Slow Crawl On The Senate Reform Front

Advance Summary

1. This article discusses various aspects of the Senate reform debate, which currently appears to be progressing slowly and badly.

2. Prime Minister Malcolm Turnbull's claim that Ricky Muir is as democratically elected as he is is false, because had enough voters wanted to ensure Senator Muir was not elected, it would have been unreasonably hard for them to do so.

3. Micro-party threats to run candidates against the Coalition and Greens in key seats are toothless.

4. Claims that the performance of the current crossbench in blocking Coalition policies vindicates the current system are wrong, because the crossbench elected under any alternative system would also have done so.

5. Senator Sam Dastyari continues to claim the proposed reforms are a recipe for Coalition control of the Senate but has presented no detailed evidence for this claim. 

6. Attempts by Senator Bob Day to claim that left and right parties preferencing each other is not a problem are disproven, among other things, by the preferences that flowed to him.

7. While many crossbenchers support the current system because it elected them, that does not mean they would have a high chance of re-election under it; indeed, crossbenchers who develop a stronger primary vote following should support reform.

8. This article suggests a minimum acceptable model for Senate reform (which is not the author's preferred option).  At minimum, even if group ticket preferencing is retained, below-the-line voting must be liberalised so that voters have a reasonable alternative to following party preferences.

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This week Senate reform has been back in the news, for no reason other than that there is a new Special Minister of State, Mal Brough, who made some noises about it in an interview.  These then led to other noises, and a fair bit of backing off and running away.  It's a good time to take stock of the progress made, or lack thereof so far: we are probably less than a year from an election that could see a further increase in the number of random Senators elected either from tiny primary votes or through voter confusion.  What do we have on the table?  Well, according to the new Prime Minister, "we do not have a specific proposal, but we are talking about it with all the other parties".  And according to Minister Brough "We need to bring everyone along with this".

It's an indictment on the government's last two years if this issue was really left to molder so long, especially with reports that Cabinet meetings were struggling to attract a full agenda.  But it's rather concerning at this late stage that we don't yet know that there will be reform at all, let alone what form it will take if it happens - which must make life difficult for preemptive work on implementing a new model. 

 Pending more hopeful developments, we risk the prospect that Australia could further slide towards demolottery with a second straight election blighted by massive preference-gaming under the current bogus system.  However there is also the risk that if there is not progress fairly soon we will get reform, but that it will be incomplete, rushed or otherwise mishandled, perhaps leading to another technically flawed election.  It might be then that the best we can hope for at this rate is that the current parliament passes reforms that come in from the 2019 election, thereby at least ensuring that we will have a Senate clean of this nonsense by 2023.  

Here then are some comments on various current aspects of the Senate reform debate.  Click on the "Senate reform" tab at the bottom for the many previous episodes.  At the bottom I present some thoughts on what might be an important question: what is the minimum acceptable model for change?

Is Ricky Muir As Democratically Elected As Malcolm Turnbull?

In one interview, PM Turnbull has stated Ricky Muir, who was elected with half a percent of the primary vote, is as "democratically and constitutionally elected" as Turnbull is.  This might be a nice way of appeasing the crossbench or making himself look unthreatened by other parties, but alas it isn't even remotely true.  Turnbull received 63% of the primary vote in his electorate, an automatic win under pretty much any voting system worthy of the name.  Muir, on the other hand, recorded a result that is a win in the Australian Senate system, but would be woefully uncompetitive under pretty much any other.  

A critical test of whether an electoral outcome is democratic is how easily it could have been avoided had the voters wanted to avoid it.  Malcolm Turnbull would have been defeated had 50.1% of the voters of Wentworth placed him last, which they could have done with relative ease and with equal ease irrespective of how they preferenced the other candidates.

Had enough Victorian voters wanted to ensure Ricky Muir did not get elected, however, they would have run into a problem.  Unless it happened by chance that several parties had preferenced him last and they all agreed with one of those parties' preferencing choices, then most if not all of those voters would have had to vote below the line.

