Australian electoral system under scrutiny
The cyclical examination by Australia’s Parliament of its own national electoral system – held after each federal election – is now underway.
The joint House-and-Senate Standing Committee on Electoral Matters, JSCEM, usually commences hearings within six months of each election.
In 2014 the Committee produced the recommendations that led to the reform of Australia’s Senate ballot paper design, first implemented in 2016.
The 2016 inquiry, as usual, is free to examine all aspects of the recent election. Some additional specific matters such as the donations disclosure regime, truth in advertising and electronic technology have also been flagged in this Inquiry’s current reference.
Over 85 public submissions have already been received from Australian citizens, academics, businesses and interest groups.
As usual, the largest submission is the comprehensive report on the election from the Australian Electoral Commission (submission 66), containing details of the conduct of the July election and various key statistics.
The AEC submission reports the welcome news that a worrying decline in the enrolment rate in recent years appears to have ben arrested, with the enrolment of eligible citizens reaching 95%, after lingering for some years in the low 90s.
“95 per cent of eligible Australians were enrolled to vote in the 2016 federal election” the Commission submitted. “Almost a million voters were added to the roll since the 2013 federal election, and fewer than a million people were missing; a significant improvement on previous elections.”
“A major component of this extraordinary result was substantially increased enrolment amongst 18–24 year olds from historical averages below 80 per cent to over 86 per cent.“
Australia’s national enrolment rate, and the rate of missing electors, is recovering (chart: AEC submission to the JSCEM Committee)
The key driver of this result is probably the modernisation earlier this decade of electoral laws in New South Wales and Victoria – later matched by the Commonwealth – allowing the electoral commissions to capture data from key public databases such as the drivers licence registry and household utility companies to help keep the roll data up-to-date.
Interestingly the submission from the Australia Institute (submission 67) challenged the AEC to set an official 95% target for each of the rates of enrolment, turnout and formal voting.
Election observers were watching with trepidation to see how well the Electoral Commission would be able to implement this year’s new Senate ballot paper system, which allowed optional preferencing and abolished the system where political parties could direct voter preferences to each other.
The reform laws were only passed by Parliament in March this year, giving the Commission only weeks to prepare new procedures and systems.
The count of the elections for NSW Senators – in common with elections for the NSW state Legislative Council – amount to the largest single-transferable-vote voting exercise in the world, with around 4.5 million voters in one electoral division.
Happily, the voters and the counting officials appear to have coped without any significant hitches in July’s elections.
Submissions from two of Australia’s prominent psephologists, the ABC’s Antony Green (submission 30) and Tasmanian Kevin Bonham (submission 74) go into detail about the success of the new voting method, and the extent to which issues such as ballot preference exhaustion were managed.
Green, Bonham, and many others (including the author of this website) called for Parliament during its last term to make the reforms they did, arguing that the key issue was voter choice.
Not surprisingly, your correspondent is also a submitter (submission 64), concluding on this issue that due to the ballot paper reforms “…the final result is that the elections of 2016 were the most open-choice of all Senate elections since federation.” The fact that this year also saw a full dissolution of all 76 seats has made the new chamber the most representative Australian Senate ever elected.
The previous, little-lamented ‘above-the-line’ party preference direction system finds a sole defender in regular contributor to electoral matters, Chris Curtis (submission 45). