By Malcolm Mackerras

What is to be said about the Senate electoral system? The main thing is that virtually no one thinks its operation at the October-November 2016 half-Senate election should be conducted as was the case for the September 2013 half-Senate election. Virtually everyone favours reform of some sort. The question is: what kind of reform? However, there is another question. If 2016 is to see a new system what should it be called? And how long should it be expected to last?
 
Most observers would say it is a struggle between big and small parties – and it is that. However, I have a different – and essentially personal – take on the subject. I see it as a contest between two analysts, one of whom will win and the other will be disappointed. I am one of those analysts. The other is Antony Green.
 
My assertion is to say that I have principle on my side and sixty years of experience. I have no power. All I can do is make submissions to parliamentary committees of inquiry, write articles for newspapers and websites, and lobby politicians to whom I can state my views. On the other hand Antony has power but, I submit, no principle. He has thirty years of experience. We both have had some successes in seeing our views implemented. Being the older man by some twenty-five years I can claim that I have the letters AO after my name, the citation for which included recognition of my “commitment to reform and improvement of the electoral system”. Antony does not have that – though he probably will in due course.

Power play

I submit that Antony abuses his power. As a very frequent commentator on the ABC Antony feels at liberty to give something his colleagues call “editorials”. I cannot do that, but his ability to do those editorials means he is far more influential than I am. Since his experience is shorter than mine I now nominate his main achievement, reform of the electoral system for the Legislative Council of New South Wales.
 
The Council was first reformed by the Wran Labor government in 1978 to make it popularly elected. It was then reformed by the Greiner Coalition government in 1991 to account for the fact that the term of the Legislative Assembly had been extended to four years. However, the reform that really brought it to its present situation occurred following the 1999 “table cloth” ballot paper controversy. Operating at the 2003, 2007, 2011 and 2015 NSW Legislative Council elections (and likely to last into the indefinite future) is the form of election I call the “party list system”. I call it that because the system encourages voters to rank parties above the line and discourages voters from ranking candidates below the line. That is clearly a party list system. My history tells me that the present NSW system was designed by Antony.
 
It should surprise no one that Antony describes HIS system favourably. In my opinion, however, he describes it wrongly to make it sound better than it really is – and in order also to make other systems sound worse. Take, for example, this comment, which he wrote in his 2007 analysis: “Voters were given a new voting option to indicate preferences using the group voting squares. Preferences were implied for all the candidates in the first chosen group, then the second chosen group, and so on. The new system abolished party control over preferences and meant the only preferences in the system were those filled in by voters themselves.”
 
He has repeated that last sentence many times. It is just plain wrong, as he must surely know. The elector who places the number “1” above the line is allowing the party machine to cast the vote. As readers will ascertain below I am against any reform to the Senate electoral system which allows the party machines to cast votes for voters. The electors should cast their votes for themselves.
 
History lessons

My experience with Senate elections began in May 1953 when there was a half-Senate election held separately from that for the House of Representatives. I handed out “how to vote Liberal” cards at the Revesby Public School in the division of Banks. With 12 candidates on the ballot paper that card ranked the three Coalition candidates 1,2,3, three independent candidates 4,5,6, three Labor candidates 7,8,9 and three Communist candidates 10, 11 and 12. That fitted in with a ballot paper in which it was made clear that the voter must number every square from 1 to 12, otherwise the vote would be informal. With such an easy vote to cast it is not surprising that the informal vote at that election was as low as 4%.
 
At that time it had not occurred to me that there was anything wrong with the system. However, as time went by I realised, along with many other people, that the system could be abused. That abuse reached its peak at the double dissolution election of May 1974 when there were 73 candidates in New South Wales contesting the ten Senate vacancies. The informal vote rose to 12.3% and it was generally agreed that it cost Labor the vital sixth seat it hoped to win.
 
In 1975 the Whitlam government tried to change the Electoral Act so as to require voters merely to number squares up to the number to be elected, so 1,2,3,4 and 5 in a half-Senate election and up to 10 in a full Senate election. That sensible reform was blocked in the Senate with a bloody-minded Liberal Party pretending that it’s action was governed by principle.
 
