Senate voting reform looks set to go ahead

According to a report in this morning’s Guardian, the Coalition, the Greens and Nick Xenophon appear close to an agreement on Senate voting reform. There’s also an accompanying media release from Lee Rhiannon.

The proposed plan, put to the government by the Greens, would abolish group voting tickets (the mechanism whereby preferences flow according to pre-lodged party preference decisions when voters vote ‘1’ above the line for a party), and would allow voters to number their own preferences for parties above the line or for candidates below the line.

This proposal is very similar to that proposed unanimously by the Joint Standing Committee on Electoral Matters (JSCEM), with a few exceptions:

  • Voters would be expected to number at least six boxes above the line or twelve boxes below the line. As I understand it, there would be a savings provision so votes that don’t number enough boxes would still count.
  • The Greens don’t propose any changes to party registration rules, whereas JSCEM had proposed raising the threshold for party registration from 500 members to 1500 members.

While the article is written as if agreement has been reached, it’s unclear whether the Coalition has agreed to the Greens’ demand that party registration be taken out of the package. It’s also unclear where Labor stands on the proposal – while some senior Labor senators are opposed, there are others in the party who support Senate reform.

While some have been strongly opposed to any changes to group voting tickets, a lot of anxiety around Senate reform has focused on the likelihood that most voters would just vote ‘1’ and this would lead to a lot of votes exhausting, and thus the final seats being decided on substantially less votes than a full quota, and thus distort the result.

This proposal would partly mitigate against this, although a voter could easily vote for six tiny parties and still have their vote exhaust, or even just vote ‘1’.

I suspect that the legislation will come with a provision to also require parties registering how-to-votes to include six preferences. Federal legislation has a history of allowing a particular type of vote to be formal, but requiring the ballot paper instructions, and any campaigning, to advocate for a higher standard of formality. This kind of clause is controversial, though, because it can lead to criminalising advocating for what is effectively a legal vote.

Albert Langer’s case in the late 1990s was due to him advocating for a type of voting which at the time was legal, but his advocacy was illegal. The Parliament responded to this case by eliminating the voting option, and thus bringing the voting rules into line with what was legal to advocate.

So what does this mean for preferences? Firstly, they’ll become much less important. Even if there’s a requirement that parties number six boxes, parties will only be able to direct preferences if they can put a how-to-vote card in the voters’ hand, and still rely on the voters following that advice and filling it in themselves. This means most microparties’ preference recommendations will become worthless, and major parties will not be able to have as much flexibility as they do now.

For example, if even if Labor and the Greens didn’t preference each other, it’d be a lot easier for their voters to override this advice and give preferences.

Whether or not there is a requirement that parties give more than one preference on their how-to-vote, there will still be an incentive to encourage your voters to preference and to do deals with parties which have something to offer, but those preference deals will have much weaker effects and will be much easier to understand.

There will still be a lot of collective muscle memory after over 30 years of voters just voting ‘1’ above the line, and you’d expect plenty of voters to still vote ‘1’, even if parties recommend otherwise.

If there is no rule against advocating ‘Just Vote 1’, you could imagine the LNP adopting a similar strategy to recent NSW and Queensland elections to try to reduce preference flows between Labor and the Greens, although this would be risky in an election where voters are required to number every box on their House of Representatives ballot.

Preferences can still matter in close contests, and you’d expect that if parties are required to number six boxes on their how-to-vote that we would still see more preferences flow, but they would definitely be less decisive than under the current rules – the candidate leading after early rounds of counting would be the clear favourite to win.

(When there is more time, I might do some analysis of what preference flows look like in NSW elections for parties that have chosen to issue preferences – I think a lot of their voters still exhausted.)

It’s also interesting that the Greens have rejected any changes to party registration rules. Before the last election, in an attempt to address the surge in candidates running in federal elections without making any fundamental changes to the system which encouraged the surge, the major parties voted through big increases in nomination fees. This failed as a strategy, with the number of parties doubling and the number of candidates increasing significantly.

The major parties have still supported using increased membership requirements as a parallel strategy to reduce the size of the ballot, but I’ve personally always thought it’s an attempt to address the symptom without dealing with the disease.

There are a number of parties which rely entirely on chance preference arrangements, and would likely fold if the prospect of getting elected from preference harvesting goes away. Even for those parties which remain, the incentive to run in every single state in order to swap preferences will go away. If your preferences only matter when you hand out how-to-votes, it makes sense to only focus on states where you have members.

If this reform is passed, it has serious implications for the prospect of a double dissolution.

It’s very difficult to hold a double dissolution under the current rules – ballots would get even bigger, and preference deals would allow even more candidates to be elected on minuscule votes. It would also add pressure on the AEC, since there would be more close contests which could produce recounts or revotes.

A double dissolution would become easier if Senate reform is passed, but it would also make it more necessary. Apart from John Madigan, whose term expires in 2017, the rest of the crossbench will remain in place until mid-2020 – and legislating Senate reform will make it even more difficult for the Turnbull government to work with these senators. A double dissolution would take that problem away.

Timing is a problem for a double dissolution. The AEC will need some time to modify its software and prepare different counting processes to deal with a lot more ballots which will have more than one number written on them.

If a double dissolution is held before the end of June, the next half-Senate election would be due by the middle of 2018 – effectively cutting a whole year off the next term of Parliament.

A double dissolution could be held on the 2nd, 9th or 16th of July, but these dates would require a longer-than-usual campaign, since the double dissolution must be called by May 11. They also clash with the mid-year school holidays, which is why we’ve had so few July elections.

None of these options are ideal, but if the Turnbull government really has burnt its bridges with this Senate, they may judge a July double dissolution to be necessary.

About Ben Raue

Ben Raue is the founder and author of the Tally Room. If you like this post, please consider donating to support the Tally Room.