Guest Post by Graham Williamson

How to Scam the System & Disadvantage Political Opponents by ‘Giving the Power Back to the People’, all in the Interests of ‘Democracy

Government Says the Voting System they Introduced Previously is Undemocratic Because Now the Minor Parties are Using the Rorts Against the Major Parties

As Prime Minister Malcolm Turnbull points out, the current voting system created by the major parties 30 years ago is so corrupt and undemocratic it must be changed urgently:

“We know that what has been happening with the Senate voting system has been anything but democratic and anything but transparent….. the government has introduced legislation to reform the Senate voting system. It will simplify the ballot paper and stop the gaming of the system by preference whisperers and backroom deals ……Voters had no idea where their preferences were going to go, and, in reality, many of the outcomes of the Senate election did not fairly reflect the wishes of the people”

In other words, the current electoral rort which was introduced by, and was exploited by, the major parties for 30 years to subvert democracy and consolidate their monopoly on power, must now be
changed urgently since it is now being used against them. OK, the political party’s attempts to control preference flows in above the line votes by group tickets has always been a perversion of democracy and an affront to the rights of voters and correction of this rort is indeed a positive step.

But are these changes really ‘democratic’, and will they fully return the voting power to the people (which was removed by the major parties 30 years ago) as promised by the Prime Minister:
“There is nothing more important than that the voting system that we use to elect this House and the Senate translates as effectively and accurately as possible the wishes of the Australian people. So Australians are entitled to expect that, when they vote for the Senate, the outcomes will reflect their choice, and that is why the government has introduced legislation to reform the Senate voting system…..We know that what has been happening with the Senate voting system has been anything but democratic and anything but transparent…….The only solution is to ensure that the Australian people have the choice that they make and that they decide where their preferences go…….These reforms will significantly strengthen our democratic process …The reforms will ensure that there will be optional preferential voting above the line, with advice to voters to number one to six boxes, at least, in the order of their choice; but, if they number fewer than six but at least one, the vote will still be valid. So that is a good saving provision to ensure it does not result in informal votes. Optional preferential voting below the line will be established, with advice to number least 12 of the boxes in the order of the voter's choice. Group and individual voting tickets will be abolished. Who will succeed? Who will win out of this? The voter. The voter will make the decision, and their decision will be reflected in the composition of the Senate……. Our job is to ensure that the dysfunction in the Senate ends and that every member of the Senate can say that they have been the result of a considered decision by the Australian people voting collectively. That means that Australian voters should choose the preferences. They should determine how votes are cast, not backroom deals and preference whisperers.”
Democratic Changes Can Only be Brought About by Preventing Open Debate & Public Scrutiny Says Government

Everyone agrees upon the need for change, but should change be again forced upon the people by legislation contemptuously rushed through Parliament, to prevent debate and public scrutiny (1, 2, 3)? Such was the contempt of some of our ‘elected representatives’ for the electoral system and the parliamentary process that they appeared in pyjamas to represent their constituents in Parliament (2, 3).

Such is the regard our elected representatives have for democracy and the parliamentary process.

What We Took Away We Must now Give Back - the previously removed right to direct preference flows must be given back to the people by optional preferential voting

The decision to reverse the previous government decision to remove this right from the people is certainly overdue, about 30 years overdue. Few people would disagree with the general thrust of this reform (4, 5, 6, 7). What many people object to though, are the motives, the timing, and the undemocratic details of this reform.

  1. Motives    Liberals know when the people understand their policies they would have no hope of winning the election on merit so the only way is to develop a new electoral rort which will disenfranchise both their political opponents as well as the voting public.
  2. Timing     The Liberal Party has been exploiting the old electoral rort for 30 years but now changes must be rushed through if they are to have any hope of winning total power in the election this year.
  3. Undemocratic details      Previously the government had Albert Langer thrown into gaol in 1996 for doing nothing more than publicly encouraging people to make an optional preferential vote in the House of Representatives. Amazingly, the optional preferential voting system he publicised constituted a legal formal vote. John Howard subsequently changed the law, made this voting method illegal, and removed the right of the people to make an optional preferential vote in the House of Representatives. Every government since has continued to deny the people this right.        In the Senate the people have had a compulsory preferential voting system which could be fully exercised by voting below the line. However, the right to choose no preference flow was denied voters.       Since most people vote above the line the government wanted to stop or reduce preference flows in above the line votes while still maintaining the appearance of an optional preferential system. When the government is trying to enforce unpopular policies against the will of the people it is simply not feasible to allow the democratic flow of preferences to minor parties.

