BILLS DIGEST NO. 78, 2013–14              17 JUNE 2014

Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013

Brenton Holmes
Politics and Public Administration Section

This is a revised version of the Digest published on 4 June 2014, which incorporates the Interim Report on the Inquiry into the conduct of the 2013 Federal Election: Senate voting practices by the Joint Standing Committee on Electoral Matters.

Date introduced: 13 November 2013

House:  Senate

Portfolio: Private Senator's Bill

Commencement: The day after the Act receives Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

The Bills Digest at a glance

This Digest describes the changes proposed by what is commonly referred to as ‘Xenophon’s above the line Bill’ which seeks to:

•       simplify voting for the Senate

•       reduce the likelihood of voters casting informal votes in elections with large numbers of Senate candidates

•       minimise the chance of the election of candidates with little support but who have benefited from elaborate preferencing arrangements.

The Bill:

… establishes an optional preferential system above and below the line. It maintains the structure of the existing ballot paper, with group squares above the line and individual candidate squares below the line. Voters will be able to number either one or more squares above the line, or at least as many squares as there are vacancies to be filled below the line.

Candidates wishing to register as a group will still get a square above the line, and will be able to determine the order in which their candidates appear on the ballot paper. As such, when a person votes above the line, it is taken that the voter has assigned their preferences to the candidates in the order in which they appear on the ballot paper. The voter will also be able to number any further squares above the line that they wish, assigning further preferences to other groups …

Alternatively, if a voter chooses to number candidate squares below the line, they must number at least as many squares as there are vacancies to be filled … The voter may also number as many squares beyond that minimum as they wish; they do not have to number all the squares for their vote to be valid, although they may do so if they choose.

The votes will be counted according to the current system.[1]

Purpose of the Bill

The purpose of the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013 (the Bill) is to remove the current practice of using party-approved group voting tickets for the Senate, thereby:

•       making it easier for voters to determine their own preferences

•       increasing the transparency in the voting process

•       preventing parties and groups from assigning preferences and so making it easier for voters to know ‘where their vote is going’.

The Bill establishes an optional preferential system for voting ‘above’ and ‘below’ the line. It maintains the structure of the existing ballot paper, with group squares above the line and individual candidate squares below the line. Voters will be able to number either one or more squares above the line, or at least as many squares as there are vacancies to be filled below the line.

Structure of the Bill

Schedule 1 of the Bill makes amendments to the Commonwealth Electoral Act 1918.[2]

Background

The 2013 Election was distinguished by the extent to which sophisticated preferencing strategies were employed by parties and candidates to optimise their chances of success—producing outcomes that dismayed many voters because candidates with very little support were elected:

Microparties have been elected at the expense of better-known parties, so reform is in the interest of all major parties, as well as being an improvement to Australian democracy. And consider this: …we can, without reform of the Senate electoral process, expect even more horse trading from microparties. With the lower quota of 7.7 per cent [in a double dissolution election] we might even get two microparty senators per state. [3]

In September 2013, South Australian independent Senator Nick Xenophon announced his intention to ‘overhaul Australia’s voting system for the Senate to an optional preferential below-the-line system’.[4] (Note: The formal title of the Bill is ‘Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013—emphasis added.)

Optional preferential voting allows voters to mark their ballot paper for a (relatively) limited number of candidates instead of having to mark a preference against every candidate—which is required under existing (full) preferential voting rules.

It has been argued that Australia’s preferential system for the Senate has been distorted by above-the-line voting which allows a party to predetermine preference allocation by means of Group Voting Tickets.[5] These ‘tickets’, which have to be registered with the Australian Electoral Commission (AEC), are designed by political parties and candidates to encourage voters to direct preferences in a particular way—one that will maximise the electoral advantage to the party concerned and strategically undermine its competitors. Ticket voting reduces the time and effort required at the voting booth by voters who wish to ensure that they cast a valid vote for the party of their choice.

