Day in court

A bush lawyer’s guide to Family First Senator Bob Day’s High Court challenge to Senate electoral reform.

Family First Senator Bob Day’s legal challenge against reforms to the Senate electoral system reached the full bench of the High Court yesterday, which concluded by adjourning the hearing until tomorrow. Day’s case was advanced before the court by barrister, Peter King, who was the Liberal member for Wentworth before Malcolm Turnbull despatched him in a preselection challenge in 2004. King probably didn’t have the best day, having been admonished for failing to provide the court with the requisite three-page outline of his argument, and straining to have the points of his case understood by the assembled justices. You can view the transcript of yesterday’s proceedings here, both sides submissions to the court here, and my paywalled preview to the hearing in Crikey here.

The most promising lines of argument against the Senate electoral system run through the Constitution’s requirement that members of parliament be “directly chosen by the people”, which arguably mitigates having candidate ordering determined by the parties themselves, as is done for those who vote above-the-line. The obvious problem here is that this was even more true of the system that preceded the passage of the reforms in March, where that control extended beyond the party’s own candidates and ran the full gamut of the ballot paper. When this system was introduced in 1984, an independent candidate sought an injunction to prevent the election from proceeding, which was heard by the then Chief Justice, Harry Gibbs. Gibbs concurred that the Constitution required a candidate-based system, but put a spoke in Bob Day’s wheels by saying it was “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”.

Of the various argument put forward by Day, only one carries the implication that the Senate system has been unconstitutional all along. This involves the use of the Droop quota, which requires that successful candidates receive a quota, either as first or subsequent preferences, equal to one divided by the number of seats up for election plus one (with a single extra vote on top to get them over the line). At a typical half-Senate election for six seats in a given state, this means the count progressively whittles the field down to a final seven candidates, each of whom essentially holds one-seventh of the overall vote. This includes six Senators who are elected, and a seventh who is left carrying a big swag of votes that were no use in getting anyone elected. It doesn’t need to be this way – the quota could simply be one divided the number of seats up for election without the plus one, which would mean one-sixth in the previous example rather than one-seventh. The count would end with six elected candidates, with no unlucky spare holding a “wastage quota”. Since the Droop quota has been in use since proportional representation was introduced in 1949, this is a pretty adventurous line of argument. It also invites the inference that a voter in the lower house is disenfranchised merely if he or she votes for the losing candidate.

The other lines of argument avoid the implication that the system has been unconstitutional for years, by identifying new changes that transgress in ways the previous system did not. First, there is the argument that the changes introduce a second method of choosing Senators, contrary to the provision of Section 9 of the Constitution that parliament is empowered to “make laws prescribing the method of choosing senators” — with emphasis on the singular. Under group ticket voting, the argument goes, above and below-the-line voting were different in form but not content, since both were treated as completed ballot papers so far as the count was confirmed. But with the savings provisions under the new system, a voter can number one box above the line, but has to number at least six below it. Unlike the old system, this means one can now vote above-the-line in a way that could not be replicated below-the-line. Among the ripostes that might be made to this is that the old system had a savings provision too, in that below-the-line votes with a small number of mistakes were still included in the count, and this too introduced a subtle discrepancy between what could be done above and below the line.

Another argument is that the newly proposed ballot paper violates the principle of a “free and informed vote”, which was invoked by the High Court in its findings that a constitutional protection existed for freedom of political communication. This is said to be violated by the incorrect instructions to be offered by the new ballot paper, which will tell voters to number at least six numbers above the line or at least twelve below it. In fact, the previously noted “savings provisions” will allow ballots with as few as one box numbered above-the-line or six below it to be admitted into the count. It is argued that this is in breach of Section 239 of the Commonwealth Electoral Act, which makes it an offence to “mislead or deceive an elector in relation to the casting of a vote”. Finally, it is argued that the optional preferential system impermissibly reduces the value of votes that drop out of the count due to incomplete numbering. This one is particularly dubious, as it would seem to invalidate any first-past-the-post or optional preferential regime, which self-evidently is not what the drafters of the Constitution had in mind.

We have ways of making you preference

A major tactical victory for the minority Labor government in Queensland, which has succeeded in tacking a return to compulsory preferential voting on to an Opposition-backed bill to increase the size of parliament.

