Senate Voting Reform: Joint Standing Committee on Electoral Matters Reports

Wednesday 9 March 2016 @ 11.48 a.m. | Legal Research

Recently we reported on the Commonwealth Electoral Amendment Bill 2016 (the Bill) which is proposed Federal legislation intended to reform the Senate voting system by making changes to the Senate ballot paper structure and changes to a number of ballot paper handling instructions and procedures. The Bill has now gone from its introduction on 22 February 2016 into the House of Representatives to its introduction in the Senate on on 2 March 2016, where, after 14 sets of proposed amendments were considered, and an Amended Bill resulted, it sits awaiting the consideration of an Advisory Report on the Bill by the Joint Standing Committee on Electoral Matters (the JSCEM).

A Brief Bill Recap

The Bill is comprised of three parts:

Part 1 - this part contains changes to the Senate ballot paper's structure and changes a number of ballot paper handling instructions and procedures. Three measures seek to simplify and improve the Senate voting system:

  • the introduction optional preferential voting above the line, with voters instructed to number at least six squares in sequence;
  • the abolition of individual and group voting tickets (GVTs) which is intended to return the control of preferences to voters. The abolition of GVTs will not impact on the ability of candidates to group their names for the inclusion of a square above the line on the Senate ballot paper; and
  • changes to the vote savings provisions such that a vote remains formal:
    • even where voters have numbered fewer than six squares above the line;
    • where there are up to five mistakes by a voter when sequentially numbering their preferences below the line (increased from the current three mistakes).

Part 2 - this part aims to remove ambiguity around the accountabilities, affiliations, and alliances of political parties by removing the capacity for an individual to be a registered officer or deputy registered officer of multiple political parties.

Part 3 - this seeks to address the confusion that may arise where political parties with similar names appear on the ballot paper by allowing political party logos to appear, in black, on the ballot papers for both the House of Representatives and the Senate and sets out the requirements for the registration of party logos with the Australian Electoral Commission

The JSCEM Report - Some Key Points

The JSCEM report recommends firstly:

". . . that the Government introduce a system of partial optional preferential voting below the line. It proposes that:

  • voters should be instructed on the ballot paper to mark a minimum of 12 preferences to vote below the line; and
  • a related vote savings provision for below the line votes be introduced to ensure that any ballot with at least six boxes numbered in a sequential order (starting at ‘1’) be considered formal."

In respect of this recommendation the JSCEM said in terms of the Bill over all:

"This bill represents an important and necessary reform to Australia’s electoral system. The current system is flawed."

With respect to "Voting above the line" the JSCEM supported the proposed amendments on the basis of simplicity and transparency saying at 4.8:

". . . The Committee supports the relative simplicity and transparency of the proposed above the line arrangements along with the abolition of GVTs. Voters will now be able to clearly see where, and in what candidate order, their preferences will flow above the line. The Committee argues that this is exactly as it should be."

With respect to "Voting below the line" the JSCEM was more reserved in its supports indicating that the proposed changes did not go far enough and it stated at 4.10:

"The reforms proposed in the bill are not as far reaching as those the Committee proposed in May 2014. Several submitters noted that the bill would not change the current arrangements for below the line voting. The Committee’s preferred position was for voters to number a minimum sequential number of preferences equal to the number of vacancies."

On the question of "parties ordering of candidates" the JSCEM indicated it was aware of concerns over the influence of parties in determining the order of candidates but stated it did not consider the process adverse saying at 4.13:

"Candidates standing for election with the support of a political party are chosen to represent the views of that party. It is not unreasonable that parties should wish to decide the order in which candidates appear on the ballot paper."

The "restriction to unique registered officers" for federally registered parties was an aspect of the reforms praised by the JSCEM as was the proposal with respect to the inclusion of party logos.

Secondly, the JSCEM recommended that:

The amendments proposed in Recommendation 1 are incorporated into the Commonwealth Electoral Amendment Bill 2016, and that the bill is passed and in supporting the Bill indicated at 4.22 that it was of the view that the Bill did not go far enough saying:

". . . However, it [the JSCEM] retains its view that the will of the voter is best optimised through a combination of ‘partial’ optional preferential voting below the line and optional preferential voting above the line.

In general the JSCEM sees the key problem giving rise to the Bill as being addressed when it says at 4.23:

". . . A candidate with a strong policy position who is well known in their community has every chance of being elected. However, a candidate who wishes to be elected on preference deals that ‘game’ the system will no
longer have this opportunity. The Committee believes that this is in line with community expectations."

A Possible Constitutional Matter

At 4.24 of its report the JSCEM raises the matter of The Constitution, Part II, sections 7 and 9 saying:

". . . The Australian Constitution requires that Senators for each state be directly chosen by the people of that state by a method determined by the Parliament.The Committee is of the view that these reforms place the power for electing senators directly into the hands of voters. This is to be commended."

As a counter to this a recent report in The Age by Malcolm Mackerras indicates that not all the experts have the same view of The Constitution, Part II, sections 7and 9. In his article he indicates:

"My lawyer friends advise me that the odds would favour the government if that simple right of below-the-line voting were given to the elector. If, by contrast, the present outrageous provision of the Bill (and of the present system) were retained, then the odds would be that the High Court would strike the legislation down as being unconstitutional."

Next Steps

The Labor opposition has produced a dissenting report and has indicated it will not support the legislation, however, with the support of the Greens it is expected that the Bill will pass and may well be in place for the next Federal election which many now think will be a double dissolution election designed to reconfigure the make up of the Senate.

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