On 12 December 2013, the Senate adopted the report of the Standing Committee on Finance and Public Administration and referred the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013 to the Electoral Matters Committee for inquiry and report.[6] The Joint Standing Committee on Electoral Matters (JSCEM) initially agreed to an inquiry into the ‘Xenophon above the line Bill’ as well as its broader inquiry into the conduct of the 2013 Election. However, on 24 February 2014, JSCEM advised that:

The committee is currently conducting a wide-ranging inquiry into the 2013 federal election, and all matters relating thereto. The main focus of the committee for the early stages of this inquiry is in fact the current voting system used to elect senators. The committee is considering a range of different proposals, including several responses to the provisions outlined in this bill. There seems little point in covering the same territory twice, or in pre-empting the conclusions of this more comprehensive inquiry. Given the wide-ranging nature of the inquiry into the federal election, the committee does not want to consider individual reforms by way of private bills. This committee takes very seriously its responsibilities when it comes to the future of Australia's electoral system, and is intent on considering this proposal in the context of the range of reform options that will be presented during the course of this inquiry. … Therefore the committee has decided not to inquire into this bill in a separate inquiry, and will instead incorporate consideration of its provisions into the inquiry into the 2013 federal election.[7]

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Committee made no comment on the Bill.[8]

Parliamentary Joint Committee on Human Rights

The Bill has been considered by the Joint Committee on Human Rights. The Committee considers that the Bill does not appear to give rise to human rights concerns.[9]

Joint Standing Committee on Electoral Matters

As set out above, the Bill was referred to the Joint Standing Committee on Electoral Matters (JSCEM) for inquiry and report, but no reporting date was set.[10] Subsequently, JSCEM decided not to inquire into this Bill in a separate inquiry, and instead to incorporate consideration of its provisions into the inquiry into the 2013 Federal Election.[11] The Committee Chair, Tony Smith MP, reported this decision to the House by oral statement.[12]

On Friday 9 May 2014, JSCEM tabled its report entitled Interim report on the inquiry into the conduct of the 2013 Federal Election: Senate voting practices, which included advice about the Xenophon and other proposals. JSCEM acknowledged that ‘all the proposals for reform have strengths and drawback. It further notes any change of the magnitude contemplated inevitably will have consequences’.[13] The Committee made several recommendations including that:

•       section 273 of the Commonwealth Electoral Act 1918 and other sections of that Act relevant to Senate voting be amended to allow for:

–      optional preferential above the line voting; and

–      ‘partial’ optional preferential voting below the line with a minimum sequential number of preferences to be completed equal to the number of vacancies:

•       six for a half-Senate election

•       twelve for a double dissolution, or

•       two for any territory Senate election, and 

•       sections 211, 211A and 216 and any other relevant sections of Parts XVI and XVIII of the Commonwealth Electoral Act 1918 be repealed in order to effect the abolition of group and individual voting tickets.[14]

Policy position of government, non-government parties and independents

Independent Senator Nick Xenophon has been a prominent critic of what he regarded as the ‘gaming’ of the Senate voting system.[15] In September 2013, he announced his intention to introduce legislation to change the Senate voting system to include optional preferential voting, both above-the-line and below-the-line.[16]

Greens democracy spokesperson Senator Lee Rhiannon has renewed her party’s call for electoral reform to allow voters the right to determine their Senate preference flow in above-the-line voting.[17]

The Liberal Party's federal director Brian Loughnane has flagged that his party will push for electoral reform, with a focus on making the Senate race ‘more democratic’, and Prime Minister Abbott was reported to have supported moves for the voting procedures to be reviewed.[18]

The ALP said that the rise of micro parties ‘and the ability of people to be elected on very, very small… primary votes… is something that the [Joint Standing Committee of Electoral Matters] should very justifiably be looking at … to ensure that people's votes are properly reflected in the Upper House’.[19]

Position of major interest groups

Proportional Representation Society of Australia

The Proportional Representation Society of Australia believes that ‘the entire apparatus of party boxes should be dismantled as a long-overdue step towards increasing voter influence’.[20] The Society’s view has consistently been that party boxes should be abolished and simpler formality provisions introduced and extensively promoted instead:[21]

It is … important that a generous [vote] savings provision be inserted so that electors who make an error early in their numbering are not automatically robbed of their vote, as it would be a cruel irony for a genuine attempt to increase voters’ influence to set aside as informal some ballot-papers that are currently accepted under unjustifiable below-the-line provisions.[22]

NSW Council for Civil Liberties (NSWCCL)

The NSWCCL endorses:

•       the removal of group preference ticket arrangements (except in relation to a ticket that includes only the group’s own candidates) and

•       the proposal to introduce optional preferential voting (OPV) in Senate elections.