In a remarkable development, Queensland’s parliament has legislated for the reintroduction of compulsory preferential voting, putting an end to an optional preferential voting regime that was introduced by Wayne Goss’s Labor government in 1992. This arises from a bill that was introduced to increase the size of parliament by four seats, which the Liberal National Party opposition pursued to win favour with the four cross-benchers who hold the balance of power. Each represents a seat in north Queensland – the two ex-Labor members, Billy Gordon (Cook) and Rob Pyne (Cairns), and the two Katter’s Australian Party members, Rob Katter (Mount Isa) and Shane Knuth (Dalrymple) – and supported the enlargement due to their concerns about regional representation. However, Labor has spectacularly turned the tables on the LNP by successfully moving an amendment to also revert to compulsory preferential voting. This leaves New South Wales as the only state with optional preferential, although it will also be introduced at the Northern Territory election in August. In the immediate future, this is sure to be a boon to Labor, who should now receive at least three-quarters of Greens preferences, as they do elsewhere. It will also make life a lot easier for opinion pollsters, who have faced the problem of how to convert primary votes to two-party preferred in a system where the option to exhaust has made voter behaviour highly volatile. Galaxy’s recent results have been based on an average of preference flows from the last three elections, which most recently produced a result of 51-49 to the LNP. However, that would probably have come out at 50-50 under the safer assumptions entailed by compulsory preferential voting.

Senate electoral reform latest

As the passage of the legislation enters its final stages, a thread for discussion of the Senate electoral reform process.

As dawn breaks, debate in the Senate over reform to its own electoral system grinds on. The chamber is in the process of signing off on a series of government amendments that will allow for optional preferential voting below-the-line, with voters to be directed by the ballot paper to number at least 12 boxes, but actually being allowed to get away with as few as six. For those wanting a thread for discussion of Senate reform apart from the freewheeling hubbub of the main threads, here you go.

Senate reform reformed

A three-day parliamentary inquiry process yields an important result on Senate reform, with below-the-line voters no longer required to number every box.

The obscenely hasty Senate reform process yielded an important result today, when the government promptly adopted a Joint Standing Committee on Electoral Matters proposal to allow optional preferential voting below the line. The bill as drafted would have directed above-the-line voters to number at least six boxes, but those going below the line would still have had to number every box. Now the ballot paper will direct below-the-line voters to number at least 12 boxes, although votes with as few as six will still be admitted into the count. Among those who had advocated a 12-box minimum were Kevin Bonham and Antony Green, with the latter noting that a lower number might reintroduce the difficulty the six-numbers-above-the-line proposal sought to avoid, with voters limiting their choice to a single party and then allowing their votes to exhaust. Particularly stern criticism of the original proposal came from Malcolm Mackerras, who found it offered the exact opposite of what he proposed – a continuation of group voting tickets and single numbering above the line, but with optional preferential voting below the line. Michael Maley, a former Australian Electoral Commission official and occasional contributor to psephological discussion boards, also submitted the original proposal was “incoherent”, since votes that could be cast formally above the line would be informal if rendered identically below the line. Constitutional law expert George Williams was also critical, echoing Antony Green’s complaint that effectively deterring voters from going below the line would enshrine the power of party machines to determine the order of election of their own candidates.

Also around the traps, the Greens are being given a lot to think about in their apparent enthusiasm to sign on to the government’s immediate electoral strategy for the sake of its coveted electoral reform:

Mark Kenny of Fairfax reports that a union-commissioned poll by Essential Research found 54% of Greens-voting respondents opposed a deal with the government on Senate reform, with only 27.2% in support. This sits uncomfortably with Essential Research’s regular published poll this week, which explained the proposal to respondents in some detail and left the matter of a Coalition-Greens deal out of the equation. From an admittedly small sample of around 100 Greens voters, 46% approved of the proposal, versus 29% disapproval.

• Richard di Natale has stood firm against a move by Family First Senator Bob Day to legislate a starting date of August 22 for the reforms, so they would not apply at an early double dissolution. Di Natale told the Financial Review this would “create a situation where the Australian Electoral Commission would be preparing for a normal election under new rules, with the continued possibility of a double dissolution with the current rules”, and render it “impossible to begin a public education campaign”.

