Fitzgerald inquiry

An inquiry into a column on upper house electoral reform in The Australian today, and matters related thereto.

As the Abbott government stalls on introducing the Senate electoral reform advocated by last year’s bipartisan finding of the Joint Standing Committee on Electoral Matters, The Australian today offers an opinion piece concerning the matter from Ross Fitzgerald. After extolling the vitues of Fiona Patten, the Sex Party figurehead who won election to Victoria’s Legislative Council in November, Fitzgerald takes aim at those who advocate reforms that might have prevented it:

So how did she get elected by a margin of some 20,000 votes? If you believe the nonsense spouted recently by psephologist Antony Green and Labor powerbroker Gary Gray, she “gamed” the proportional representation voting system under which the election was held. That is, Patten won a seat with a primary vote of about 3 per cent by cajoling and carousing with other minor parties to undermine a system that ideally should return “serious” parties like Labor, Nationals, Liberals and the Greens. These arguments need to be exposed before parliaments throughout Australia start acting on them in the mistaken belief that democracy is somehow better served by fewer rather than more political parties. Green maintains that minor parties, who tightly swap preferences among themselves and exclude the major parties, are somehow rorting the system. He and Gray appear to believe that the proportional representation system of voting only works properly when it returns a relatively small crossbench and preferably one that does not hold the balance of power.

Gary Gray I can’t speak for, but since Antony Green’s opinion on these matters is much the same as my own, I consider myself well placed to point out what is wrong with this.

Fitzgerald’s column is liberally sprinked with words like “apparently”, “appears to” and “as far as I know”, followed by assertions which in many cases prove to be untrue. Perhaps it does “appear” that Antony Green believes proportional representation “only works properly when it returns a relatively small crossbench” – but only if one is operating from a position of ignorance to which Fitzgerald, under the circumstances, is not entitled.

In fact, what Antony Green advocates is the model used for the New South Wales Legislative Council, a chamber of 42 members that includes nine cross-benchers who were elected as such. Among these are two members from Shooters & Fishers and two from the Christian Democratic Party, along with five Greens. This makes the situation hardly different from the Victorian Legislative Council, a chamber of 40 which includes five Greens along with another five from various minor concerns. Indeed, Fiona Patten would probably have been elected as lead candidate of the Sex Party under the New South Wales model, given her party’s 2.6% share of the Victorian statewide vote.

Fitzgerald continues:

As far as I know, neither of them levelled similar criticisms at the independent Tasmanian senator Brian Harradine, who held federal governments to ransom for nearly 20 years off a primary vote of 7 per cent or when Family First’s Steve Fielding was elected to the Senate off a primary vote of 1.8 per cent.

If Fitzgerald feels he can use the phrase “as far as I know”, and follow it with the assertion that Antony Green was relaxed about Steve Fielding’s election since it was achieved from major party preferences, it can only be said that he doesn’t know very far. Nobody who was familiar with Green’s position would consider this likely to be the case. And sure enough, if you Google “‘Antony Green’ ‘Steve Fielding'”, the very first thing that appears is a link that gives lie to the assertion.

The election of Steve Fielding did indeed rouse controversy in the group voting ticket system, because it was achieved through a Labor preference arrangement that would have come as a surprise to most of the party’s supporters. Despite Fitzgerald’s conviction to the contrary, dissatisfaction with the system does not begin and end with micro-party preference harvesting, but arises from the fact that voters are very often oblivious to the true effect of their decisions.

As for Brian Harradine, Fitzgerald is, as they say, entitled to his own opinions but not his own facts. Saying Harradine “held federal governments to ransom” falls safely in the former category, but the purported fact that he did so from a 7% primary vote is no less Fitzgerald’s own. In fact, Harradine was first elected with 12.8% of the vote at the 1975 double dissolution, then re-elected with 21.3% in 1980, 13.2% in 1987, 10.4% in 1993 and 7.9% in 1998. In other words, preferences had no bearing on Harradine’s election on the first three occasions, as he achieved a quota in his own right.

When Liberal preferences did help Harradine to a quota at his last two elections, this was only what Liberal voters could reasonably have expected, given the alternative was them going to the Greens. It is for this reason, and not because his preferences came from a major party, that Harradine’s election was not a source of controversy. There is simply no parallel with the results that have lately exercised critics of group voting tickets, such as Ricky Muir’s election in Victoria from 0.5%.

The overarching problem with Fitzgerald’s argument is that he neglects the very important distinction between a system such as that of the New South Wales Legislative Council, in which micro-party members are fairly elected due to what political scientists call the “high magnitude” of its proportional representation, and a group voting ticket system that is everything its critics say it is: “gamed” and “rorted”.

The key distinction here is that New South Wales is not divided into smaller multi-member regions, as the Senate is with its state-based model, and Victoria’s upper house is with its eight five-member regions (which likewise applies to Western Australia’s six-by-six model). At each state election, candidates compete for half the chamber’s 42 seats on a statewide basis. This produces an extremely low quota for election of 4.5%, which becomes a good deal lower in practice because of the very reform advocated by Antony Green – namely, votes do not pass on as preferences beyond the point where the voter expresses a wish for them to do so. Consequently, a quite large share of the vote disappears from the count by the time the final seats are allocated, and these seats are accordingly won from very modest shares of the vote.

