UPDATE: The submissions are now available here, and it turns out the proposal excoriated below is only that of the Liberal Party, and not a major party unity ticket. The Labor Party proposes New South Wales-style optional preferential voting above the line. It is also only the Liberal submission that advocates photo identification when voting.

Dennis Shanahan of The Australian reports that the Liberal Party and the ALP will today make submissions to the Joint Standing Committee on Electoral Reform including, among other things, their recommendations for Senate electoral reform. Interestingly, it appears that both will advocate excluding parties from having their preferences distributed unless they clear a threshold of 1.4% of the primary vote. A common feature of proportional representation systems is that parties must exceed a certain vote threshold in order to win seats, but approaching the issue at the preferences end of the equation is something Sir Humphrey Appleby might have described as “novel”, having 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 is clear that the 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 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 manner of their operation 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 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, which are popularly set at around 5% (as is the case 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 their success in polling over a million votes nationally (9.0% of the total). That left them with only one seat out of a parliament of 224, having narrowly achieved a Senate quota in their 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.

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 that 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 this post 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 Dennis Shanahan’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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Peter Fray
Peter Fray
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