• The micro-parties are doing whatever they can to pile on the pressure, by threatening a co-ordinated campaign of directing preferences to Labor.

Rightly or wrongly, suggestions that the reforms don’t even meet the test of self-interest for the Greens have also gained traction:

• The analysis of Phillip Coorey of the Financial Review is that the Nick Xenophon challenge leaves the party most vulnerable in South Australia, but that it is also “at risk in Western Australia and Victoria, and to a lesser extend in Tasmania”.

• “Parliamentary Library modelling obtained by The Advertiser” suggests the Greens would not win a seat in South Australia at a half-Senate election, presumably since it would return a result of two each for the Coalition, Labor and the Nick Xenophon Team, and that only one of its current two seats would be retained at a double dissolution. However, “the modelling shows in other states the Greens either get another candidate up or stay the same”, suggesting two seats in Victoria, Western Australia and Tasmania and one each in New South Wales and Queensland.

• Unless the Senate reform controversy starts to do them electoral damage, the current state breakdowns in BludgerTrack suggest the Greens would easily win a second seat in Victoria; would lose their second spot only in the event of tight micro-party preferencing in Western Australia; and might even be a chance of a third seat in Tasmania.

• Simulations conducted by Kevin Bonham suggest a Labor-Greens Senate majority would currently be in place if the 2010 and 2013 elections had been held under the proposed system, and that the 2013 election would still have been a “crossbencher picnic” under the new rules if it had been a double dissolution, with most states electing two non-Greens cross-bench Senators.

Double trouble

As parliament prepares to resume, it appears action is finally brewing on Senate reform – auguring a double dissolution election in July, if some media reports are to be believed.

UPDATE: The legislation has been introduced, and you can read all about it here. Contrary to the impression given below, the savings provision has not turned out to be retaining group voting tickets, but simply allowing one-box only votes to exhaust, along the lines recommended by Antony Green, even though the ballot paper will direct voters to number at least six boxes.

With all the talk lately of Senate reform and a possible double dissolution, I thought this site could use a thread specifically for the discussion of such matters. The Senate reform train finally began gathering momentum the week before last, when it was reported that a deal with the Greens and Nick Xenophon had produced a set of reforms which the government hoped would be through parliament by the end of the autumn session on March 17. The proposal was to abolish group voting tickets and require that voters number at least six boxes either above or below the line, with votes dropping out of the count when there were no numbered parties or candidates for them to pass on to. Antony Green, for one, is alarmed about this proposal, as it would render informal the votes of those who failed to notice the change as simply numbered one box above the line. Perhaps for this reason, Special Minister of State Matthias Cormann has kept open the option of retaining group voting tickets essentially as a savings provision for those who don’t vote in the favoured manner. Antony Green’s preference is for the ballot paper to direct voters to number at least six boxes, but nonetheless to allow voters to number fewer boxes and have their vote drop out at any earlier point of the count than envisioned.

Further raising the stakes, the government has been putting it about that the passage of the legislation will create the opportunity for a double dissolution election on July 2 — late enough to avoid the mid-year cut-off point, before which the Senate term would have been backdated to the middle of the last year, causing the next half-Senate election to fall due in two years’ time. As a double dissolution cannot be called in the six months before the final day of the parliamentary term, the last day such an election can be called is May 11. This raises two problems for the government: the seven-and-a-half week campaign that would ensue to stretch the election timing elastic all the way to July, and the fact that the budget is to be brought down on May 10. The former is a cause for wariness on the part of the government if only because of the precedent of the 1984 election, at which a Prime Minister who had a lot in common with Malcolm Turnbull was run unexpectedly close by an Opposition Leader who was in a similar position to Bill Shorten. The latter would require the spectacle of the government guillotining the budget through both houses of parliament, perhaps in a matter of hours.

