The Senate proportional voting system described in Chapter 8 of the textbook is designed to allocate seats in proportion to their share of votes received (p. 174). The 2013 Senate election resulted in small parties which achieved a miniscule number of primary votes securing seats because of agreements to exchange preferences. As a result, from 1 July 2014 the balance of power in the Senate will be held by a number of minor party Senators and independent Senator Nick Xenophon (at the time of writing the representation from Western Australia remains undecided). It has been commented that this means the Abbott government will have ‘to negotiate with a bizarrely balanced Senate to legislate its policy agenda’ (O’Sullivan, D. 2013, cited in Port Macquarie News, 11 September, sourced from web.ebscohost.com).
The two major parties, the Nationals and the Greens questioned whether this was a ‘fair’ result. (See p. 271 of the text book for discussion on the notion of ‘fairness’ in relation to electoral systems.) According to Liberal Party federal director Brian Loughnane ‘voters were misled over the identity of parties and hidden preference deals meant voters’ intentions were not reflected in the final outcome’. Because of this it was considered a review of the Senate voting system was needed (Maher, S. &Shanahan, d. 2013, ‘Major parties want inquiry on micro preference deals’, The Australian, 9 November, sourced from web.ebscohost.com). A review was warranted, according to Loughnane, ‘because of the confusion’ caused by the growing number of candidates, the size of Senate ballot papers, similarly-named political parties and teh rise of micro parties doing “commercial” deals to secure preferences. Labor supported the Liberal Party’s proposal for an inquiry ‘to examine changes to the way the Senate is elected’ (Osborne, P. AAP, 2013, ‘Labor backs Lib call for electoral reform’, AAP, Australian National News Wire, 29 October, sourced from web.ebscohost.com).
Of major concern was the lack of transparency in ‘above-the-line’ voting because it is not apparent from the ballot paper where the parties had directed their preferences. According to Independent Senator Nick Xenophon the Senate voting system should be changed ‘so the public could better understand preference flows’ (ABC Premium News, 2013, ‘Re-elected Xenophon urges Senate voting changes, 9 September, sourced from web.ebscohost.com).
On 5 December 2013 the Abbott government’s Special Minister of State asked the Joint Standing Committee on Electoral Matters ‘to inquire into and report on all aspects of the conduct of the 2013 Federal election and matters related thereto’ (Parliament of Australia, Joint Standing Committee on Electoral Matters, aph.gov.au).
The question that needs to be considered is whether the Senate voting system should be changed just because the 2013 Senate election delivered a result that disadvantaged the Coalition, Labor and the Greens with the balance of power to be held by a multifaceted cross bench. After all, this situation is not new. A range of minor parties and/or independents have held the balance of power in the Senate continuously since 1981, with the exception of the three year period between 1 July 2005 and 30 June 2008 when the Coalition parties had a majority. Over those years the parliament processed government legislation, albeit in some instances subject to compromises having to be made with the cross bench and bills amended accordingly.
Parties and independent candidates use the preference system to maximise their chances of gaining seats in the parliament. Historically the Coalition parties have cross preferenced each other and Democratic Labor Party preferences helped keep Labor out of power (australianpolitics.com/voting/electoral-system/how-important-are-preferences-in-australian-elections). The issue is not the fact of entering into preference agreements, but the lack of transparency in the Senate voting system because the ballot paper gives no indication to the voter where those preferences have been directed. This criticism applies not only to the preference deals entered into by newly-formed small parties in 2013, but also to established minor and major parties.
The Greens in the past have called for an end to ‘secret backroom’ Senate preference deals. In 2008 Greens leader Bob Brown favoured legislation to permit Senate voters to order their preferences above the line to give them control over their preferences (AAP, 2008, ‘Greens in bid to end Senate preference deals’, 12 May, sourced from web.ebscohost.com). In 2010 the Greens again sought the introduction of ‘preferential above-the-line voting in the Senate’ (Davis, M. 2010, ‘Senate voting change’, The Age, 2 September, sourced from web.ebscohost.com). This stance, however, did not prevent the Greens from using preference deals to their own advantage. In 2004, for example, the Greens entered into an agreement to preference the Labor Party and in return Labor would preference the Greens, an arrangement which Bob Brown said ‘would increase the Greens’ chances of winning three to four new Senate seats and improve Labor’s hopes at the ballot box’ (The Age, ‘Greens, Labor strike preference deal’, 18 September, http://www.theage.com.au/articles/2004/09/18/1095394053117.html?from=story/hs).