The NSWCCL believes that the informal vote in Senate elections would likely increase if group preference tickets were removed and voters were required to fill out all boxes above the line or all boxes below the line.[23]

Family Voice Australia

Family Voice Australia (FVA) believes that the current system of registered preference tickets for the Senate is undemocratic as it ‘results in preferences being allocated by political parties and groups and treated as if these were the preferences of voters’:

In reality, people who vote above the line rely on preference tickets with little understanding of which candidates their votes will ultimately support. The obscurity of the preference tickets facilitates deception or manipulation, verging on fraud.[24]

FVA recommends that ‘to the extent that the Bill would provide voters with an option for preferential voting for parties and groups above the line, it should be supported’.[25]

Other related evidence/comment

On 7 February 2014, JSCEM heard expert evidence from election analysts Antony Green and Malcolm Mackerras. Key remarks—some of which conflicted with each other— included:

•       the introduction of ticket voting in 1984 had the laudable intention of making voting simpler, but nobody considered the potential control over preferences that it gave to smaller parties

•       minor parties were using the group ticket voting system to engineer results which did not reflect the will of voters

•       the large Senate ballot papers were a considerable burden on voters

•       the minimum requirements for party registration should be toughened

•       instead of a random draw of ballot positions, the groups should be listed in order of the vote they received at the previous election

•       a key problem with the existing system was that it did not provide a reasonable below-the-line option and

•       the overwhelming majority of people are perfectly willing to accept the judgment of their political party in relation to any transfer of preferences, and in relation to the rank order of candidates.[26]

A prominent figure in the realm of minor parties’ and independents’ preferencing strategies is Glenn Druery—dubbed ‘the preference whisperer’. In the 2013 Federal Election, the controversial success of the Australian Motoring Enthusiast Party (AMEP) and the Australian Sports Party (ASP)—parties guided and advised by Druery—brought both praise and blame to Druery’s door. ABC election analyst Antony Green said that the series of deals Druery advocated made a joke of Australia’s democratic system, while Druery insisted that his actions did not distort the political process. [27]

Financial implications

The Explanatory Memorandum does not say whether there are any financial implications.[28] As ballot papers will remain essentially unchanged, there would appear to be no extra printing costs involved—although the AEC may incur costs in educating voters about the changes.

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Bill has been assessed for compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[29] Senator Xenophon considers that the Bill is compatible.

The Bill has been considered by the Joint Committee on Human Rights. The Committee considers that the Bill does not appear to give rise to human rights concerns.[30]

Key issues and provisions

Item 1

Section 168 of the Commonwealth Electoral Act 1918 (the Act) currently provides that candidates may have their names grouped in the ballot papers; although a candidate‘s name may not be included in more than one group. Item 1 inserts new definitions into subsection 4(1) of the Act—for ‘candidate group’, ‘candidate voting square’ and ‘group voting square’ —that have the effect of allowing groups or sitting Senators (either Independents or those who are standing alone) to have a group voting square on the ballot paper. This is consistent with the current law regarding candidates who can appear above the line.

Item 2

Currently, under subsection 169(1) of the Act, the registered officer of a registered political party may request that the name, or the registered abbreviation of the name, of that party be printed on the ballot papers for an election adjacent to the name of a candidate who has been endorsed by that party. Under subsection 169(4) of the current Act, it is only by registering a group voting ticket with the AEC that there can be printed on the Senate ballot papers, adjacent to the group voting square for the group, the name of the registered political party that endorsed the candidates, or a composite name formed from the registered names of the registered political parties that endorsed the candidates in that group.

The new subsection 169(4) removes the current requirement for this to occur only where the group has lodged a group voting ticket. In fact, the Bill dispenses with group voting tickets altogether.[31]

Items 3–10

Under this Bill, the printed ballot papers for the Senate will remain largely the same in appearance. But given that voting tickets will no longer be a feature of the voting process, various amendments are being proposed, including:

•       the removal of:

–      the requirement for groups to lodge a group voting ticket and

–      various rules about the display of voting tickets at polling booths

•       the introduction of new terminology, such as ‘candidate voting squares’ and ‘group voting squares.’

