Mark Parnell in Parliament

GREENS BILL: Optional Preferential Voting in State Elections

Legislative Council

October 16th, 2013

On the 16th of October, Mark introduced a Greens Private Members Bill - the Electoral (Optional Preferential Voting) Amendment Bill to allow optional preferential voting in state elections.

The Hon. M. PARNELL: This bill is designed to end, once and for all, the dodgy backroom preference deals that blight our election process and deliver perverse election outcomes that clearly do not reflect the will of voters. This is overwhelmingly a problem with the upper houses of Australian parliaments that use proportional representation, above the line voting and party voting tickets, and this includes the South Australian Legislative Council.

We have just experienced a federal election where the result in the Senate has most Australians scratching their heads in disbelief. In Victoria we have a candidate who received 0.5 per cent of the vote, yet was able to be elected to the Senate by leapfrogging 10 other candidates, all of whom had more popular support. In Western Australia, depending on the result of the recount, it is possible that a candidate with 0.2 per cent of the vote could be elected to the Senate.

The relevance of the Senate voting system to our state is that the Legislative Council voting system is, to all intents and purposes, identical. That means that we are just as likely to end up with perverse outcomes. Nobody in this chamber needs any explanation of how the voting system for the Legislative Council works, but for the benefit of others listening to this or reading it later in Hansard, I offer the following.

Every four years 11 of the 22 places in the Legislative Council are put to an election. With a statewide franchise and proportional representation, candidates are elected on the basis of quotas, with a quota worth approximately 8.3 per cent, or roughly 83,000 first-preference votes out of the million or so formal votes cast in this state. Around 5 per cent of eligible voters fail to vote.

Voters can vote above the line or below the line. If you vote below the line, you must allocate a preference for all candidates. If you vote above the line, you can only vote for one party or group and that party or group then decides how your remaining preferences are distributed. They do this via voting tickets that have been previously lodged with the Electoral Commission.

More than 96 per cent of voters vote above the line and less than 4 per cent below. This means that most voters leave it to their first choice party to decide where preferences go and nearly all of those people have no idea where that is. One solution to this problem is what is known as 'optional preferential voting' and that is what this bill seeks to introduce in relation to Legislative Council elections.

Before outlining the mechanism of the bill, I want to address some of the contradictions that are inherent in Australian electoral politics. When we think about democracy and how democratic our voting system is, there is a tendency to consider the merits of individual MPs. If we like them then we tend to think they deserve to be there. A classic case in point is Senator Nick Xenophon who is clearly now hugely popular in this state but was first elected to the Legislative Council back in 1997 on 2.9 per cent of the statewide vote. Even Senator Nick Xenophon acknowledges that reform of the voting system is necessary and he supports a form of optional preferential voting. So, this is not about pragmatism: it is about democratic principles.

Another contradiction is that, on the one hand, many Australians express support for upper houses containing a range of members reflecting the diversity of Australia and they seem to like the fact that it is not dominated by the major parties. That is how Australians routinely vote. Around a third to a half of voters routinely vote for other than the major parties in upper house contests.

On the other hand, Australians do express concern when the result of an election does not fit their view of what is a democratic result. I am yet to find anyone who believes that the election of a Motoring Enthusiasts Party senator on 0.51 per cent of the vote (0.035 of a quota) is a reflection of the will of the people of Victoria. Senator-elect Muir got up over 10 other parties that secured higher first-preference votes. His party did not secure enough votes to get their deposit back or to get public funding, but they got a senator. It is also worth noting that in Victoria, the Liberal Party got 2.8 quotas but only two senators, and the question is whether that is where the final spot should have gone.

Of course, the only reason someone can be elected on such a tiny primary vote is through second and subsequent preferences. In my mind, the election on preferences of a candidate with a relatively small primary vote could still be described as democratic if those were the preferences of voters, but they are not. They are the preferences of the parties and the groups themselves, stitched up, negotiated or wrangled in backroom deals in what the ABC election analyst Antony Green has described as like a children's' game of 'Keepings off'.

Antony Green has written extensively about this for many years. On one of his online blogs he refers to a candidate in the 1999 New South Wales Legislative Council election, Malcolm Jones of the Outdoor Recreation Party, who obtained preferences from 21 other parties to win election despite his party receiving only 0.19 per cent of the vote—or less than a 20th of a quota. That was the impetus for law reform in New South Wales, which was championed by my colleague Lee Rhiannon MLC (now Senator Rhiannon), who has been a driving force for democratic reform in this country for many years.

Another home truth that rarely gets discussed (but needs to in this debate) is that the game of thrones, or the game of preferences, is played differently by the major parties, the medium-sized parties, and the micro parties. The major parties only care about one thing: preferences in marginal lower house seats, because that is where governments are formed and those are the seats that decide the results of elections. In exchange for a favourable ranking on another party's how-to-vote card, the major parties offer smaller parties the gift of preferences in the upper house. These deals are done primarily with medium-sized parties who have the ability to contest both upper and lower house elections and who are likely to have volunteers handing out how-to-vote cards on election day.