Creating an Optional Preferential Above The Line System Where There Are No Options

The reform of the above the line system is publicised as an optional preferential system where the power to decide any preference flow is transferred back to the voter who will be instructed to fill out six squares in order of preference. The big problem is, the government has introduced a ‘savings’ provision for people who continue to vote 1 only (ie number 1 square only) above the line (4, 5, 6, 7). It is the purpose of this savings provision to convert such informal votes into formal votes which will not be lost. There will though, be absolutely no preference flow for these votes, creating a virtual first past the post system.  As Daniel Hurst points out:

“The legislation, tabled in the lower house on Monday, shows the new “advice” for people to number at least six boxes above the line is a recommendation and not a requirement. 
Turnbull says if a person numbers only one square above the line, or marks fewer than six preferences, the vote would still be counted. This appears designed to allay concerns that the changes would lead to an increase in “informal” voting and disenfranchise some voters, bearing in mind that people have been told for years that they could just vote once on Senate ballots. 
If someone marks their top preference and nothing else – and that group falls short of a Senate quota – the ballot paper is “exhausted” and there will be no preference flows to others. If a voter marks 1, 2, 3 next to their top three choices, the preferences would “exhaust” after the third choice falls short.”

The government believes this savings clause is necessary because too many people are so stupid they will continue to vote 1 only above the line as they have done for 30 years. No doubt the government believes it is the unthinking dyed in the wool Liberal/Labour voters who are most likely to continue to vote so robotically.

Dyed in the Wool Voters are so Stupid the Government Must Anticipate their Electoral Stupidity & Convert their Informal Votes to Formal Votes For Them

The Senate voting reform is justified by the government on the basis that it is necessary in order to give the right to choose preference flows back to the people. The instruction to complete 6 squares and list the preferred order of preferences does indeed transfer power back to the voter to enable him/her to choose their flow of preferences. However, by legislating to make a vote 1 only above the line vote legal the government is completely preventing the voter from listing any preferences whatsoever. Especially if the government permits the vote 1 only system to be publicised or promoted, voter choices are reduced, not increased.

“Antony Green touches on this concern in his blog: 
‘if a savings provision for '1' only votes is allowed in the Senate changes, what is to stop a party that wanted to give no preferences from recommending a '1' only vote? You could make such a how-to vote illegal, but that runs into the problem with 'Langer' voting in the 1980s and 1990s when activist Albert Langer tried to encourage voters to use duplicate preferences, then allowed as a savings provision." (Green, Another Exclusive on Possible Senate Electoral Changes, 2016}…….’ 
I am very concerned about the risks that a major political party or interest group with significant resources can use its ability to influence voters to simply vote 1. To address this, I will propose a new offence under the Act to discourage such activities…..”

As a result of his concerns Ricky Muir recommended that promoting a vote 1 only option should be made illegal.

“Recommendation 4 - Introduce an offence to advocate or campaign for optional preferential voting below the minimum requirement.
  • Any case in relation to this offence is heard by the Court of Disputed Returns (the Court);
  • In the event that the Court finds that the savings provision has been exploited/ then the Court is given the power to declare any ballot papers tainted by such a campaign informs and order a recount; and
  • That the court has the flexibility to assess the level of influence such a campaign had. For example, the court could take into account how much influence the campaign had and deliver a proportionate finding.
This specific offence provides the necessary deterrence to those who would consider exploiting the loophole introduced into the Bill. This would be preferable to advocating for the opposition of the above the line savings provision in the Bill. Should this amendment not be passed then I will be supporting any amendments proposed to remove the above the line savings measure from the Bill.”

The government has introduced the vote 1 only option because they regard many voters as too stupid to understand simple voting instructions, fearing of course that many who vote for the major parties would inadvertently lodge informal votes.  Additionally, as Ricky Muir points out, the government has decided to leave the door open for the major parties to publicise the vote 1 only system thereby removing any right for the voter to choose any preference flow.

Are voters as stupid as the government thinks?

Government Expects Stupid Voters Will Remain Stupid for the Foreseeable Future

If there was any basis for the government’s preferred vote 1 only system then surely it would be temporary and would become unnecessary as the people became familiar with the new system. This point was made by Ricky Muir:

“Recent debates have highlighted how other transitional or grandfathering provisions introduced into Acts tend to remain long after there is a genuine need for these provisions. 

‘Deal between the Coalition and the Greens blocks amendment proposed by Ricky Muir to remove historic 'grandfathering' arrangement’ (Hurst, 2015} 

I will move an amendment that will introduce a sunset clause into the legislation for the sections that relate to the savings provision. This sunset clause will ensure that a future parliament will need to determine if extending the provision is appropriate, if the provision needs to remain on a permanent basis, or simply to allow it to self-repeal. A future parliament would be able to reach this conclusion based upon evidential analysis after an election. This review could become part of the routine JSCEM processes held after an election.

Recommendation 5 - Introduce a sunset clause in relation to the savings provision:
  • The above the line savings provision should be considered a transitional arrangement;
  • That an appropriate sunset clause be introduced into the Bill to allow a reasonable amount of time to re-educate the voting public about how to cast a formal optional preferential vote above the line; and
  • This sunset clause should repeal the above the line savings provision and any additional offences introduced designed to protect the integrity of the above the line savings provision in either six or nine years. This timeframe is subject to further debate and research/ time permitting.

