Beginners’ guide to the NSW upper house

This was intended to be the first of a three-part series covering the forgotten war of the New South Wales election – the contest for the upper house. It was to consist of a general introductory overview to the state’s upper house system, combined with a form guide covering Labor candidates whose ticket positions were winnable or better. However, it appears that the not inconsiderable notes I gathered earlier this week on the Labor candidates failed to save properly. Fiddle-de-dee. So instead, I bring you the first of a four-part series covering the upper house, which will be limited to the introductory overview.

Created in 1824 as an appointed body advising the Governor, the New South Wales Legislative Council is Australia’s oldest parliamentary chamber. It was also perhaps the slowest to modernise; members continued to be appointed by the Governor until 1934, and were henceforth elected indirectly by members of both houses under a system of proportional representation. Direct election was finally introduced transitionally starting with the 1978 election, when 32 of the existing 60 members were retired and 15 new members directly elected. The 1981 and 1984 elections each saw the retirement of a further 14 appointed members and the direct election of 15 new ones, bringing the total number up to 45. The intention was that a third of the 45 members would then rotate at every third election, for a maximum nine-year term.

These term lengths were inevitably criticised as excessive, and further changes were made under a package of reforms endorsed at a referendum held in conjunction with the 1991 election. The reforms included fixed terms of four years for lower house members and eight years for upper house members, along with a cut in upper house members from 45 to 42. The cut in numbers took effect immediately, cutting short the careers of three existing members who were entering the final third of their terms (one Labor, one Nationals and an independent who had originally been elected as a member of Fred Nile’s Call to Australia). Henceforth, elections have been for 21 members, reducing the quota for election from 6.25 to 4.55.

The most recent round of reforms followed the celebrated fiasco of the 1999 election, at which voters were presented with a "tablecloth" ballot paper sized 100 by 70 centimetres. Even worse, from the perspective of those with the power to do something about it, was the election of no fewer than seven candidates from minor and micro parties. The two phenomena were linked – many of the 81 groups that bloated the ballot paper (one possible example being the brilliantly appealing Three Day Weekend Party) were set up to gather preferences for the benefit of electoral entrepreneurs, who cut mutually supporting deals to take advantage of each others’ "preference harvesting". The major parties were thus able to claim they were acting in good conscience when they took corrective measures.

Whatever the motivation, the changes have produced the best upper house voting system in Australia, and it is a great shame the federal, Victorian, Western Australian and South Australian systems have not followed its example. Firstly and most importantly, the above-the-line voting option was changed to do away with the monstrosity where voters number one party’s box and have that party determine a full preference distribution for them. This was replaced with an optional preferential system in which voters number as many above-the-line boxes as they wish, with preferences flowing down these parties’ lists and then exhausting. The 2003 election demonstrated that the overwhelming majority of voters will continue to number one box above-the-line; in effect, a party gets a seat for each quota it receives, and leftovers are apportioned to those with the highest remainders. Preferences will only affect the outcome when the result is very close – most importantly, they will then do so as a result of the conscious intention of voters who choose to number more than one box.

The new system resulted in an increase in the number of seats won by the major parties (from 14 to 17, although this was assisted by an increase in their share of the vote from 64.7 per cent to 76.8 per cent), and there are those who criticise it on this basis alone. However, the Poll Bludger has never understood how a system that gives the Coalition six seats from 28.6 per cent and the Outdoor Recreation Party one seat from 0.2 per cent could be described as "proportional representation". The new system penalises micro parties not because it is flawed, but because they don’t get enough votes. It is still among the country’s friendliest systems for minor parties, with a low quota for election and little chance of one party gaining a majority.

The following charts show the number of seats won by the parties at each election since 1978, and their total numbers after the election (i.e. including members who were not up for re-election).

The following phases should be noted:

1978. Fifteen new members are directly elected, joining 28 of the 60 existing indirectly elected members, for a total of 43.

1981. A further 14 indirectly elected members retire and 15 new members are elected, for a total of 44.

1984. The final 14 indirectly elected members retire and 15 new members are elected, completing the transition to 45 members.

1991. The passage of the referendum results in an immediate cut in numbers to 42, with three long-term members having their terms cut short.

1995. First election under the new system of eight-year fixed terms, with 21 rotating at each election.

1999. "Others" includes Liberal and Democrats members who had quit to sit as independents in the previous term.