In 2013, in an effort to save Sarah Hanson-Young from defeat in South Australia, the Greens entered into a preference deal with the Palmer United Party (PUP) who placed her at no. 16 on their Senate ticket, ahead of the Liberal Party at no. 22 and Labor at no. 71. In return the Greens placed PUP ahead of Labor in South Australia and Tasmania (Ashton, H. 2013, ‘Greens sign preference deal with Clive Palmer’, 19 August, http://www.smh.com.au/federal-politics/federal-election-2013/greens-sign-preference-deal-with-clive-palmer-20130819-2s7kz.htm).
In 2013 the Greens ‘urged Nick Xenophon to do a deal with the party in South Australia to head off a Coalition bid to take control of the Senate’ (AAP National News Wire, 2013, ‘Greens call for preference deal in SA’, 8 August, sourced from web.ebscohost.com) but this proposal created a backlash from Xenophon’s supporters who urged him to preference the major parties over the Greens which he did (news.com.au, 2013, 12 August, http://www.news.com.au/national/independent-nick-xenophon-defends-preference-deal-which-puts-greens-last/story/fnho52ip-1226698886075). Xenophon issued a split ticket: one allocated preferences to the Nationals and the Liberal Party at nos. 3 to 9 ahead of the Greens at no. 37; the other ticket gave his no. 3 to no. 9 preferences to the Labor Party ahead of the Greens at no. 10 (abc.net.au/news/federal-election-2013/guide-gtv/sa/#gtv_sa_g1).
Labor has also made preference deals with minor parties. In Victoria in the 2004 Senate election, for example, Labor did a preference swap with Family First who as an unintended consequence won the final vacancy on Labor preferences even though its candidate Steve Fielding had secured only 0.13 per cent of a quota on primary votes (Green, A. 2004, ‘Final Victoria Senate Results’, http://www.abc.net.au/elections/federal/2004/results/sendVIC.htm).
In 2013 it was reported that both major parties were interested in seeking preference deals with Bob Katter’s Australian Party (KAP) (Madican, M., Scott, S., Tin, J. 2013, 13 August, http://www.couriermail.com/news/queensland/major-parties-court-bob-katter8217s-australian-party-for-preferences/story-fnisrf2-1226695937914). The KAP made a preference deal with Labor for the Senate in Queensland to try and defeat the Greens in that state and gave their second preferences to the Liberals in all other states (Tampim, F. 2013, ABC News, 18 August, abc.net.au/news/2013-08-18/katter27s-party-announces-ballot-preferences-deal/4894508). Labor in return would get KAP preferences in key seats (Bramston, T. 2013, The Australian 19 August, theaustralian.com.au/opinion/columnists/labor-pins-hopes-on-preference-deals-with-katter-and-greens/story-fribcok0h-1226699505033#mm-premium). Labor gave its first preferences to the Greens in all other states.
Proposals for changes to the Senate voting system
A number of proposals have been mooted for changes to the Senate voting system. Whether these should be considered to be ‘reforms’ is debatable. Suggestions from political parties are likely to be couched to maximise their own electoral chances for success.
For example, it has been reported that Liberal Party member David Kemp advised that ‘the Liberals must consider options for Senate reform to maintain their numbers in the upper house’. Tellingly, he is reported to have said ‘the micro parties acted rationally in their own interest under the voting system in their allocation of preferences and were not available to be recruited by the Coalition’ (Kerr, C. 2014, The Australian, 8 January, http://www.theaustralian.com.au/national-affairs-to-win-liberals-must-reform-senate-kemp/story-fn59niix-1226796873679#). This raises the interesting question whether the Liberals would be so anxious to reform the Senate voting system if they had been successful in recruiting micro party preferences and secured Senate seats as a result.
