The federal parliament’s Joint Standing Committee on Electoral Matters yesterday published the final report of its inquiry into the 2019 election, being the work of five Coalition members (including the committee’s chair, Queensland Senator James McGrath), four from Labor and one from the Greens (Larissa Waters). It features separate dissenting reports taking issue with various majority recommendations from both Labor and the Greens. The first thing that must be said about the report is that it could be a lot worse, a fact that strikes you very forcefully if you’ve spent the last few weeks reading Trump campaign legal challenges. Nonetheless, the extensive range of recommendations on offer demands careful scrutiny, which I endeavour to offer below.
Optional preferential voting
Apparently for no other reason than that inconsistency between state and federal systems is resulting in a high informal vote in New South Wales, the report recommends adopting that state’s system of optional preferential voting. This was vehemently opposed in separate dissenting reports from the four Labor members and the one Green, neither of whom have an interest in limiting the flow of preferences from the latter to the former. A further recommendation that Robson rotation be introduced, so that the order of candidates differs between ballot papers, likewise emerges from the blue without being justified in the report, though they could have managed it if they tried. Labor nonetheless opposed the recommendation in its dissenting report, on the dubious grounds that it will make how-to-vote cards harder to follow.
The report unsurprisingly recommends that the three-week pre-polling period should be reduced to two, correctly noting that “the consensus is that a two week period best balances the opportunity to participate in an election as a voter”. Whereas length of the early voting period is one flashpoint among many in debates over voter suppression in the US, it appears in Australia that left and right alike agree that the present situation places undue burdens on their campaigning resources.
The report dutifully notes the common argument that early voters do not enjoy “consistent access to campaign information across the period”, depriving them of badly needed election-eve Medicare and death tax scare campaigns. Undeniably this is a difficulty for the party campaigns, who have a harder time matching their set-piece events to the all-too-short attention spans of swinging voters. However, I personally tend to think this is their problem, and to doubt that voters emerge from the stuff and nonsense of a typical election campaign all that much the wiser. The more persuasive argument is that traffic during the first week of the period is too low to justify the expense, both for the AEC and the political parties.
More contentiously, the report also recommends that the AEC should start taking seriously the eligibility criteria (travel, access, medical or religious) for pre-poll voting. The AEC has developed highly permissive practices on this score, and given tacit encouragement to the pre-poll surge by increasing the number of voting centres, from 436 to 511 in the case of the 2019 election. However, here I suspect the horse has bolted: too many voters have grown accustomed to voting early, and will not appreciate being turned away in huge numbers after having had their votes accepted under ostensibly the same regime in previous years. The report would have done better to have dropped the charade and allowed for no-excuse pre-poll voting.
The report considered two issues without recommending anything be done about them. The practice of parties distributing postal vote applications so they can harvest data before sending them on to the AEC, which is popular with no one but the parties themselves, was once again weakly rationalised as a means of providing “outreach” and “build(ing) relationships with supporters”.
The report also discusses the fact that applications can be accepted as late as the Wednesday before polling day, giving the AEC an extremely tight window in which to get ballots in the hands of applicants. The commissioner, Tom Rogers, told the inquiry that AEC staff sometimes engage couriers or even deliver the ballots personally on the Thursday and Friday, “particularly if they are elderly and they know they are desperate to get a postal vote”. The AEC favoured moving the deadline to the Friday eight days before election day, but the committee preferred that Australia Post be directed to pull its finger out, perhaps with recourse to “premium mail products that can support postal vote materials in future”.
The recommendations in this important area are predictably weak: after waffling a bit about the standing outrage of the $13,800 disclosure threshold for political donations, which had been but $1500 before the Howard government won its Senate majority, it reaches the irrelevant conclusion that tax deductibility of donations and concessions for major parties should be expanded (the Greens are opposed). It is particularly shameful that the report offers nothing on the timing of public disclosure, which happens either once a year in February or six months after election. Compare and contrast the regime in Queensland, where donations of more than $1000 must be disclosed within seven days.
In the wake of Clive Palmer’s pre-election advertising blitz, which was believed to have cost more than that of the Labor and Liberal parties combined, the report mounts a formidable case for campaign spending caps then fails to follow through, pleading they would disadvantage conservative parties that did not have a trade union movement effectively campaigning on their behalf. A slew of disinterested authorities were cited in favour of reform, and it was further noted that the practice is commonplace in most non-dysfunctional western democracies (by which I mean just about all of them except the United States, where the Supreme Court’s infamous Citizens United ruling of 2010 held Palmer-style excesses to be a sacrosanct constitutional right), as well as being in force in three Australian states and one territory. The committee appeared not to be on top of the fact that a fourth state, Queensland, recently introduced caps that applied at its recent election. This did not noticeably curtail Palmer’s increasingly quixotic campaign advertising, which was required to observe a limit of around $5 million, or $92,000 for each of the 55 citizens who were ready to sully themselves by running as candidates of his party.
The report does recommend civil or criminal sanctions should apply to “siphoning” of otherwise illegal donations through front intermediaries, which Eric Abetz claimed funded donations from climate-related groups. Its overall timidity on campaign finance was roundly criticised in Labor’s dissenting report.
