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Yes, ministers push for minor party preference reform

The major parties are reportedly considering an interesting new approach to Senate electoral reform: denying you your right to have your preferences distributed if you haven’t chosen the right party.

It’s something Sir Humphrey Appleby might have described as “novel”; excluding parties from having their preferences distributed unless they clear a threshold of 1.4% of the primary vote.

According to a report in The Australian, it appears that both sides of politics will advocate this reform (both sides will today make submissions to the Joint Standing Committee on Electoral Reform including, among other things, their recommendations for the Senate election process).

A common feature of proportional representation systems is that parties must exceed a certain vote threshold to win seats. But approaching the issue at the preference end of the equation has never been proposed by any disinterested authority that I am aware of.

While entirely impossible to justify, the appeal of such a proposal to the major parties is simple to discern. It’s clear the federal election result has led to unstoppable momentum for reform among those with a particular interest in such matters, even if that’s less obviously true of the public at large (an Essential Research poll conducted immediately after the September election found 38% thought micro-parties in the Senate good for democracy, with only 25% opting for bad). However, if public submissions to the inquiry are anything to go by, by far the most favoured options involve the abolition of group voting tickets, which in the current from are self-evidently an offence against democracy.

With the objective of putting electoral outcomes back in the hands of the conscious decisions of voters, the obvious routes to reform are to follow the New South Wales example and distribute preferences only as far as voters purposefully allocate them, or require that voters number every box above the line.

By contrast, a preference threshold alternative could address the controversy directly at hand, namely the election of senators from as little as 0.5% of the vote in the case of Victorian Motoring Enthusiast senator-elect Ricky Muir, while maintaining the major parties’ power to corral preferences to the disadvantage of parties that might in fact clear a conventional election threshold, popularly set at around 5% (as in Germany and New Zealand).

The instructive case study here is the 1998 election, when the major parties all-but froze out One Nation despite its success in polling over a million votes nationally (9% of the total). That left it with one seat out of a Parliament of 224, having narrowly achieved a Senate quota in its own right in Queensland. In economic contexts, such behaviour might be described as oligopolistic collusion, whereby established operators act in concert to deny new competitors access to the market.

However, it’s very far from clear to me that a preference threshold would get around this …”

In fairness, it might yet prove that the parties’ determination to seek an alternative to an election threshold has been inspired by section 7 of the constitution and its requirement that the Senate “shall be composed of senators for each State, directly chosen by the people of the State”. In rejecting a challenge to above-the-line Senate voting when it was introduced in 1984, the then-chief justice of the High Court, Harry Gibbs, allowed that the section required that voters “must vote for the individual candidates whom they wish to choose as senators”, but did not accept that above-the-line voting amounted to anything other than a simplified means for doing so.

The principle that the Senate electoral system must be based on choosing candidates rather than parties was nonetheless confirmed, and more than one authority has suggested this would be violated by a provision that denied election to individual candidates on the basis of their party’s aggregate vote (note that, absent other reforms, candidate-based thresholds would exclude all major party candidates except those at the top of the ticket).

However, it’s very far from clear to me that a preference threshold would get around this, or that there might not be an alternative basis for challenging a system that denied some voters the right to have their preferences considered, while maintaining the privilege for those with the good taste to vote for the parties who are proposing the idea. It’s one thing to penalise a poorly performing party for failing to clear a threshold whose purpose is to ensure that Members of Parliament do in fact represent a reasonably significant constituency, but a preference threshold seems to place the penalty on those who vote for them.

For the sake of clarity of expression, I wrote in the opening paragraph of parties having “their” preferences distributed, which certainly encapsulates the depressing reality of how the system works at present. However, the foundation of any democratic system is that the vote belongs to the voter, and not to the particular party to whom they happen to give their first preference.

Happily, it does appear from The Australian’s report that the submissions will grant some credence to the more honest alternative of optional preferential voting above-the-line. Other proposals said to be “pursued” or “examined” are a national electoral roll for both federal and state elections (difficult to argue with), photo identification when voting (more in the Liberals’ interest than Labor’s, so the precise wording here will be interesting to see), a tightening of the late-campaign advertising blackout, and the no-brainer of prohibiting people from serving as registered officers for more than one party.

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