So it is that even without group ticket voting, seats for Shooters & Fishers and the Christian Democratic Party, who poll around 3%, are reliable fixtures of New South Wales upper house elections. That these parties in particular should succeed in winning the micro-party seats comes down to a factor to which Fitzgerald appears to (to coin a phrase) be blithely indifferent, namely the number of voters who actually wanted them to win. The system in Victoria proved to be unfair not to the big cartel, but to Palmer United and Shooters & Fishers, who respectively polled 2.7% and 2.3% in Western Victoria, but lost out to Vote 1 Local Jobs with 1.3%.

Having said all that, Fitzgerald does touch upon some genuine issues. Certainly it is true that simply abolishing above-the-line group ticket will raise the “barriers to entry” for new parties, to use a phrase that political science cops from economics in discussing such matters, unless the quota for election is also lowered. To the extent that Antony Green might have advocated one and not the other – and this I’m not sure about – his calls for abolition of group ticket voting can indeed be criticised on such grounds.

In the case of Victoria, the obvious way to resolve the issue would be to abolish the regions and go to a statewide model, such as is used in both New South Wales and South Australia. The same could be said with even greater force for Western Australia, where it would have the further advantage of removing the blight of rural malapportionment. But in the Senate, we run into the brick wall of the Constitution and its imposition of a state-based, low-magnitude model.

Given the scale of the problem uncovered by the 2013 election result, I’m not of a mind to consider this factor decisive. Existing barriers to entry did not stop Brian Harradine and Nick Xenophon winning election to the Senate. The example of Xenophon suggests that aspiring independent Senators could first establish themselves in the state parliament, at least in those states where the barriers to entry were sufficiently modest.

If under-representation of small parties and independents is a problem, having such members elected in the almost entirely arbitrary fashion characteristic of the current system hardly seems the right way of dealing with it. It would make a lot more sense, and be more in line with community expectations, to lower the quota by abolishing staggered terms, so that every Senate election was for 12 members per state, with a relatively modest quota for election of 7.7%.

This would of course require some fairly substantial constitutional surgery, including a return to the question of simultaneous House and Senate elections that was defeated at referenda on three separate occasions in 1974, 1977 and 1984. Things could very well be different if the proposal had bipartisan support, a hurdle it failed to clear on early attempts because an obstructionist Coalition opposed it when the Whitlam government put it forward in 1974, only to advance it themselves when in government three years later. With the Coalition and Labor lining up behind it federally on that occasion, the national yes vote was 62.2%, but the referendum was defeated because it failed to pass by narrow margins in Queensland and Western Australia (no doubt thanks to opposition from Joh Bjelke-Petersen and Charles Court), and a much larger one in Tasmania.

Tangentially, another interesting constitutional question which emerges relates to the double dissolution process, since the outward distinction between a double dissolution and a regular election would cease to exist. If Senate obstruction is to be deemed a problem, perhaps the answer to it is to routinely have the joint sitting mechanism available to re-elected governments in passing the legislation that was blocked in the preceding term.

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.

57 comments on “Fitzgerald inquiry”

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  1. [bemused
    Posted Monday, January 26, 2015 at 12:38 am | Permalink

    Surname without a ‘Mr’ in front of it is the ultimate in rudeness.
    Then why is it Rudd, Gillard and Abbott?

  2. I personally don’t see the need for a joint sitting after every election. The current deadlock mechanism seems to be workable and suitable. Another option would be to adopt the NSW ‘solution’, to hold a ‘referendum’ on the specific legislative initiative that is deadlocked.

    On the subject of simultaneous elections for both houses I am of two minds. Staggered elections provide an adequate safeguard against a single landslide election giving a Government too much power. Whilst it’s true that the whole of the Senate may not reflect the ‘will of the people’ as in the last election result for the lower house, the option of a simultaneous dissolution of both houses still exists should there be a deadlock.

    Even with the staggered elections, the composition of the Senate reflects the national vote share at the previous election better than the lower house composition.

  3. I would also repeat that if people were so worried about the micro parties being elected on a tiny portion of the vote, they would not vote for these parties, but would instead vote for one of the main 3. It is up to the main parties to persuade the electorate against voting for the less established parties and it is a mark of disillusionment in the platforms being put forward by the traditional parties that people are choosing not to vote for them.

  4. Although I have no theoretical objection to asking that voters spell out their wishes for ‘anyone other than Lab/Lib/Greens’ by way of allocating preferences.

  5. Edited, hypothetical S57 (a)
    As Bowe (2015) suggests, “If Senate obstruction is to be deemed a problem”

    [If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree; and
    if after an interval of three months the House of Representatives, in the same Parliament, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree; and
    a period of no less than six months passes between the second presentation of the legislation to the Senate and the dissolution or effluxion of Parliament; and
    after the dissolution or effluxion of Parliament, within six months the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate again rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor‑General may convene a joint sitting of the members of the Senate and of the House of Representatives.]

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