The present system arose because requiring voters to vote in full "below the line" (as we would call it now) was undemocratic.  (See Antony Green's recent article).   It was undemocratic because the high error rate meant that too many voters were disenfranchised by being unable to express their intention without risk of their vote being informal, and this was distorting results.  For anyone today who has an intention that differs from any of the available party deals, the current system is undemocratic for exactly the same reason.  

While the current system has so far been found constitutional, that is a poor reflection on our Constitution, rather than a good one on the system.   The current Senate system is a blatant denial of equal voting rights because it allows one preference to be expressed with a 1 in the box while another must be expressed only with the numbering of almost every box, at the risk of informality if a few honest errors are made, and at significant extra cost to the elector's time.  This discrimination against preferences that do not accord to those allocated by a political party has no place in an egalitarian society.  Would this system have survived if our Constitution had something like an "equal protection" clause?  I doubt it.

Micro-Parties Threaten War 

In response to Special Minister of State Mal Brough's initial comments, we have seen some sabre-rattling.  The loudest of the rattling has come from Liberal Democrat David Leyonhjelm, who has threatened to retaliate by blocking government legislation.  However the crossbench is not unified on this, and to his credit Senator Ricky Muir has said he would prefer to judge legislation on its merits and take whatever risk of being voted out that may entail.  

The more interesting threat - partly because it is harmless - is the threat of targeting Coalition and Greens Lower House seats. The plan is for left-leaning micros to attack the Greens and right-leaning micros to attack the Coalition, presumably with each taking some votes away from the parent party and directing preferences to Labor.  

However, in the Lower House, micro-parties can't direct their preferences as they can in the Senate.  They can issue how-to-vote cards, but these tend to achieve poor follow rates because of difficulty finding enough people to hand them out, and because voters for micro-parties tend more to think for themselves.  Furthermore, for every micro-party candidate that enters the race, the rate of informal voting in the electorate increases, and this in fact disadvantages the ALP.  

We saw a sneak preview of this movie in the Canning by-election: the Liberal Democrats, intending to hurt the Liberal Party as payback for court action over their name, preferenced Labor.  Despite their greater public prominence as a result of having a Senator elected, and despite predictions that this would be a major problem for the government, this action - groundlessly and apparently wrongly described as a preference deal with Labor - came to nothing.  The LDP candidate is currently dead last on half a percent of the primary vote.  I doubt their preference flow will be all that much to write home about either.

It's also a rubbish threat against the Greens specifically because Melbourne already attracts a flock of left-micros as it is - the preferences of them flowing fairly weakly to the Greens - so the idea that they're going to gouge the Green primary is silly.  

The Crossbench Has Triumphed?

A defence of the existing crossbench (and hence the system that created it) that has been mounted by Muir is that it successfully killed off many odious Abbott Government bills.  This is true, but it ignores three key points.  The first, which I've made many times before, is that we shouldn't confuse a good outcome for a democratic one - if we strongly value a democratic system, then an undemocratic process remains undemocratic and needs to be reformed, even if in some instance it produces a good outcome.  

The second, also made here repeatedly, is that while we may like it that the crossbench has been frequently hostile to the Abbott government's more extreme proposals, and while we may feel that the "everyday Senators" are refreshing and don't always glow in the dark, it could easily have been otherwise.  For instance, Tasmania went within 822 votes of returning a notoriously anti-gay Family First candidate who has praised Russian crackdowns against basic free speech on LGBT issues, and who polled 1.3% of the vote.

The third, specific to the current situation, is that any Senate elected under any remotely sane system would have blocked the same bills this one blocked.  No option under discussion would have delivered the Coalition an outright majority from the last two elections combined, as it polled below 40% of the vote at both elections. Therefore, to say that the present Senate has done so is not a positive point in its favour in the debate about the need for reform.   

