New Senate Voting Rules

If your Facebook feed is anything like mine, you will have noticed a sudden and somewhat vicious outbreak of political warfare between the ALP and the Greens a month or two back.  While said outbreak covered a wide variety of contentious issues, the underlying cause appears to have been the new Senate Voting rules, which were voted in by the Coalition, the Greens, and a pyjama-clad Nick Xenophon, and opposed by the ALP, Bob Day (Family First, who has attempted to take this to Court), Ricky Muir (Motoring Enthusiast), David Leyonhjelm (LDP), Jackie Lambie, Glenn Lazarus and John Madigan.

The goal of this legislation is ostensibly to get rid of Group Voting Tickets and thus make it easier for people to direct their own preferences when they vote above the line, rather than having these directed by the party, often in directions unsuspected by the average voter.  Other goals attributed to the legislation include getting rid of microparties and independents, and making it easier for the government to get a majority in the Senate.  Whether or not the legislation will have any of these effects remains to be seen.

I’m going to discuss the Bill in detail below, but for those who want to cut to the chase, here is how you actually vote (paraphrased from sections 239 and 269 of the Commonwealth Electoral Act).

Above the Line: You can now number your political parties and grouped independents (but not solo independents) above the line!  Very exciting!  Your ballot paper will ask you to number at least six parties/groups above the line in order from 1-6, but you can do more, and you probably should if you don’t want your vote to exhaust.  However, since the government is aware that people don’t tend to read instructions and they don’t really want to have a huge number of informal votes, your vote will still be counted if you only put a ‘1’ in a single box above the line.  This just means that if your first preference doesn’t get up, your vote is ‘exhausted’, and there are no second or third preferences to count.  Voting ‘1’ only above the line will not mean that your vote then gets channelled down a list of parties determined by the party you put your vote beside – that is exactly what this Bill is meant to abolish.

However, voting above the line does still mean that the party you vote for decides which candidate gets first dibs on votes for that party, so if your party has decided to put someone loathsome at the top of their ticket, you might want to consider moving below the line.  Also, you are considered to have voted for *all* the candidates for the party you put first, then *all* the candidates for the one you put second, and so forth, in the order they appear on the party’s ticket.

Below the Line: This is now a much less risky choice than it used to be, because provided you successfully manage to count to twelve below the line, your vote will be counted.  Your ballot paper will ask you to number at least 12 candidates in order from 1-6, however once again, you can do more, and I would, once again, advise you to do so, so that your vote doesn’t exhaust.  Below the line is still the only way to vote for ungrouped independents, alas.

Oops, I voted Above and Below the Line: You enthusiastic thing, you!  Don’t worry, if only one of them is formal, they will count that.  If they are both formal, your below the line vote will be counted.

Honestly, while there are things this Bill could do better, this is pretty good as far as it goes.  My biggest issue with it is that a lot of votes are going to exhaust, leading to people not getting the full value of their vote if they only number 6 places above or 12 places below the line.  But I am definitely in favour of making it easier to vote formally below the line, as I know the huge numbers of candidates can be offputting and overwhelming.

So what about the rest of the Bill?

You can read the entire text of the bill here, but to do so usefully, you will also need to have at hand the text of the Commonwealth Electoral Act 1918, to which it refers (like most Parliamentary Bills, this one does not write out in full exactly what will happen, but rather says ‘here is how we have amended this clause of this older Act of Parliament’.).

Let’s start with the introduction, to see what this Bill actually claims to do:

The Bill proposes to:

  • reduce the complexity of the Senate voting system, by providing for partial optional preferential voting above the line, including the introduction of advice on the Senate ballot paper that voters number, in order of preference, at least six squares;
  • provide appropriate vote savings provisions to capture voter intent and reduce the risk of increased vote informality, including by improving vote savings provisions for below the line voting;
  • improve transparency around the allocation of preferences in a Senate election, by abolishing group and individual voting tickets, noting that this does not change other provisions relating to candidates nominating to be grouped on the Senate ballot paper;
  • introduce a restriction that there be a unique registered officer and deputy registered officer for a federally registered party; and
  • reduce the confusion that may arise with political parties with similar names, by allowing party logos to be printed on ballot papers for both the House of Representatives and the Senate.

These all sound like reasonable reforms (though the last point makes me giggle, because it’s clearly the ‘oh, shit, how did the Liberal Democrats get a Senator?’ clause).