2003. First election with optional preferential above-the-line voting.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

24 comments on “Beginners’ guide to the NSW upper house”

  1. Got it in one (47 years). The longest serving parliamentarian in NSW was John Mildred Creed who spent 3 years in the LA and 45 in the LC

  2. William,

    I agree that the NSW Legislative Council voting system is “still among the country’s friendliest systems for minor parties, with a low quota for election and little chance of one party gaining a majority”, but I do not agree that it is “the best upper house voting system in Australia” or that “it is a great shame the federal, Victorian, Western Australian and South Australian systems have not followed its example.”

    The single transferable vote gives the power to the voter rather than the party machines. That the voters do not exercise that power is irrelevant to my argument. They can exercise it and choose between individual candidates of the one party or even individual candidates of different parties.

    If voters do not want to follow a party’s how-to-vote card in the Victorian and Senate systems, they are free to vote below the line. If they choose not to do so, they must accept the consequences. Everybody who paid attention knew of the much-criticised Labor preferencing arrangements in the 2006 Victorian election and the 2004 Senate election. Those who do not pay attention must accept the consequences of not dong so.

    The NSW system that you describe actually allows the party to determine the voter’s below the line preferences. If you vote above the line for the various groups you have no way of indicating a preference for, say the No. 2 candidate ahead of the No. 1 candidate on the list of your second choice party.

    The one advantage is that the quota is so small, minority groups can still win representation, but the quota could stay where it is and the system still be changed to STV to increase the individual voter’s power. Again, the fact that the majority of voters would never bother to exercise such a power is not a reason for preventing those that would having it.

  3. Chris, you say that voters were aware of Labor’s preferences decisions in 06 and 04. The former may be true but in 04 plenty of Green hander-outers reported conversations with ALP people handing out who simply refused to believe the ALP had gone to Family First before the Greens. Some of these people went on denying it until it hit the news the next day – helped by teh AEC’s disgraceful decision to not make group voting tickets available on polling booths. Others checked and expressed astonishment, in some cases changing their vote in the Senate, in other cases rueing that it was too late.

    But all that is marginal compared to what happened in 1999. How many of the people who voted for “The Wilderness Party” or the “Marine Conservation Party” knew that their preferences went straight off to candidates deeply opposed to environmentalism (one of the people who made it into parliament that way is still writing articles denying anthropogenic climate change and calling virtually every climate scientist in the world a fraud).

    The NSW system is not perfect, but its better than what they had.

  4. Stephen,

    The ALP-Family First preference deal in 2004 was reported in the press well before the election. If ALP workers did not know about it, they were not keeping as informed as I would expect of members of any political party.

  5. Question – so in 1991, 15 members were elected and three were cut.

    In 1995, 21 were elected for 8 yr terms and 21 existing MPs remained. Of the 21 who remained, when were they elected? Were 15 of them elected in 1988 and 6 of them in 1991 (the top six?). Or vice versa?

  6. Chris, although I have defended the ALP-FF deal here before as a legitimate tactic to get 3 Labor Senators up, Stephen is right that the majority of Labor members (let alone Labor voters) were unaware of it and that a large number would not have voted above the line if they had been aware of it. I’m not sure whose fault that is, but it engendered a lot of ill-feeling, certainly in my part of town. If such a deal is done again this year, there will be a large revolt among Labor voters and probably “alternative HTVs” handed out at booths explaining how to vote 1 Labor 2 Green below the line. This will push up the informal vote and jeopardise Labor’s chances of the 3rd seat, which are starting to look very good. So I think there can be no such deal this time, and FF prefs will go to the Libs. With any luck Labor’s primary vote will rise sufficiently for this not to matter.

  7. Chris Curtis,

    Yes, but if you want to vote for the second candidate on your second choice party above the first candidate, you have the option. It is called below the line preferences.

    But the one thing that cannot happen in NSW is that no party can take your vote above the line and deliver it to any other party on the ballot paper. (Before someone corrects me, unless a candidate dies between now and Saturday 24th.)

    The NSW system gives parties NO ability to control preferences, only influence preferences with how-to-vote cards. Party control of preferences is done away with in the NSW system. The only preferences that count are those filled in by voters themselves.

  8. Sacha,

    15 MPs were elected in 1991, creating a house of 45. A referendum was held on the same day as the election. This resulted in the bottom 3 candidates elected in 1984 having their terms terminated, the top 12 plus the lower 9 from 1988 being given a term that expired in 1995, and the 15 elected in 1991 plus the top six from 1988 being allocated terms expiring in 1999.

