the voter, seems (to me) to conflict with S.7.

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  2. Thanks JKUU. I don’t think it’s ever actually been litigated, but I think the courts would probably say that as long as voters have the option of voting below the line then by voting above the line they have chosen to adopt the relevant party ticket and so it’s constitutionally OK. Trouble is that below-the-line voting has become so onerous, particularly in NSW and Victoria, that for most people that’s just not a realistic option. And the AEC is not always as good as it should be about informing people about where the above-the-line votes go.

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  3. The matter came before the then Chief Justice of the High Court, Sir Harry Gibbs, before the first election under the new system in 1984, as McKenzie v Commonwealth of Australia. The notion that the regime breached Section 7 by enshrining preference deals was not raised, but it was unsuccessfully argued that it did so by discriminating against independents. Further:

    [The plaintiff submitted, first, that electors who use the simplified system of voting will be voting for parties and not for candidates and that this will contravene s 16 of the Constitution, which provides for the qualifications of a senator: it is right to say that the electors voting at a Senate election must vote for the individual candidates whom they wish to choose as senators but it is not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket. Members of Parliament were organized into political parties long before the Constitution was adopted and there is no reason to imply an inhibition on the use of a method of voting which recognizes political realities provided that the Constitution itself does not contain any indication that such a method is forbidden. No such indication, relevant to the present case, appears in the Constitution.]

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  4. Thanks William. I think Gibbs is right about voting for parties, the key word there being “enables”. If ticket voting was not just an option but for practical purposes required, because below-the-line voting had become impossibly difficult, then you might get a different conclusion.

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