The capacity of the current Senate preference system to facilitate the representation of small parties and independents has been described as ‘its most democratic characteristic’ without which they might be excluded from the Senate. It has been remarked that ‘there’s a disturbing anti-democratic tone to the sudden calls for Senate reform, a distinct whiff of disdain that anyone other than insider politicians might darken the doors of that chamber’ (Sparrow, J. 2013 ‘Electoral reform for all the wrong reasons’, 11 September, abc.net.au/news/2013-09-11/sparrow-political-reform/4950554).
Proposals for reform include:
Minimum primary vote threshold where only the votes of those candidates who exceeded the threshold would be counted. This system could be considered ‘anti-democratic’ because it would exclude all but the major and large minor parties and independents who met the threshold from the count and the excluded parties or groups may have been the preferred second preference of voters (Morey, S. 2013, 11 September, theconversation.com/how-do-we-solve-a-problem-like-the-senate-18042).
Abolish above the line voting would solve the issue of lack of transparency in the direction of party preferences. However, above-the-line voting was introduced to help resolve the problem of the number of informal votes when voters failed to number all the squares on the Senate ballot paper.
Optional preferential voting below the line would allow those voters who chose to vote below the line to list their preferences only against the number of candidates to be elected, that would be 6 in the case of a Senate state ballot. However, this would not solve the problem of lack of transparency in the preference flow of above-the-line voting which is the choice of most voters.
Preferential above-the-line with optional below the line would retain the option of voting above the line and allow voters to direct their own preferences for the parties and/or groups of their choice. It would also provide the option of voting below the line as described above. Senator Xenophon has expressed the opinion that any reform should not be ‘tailored towards the major parties or even the big minor parties’ (ABC Premium News, 2013, ibid). His preferred option is the preferential above-the-line with optional below the line system which would provide transparency in the preference flows without disadvantaging any particular group. On 13 November he introduced a bill into the Senate to establish ‘an optional preference system above and below the line, a system currently used for New South Wales Legislative Assembly elections’, The details of his proposal can be found in his second reading speech, Senate, Hansard, 13 November 2013, pp 232-233, accessed through the Parliament’s web site aph.gov.au. He is also a member of the Joint Standing Committee on Electoral Matters examining the 2013 federal election (see above).
Changes to party registration rules have been proposed as a way of discouraging small parties from registering. Under the current rules for federal registration, a party must have at least 500 members or have a member of the Commonwealth parliament and pay an application fee of $500. A deposit of $2,000 has to be lodged for each candidate for a Senate election. It has been proposed that the minimum number of members be increased to 2,000 and the deposit increased to $20,000 (costar, B. 2013, ‘Now it’s urgent: why we need to simplify voting for the Senate’, 9 September, ‘Inside Story’, inside.org.au/simplifying-the-senate). This has been criticised on the basis that it would ‘destroy the chances of grassroots democracy as only large, well-funded organisations would be able to compete’ (Progressive Democratic Party, http://pdp.org.au/content-game-votes).
Rotation of order on the ballot paper has been suggested (Progressive Democratic Party, op.cit) to minimise the impact of what is called ‘the donkey vote’ where voters number their ballots from the first on the left hand side of the Senate ballot paper’. This system is used in the proportional voting systems in Tasmania and the ACT.
Joint Standing Committee on Electoral Matters Inquiry
The terms of reference for the Joint Standing Committee on Electoral Matters inquiry into the Senate voting system are broad and open-ended. This will provide the opportunity for anyone interested in the structure and organisation of the Senate voting system, whether they are political parties, lobby groups, academics or interested citizens, to express their views about how the system should work. It remains to be seen whether this results in any changes to the Senate voting system and what impact that might have on the capacity of small minor parties and independents to participate in Senate elections and win representation.
Dr Gwynneth Singleton
16 January 2014