Trusting the voters to decide their preferences should guide Senate reform

New Special Minister of State Mal Brough has put reform of how the Senate is elected back on the agenda. He suggested on Tuesday that many people don’t have confidence in the system and that some would be:

… horrified to learn that their vote actually ended up where it did.

Reform should happen – but only if it genuinely strengthens voters’ rights. Every individual voter should decide their own preferences. They should also be able to decide how many preferences they wish to express.

Why is there perceived to be a problem?

Australia has preferential voting, where voters decide directly which candidate we want the most, put a 1 in the box next to their name, and then number the remaining candidates 2, 3, 4 and so on in their order of preference. Voters do that in the House of Representatives.

However, since 1983, because of what are termed “group voting tickets”, control of preferences for the Senate has almost entirely switched to the party organisations. If someone votes “above the line”, as 95% of voters do, the political party they voted for decides their preferences. In most cases, voters don’t know what these are.

Group voting tickets allow “preference gaming” – that is, deals done between parties to exchange preferences – which lead to results that “horrified” the voters.

Labor and the Australian Democrats did a deal with Family First in Victoria in 2004 to get Family First preferences ahead of the Greens. Labor and the Democrats thought their vote level would be high enough to ensure that Family First was excluded from the count before them. But that didn’t happen – Family First was elected on the preferences of Labor and the Democrats, defeating the Greens.

That was “preference gaming”, although the term has more recently been coined to refer particularly to deals between microparties.

Group voting tickets were never good democratic practice, as pointed out by many people at the time. It has grown into a bigger issue because of the large percentage of voters who are now not voting for the major parties. Consider the results of the last Senate election in South Australia (September 2013) and Western Australia (re-election April 2014).

In every state, at least one non-major-party senator was elected in 2013, as well as one Green in most states. In South Australia, only half of the six senators elected were from the major parties (two Liberals and one Labor). Labor and the Liberals between them received 50.1% of the vote, so that seems fair.

This is more or less the argument that Motoring Enthusiast Party senator Ricky Muir made on Wednesday morning – that at least 20% of the voters in every state were voting for non-major parties and those people should be represented (in Victoria’s case, by him). This argument is pretty much the same logic that major parties use to defend group voting tickets. It goes something like this:

If you vote 1 Liberal, you will want the same set of preferences as the rest of the people that vote Liberal, so you’ll be happy to let us decide that for you.

I might want to have voted Labor in 2004 in the Senate, but equally strongly not wanted my preferences to go to Family First and its former senator, Steve Fielding. Or in 2013 I might have wanted to vote for the Animal Justice Party, but in no way wanted my preferences to go to the Motoring Enthusiasts Party and elect Muir.

But if I just voted 1 above the line for the Animal Justice Party, my vote ended up helping elect Muir.

A way forward

Right now, the only choice for voters who want to control their own preferences is to vote “below the line”, where the instruction is to fill in virtually all the boxes in order and without omissions. This is a daunting task and very few people take it on.

There’s a much better way. Give voters back complete control of their preferences. Make it so that they can vote below the line without the unreasonable burden of having to fill in all the boxes. This is what the Joint Standing Committee on Electoral Matters has recommended, and it already happens in other jurisdictions.

In Victoria, for its upper house (when voting below the line), or Tasmania, for its lower house – each uses proportional systems – voters have to number only as many boxes as there are vacancies. Most voters that vote this way number many more boxes than the minimum, but that’s their choice.

There should definitely be no imposition of exclusionary thresholds. Some have suggested bringing in an arbitrary threshold of, say, 5% of the vote, such as in Germany. If your party doesn’t reach 5% of the vote, then its candidate can’t be elected, even if a large proportion of the voters have given preferences to it.

If the votes of all the parties that received less than 5% had been excluded from the 2013 federal election, it would have nullified and rendered ineffective the votes of around 1.5 million Australians.

The imposition of arbitrary thresholds has led to seriously distorted outcomes. In the 2013 German federal election, 41.5% voted for the centre-right CDU-CSU coalition, a substantial victory over the Social Democratic Party, which got just 25.7%. Two smaller left parties, “The Left” on 8.6% and the Greens on 8.4%, both got members elected. The two smaller right-wing parties both fell just short of the threshold, sharing 9.5% of the vote between them.

So, despite a very substantial majority of Germans voting for parties of the right, the right-wing government lost its majority and had to form a coalition with its centre-left traditional opponents, the Social Democrats, because of the exclusionary threshold. These are anti-democratic outcomes.

The guiding principle for voting systems should be this: trust voters to decide who gets their first preference and their subsequent preferences, and let voters decide how many preferences, beyond a small minimum prescribed number, they express.

If we did this, above-the-line voting would be much harder to justify because filling in the ballot would not be so difficult. Without preference gaming, the attraction to stand for large numbers of microparties would be removed. As a result, the ballot paper would become far more manageable in size.

If Muir is correct – that all who vote for a microparty actually do want a microparty elected, just so long as it’s not Liberal, Labor, National or Green – then all those voters will express their preferences accordingly and he, or another microparty candidate, will get elected.

Either way, the result would represent the wishes of the voters.

Stephen Morey is National Secretary of the Proportional Representation Society of Australia Inc.