Guest Blog: How To Solve The Problem of the Senate

Professor George WilliamsFollowing the Labor Lawyers Speaker Series Event at NSW Parliament House, Professor George Williams blogs about How to Solve the Problem of the Senate

There are a number of ways to measure the health of a voting system. For me, the most important is how well that system translates the preferences of voters into electoral outcomes.

Put simply, as far as is possible, the outcome should be determined by whom voters would actually like to see elected.

Unfortunately, the 2013 Senate elections failed this test.

You know you have a problem when voters are issued with a magnifying glass just to read the ballot paper. This was necessary in NSW because there was a record 110 senate candidates and the ballot paper was 45 columns wide. The reason for the profusion of parties and candidates was because, based upon the prior NSW upper house experience, people realised they could exploit the voting system to produce outcomes that had little relationship to voters actual intentions. The capacity for exploitation is based upon the following:

  • Voters have the option of making the full extent of their preferences known, but this can be an elaborate and complex exercise. Filling in all 110 boxes below the line takes a level of commitment beyond almost every voter, and creates the real prospect that a minor mistake will lead to informality.
  • Voters can take the simple option of numbering one box above the line, but in doing so they abandon control over their preferences to the first party of their first choice. Overall, over 95% of voters choose this method, meaning that the distribution of preferences in the Senate is determined largely by deals between political parties.
  • The above the line preferential system lacks transparency. By and large, voters have no idea of where the party of their first choice will actually allocate their preferences. Parties commonly enter into deals with other parties involving the transfer of votes across hard ideological lines in return for hoped for electoral benefits. It means that a voter can vote for a party only to find that their preferences end up with a different party for which they never would have considered casting vote. There are many examples of this at the 2013 election, and other prior examples, such as the election of a Family First candidate in Victoria on the back of Labor preferences.

  These weaknesses in the Senate voting system enable a profusion of parties with tiny levels of popular support to exploit an unwieldy ballot paper, manipulate preference flows by way of aggregating their preferences.   The result is a lottery in which a micro party securing an infinitesimal first preference vote can win a seat in the Senate. This is a perversion of Australian democracy. It means that the Senate does not reflect the will of the people. It instead reflects voter confusion and the inability of people to grasp a complex web of preference deals. The outcome also threatens good governance, and so community well-being. Where a micro party Senator shares the balance of power, they can hold the government to ransom. Moreover, they can do this without a significant popular constituency of their own to hold them to account. This introduces an unchecked, maverick element into the Senate that can produce special deals at odds with the national interest. It is hard enough to govern the country as it is, let alone while beholden to such interests. NSW has already seen too much of this due to the micro parties in its upper house. The compromise forced on the O’Farrell government by the Shooters and Fishers Party, by which hunting is to be introduced into NSW National Parks, is a good eg. When the Senate membership changes over on one July next year, what will be the price demanded by Australia’s new micro parties? Will the Motoring Enthusiasts Party for example demand unrestricted four wheel drive access to World Heritage areas managed by the Commonwealth? This problem needs to be fixed. The voting system to this point has suited the major parties, which have benefited from control over people’s preferences. It is now in their interest though to reform the system given how it is being used against them. Unless reforms are made, there is a possibility that the ballot paper will be even larger next time round, and that the major parties themselves might need to take on the micro parties by forming their own micro party supporters to channel preferences to themselves. I would put the following four changes on the table. All would involve changes to the electoral act. I would not say that all of these need to be made, but that all should be considered as part of the reform agenda.

1.    Preferential voting above and below the line 

Just as voters can express their preferences below the line, so too should they be able to do this above the line. Voter should be able to indicate a preference between the listed parties and any independent candidates. I would prefer that voters be required to indicate the full extent of their preferences, just as they do in the House of Representatives, but would be open to considering an optional preferential voting model, like that used for the New South Wales upper house. If optional preferential voting is allowed above the line, I imagine it should also be permitted below the line. The benefit of this reform is that it does not limit new parties from forming, but removes the incentives for micro-parties to form with the intention of harvesting votes through preferences. It encourages smaller like-minded parties to coalesce and grow by attracting votes and building real support in the electorate. Under this system, it is much less likely that candidates would be elected through miniscule first preference votes and high rates of transferred votes.

2.    Robson rotation of candidate names The success of the Liberal Democrat Party in the 2013 federal elections was in part attributed to its strategic position on the ballot paper. To prevent unfair advantage or disadvantage caused by placing on the ballot paper, a process of rotating candidate names within a column, through printing different versions of the ballot paper, would mean that favoured positions are shared equally between all candidates. The Tasmanian parliament and the ACT legislative assembly have adopted the Robson Rotation.

3.    Party registration We should tighten the regulation of political parties to be in line with New South Wales legislation. Under the Parliamentary Electorates and Elections Act 1912 (NSW), an ‘eligible party’ means a party that has at least 750 (vs 500) members.

4.    Threshold Quotas A party (or independent candidate) should not see its candidates eligible for election to the Senate unless they have collectively attracted at least 4% of the first preference vote. Where they fall under this threshold, their preferences should be allocated to the remaining people and parties. This minimum threshold is reflected in existing provisions in electoral legislation. Under the Commonwealth Electoral Act 1918 (Cth), Senate group as a whole must receive at least 4% of formal first preference votes in the Senate Election in that state or territory in order to be entitled to election funding. The 4% figure is also significant where it is specified that the $2000 deposits for the Senate are returned only if a candidate gains more than 4% of the total first preference votes or is in a group of senate candidates which polls at least 4% of the total first preference votes. Thresholds have been used in party-list proportional representation systems around the world. This stipulates that a party must receive a minimum percentage of votes, either nationally or within a particular district to gain a seat in parliament.

  • Under the additional member system in Germany, there is a threshold of 5%, only applicable where the party does not win at least one electoral seat.
  • Likewise in New Zealand under the mixed-member proportional electoral system, there is a 5% threshold.
  • Israel has a 2% threshold under its nation-wide proportional representation system.
  • Turkey has a 10% nationwide threshold under its closed list proportional representation system; and
  • Sweden a 4% nationwide threshold under its party-list proportional representation system.

Conclusion  These changes are a sensible way of eliminating gaming from the system. Voters, and not parties, should choose how preferences are allocated. There should not be a windfall of votes because of the luck of the draw on the Senate ballot paper. And if a party cannot attract at least four first preference votes out of every 100, they have no place in controlling the future direction of the country in the Senate.