My simulations (see Do Proposed Senate Reforms Advantage The Coalition? and Would Proposed Senate Reforms Increase The Risk Of A Blocked Senate?) find that the Coalition would not have been near a majority in this parliament under the system proposed by the Joint Standing Committee On Electoral Matters.  It would have held roughly 35 out of 76 seats (18+19-2, because its two Territory Senators are re-elected at each Senate election.)  Even assuming that the Coalition had done one seat better somewhere (as a consequence of a change in the system changing party and voter behaviour), it would still have needed support from a full crossbench (of one Glenn Lazarus, Nick Xenophon and his running mate) - if indeed Labor and the Greens did not have a blocking majority. 

More Nonsense From Some In Labor 

On that note, it's amazing that Senator Sam Dastyari continues to say incredible nonsense about the Coalition "legislating to give itself a Senate majority", still without having presented detailed evidence for his claim anywhere in public.  I cannot tell if he is unaware of the counter-evidence or impervious to it.  The JSCEM-proposed system was strongly supported by a range of electoral experts who would hardly support anything that gave the Coalition a Senate majority off less than 40% of the vote.   It had tripartite support from MPs who had long paid attention to electoral matters.  Dastyari calls the result of all this work "madness dressed as reform".  In fact, his position is paranoia dressed as smart politics.

I wonder what on earth ALP opponents of change are thinking about what will happen if they actually win an election any time soon.  They would come to office needing the votes of both the Greens and most of the crossbenchers to pass anything.  They would be looking for the double-dissolution button very quickly but for that to achieve anything, they too would need to pass Senate reform ... with Coalition support.  I can't see them getting thrown a lifeline if they had refused to support the current Government on the issue.  

Hard Left Votes Don't End Up With Hard Right?

Mal Brough's original comments rightly pointed to the dismay voters may experience if they vote for a party on one fringe of politics only for their vote to end up with the other extreme.  This comment was then rejected as supposedly untrue by Senator Bob Day, one of the preference-snowball winners from the last election.  It is worthwhile quoting one of Brough's comments in full:

"People of the hard left, for argument's sake, are inadvertently having their vote cast in such a way that it elects a hard right, and vice versa, which is totally against what they actually wished to do".

Another Brough comment was "And the point I was making today was that if you have a party on the hard left being elected on the preferences of the hard right, that's hardly demonstrative of what people are trying to achieve".

It is somewhat unfortunate that Brough had left and right round the way he did in his second comment, because that gave Day some sort of leeway to claim the following:

"This relates to the claim that "hard right" parties preference "hard left" parties to win seats.  It's not only untrue, but if anything, when the major parties win the 6th seat, they get there on those 'hard right' or 'hard left' preferences, not minor parties".

It's true that left-wing parties tend to preference left-wing parties and right-wing parties tend to preference other right-wing parties, but there are more than too many exceptions.  While "hard right" is a much less cohesive concept than "hard left", there are certainly cases of the right preferencing the left, such as One Nation preferencing the Greens in Tasmania in 1998 (apparently because the Greens preference guru was friendly to One Nation's without realising who he was).  But in practice, the left is not so good at this preferencing game, and what tends to happen so far is that right-wingers get in carrying left-preferences, not the other way around.

In fact a good example of this is Bob Day himself.  I have no hesitation declaring Day to be "hard right" since his most significant difference from the Coalition is that he holds more "New Right" economic and more socially conservative views.  Other examples like Madden and Fielding show that the idea of Family First as the cuddly side of Christian conservatism is bogus - they are simply not a mainstream party.