Item 3 repeals and replaces section 210 completely. The new section provides, among other things, that the names of the candidates in candidate groups must be printed before the names of the candidates who are not in candidate groups; and a square must be printed opposite the name of each candidate.

Item 5 repeals sections 211 and 211A completely, with the effect that group and individual voting tickets will no longer be lodged with the AEC.

Item 7 repeals and replaces existing section 214. The new section includes the same requirements as the existing section, but removes the provisions relating to voting tickets and takes into account the new terminology of ‘candidate voting squares’ and ‘group voting squares’ for the Senate. The new section 214 also requires that, on Senate ballot papers, the name of the relevant registered political party or the word ‘Independent’ be printed next to the names of candidates who are not grouped.

Items 11–17

Section 239 of the Act deals with the marking of votes in a Senate election. Items 11–17 propose various changes to section 239, which respectively:

•       amend paragraph 239(1)(a) to clarify that the subsection refers to the marking of a ‘candidate voting square’ with a voter’s first preference (item 11)

•       repeal paragraph 239(1)(b) so that a voter, instead of being required to mark numbers against all candidates, the voter may number as many subsequent candidate voting squares as they wish. This is subject to the minimum set out in 239(1A) (item 12) and

•       repeal existing subsection 239(2) and inserts a new subsection 299(1A), which requires a person to indicate at least as many preferences below the line as there are candidates to be elected (six for a half Senate election, twelve for a full Senate election, or two in the case of territory elections), and also inserts a new subsection 239(2) to allow voters to number at least one group voting square, and as many subsequent group voting squares as they wish (including no further squares) when voting above the line (item 14).

Items 18–22

These items are largely technical/consequential, except for item 19 that deals with informal votes. Currently, under subparagraph 268(1)(b), a Senate vote is informal if it ‘does not indicate the voter’s first preference for one candidate ‘and the order of his or her preference for all the remaining candidates’ (emphasis added). The proposed changes provide that a Senate ballot paper is considered informal if it has no vote indicated on it, or a voter has not indicated his or her preferences for as many candidates as are to be elected.

Item 23

Currently, section 270 prescribes for a very restricted set of conditions under which a Senate vote may be regarded as formal notwithstanding that a voter may have failed to comply exactly with the strict requirements of formality. Item 23 repeals section 270 and inserts a new section to deal with non-consecutive numbers in Senate ballot papers by disregarding any number that is not part of a sequence, and by disregarding any number that is repeated as well as any numbers that follow the repeated number—because such following numbers are no longer part of a consecutive sequence. For the purposes of this part, the number 1 used alone is considered to be a consecutive sequence.

Item 24

Item 24 repeals section 272 and inserts a new section. This new section takes into account the repeal of the use of group and individual voting tickets and new subsection 239(2), which allow voters to number more than one group voting square above the line. Under the new section 272, Senate ballot papers are to be treated as having been marked according to above the line preferences. The effect of this new section is that where a voter has marked a group voting square with the number 1, the voter assigns their first preference to the first candidate in that group, and their subsequent preferences to the other candidates in that group in the order they appear on the ballot paper.

If a voter marks any further group voting squares using a sequence of consecutive numbers after the number 1, it is taken that the voter has assigned their preferences to the candidates of those groups in the order they appear on the ballot paper.

Item 26

Item 26 ensures that all unrejected ballot papers, not just those marked below the line, are sent to the Australian Electoral Officer. This reflects the more detailed scrutiny ballot papers will need following the exclusion of group and individual voting tickets.

Items 27–28

Item 27 inserts a note at the end of subsection 273(7). This clarifies that, in the case of the exhaustion of ballots, not all candidates will be elected with a full quota even once surplus votes have been transferred. In these circumstances, the last continuing candidates will be elected. The practical effect of this is that when no further quotas can be achieved, the remaining vacancies will be filled by the candidates with the highest number of votes.

Item 28 clarifies that, in a situation where the number of vacancies remaining equals the number of continuing candidates, those candidates will be elected even if they have not achieved the quota.

Items 29–32

These are minor changes to modify the wording of instructions associated with the marking of ballot papers, both above and below the line.