Reading through the Bill (and please, please bear in mind that I am not a lawyer and have absolutely no expertise in Constitutional Law), it starts with a bunch of what look like minor editorial changes, designed to either clarify things or amend clauses so that they no longer refer to things which no longer exist (i.e., Group Voting Tickets).  There are also a number of clauses about things that need to stay the same – a square next to each candidate below the line, and next to each group above the line.

Quite a number of items refer to the abolishment of Group Voting Tickets, which, being abolished, no longer need to be displayed in a number of different places.  For those of you who are trying to remember what a Group Voting Ticket is, under the old system, if you voted above the line, the Party you voted for would determine the order of your preferences, and you would have no further say in the matter.  This became controversial in Victoria in 2004 when Labor preferenced Family First ahead of the Greens, and became differently controversial recently when a whole lot of tiny parties swapped preferences and brought us the delight that is Ricky Muir, among other extremely randomly selected politicians.

I am honestly very torn about the removal of Group Voting Tickets.  On the one hand, I agree that they are very opaque, and that individuals should get to direct their own votes.  On the other hand, I find them an extremely useful way of determining where a parties values truly lie.  And on the third hand, which I do not have, while it can’t be denied that Group Voting Tickets effectively makes the last seat in the Senate a lottery, I am not entirely convinced that this is a bad thing.  Our Parliament is full of career politicians who have never lived a life outside politics, and I think it benefits us all  to get some people with different backgrounds into the mix.  Now, the Group Voting Ticket is probably not the best way to do this, but I would be absolutely in favour of the last Senate Seat for each state being determined by a lottery similar to the one used to select people for Jury Duty.  I think it would do the Government good to be forced to write legislation that passes the sniff test for people outside their little political bubble.  I don’t love every one of our current crop of independents and tiny party representatives, but I do feel that they represent demographics that are real and don’t often get their voices heard in Parliament. (Evidently Malcolm Turnbull does not agree with me on this subject, as this Double Dissolution is intended precisely to get rid of all the random voices in the Senate.)

But I digress. Massively.

These items are interspersed with several clauses that move the responsibility for checking various things (postal votes, declaration votes, mobile polling booth boxes, etc) from the Assistant Returning officer to the Divisional Returning Officer.  The Divisional Returning Officer also does a lot more double-checking of things – it’s a bigger job than it used to be, no doubt about it.  Nobody is going to get a lot of sleep on Election night.  The theme here seems to be better security and consistency in how votes are collected.  I like to think of this as the ‘oh shit, let’s not have a repeat of what happened in Western Australia that time’ section of this Bill.  Also, shout out to Antarctica in Item 21!  Good to see our colleagues on the coldest continent getting a bit of love in this otherwise decidedly boring document.  (Should I really be writing this post on a Saturday night when I’m tired?  Perhaps not, but when else will I have the time…?)

Item 23 is really good, and while the spirit of what it expresses is not new, I’m glad that they have put thought into it.  Basically, it’s all about making sure as many votes as possible are formal and express the intent of the voter.  I’m not going to quote it in full, because cutting and pasting is an absolute pig from PDF to WordPress, but here is the key bit:

New paragraph 269(1)(b) will operate with the new subsection 239(2), which provides for voters to number at least six squares above the line. The Senate group ticket voting system has been in place since 1984, requiring that voters number only one square above the line. Since then, a very large majority of voters have followed the practice of numbering only one square above the line. It is important that voters who continue to number only one square above the line, even though contrary to the new subsection 239(2), should not have their votes treated as informal: they have expressed a clear choice albeit one that might not give their vote a long life in preference distribution. Paragraph 269(1)(b) is designed to give effect to that choice.

It then goes on to inform us that just putting a single cross in a box above the line will be counted as a 1 (because that was clearly the voter’s intent), and that a ballot marked 1,2,3,4,4,5 will be formal, but will exhaust after the first three preferences.  Incidentally, voting using Roman Numerals is also formal, but it will not make you popular with the AEC staff and scrutineers.  (My sources also inform me that if you were to choose to draw male genitalia, or any other design of your choosing in a box next to a candidate, and this was the only mark on your ballot paper, this might actually count as a vote for that candidate. We do not recommend voting in this fashion, as the rules might still change, and really, if that’s how you feel about the candidate, maybe you shouldn’t be voting for them. I suggest confining your artistic efforts to the margins of your ballot paper).