I have already noted how Day was elected on Labor preferences (Labor being merely centre-left), but that the Greens also preferenced him above the Xenophon ticket and could have caused his election. What I didn't go into so much was the rest of Day's preference flow.  By the time he crossed the line he was carrying the preferences of Australian Independents, Stable Population Party, Animal Justice Party (all these preferences reached him ahead of even the Greens), as well as those of the Greens and HEMP (whose preferences both reached him ahead of either the Liberals or Xenophon).  While I wouldn't class AI or SPP as consistently hard-left (AI seem more like left-populist), they would appeal to some very left-wing voters.  At one point, the AI and SPP preferences, flowing to Day without the slightest shred of political logic, were the lion's share of the 3642 votes by which he escaped defeat.

(Day's claim about minor parties being generically under-represented was dealt with in a previous article. He also rather spuriously counts SA as an example of "minor parties" getting ripped off - by counting the Xenophon Group, which polled almost 25% in SA, as "minor", but not the Greens, who polled less than a third of that).

Do Crossbenchers Know What They're Doing?

I'm increasingly suspecting that in opposing reform, some crossbenchers are just being badly advised. If they think that keeping the current system til the 2019 election will get them re-elected, they're probably dreaming.  Their best chance of success might even be to change the system.

There are two cases here.  The first is that the crossbencher polls basically the same vote they did when they were elected, or one that's not much more.  Then they are just another micro-party in the weighted preference lottery and their fate is determined overwhelmingly by what deals they make and by unpredictable factors in the preference cutup, not what votes they get.  Some micro party might very well win, but it probably won't be them.  This was seen in 2010 when Steve Fielding's party's primary vote increased from his original 1.88% to 2.64%, but he still lost out to another right-wing micro-party with a lower primary vote but a better preference flow.

The second case is that the crossbencher becomes so popular that they become an obvious "big fish" who is going to poll several percent, or maybe even low double figures.  At this point it is no longer attractive for micro-party candidates to swap preferences with this crossbencher.  It makes more sense for the micro-parties that poll a few percent each to deal with each other in the hope of boosting one of them high enough to take advantage of a loose quarter or third of a quota from a major party somewhere.  Being able to get preferences from someone who polls 8% is useless if you can't haul yourself up there in the first place.  As we saw with Nick Xenophon only getting one seat, once micro-party Senators become bigger fish, they can easily become not the beneficiaries of preference-dealing but the victims of it. 

The main exception is the Liberal Democrats.  The LDP rely not so much on good preference deals but on drawing a good position on the ballot paper and letting confusion with the Liberal Party do the rest.  For this they require an oversize ballot paper, which means they need to support the current system so that as many pointless parties as possible will register in the hope of winning seats by preference-gaming.  (Apparently, the liberty of the voter to preference only a handful of candidates then stop is not a liberty they care about.) It is little wonder Leyonhjelm seeks to speak for the whole crossbench on this. [NB: See update 28 Sep below.]

Minimum Acceptable Reform

At various points I've said that the system I most support is something along the lines of the NSW system and the JSCEM model: get rid of above-the-line preference trading and allow optional preferential voting above the line and semi-optional preferencing below.  Every system has its drawbacks and the major drawback of this one is a high exhaust rate.

Given that the debate seems to be going both slowly and badly, I think it's worth giving some thoughts on what is the minimum change with which Senate voting could be considered even barely democratic, even if it isn't the preferred option. I think that would be to change to the following system:

Retain above-the-line preference tickets as per now, but allow semi-optional below the line preferencing for candidates.  A voter voting below the line would be required to number a minimum number of boxes (ideally it would be a minimum of one, but parties might be worried about within-party exhaust) - say four (or I'd be slightly less happy with six).  Provided that a voter voting below the line numbered at least that many boxes including one and only one first preference, their vote would be formal and good up to the point of the first mistake (or the point where the voter stopped).  Even 1 and a few 2s would be acceptable (but good to 1 only).  Note that the number of boxes should not be increased as high as twelve for a double dissolution, since this would cause increased informal voting (as seen in the 2014 Tasmanian local council elections).