    The details of who was cut and who had there terms changed was all part of the 1991 referndum.

  9. Adam,

    I agree that many ALP members who obviously don’t read newspapers did not know their own party’s how to vote card (which is a worry) and that there was a lot of hostility in the ALP over the 2004 ALP-FF deal, but I also think it was kneejerk opposition. I also agree that such a deal is less likely this time because 1) Jacinta Collins is No. 1 on the Labor ticket, not No.3, 2) Steve Fielding has been closer to the coalition that some would have expected from a party that puts the family first. If the opinion poll figures hold up, you will certainly get three ALP senators from each state and you may have to revise your view about the coalition getting three in every state.

  10. Chris,

    Whatever you might think about the NSW system v. the ticket system, it is no easier to vote for the #2 above the #1 in federal than in state. Indeed, it is easier in NSW as you have optional preferences. Compulsory preferences make it exceedingly difficult to vote BTL in the larger states (the lower number of nominations make it a bit easier in Tassie and ACT).

    I personally reckon, as well as abolishing ticket voting and replacing it with NSW-style voting, we should abolish voting below the line.

    As much as we’d like everyone to know all the candidates below the line and vote informed, instead of following party tickets, it makes it substantially harder to count votes and make ballots bigger.

    I still would support us distributing preferences to each candidate individually, but getting rid of the small numbers of BTL votes would make that process much simpler, and could be calculated much quicker.

    The only real use I’ve seen BTL votes making is where a party makes a preference decision which doesn’t really fit with their voters’ wishes, ie. ALP-FF in ’04, where Tasmania (it didn’t work in Victoria due to the state’s size) saw the Greens get over, whereas FF would have won if only ticket votes counted. But in the NSW system that use would disappear.

    Has anyone EVER seen BTL votes overturn the result within a party, ie. elect a lower party candidate over a higher party candidate, or even make it a remote possibility?

    I know purists would complain about taking more power away from individual voters, but we can give a lot more power to individual voters by abolishing ticket voting than letting them vote below the line.

    But I’m not talking about the Tasmanian Hare-Clark system here. I reckon that’s great in small electorates where people know a lot of their candidates (ie. not big states) or where a lot of seats are up for grabs (ie. NSW upper house), and I reckon it could be used on the mainland for councils, but in practice it just isn’t an option politically on the mainland. No-one’s going to do it.

    People often complain about how complicated the ballot paper is for the Senate/LC. With a lot fewer boxes, it would be much clearer to those who don’t understand the system.

  11. Ben,

    You are probably right in reality, but even though I am a cynic I like to leave a little room for idealism – for the possibility that one day sufficient individuals will make their own voting choices. I would say more but if I try to post anything of length, it just disappears into the ether of cyberspace.

  12. By the way, for those who’ve asked ( I think it was here) what preference deals had been done, the answer is who knows. All how-to-vote material has beem registered, but no one is allowed to look at it. If you are on the electoral roll for a NSW district, you will be allowed to visit your local Returning Officer on Saturday and examine registered material. But you cannot do it beforehand and you cannot look at it unless registered for that district.

    Parties are currently distributing pre-poll how-to-vote cards, but this does not mean the same preferences will be recommended on how-to-votes on Saturday.

    As for lower house preferences, you are only allowed to examine how-to-votes for your own district. The law prevents you from looking at how-to-votes in the other 92 districts. And access is only allowed on Saturday during the hours of polling.

  13. The sillyness of forcing how-to-votes to be registered but then keeping them secret is revealed when you check the list of candidates on the NSW EC website. Every candidate was forced to sign a child related conduct declaration, stating whether thay had ever been convicted of any form of child abuse or been charged with any under age sex offences. The law has required every one of these four page forms for more than 800 candidates to be scanned and put up on the NSW EC website. But its too difficult to allow public access to registered how-to-vote material. Is this a farce or am I being too kind?

  14. I’m sure it’s not so much a farce as convenient for the big parties. It lets them have flexibility in doing whatever the hell they want without accountability until it’s too late. By the time a story breaks about a party doing something dodgy with their HTVs, voting would have already been going for hours, and no story could begin to have an impact before polls close.

    Besides, Labor and the Libs have never shied away from doing something to keep away the public spotlight from their actions.

  15. Re Ben’s question about BTLs overturning a ticket order, didn’t this happen in the constitutional convention election? I seem to recall that Hazel Hawke got up ahead of the person above her on the ARM ticket because of personal votes – anyone confirm/correct?

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