The Hawke reforms

In 1983 the Hawke government swept to power determined to reduce the Senate informal vote. In that it succeeded, but not on Labor’s terms. A compromise was reached whereby the Parliament reformed the system to add three contrivances. These still operate today. They are the ballot line, the party boxes above the ballot line and the group voting tickets. (For those who do not know psephological terminology the ballot line is the correct term for that thick black line which goes through the Senate paper.)
 
In today’s conditions that legislation would immediately have been challenged in the High Court on the ground that it did not conform to the commandment of section 7 of the Constitution which says: “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting as one electorate.” Those critical words “directly chosen by the people” clearly command that any electoral system be candidate-based. Section 7 does not permit a party list system.
 
It is a long and complicated story but the system was challenged and, in November 1984, Chief Justice Sir Harry Gibbs held that the current system IS candidate-based. Here is where the major dispute between Antony and myself comes in. He wants Senate reform to take the form of installing a party list system, by doing away with the group voting tickets while keeping the other two contrivances introduced in 1984. The Senate system would copy the NSW Legislative Council system in principle.
 
Following the 2004 federal election the Greens felt they had been cheated, by the system, out of two Senate seats. So in 2005 they adopted a policy to have above-the-line preferencing brought into the system. Those words are a long-hand way of saying a party-list system. Following the 2013 election both the Labor and Liberal parties felt they had been cheated, by the system, out of two seats each. Neither adopted a formal policy but they both joined the Greens in wanting the same reform.
 
The federal parliamentary Joint Standing Committee on Electoral Matters decided to look at the system. It produced a report in May 2014 which, in my opinion, is a thoroughly disreputable document, dishonest in its reasoning. The Committee consisted of federal politicians from three parties only, Liberal, Labor and Greens. The Nationals were not represented. Neither Clive Palmer nor John Madigan was on that Committee.
 
Essentially the committee looked at the three contrivances, decided that the ballot line and the party boxes were convenient to their machines so recommended their retention. By contrast they decided that the group voting tickets were inconvenient to their machines so they recommended that those be scrapped.
 
The thing that was so helpful to the machines of the three parties was the fact that most submissions from the public supported their interests. For that Antony can take the credit. His editorials were very influential. In my opinion his has been a bad influence. It has pandered to the greed of the three big parties, named above. Thus we have the prospect of a cynical stitch-up implementing their will. I shall do everything in my power to thwart their trickery.

A better system

 
So, what is my reform? Essentially I propose that the system operating for the Victorian Legislative Council be implemented for Senate elections. It is simple to describe. Keep the system as it is but give the elector the right to cast a formal vote below the line by the mere numbering of the squares 1,2,3,4,5 and 6, there being six senators elected at a half-Senate election. That would confer a right upon the voter not provided at present. At the 2013 federal election the elector in NSW wishing to vote below the line was told to number from 1 to 110, otherwise the vote would be informal. In Victoria it was 1 to 97. That is unreasonable.
 
Here is where my big complaint against Antony comes in. I did not see him on the night of the Victorian election in November last year. However, I have reliable reports of his editorial. He disparaged the Victorian system as though it were the same as the Senate system. It is true that it does have the same three contrivances as the Senate system. However, the major difference is the fact that the Victorian legislation gives the voter the right I note above. Antony never mentioned that fact. Why? I can only assume he wants people to compare the Victorian system unfavourably with that in NSW. In doing that he abused his power.
 
Over the longer term I would like to see ALL THREE CONTRIVANCES eliminated. That would give full power to voters and would meet the requirements of section 7. I say: there must be no cherry picking between the three contrivances as Antony wants – and as the three big parties plot to bring about.
 
Historically I describe the proportional representation Senate systems as “the first single transferable vote (STV) system” from 1949 to 1983 and the present as “the second STV system”. If I have my way the third STV system would apply from 2016 to 2025 and the fourth thereafter. If Antony has his way I would call the next system “the party list system”.
 
My money is on myself to win. Imagine the alternative: the Liberal, Labor and Greens parties gang up against the Nationals and the cross benches. The Liberal Party decides to REWARD Labor and the Greens for their Senate obstruction – and then a challenge is launched in the High Court, which strikes down the reform as being unconstitutional.