Senate voting reform and the 2016 Senate election

Dr Damon Muller, Politics and Public Administration

Key Issue
The Senate voting system was changed shortly before the 2016 election to allow optional preferential voting above and below the line.
The new voting system was unsuccessfully challenged in the High Court.
The Tasmanian Senate count has resulted in the unprecedented election of a senator on the basis of below the line votes.

The 2016 Senate election was distinctive in a number of ways:

the election was the first to be held after reforms to the Senate voting system—legislated only months before the election was called—that abolished group voting tickets and introduced optional preferential voting to the ballot paper
the election was the first federal election where computerised ballot paper scanning was an essential part of counting the ballot papers and
the 2016 election was the first double dissolution since 1987 and only the seventh double dissolution election—where all 12 senators from each state were elected—since Federation.

Senate electoral system reform

A notable outcome of the 2013 election was the election of a number of previously unknown candidates to the Senate from ‘micro-parties’ on very small primary votes. This result was perceived by some as a perverse outcome of the Senate voting system. From 1984 parties had been able to submit group voting tickets, and voters could elect to use a party’s ticket to distribute their preferences by voting ‘1’ for that party above the line on the ballot paper.

Originally introduced to reduce the rate of informal voting in the Senate, the group voting tickets were increasingly used to trade preferences between groups of parties in a way that was largely opaque to voters. It has been argued that this pooling of preferences between small parties led to results which did not best represent the will of the voters.

During its post-2013 election inquiry the Joint Standing Committee on Electoral Matters (JSCEM) released an interim report in May 2014 that recommended substantial changes to the Senate voting system. Significant recommendations included abolishing group voting tickets and implementing optional preferential voting both above and below the line on the Senate ballot paper.

In February 2016 the Government introduced legislation to amend the Commonwealth Electoral Act 1918 (the CEA)—the Commonwealth Electoral Amendment Bill 2016. Following the longest continuous sitting of the Senate (at almost 29 hours straight), the Bill passed both Houses with a number of amendments on 18 March 2016 and was assented to on 21 March.

The most significant element of the Commonwealth Electoral Amendment Act 2016 is to implement optional preferential voting both above and below the line on the Senate ballot paper. Voters are now instructed to complete at least six preferences above the line or at least 12 below the line; saving provisions would allow votes that expressed fewer preferences to be counted.

The effect of this is that the preferences of voters who vote above the line now only apply to the groups that voters express explicit preferences for, leaving voters in control of how far their preferences flow. Group voting tickets no longer apply.

The amending Act also provides for the inclusion of party logos alongside the party name on ballot papers. This appears to be in response to suggestions some voters were confused by party names in the 2013 election.

The introduction of these significant reforms only three months before the announcement of the election led to concerns about the ability of the Australian Electoral Commission (AEC) to successfully implement the changes and conduct the election. These concerns followed the overturned 2013 Western Australian Senate election where it was found that security and logistical failures may have contributed to the loss of ballot papers.

The High Court challenge

Following the passage of the Senate voting reforms through the Parliament, South Australian Family First Senator Bob Day lodged a High Court challenge against the changes.

Senator Day argued that the changes to the CEA were unconstitutional for a number of reasons, including that voters would be disenfranchised if their votes exhausted (when there are no more preferences on a ballot paper for candidates remaining in the count, and the ballot paper is removed from the count) because they had not preferenced a winning candidate, and that above and below the line voting constituted different methods of voting. Section 9 of the Australian Constitution requires the voting ‘method ... be uniform for all the States’.

In a unanimous judgement delivered on 12 May 2016 the High Court dismissed the case.

Counting the Senate ballot papers

The implications for counting the Senate ballot papers are substantial. Under the former group voting ticket system in place from 1984 to 2013, most voters (96 per cent in 2013) voted 1 above the line.

To count the votes, the number of first preference above the line votes each group received was recorded first. The ballot papers that contained below the line votes (around 470,000 in 2013) were then sent to a central location in each state where all of the preferences were entered into a computer. Once the below the line votes were entered the computer then applied the group voting tickets to the above the line votes, combined this with the below the line votes, and conducted the count.

In contrast, under the new Senate voting system each of the roughly 15 million ballot papers requires at least six (for above the line) or 12 (for below the line) votes to be entered into the computer.

The AEC elected to electronically scan the ballot papers to assist with the 2016 Senate election count, due to the time it would take to manually enter all of the preferences. According to the AEC:

The AEC is using a semi-automated process to conduct the Senate count, scanning Senate ballot papers and using optical character recognition technology to capture preferences. Once captured, these preferences are then verified by a human operator.

