by Malcolm Mackerras

In The Sydney Morning Herald for Tuesday November 5 on page 19 (the opinion page) there appeared an article by George Williams titled WA Senate debacle highlights need to consider electronic voting for next poll. Williams is the Anthony Mason Professor of Law at the University of New South Wales. The opening paragraph reads as follows:
 
“The 2013 federal election has been a disaster for the electoral process. The loss of 1375 WA Senate votes was the final straw. It came after 1000 votes were misplaced in the seat of Indi, voters had to be supplied with a magnifying glass to read their Senate ballot paper, unheard-of candidates were elected to the Senate and Clive Palmer launched a series of relentless attacks on the Australian Electoral Commission.”
 
For a piece of silliness, this article takes the cake. It is true that Clive Palmer has launched attacks upon the AEC. Those attacks will do the AEC no harm. All they will do is harm Palmer’s reputation. There is not a single reputable commentator failing to rise to the defence of the AEC which enjoys a fine reputation. The comments about Indi are ridiculous. The “missing” ballot papers were never missing. There was a transcription error which made it appear the ballot papers were missing when they never were. At every election unheard-of candidates are elected to both the Senate and the House of Representatives.
 


The point I make is that Williams (so typical of an academic) seems always to look for ways to justify the maximum change to any institution he thinks needs reforming. Thus he engages in what I call “remedies in search of mischiefs”. In other words there is a radical remedy that deserves to be supported: therefore the search is on to magnify the mischiefs of the existing order. So, what is the mischief? There is only one – the loss of the 1,375 WA Senate votes. As surely as night follows day there will be a Senate by-election in Western Australia early next year. Such a type of by-election is not unusual in cases like this. What is unusual is that, for the first time, a Senate by-election will take place in which half the senators for a state are elected. This by-election will be inconvenient for many politicians and they say it will cost $11 million. That is the price we pay for having such an excellent system of democracy.
 
In defending the AEC I am at one with every other commentator I know of. Where I seem to differ is that I defend the existing Senate electoral system – and I defend it strongly. I do favour two relatively minor changes which I describe below but they are in the context of my overall defence of the system. There is no need for radical change when a minor change will do the trick.
 
When I last appeared on SWITZER I took with me to the Canberra studio a Senate ballot paper for New South Wales at the recent election. However, I soon realised that I could not explain it to a television audience. When I talk to small groups of people there is no problem. I can hand the ballot paper around, explain what is wrong with its existing format and how a minor change would fix the problem. Essentially the problem is that voters are not given a reasonable opportunity to vote below the line. Consequently many people feel intimidated into voting above the line when they prefer not to do that. My mantra is “voting is a right, not a burden” and I seek to reduce the burden on the voter.
 
Take two examples of ballot papers from the September 2013 Senate election. In New South Wales and the Northern Territory (indeed in all states and territories) above the ballot line and on the upper left-hand corner it reads: “YOU MAY VOTE IN ONE OF TWO WAYS”. Below that it reads: “EITHER”, and below that “Above the line” and below that “By placing the single figure 1 in one and only one of these squares to indicate the voting ticket you wish to adopt as your vote” and then the parties and their squares are listed in rows to the right.
 
In New South Wales there were 110 candidates. Consequently the words below the line read “OR” and below that it reads: “Below the line - By placing the numbers 1 to 110 in the order of your preference.” In the Northern Territory there were 24 candidates so the words below the line read “OR” “Below the line – By placing the numbers 1 to 24 in the order of your preference.”
 
My proposal is that the words above the line remain the same. Below the line I would have (for all ballot papers) these words: “OR” “Below the line – By placing the numbers 1 to 15 in the order of your preference. You may, if you wish, vote for additional candidates by placing consecutive numbers beginning with 16 in the squares opposite the names of those candidates in the order of your preference for them.”
 
My second proposal for change relates to the registration of political parties. At present registration requires a party to demonstrate that it has 500 members. I propose that the number be raised to 2,000. I propose also to raise the required fee from $500 to $2,000. Also I think there should be stiffer documentation required to register a party. By making it difficult to register a micro/minor party the size of the ballot paper can be reduced.
 
My defence of the current Senate system starts with the Australian Constitution which is quite clear about the kind of electoral system the future Commonwealth of Australia should have. Section 7 provides: “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting as one electorate.” Section 24 provides: “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.” The words to note are “directly chosen by the people.” Those words command that only candidate-based systems are acceptable and that apples to both the Senate and the House of Representatives. Within that constraint the Parliament may make its own decision.
 
From all the above I find it easy to demonstrate that the most popular reform is unconstitutional. According to opinion polls the most popular reform is to place a threshold of five per cent under the parties before a seat can be won. That is the case in New Zealand (which has a party-list system) but it would be unconstitutional in Australia. I am currently publishing a paper under the aegis of the Public Policy Institute of the Australian Catholic University (where I am a visiting fellow) and I go through that and other proposed reforms and show what bad ideas they all are. Any reader who would like a copy can send me an e-mail to ask for a copy. My address is malcolm.mackerras@acu.edu.au.
 
Finally, what will be the result be of the WA Senate by-election? I say that the first count of the recent election saw the following senators elected in this order of election: David Johnston (Liberal), Joe Bullock (Labor), Michaelia Cash (Liberal), Linda Reynolds (Liberal), Zhenya Wang (Palmer United Party) and Louise Pratt (Labor). The best prediction I can make is that the by-election will yield the same result. So, it may be asked: why do we need the by-election? The answer is that proper process requires it and I am confident that the High Court will order it.