The Prime Minister, the government, and the Greens, however, apparently decided many people will remain permanently unable to vote correctly hence they decided to place no time limit on the vote 1 only option.

"I think the problem with the federal scheme is that it doesn't prevent parties advocating just a '1' vote,……There is a possibility of manipulating the system and advocating what will be a formal vote even if it's not the prescribed voting method."
"The changes to Senate voting proposed by Malcolm Turnbull and backed by the Greens and Nick Xenophon, represent unprecedented government interference in the Australian democratic system.For all the talk about voters having to mark six boxes above the line on the ballot paper, the new laws will still allow a mark in one box above the line to stand as a legitimate vote. So let's not kid ourselves that this is somehow a voting system that is in any way inclusive of small parties.For Turnbult this legislation is an admission of his failure to be able to persuade and lobby others to agree with his vision for Australia.  
The imposition of radical electoral laws to achieve his goals does not bode well for the spirit of negotiation, if the Coalition retains office at the forthcoming election.These new laws with regard to voting for the Senate will reshape the Australian political landscape for decades to come. By refusing to debate them with the people of Australia, Turnbull is admitting to the fact that this new legislation is simply designed to get rid of opponents at the next election. 
He cannot argue with the fact that almost 30 per cent of Australians voted for a minor party at the last Senate election.”

The senate voting system being introduced by the Turnbull government is described as a “de facto first past the post system” because the vote 1 only option will prevent any preference flow.

Undemocratic Quotas Used to Monopolise Power for the Major Political Parties

The current undemocratic senate quota system continues to be supported by the major parties because it considerably disadvantages the minor parties.

“Voter control” is a disingenuous argument, given the option of below-the-line voting is already offered to every voter, while the list of how parties have ordered their preferences are offered online and at every ballot booth….. 
Because while everyone knows that Victoria’s Australian Motoring Enthusiast Party senator Ricky Muir won only a small number of “number 1” votes, few people appreciate that Senator Michaelia Cash from the Liberals received even less, and yet under the Greens’ proposed changes her re-election will be near guaranteed, while his will not.”

Van Badham explains why the current quota system remains so popular with the major parties:
“The first task of a ballot count is to establish which of the candidates have met that 14.3% quota – it’s easily reached by the popular major parties. What people don’t know is that when a candidate goes “over quota”, the number of votes that go over quota are redistributed at a percentage of where their “number 2” preferences are going. Michaelia Cash doesn’t need many primaries, because she picks up this “transfer value” from whoever has the most “number 1s” for the Coalition, who then pass their votes to her. 
This mechanism will remain with the Greens’ changes. What the Greens are removing is what happens to the microparty votes that do not automatically reach a quota: their primary votes are individually small, but combined are around 20% of the total. When quota isn’t met by any candidate, but there are still senators to elect, the counters start go through the smallest pile of votes; they are declared excluded, and their votes are redistributed, at full value, to whoever is second on each individual ballot paper, until a quota is reached…… 
But the effect of the Greens changes means that by only choosing between one and six parties to preference, votes “exhaust” and preferences cease to circulate……….Power, as a result, gets consolidated amongst the groups who already have influence – this is what the Greens are banking on: on sheer force of primaries and transfer value alone they are more likely to stay in the race to win the final senate position. Obviously, the political strategists of the bigger parties also know that if they direct voters to mark only a “1” above the line, there will be even less preferences in circulation that could aid anyone else.  
The only cross bencher who is not vulnerable to the change should the new system be introduced is Nick Xenophon, who wins enough votes to go over quota in his own right; unsurprisingly, he is backing the Greens’ proposal. 
There are big questions here, about why groups like the Greens and Xenophon who themselves entered the parliament on the back of lower-end preferencing are ripping up the ladders behind them.”
Concluding Remarks

Although pretending to ‘give the power back to the people’, Malcolm Turnbull’s senate voting reforms are carefully calculated to consolidate power for the major political parties. It is yet another attack on democracy that no amount of ‘spin’ can conceal.

The government continues to deny voters the right to make an optional preferential vote in the House of Representatives. And the government continues the quota system and the above the line/below the line senate system, both of which undemocratically favour the major parties at the expense of candidates democratically chosen by the people.

But the government goes further. They say they have given the power back to the people, the same people the government claims are so stupid many are incapable of following simple voting instructions.

Is the government correct?

Malcolm Turnbull says, in regard to the voting system of the past 30 years:
“Voters had no idea where their preferences were going to go, and, in reality, many of the outcomes of the Senate election did not fairly reflect the wishes of the people”

Will the new system “fairly reflect the wishes of the people”?