Item 33–34

Items 33 and 34 amend the instructions for below the line voting to reflect the proposed new voting system which:

•       allows sitting Independents who are Senators (or were so immediately before a double dissolution) to have a group voting square above the line (item 33) and

•       no longer requires voters to number every square below the line (item 34).

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[1].              N Xenophon, ‘Second reading speech: Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013’, Senate, Debates, 13 November 2013, pp. 231–2, accessed 8 April 2014.

[2].              Commonwealth Electoral Act 1918, accessed 2 June 2014.

[3].              S Morey, ‘How do we solve a problem like the Senate?, The Conversation, 11 September 2013, accessed 21 November 2013.

[4].              N Xenophon, Out for the count: Senate voting needs urgent reform, media release, 11 September 2013, accessed 12 September 2013. When the 44th Parliament commenced, Senator Xenophon introduced the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013.

[5].              Australian Electoral Commission (AEC), ‘Group voting ticket’, AEC website, accessed 8 April 2014.

[6].              C Bernardi, ‘Finance and Public Administration Legislation Committee: Report’, Senate, 12 December 2013, p. 1617, accessed 2 June 2014.

[7].              T Smith (Chair), Joint Standing Committee on Electoral Matters, Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, oral statement, House of Representatives, n.d., accessed 25 February 2014.

[8].              Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2013, The Senate, Canberra, 4 December 2013, p. 10, accessed 8 April 2014.

[9].              Parliamentary Joint Committee on Human Rights, First report of the 44th Parliament, 10 December 2013, p. 72, accessed 12 February 2014.

[10].              Joint Standing Committee on Electoral Matters, Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, House of Representatives, Canberra, 2013, accessed 8 April 2014.

[11].              T Smith, Joint Standing Committee on Electoral Matters, Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, oral statement, op. cit.

[12].              Ibid.

[13].              JSCEM, Interim report on the inquiry into the conduct of the 2013 Federal Election: Senate voting practices, House of Representatives, 9 May 2014, p. 48, accessed 16 June 2014.

[14].              Ibid., p. 53–54.

[15].              N Xenophon, Out for the count: Senate voting needs urgent reform, op. cit.

[16].              Ibid.

[17].              NSW Greens, Senate outcome highlights need for reform – voter control of preference flows, media release, 8 September 2013, accessed 11 February 2014.

[18].              J Ireland, ‘Liberal Party to push for electoral reform of “distorting” Senate deals’, The Sydney Morning Herald, 23 October 2013; and S Drill, ‘Tony Abbott calls for Senate review after complicated preference deal hands seats to minor parties’, The Herald Sun, 10 September 2013, accessed 11 February 2014.

[19].              C Bowen, Address to the National Press Club, Canberra, 4 December 2013, accessed 20 February 2014.

[20].              Proportional Representation Society of Australia, Submission to the Joint Standing Committee on Electoral Matters, Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, 20 January 2014, accessed 12 February 2014.

[21].              Ibid., p. 18.

[22].              Ibid., p. 20.

[23].              NSW Council for Civil Liberties, Submission to the Joint Standing Committee on Electoral Matters, Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, 31 December 2013, accessed 12 February 2014.

[24].              Family Voice Australia, Submission to the Joint Standing Committee on Electoral Matters, Inquiry into the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, 2 December 2013, accessed 12 February 2014.

[25].              Ibid., p. 4.

[26].              A Green and M Mackerras (Election analysts), Evidence to Joint Standing Committee of Electoral Matters, Inquiry into and report on all aspects of the conduct of the 2013 Federal Election and matters related thereto, 7 February 2014, accessed 19 March 2013.

[27].               A Green, ‘Hand the power of preferences back to the people’, The Drum, ABC website, 12 September 2013; L Yaxley, ‘”Preference whisperer’’ Glenn Druery in demand as fresh election likely for WA Senate‘, The World Today, ABC website, 4 November 2013, accessed 21 November 2013.

[28].              Explanatory Memorandum, Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013, accessed 8 April 2014.

[29].              Ibid., p. 9.

[30].              Parliamentary Joint Committee on Human Rights, First report of the 44th Parliament, op. cit., p. 72.

[31].              Item 5 repeals sections 211 and 211A completely, with the effect that group and individual voting tickets will be no longer be lodged with the AEC.