At Item 27, we also learn that you may change your mind up to five times in numbers marked below the line before your vote becomes informal, provided you have number 90% of the squares below the line. (Since your vote might, however, become illegible well before this point, I do not recommend this course of action.)

A bit of excitement occurs at Item 42, where we get to have party logos on our Ballot Paper.  This is another instance of ‘oh shit, how did the Liberal Democrats get a seat?’.  While I think logos are a good idea in theory, I do wonder how similar party logos are allowed to be, because if there isn’t a ruling on that, I foresee some very misleading logos in our future.  Item 62 says that they can’t be so similar to an existing logo that there is the possibility of confusion, but this strikes me as a potentially subjective judgment, and a boundary that is just waiting to be tested by the microparty of your choice.  It looks like existing Parties can object to new Party logos on the basis of similarity, so it could be on for young and old, and won’t it be fun for the lucky person at the Electoral Commission who gets to arbitrate these complaints?  (I’m also amused that the Sex Party are quite cross with Nick Xenophon for making his new Party’s logo an X.  They wanted to be the only X-rated party.  Perhaps they should go with R?)

In all seriousness, I do think they ought to make these rules more specific.  Perhaps some heraldic rules (such as those used by the Society for Creative Anachronism) are in order?

We now come to Part 2 of this Bill which is all about Registered Officers for political parties.  I like to think of this section of the Bill as ‘we’re onto you, Smokers Rights Party’.  Basically, you don’t get to be the Registered Officer or Deputy Registered Officer for more than one Party, and fair enough too.  If you can’t think of a more imaginative way of harvesting votes for your microparty (or can’t find enough friends to help you), then you shouldn’t be playing at all.  Make an effort, dodgy microparties!  At least show you are trying!  (Yeah, I really shouldn’t be writing this on a Saturday night.  I wonder if apricot liqueur would help?) (No, it really wouldn’t.  Though it might make this legislation more entertaining.)  Incidentally, this law is retrospective – if your party currently has a Registered Officer who is Registered Officer for another party, you have 90 days to find a new Registered Officer or risk deregistration as a political party.

And this leaves us just with the Human Rights Statement at the end of the Bill, which is primarily of interest for the fact that it exists at all – I didn’t realise we had to have those, but evidently we do, and more power to us!  This page discusses the human rights implications – which in this instance are primarily about the right to take part in elections, and asserts that by giving voters greater control over their vote, and preventing preference harvesting and adding logos to prevent confusion of names, this bill enhances the ability to make use of this right.

So there you go then.

To my mind, this is actually a pretty good Bill, and I’m not quite sure why Labor was so upset about it.  I do think it gives ungrouped Independents a raw deal, but their deal was always raw, and has not, at least, become any worse – in fact, it has arguably improved, since it is now easier to successfully vote below the line than it was previously, and since ungrouped independents can only be voted for below the line, more of their supporters might feel confident in doing so.

It’s also going to be harder for small parties to get preferences unless they work hard to get brand recognition before the election, as they no longer have built-in preferences – which, by the way, often came from large parties and not just other microparties. I think this is a shame.

The biggest drawback of this Bill, I think, is the likelihood of large numbers of votes exhausting.  I would have liked to see full preferential voting above the line as a requirement, but with the same saving provisions for people who were confused by the change in voting or lost count of their numbers.  This would be fairer on smaller parties, I think, and would better preserve the value of each vote.

It will be interesting to see how this pans out in the actual election.

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4 thoughts on “New Senate Voting Rules

  1. Your political posts are always insightful, sprinkled with enough snark to reward the reader. You need to cross-post your facebook posts over on livejournal, however, as I’m not on facebook & always enjoy reading what you have to say.

  2. A potential wildcard which no one seems to have considered is the above-the-line ‘semi donkey vote’. Often with the House of Representatives vote I’ve found there are only one or two candidates on the ballot I care for, so I’ll give them my first and (if applicable) second votes and in order to keep my vote formal, simply go donkey on the rest, and I’m sure I’m not the only one who’s done this.
    This would not be common enough to make any noticeable difference in the majoritarian House of Representatives, but it could be a different story in the Senate. Many voters used to previously only voting ‘1’ above the line and under the impression that they have to number six boxes for their vote to be counted, might number another five boxes either going to the right of the box numbered ‘1’ or they’ll go to the left of the ballot paper and number another five boxes going to the right from there. Combined with the lower threshold of a double dissolution election this could make this election as much a lottery as the last one.

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