With the rise of early voting, a pattern has developed on election night in which election day booths wrap up their counts mostly in the first two-and-a-half hours after 6pm, followed by a delay until the much larger pre-poll voting centres start reporting generally not sooner than around 10pm, and often much later into the night. This has prompted Antony Green, for one, to propose options for having the pre-poll voting completed earlier, which can be categorised as soft (opening boxes a few hours early so non-counting preliminaries such as sorting Senate from House ballot papers can be completed before 6pm) and hard (starting the count before the close of voting and ensuring no intelligence of the results leaks out, as is done in New Zealand). The report makes a firm recommendation for the soft option, proposing that sorting begin at 4pm, and says consideration should be given to starting counting at that time as well. The latter notion was opposed by Labor in its dissenting report, since it considers it essential that scrutineers be able to contact higher-ups.
The committee also recommends the declaration envelopes that postal and absent voters are required to sign should be similarly pre-processed “over a very limited number of days before election day”, with care taken by staff not to sneak a peek to see how people are voting. Such a process is in place at state elections in Western Australia, for one, and I can say from what I’ve heard from those at the coal face that the latter objective may be easily said than done, albeit that it does not seem to have led to any known harm.
After the previous two parliaments failed to act on inquiry recommendations that a voter identification regime be introduced, the latest report tries again, and further proposes that “photo ID or other forms of suitable ID” be required of those enrolling or changing their enrolment. Any suggestion of voter identification generally elicits cries of “voter suppression” from the progressive left, with certain American states having tailored their acceptable forms of identification to make life harder for traditionally Democratic constituencies. However, the regime that was introduced in Queensland by the Newman government (and abolished after one election by the Palaszczuk government) at the 2015 election had little or no such effect: a wide range of forms were allowed for, and those who arrived at the booth empty-handed were still allowed to cast a provisional vote, which was admitted to the count when it was established nobody else had voted under that name.
The committee’s recommendation does well enough on the former score (utilities bills being deemed sufficient as forms of identification), but is a little vague for my liking as to how a recommended provisional votes backstop might work. The stringent new proposal for voting enrolment would seem to be even worse, although here too the wording is too vague to say for sure. Both proposals concerning voter identification were opposed by Labor and the Greens.
Third parties and associated entities
Much ink has been spilled in the Murdoch press (and even the not-so-Murdoch press) about the iniquity of the GetUp! organisation and its campaigns for progressive causes, standing accused of various underhanded campaign tactics and acting as a front for the ALP. The majority report throws it some meat by calling for the introduction of a new offence of “electoral violence” that is implicitly directed at GetUp! campaign tactics, and suggesting that the Electoral Act be “amended so the test for affiliated organisations be broadened”.
The report also has a lot to say about a claim made by GetUp! in a submission to the inquiry that “the AEC has investigated GetUp three times and every single time confirmed our independence and that we are not associated with any political party”, which referred to its rejection of efforts to have the organisation classified as an “associated entity” of Labor. Interrogated about this at a committee hearing by Senator Eric Abetz, the Electoral Commissioner concurred that this did not amount to the AEC having “declared them independent”. I’d have thought this at least arguable myself, although GetUp! was no doubt pushing the envelope when it went on to assert the AEC had found its campaigns to be “100% issues based”.
Also: aggrieved at the activities of local campaigns that have cost the Liberals their usually safe seats of Warringah and Indi, the report recommends lowering the bar for “political campaigners” with respect to disclosing donations received. Labor and the Greens opposed both recommendations.
The majority report tilts at the following windmills:
• “Consideration” should be given to a referendum to abolishing the nexus provision that requires the House have not more than twice as many seats as the Senate, which a) makes it impossible to increase the size of parliament incrementally, but b) is a part of the federation compact that the small states are never going to let go of.
• The committee wants to be allowed to conduct an inquiry into extending parliamentary terms, from three years to four in the case of the House of Representatives and (the inevitable sticking point) from four years to eight in the case of the Senate.
• The report recommends, without offering anything to justify the idea, that it should conduct an inquiry into abolishing by-elections, presumably with a view to having vacancies filled by the party of the outgoing member, as per casual vacancies in the Senate. Both Labor and the Greens opposed the notion, which I’m assuming without looking into it would require constitutional change.
• Extensive consideration was given to the media blackout on television and radio advertising in the last three days of the campaign, an obvious absurdity in the era of social media. The only question is whether the blackout should be expanded to the internet or eliminated altogether. The report favoured the latter, calling for the provision to be “reviewed with a view that the restrictions on commercial radio and television broadcasters be removed”. The Greens’ dissenting report opposed lifting the blackout, apparently on the basis that any existing limitation on major party campaigning is worth hanging on to.
• The Liberal Party has long had a bee in its bonnet about the AEC’s liberal (no other word for it) approach to allowing other parties to use the word “liberal” in their name, notably the Liberal Democrats, who clearly won seats they would not otherwise have won when they were placed well ahead of the Liberal Party in the ballot paper draw for the New South Wales Senate in 2013 and the Western Australian Legislative Council in 2017. The report recommends a tighter regime on this score, noting that Labor has an equivalent problem with the Democratic Labor Party.
• Barnaby Joyce’s miserable proposal to lock minor parties out of the Senate — sorry, I mean “provide greater representation of the geographical diversity of Australia” — by breaking states into three four-member regions (each electing two at half-Senate elections) was neither actively recommended nor treated with the contempt it deserves. Rather, the majority report concluded that the committee “would need further information on the proposals to divide States into electorates or divisions before it would make an informed comment on the proposal”, though I personally fail entirely to see why.
• The majority report gives short shrift to extensive calls for the introduction of a truth in advertising regime along the lines of the one in South Australia, which generally seems to have done neither much harm nor much good. The Labor and Greens reports are critical of this, though not for particularly well-defined reasons.