Micro parties on the other hand only care about one thing: preferences in the upper house because that is the only chamber that they are contesting. In resolving where their preferences go, despite protestations to the contrary, the overwhelming considerations are pragmatic: the lamb will lay down with the lion. An atheist party candidate elected on Christian party preferences is just as elected as if the preferences all came from like-minded parties. Larger parties tend to be more principled because their supporters demand it, but there is always a pragmatic element in the ranking of smaller parties or groups, none of which have sufficient support to be elected in their own right but given the lottery of upper house voting all of which have some chance of being elected if the cards fall the right way for them. The results can be quite perverse, such as Family First's Steve Fielding being elected to the Senate in Victoria in 2004 on ALP preferences.

The solution to the problem of undemocratic election results is to get rid of group voting tickets and to put all preference decisions back into the hands of voters. This bill does just that through the introduction of optional preferential voting for the South Australian Legislative Council. My model has the following elements: first, it retains the split ballot paper. Below the line I am proposing no change, in other words, compulsory full allocation of preferences. However, I am open to suggestions about whether that onerous task could be relaxed. In New South Wales you have to number at least 15 squares below the line, but that is a requirement peculiar to their constitution. In fact, you have to number at least 15 above the line if the parties you vote for do not have 15 candidates, which means that all parties have 15 candidates—that is just the way it works there.

In my bill, in relation to above-the-line voting, the new system is for optional preferential—you number as many or as few squares as you want. When you do vote for a party or a group above the line, your preferences are for that group in the order in which they are listed by that group. If you are not happy with the order that the parties have provided, then you go below the line and you allocate your own preferences.

My objective in this bill is threefold: first, to get rid of party or group voting tickets (there is no place for them in this model, they are unnecessary, they are gone); secondly, I want to give voters the power to decide where all their preferences go, but without the onerous obligation of numbering every square, and that is why it is optional preferential above the line; and, thirdly, I thought it prudent to introduce a minimal number of changes to help avoid confusion and to reduce informality. Under my model, even if you did not know that the voting system had changed, even if you missed all the Electoral Commission's advertising and voted in the old way, then it would still be a valid vote; it is just that your vote would exhaust once all the candidates in your preferred party were elected or excluded.

When it comes to electoral reform, it is always difficult to convince the public that the motivation is principle rather than self interest. I will say at this point, in relation to the Greens, that the proposed model in this bill would represent swings and roundabouts. There are some seats we would have missed out on and there are others we would have won in various states and various elections using this model.

The question is: does the model favour bigger parties? The answer is: probably yes, but then you have to ask: why are they bigger parties? The answer is: because more people vote for them. The next question is: will it make it harder for very small parties to get elected? The answer to that is also yes, unless the voters themselves allocate preferences to those parties. At a forum yesterday put on by the Committee for the Economic Development of Australia, discussing this very topic, former senator Chris Schacht asked a question from the floor and, as part of a longer general rant about over government and the evils of upper houses, he did raise the spectre of somebody from the happy birthday party being elected to the Legislative Council on 15 March next year.

My response is that I am more than happy to accept such a result, provided it is the will of the people expressed through the ballot box and the deliberate allocation of preferences by voters. I am not happy if that result comes from a handful of gaming enthusiasts in back rooms doing deals to which the public is oblivious.

What is the alternative? What do we have in store for us in South Australia if we do not reform the voting system? I think the answer is that we will see a repeat of the famous New South Wales 'tablecloth' ballot paper from 1999 because hundreds of prospective candidates in this state will see what has just happened at the federal election and will hand over $450 for effectively a lottery ticket to have their name and a five-word slogan put before one million South Australian voters. It is, in fact, the cheapest advertising around.

To remind members, the 1999 New South Wales upper house ballot paper measured over one metre long by 700 millimetres deep. It had 264 candidates and 80 groups. If we were to be honest about the current electoral system, it is probably best described as part election and part lottery, and we may as well draw the last few seats out of a hat.

I appreciate that we are nearing the end of the parliamentary sitting year, so I intend to bring this to a vote at the earliest opportunity. I know that other parties are interested in exploring law reform and I am happy to consider amendments that are put forward, provided they meet the threshold test of getting rid of group voting tickets and making our system more democratic.

I know that the view has been expressed that such fundamental reform should not be rushed and there is no way that we could introduce it in time, but I remind members that we have known about this problem for a very long time. It has been discussed for decades, we know that it is working well interstate and I do not think we should use as an excuse the fact that this is some radical reform and that our state would be a guinea pig state—that is not the case. I really think this does deserve our consideration and I would love to see it implemented before the next state election. I commend the bill to the house.


For more information see a copy of the Bill

Authorised by M. Parnell, Parliament House Adelaide.