It’s possible there are procedural hurdles that have been overlooked in this scenario, either in terms of getting the budget through in such haste, or initiating the election through the Governor-General and state Governors in whatever time might be left available. While there is no indication the government would proceed on any basis other than getting the budget through first, there has been a fair bit of discussion about the potential for the budget to be postponed until after the election, and an interim supply bill passed to cover the gap. The Hawke government was obliged to rush just such a bill through parliament when it called a July double dissolution in 1987, albeit that this was in the age of August rather than May budgets (although the government had brought down a mini-budget in May that had yet to make it through the Senate). It’s also possible that the government would not need to pass a supply bill in any case. The departmental budgets that are funded by the regular supply bills account for only about 20% of total expenditure, which is considerably less than in Gough Whitlam’s time. Departments might well be able to struggle by on their reserves until such a bill was passed — although it’s been noted here in comments that this may not extend to the funding the Australian Electoral Commission would need to conduct the election.

More of my take on such matters, including the obstacles that the Australian Electoral Commission would face in implementing the reported reform proposals, in a paywalled article in Crikey.

Must try harder

A parliamentary inquiry report card on the last federal election considers voter identification, automatic enrolment, the broadcast media blackout and pens rather than pencils in polling booths.

The Joint Standing Committee on Electoral Matters has published the full report of its inquiry into the 2013 election, following on from interim reports that recommended an optional preferential above-the-line voting system for the Senate, and warned against going too far with electronic voting. The key points:

• With dissent from Labor and the Greens, the report advocates a voter identification model along the lines of Queensland, in which those who cannot provide one of wide range of prescribed forms of identification must cast a declaration vote, to be admitted to the count only when it is established that the personal details claimed for match up with an entry on the electoral roll, and that no other votes were cast in that name.

• Also with dissent from Labor and the Greens, the report recommends that confirmation be required from a person prior to their enrolment being added or updated by the automatic enrolment process introduced by the previous government.

• The government should “examine the future viability” of the broadcast media blackout, by which advertising may not be carried on television or radio on the Thursday or Friday before polling day.

• There is a recommendation that scrutineers should not be able to make repeated challenges to the same ballot paper at each stage of the count, which I presume relates to the Palmer United Party’s obstructive grandstanding during the count for Fairfax.

• A range of measures are concerned with the Australian Electoral Commission tightening up its act, in response to the Western Australian Senate election debacle.

• Pens, rather than pencils, should be provided in polling booths.

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.

JSCEM interim report on Senate reform

An interim report by the parliamentary committee looking into last year’s election suggests the parliament will proceed sensibly with the once-in-a-generation task of tackling Senate electoral reform.

The Joint Standing Committee on Electoral Matters has today released an interim report on its inquiry into last year’s election, which very pleasingly establishes that the Coalition, Labor and the Greens have agreed to pursue sensible reform to the Senate electoral system. The recommendation is to follow the New South Wales example in having optional preferential voting above-the-line, meaning voters can number as many boxes as they choose and their preferences will exhaust at the point where the numbering of party boxes ends. Those who vote below-the-line will be required to number as many boxes as there are vacancies, meaning six at normal half-Senate elections, twelve at double dissolutions and two at Senate elections for the territories. Crucially, this means an end to group ticket votes, whereby above-the-line voters have a full suite of preferences allocated for them by the party of their choice. As well as closing the door on preference harvesting such as has enabled the election of candidates from as little as 0.5% of the vote, this will discourage the proliferation of micro-parties and the consequent swelling of ballot papers, greatly reducing the very considerable number of voters whose vote does not express their true intention. A further recommendation to make life harder for micro-parties is a requirement that they have 1500 members to register as a party rather than the existing 500, which if anything was less onerous than the equivalent rules at state level and allowed those who cleared the hurdle to field candidates in every state, regardless of how little presence they had there.

The electoral implications of this with respect to the last election have been mapped out by Antony Green, who calculates that “the Coalition would hold 35 seats not 33, Labor 27 not 25, the Greens 9 not 10, and others 5 not 8”. However, this assumes no change in the first preference voting results, when the new system with its less cluttered ballot papers would assuredly have limited such phenomena as the Liberal Democratic Party vote in New South Wales approaching 10% on the back of confusion among Liberal supporters, and voters opting for a micro-party after giving up on locating their true party of choice out of as many as 44 options listed. While it is clear that the new system will make life harder for very small parties, the exhaustion of a large share of the vote due to the optional preferential aspect of the system will mean that the winner of the last seat will usually be elected on well under a full quota, leaving a door open for smaller concerns with a genuinely substantial basis of support. By Antony’s reckoning, “a minor party would probably need about 5% of the vote to have any chance of winning a seat”.