The anti-democratic alternatives to Senate reform

Until Labor’s recent cynical turn against reforming the Senate, there was general agreement amongst the main political parties and electoral experts that something needed to be done to deal with the Senate. The number of candidates running for the Senate has skyrocketed, which has made it significantly harder for voters to vote (by making ballots bigger and making it harder to find who you want to vote for) and made it significantly harder for the ballots to be counted (as seen in the 2013 WA Senate count). It has also allowed minor parties on tiny votes to pile up votes and become viable candidates for election.

These aren’t the only reasons why Senate voting reform should happen, but they are the reasons why it’s so urgent and part of the reason why this issue has finally gained support from a major party after decades of major party indifference.

Apart from the current proposal, there have been a number of other “solutions” to these problems which, unlike the current proposal, do nothing to reduce the power and control of the major parties while making life harder for all minor parties, and would genuinely be bad for Australian democracy.

They should give fans of minor parties pause: there are alternative reforms which would make life much harder for small parties, and could be back on the table if the current proposal fails.

The first way that the major parties attempted to clamp down on the spiralling size of the Senate ballot was to raise barriers to entry. Before the 2013 election, the major parties voted through significant increases in nomination fees for both houses. For the Senate, nomination fees increased from $1000 to $2000 per candidate. Bear in mind that groups need to run two candidates in the Senate to get a box above the line, so in practice it cost $4000 per state for a party to run.

It was a total failure. The number of candidates in the Senate increased from 349 to 529, an increase of 51.5%. There was also a 39% increase in the House of Representatives.

Despite this approach failing, the original plan after the 2013 election included further increasing barriers to entry. These included increasing the number of members needed for a party from 500 to 1500, as well as requiring more rigorous processes to verify that those members are actually members. All of this was included in the JSCEM report which also contained the proposal to abolish group voting tickets and introduce optional preferential voting to the Senate. The report also contained a proposal to allow parties to register only in certain states on a per capita basis, which would have lowered the membership numbers for any party wishing to start in any state other than NSW.

These proposed party registration rules reflected how our current system gives a lot of privileges to political parties which aren’t available to independents, and attempt to limit who gets access to those privileges. Parties get to have their party name on the ballot (particularly useful in the Senate where independent groups get nothing except the group letter above the line) and they get to nominate as many candidates as they want from a central office without needing nominators.

(In contrast, independents are required to be nominated by 100 electors in the state where they are running, which sets a barrier but also requires some local connection. Parties, in contrast, are free to run candidates across the country even if they have no presence in a particular state, which allowed the Liberal Democratic Party to run as their lead candidate in Tasmania a person who was also the Mayor of Campbelltown, NSW.

Antony Green has suggested requiring parties to have nominators as an alternative solution to this problem and I tend to agree.)

In the end, the increased party registration rules were dropped from the JSCEM package due to opposition from the Greens, who objected to something that would make it harder for new parties to form. Part of the problem with setting higher administrative barriers for parties is that they are much easier to clear if you have a lot of money (and you are completely exempt if your party has a federal MP), but can knock out genuine parties without a great deal of money. Like with nomination fees, this approach does nothing to stop wealthy dilettantes but is effective at stopping community-based campaigns with small budgets.

The other approach suggested is to impose a threshold on the number of primary votes a party needs to get to be eligible to win seats. This suggestion has been around for quite a long time – Liberal senator Helen Coonan proposed this solution as early as 1999, and she was joined by Democrats leader Meg Lees. More recently, Sydney Morning Herald economist Ross Gittins and former Labor deputy leader Anthony Albanese suggested something similar as an alternative to abolition of group voting tickets.

(Long before the current spring of minor parties, both major parties were looking for ways to lock out even large minor parties. Paul Keating floated the idea of electorates in the Senate which would lock out all but the major parties, and Coonan’s proposal suggested a threshold as high as 80% of a quota.)

At first this approach can be seductive: it would prevent candidates like Ricky Muir with no public profile winning seats, without seeing votes exhaust or increasing the informal vote.

But at its heart it is anti-democratic.

The current system’s problems are various, but one advantage of the current system is that it sometimes benefits small parties, and sometimes big parties. Imposing thresholds would exclusively hurt minor parties while keeping all of the power in the hands of major parties.

While the media (and many politicians) have focused on people like Ricky Muir, the original proponents of GVT reform were not aiming to eliminate candidates on a small vote, but rather produce a more honest, transparent and democratic system.

None of that is fixed by thresholds. Voters still won’t understand their preferences, and small gaps in the vote can produce big differences. It would still be difficult for voters to opt out thanks to a severe assymetry between voting above and below the line.

There is a big difference between quotas and thresholds. A quota is a practical reality – the smallest number of votes which six people can get and not leave enough left over to elect a seventh. A threshold is an arbitrary distortion. And thresholds are set on primary votes, not on the final vote after preferences. If a party polls one vote below the threshold, all the preferences in the world won’t help.

The context of thresholds used in party list systems in Europe and New Zealand is very different. In those jurisdictions, a large number of MPs are elected in a single region (and sometimes the entire Parliament is elected to represent the entire country), so if there was no threshold candidates would be elected on truly miniscule votes. A quota naturally imposes a practical threshold, but it doesn’t set a hard-and-fast barrier, because preferences will flow at different rates at different elections and to different candidates.

It’s also possible that such a move is unconstitutional. Section 7 of the constitution says that the Senate shall be “directly chosen by the people of the State”. While it seems to me that this clause could simply be confirming that senators should be elected, not appointed by state Parliaments (as was still possible in the United States when the constitution was written in 1898), it has been generally interpreted as prohibiting any kind of party list system, and is part of the reason why we still have below-the-line voting.

You couldn’t impose thresholds on individual candidates without knocking out second and third candidates for Liberal and Labor, so it would be necessary that such a threshold would apply to all candidates in a party group on the basis of the party group’s total vote, not to individuals.

Talk about thresholds should worry anyone interested in a healthy system of proportional representation and minor party representation in the Senate.

The proposed model isn’t ideal for minor party representation – like many others, I’d love to see a lower quota – but it still allows for diversity of representation, and for preferences to flow if voters choose to mark them.

If this reform isn’t passed, we should expect to see future attempts at reform, and they may be much less friendly to minor parties.

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.