The double dissolution election

In a double dissolution election there are two important differences for the Senate as compared to a ‘standard’ half-Senate election. Firstly, in a normal half-Senate election only half of the senators from each state, and the territory senators, face election and the Senate as a chamber continues. In a double dissolution, the Senate is dissolved and all 76 senators face election. At the commencement of the new Parliament in 2016, the Senate will be only the eighth Senate since Federation.

Secondly, the Senate electoral system operates by requiring candidates to exceed a quota of votes, either with primary votes or surplus votes transferred from other candidates. The quota equals the number of formal votes divided by one more than the number of vacancies. In a normal half-Senate election the quota is about 14 per cent of the vote. In a double dissolution it is about 7.7 per cent of the vote. As a result, the threshold for election to the Senate is much lower in a double dissolution election.

The double dissolution and the resulting election are covered in further detail in the Briefing Book article: ‘The 2016 federal election’.

Selecting long- and short-term senators

Following a double dissolution election, section 13 of the Constitution requires the 12 incoming senators for each of the states to be broken into two groups (or classes) of six. One group of senators is awarded a full six-year term, and the other group is awarded a half (three-year) term.

The Constitution gives the Senate the power to determine who will be awarded the long and short terms. Traditionally this has been determined by order of election, with the first six senators elected according to the Senate vote count in each state being awarded the long terms, and the remainder the short terms.

In 1983 the CEA was amended to insert section 282, which requires the AEC to conduct an additional recount following a double dissolution election. This recount only includes those candidates who were successful at being elected to the Senate, and uses a half-Senate election quota to select six of the twelve successful candidates. It has been argued that the section 282 recount provides the Senate with a fairer method for determining the long- and short term senators.

Following the 1987 double dissolution election (until 2016 the only such election since section 282 was inserted into the CEA), the Senate resolved to use the order of election method.

On 29 June 1998 the Senate agreed to a motion by then Labor Senator John Faulkner supporting the use of section 282 following any future double dissolutions. On 22 June 2010 the Senate agreed to an identical motion put by the then Special Minister of State, Liberal Senator Michael Ronaldson. The Senate is not bound by either of these motions, however.

Section 13 of the Constitution also requires that the terms of senators be back-dated to 1 July before the preceding election. Accordingly, the three-year senators’ terms will end on 30 June 2019, requiring a half-Senate election within one year prior to this. Under section 43 of the CEA the two senators for each of the territories serve the same terms as the members of the House of Representatives.

The outcome of the election

At the time of publication only the results from the Northern Territory and Tasmanian Senate elections had been declared.

Influence of below the line votes

Prior to the 2016 reforms, voters who elected to vote below the line, not using a party’s group voting ticket, were required to preference every candidate on the ballot paper. In the case of NSW in the 2013 Senate election, this meant they had to complete 110 preferences. Under the reforms, however, voters who vote below the line are only required to number at least 12 preferences, substantially reducing the burden for this type of vote.

Australian Labor Party (ALP) senator Lisa Singh, a shadow parliamentary secretary and former Tasmanian state government minister, was preselected by the ALP into sixth position on its Tasmanian Senate ticket, widely expected to be an unwinnable position. Liberal tourism minister Senator Richard Colbeck, the only Tasmanian in the Turnbull ministry, was preselected by his party to the fifth place on the Liberal ticket.

Both Singh and Colbeck were supported by grassroots campaigns in Tasmania encouraging their supporters to vote for them below the line. As a result, both Singh and Colbeck received substantial below the line votes—in Singh’s case roughly equal to one quarter of the ALP’s above the line vote in Tasmania.

While Colbeck was ultimately unsuccessful, Singh was the tenth candidate elected of 12, preventing the election of the ALP candidate above her on the ticket. There are no comparable examples of a candidate winning a Senate election from sixth position against the preference direction of their party.

Use of the new Senate voting system

At the time of the introduction of the new Senate voting system there was considerable concern that the reforms would lead to many people continuing to just vote 1 above the line with a correspondingly high rate of vote exhaustion (this was a key element of Senator Day’s High Court challenge).

Although not necessarily representative of the larger states, analysis of the Tasmanian results reveal that only 2.8 per cent of votes exhausted (compared to 0.1 per cent in 2013), and around 85 per cent of those who voted above the line preferenced 1 to 6 as instructed on the ballot paper.

Tasmanian Senate voters also largely chose to ignore preference recommendations from ‘How To Vote’ cards, even from the major parties. Less than 10 per cent of Liberal voters, and ever fewer Labor voters, preferenced above the line according to How To Vote cards. However, this may not be typical of Senate voting in other states, particularly given that Tasmanian voters are accustomed to voting using the Hare-Clark system in state elections, which is similar to below the line voting.