This system might very well retain the current problem with obscure Senators getting elected off tiny portions of the vote based on preference-dealing.  However it would at least allow any voter who did not wish to risk their vote being used in that manner a practical alternative.  It might well be that in fact most voters were happy to continue letting their preferred micro-party trade preferences (even with parties it was opposed to) to increase its chances of winning, but this minimum-change model would allow those who did not want this a fair and reasonable way to vote.  

In this way it could at least be said that if a micro-party Senator did get elected off a tiny share of the vote, then voters for all the other micro-parties had had a reasonable and safe opportunity to send their preferences somewhere else if they wanted to.  While such a system might well get the same results as at present, at least it would be getting them through something approaching the actual consent of the electorate, rather than because voters are coerced into voting above the line.  The aim of this minimum-change version would be to at least make voting below the line a safe and practical alternative. 

In terms of the public perception of progress, it would be a good start if all parties agreed and announced that they would at least support this minimum change version if nothing else could be agreed upon, and then considered whether they could support anything more.

[NB: I have had a reader suggestion that the minimum-change model should also allow parties to use optional preferencing in their submitted group tickets, if they want to.]

[NB2:  During the JSCEM process I suggested voting up to four should be sufficient below the line, to discourage parties from fielding too many candidates.  No-one else, including JSCEM, seemed interested in that suggestion but as Antony Green has now taken it up in longer comments on the same theme, I've edited it into my comments above.]

Updates (28 Sep): 

As noted by Peter Tucker in comments some welcome progress towards minimal reform has come from an unlikely quarter, with David Leyonhjelm (LDP) now stating he will propose that voters voting below the line be allowed to direct preferences to six candidates.  The article in AFR says "After talks with veteran psephologist Malcolm Mackerras, Senator Leyonhjelm will propose that people who "vote below the line" be allowed to direct preferences to six candidates, not twelve as has been mooted".

What is interesting here is that twelve was not proposed by Mackerras during the JSCEM process - Mackerras proposed fifteen! So it would be interesting to know where twelve came from.

Meanwhile Bob Day has come up with an analogy almost as unsound as one I previously disposed of, claiming that minor parties in the Senate are like "disruptors" such as Airbnb, Uber and Netflix.  In fact, Airbnb and Uber are disrupting existing business models because they offer a more competitive product based on consumer choice.  Individual micro-parties, on the other hand, offer products that are each uncompetitive both on the basis of primary votes and once the actual preferences of voters are considered.

Their product (sometimes) still succeeds only because the tedious nature of below-the-line voting and the risk of voting informally coerce voters into voting above-the-line, thereby "purchasing" not only their chosen micro-party but also an ordering of others that they have no control over.  The closest consumer affairs analogy to this sort of thing is third-line forcing (prohibited by the ACCC), and far from being mini-Airbnbs, the above-the-line preference harvesting operations are much more like mini-Foxtels.

Meanwhile in comments on Antony Green's piece, Antony has the ominous information that the AEC has asked for 12 months' notice of system changes, or the next Senate election will be counted by hand (which is likely to be slower and with more errors).

Updates (6 Oct):

There have been some more noises in the last few days with a proposal by Nick Xenophon, now supported by John Madigan, to allow voters to vote 1-3 (or more) above the line or 1-12 (or more) below.  The serious hazard of this proposal is that voters accustomed to voting above the line would just vote 1 and their votes would be informal.

Bob Day's argument that the Xenophon proposal denies voters the rights to delegate their vote is a furphy.  Any micro-party that wants to, under either the Xenophon proposal or the much better JSCEM one, could put out a how-to-vote card for such a voter to copy.  In the vast majority of cases the voter would be able to copy their party's wishes by filling in a modest number of boxes above the line (it would become more modest over time as uncompetitive parties merged or folded).  While this would present some inconvenience for the voter compared to just voting 1, it would end the situation in which the voter who wants to delegate their vote to a party can just vote 1 while the voter who doesn't must number all the boxes.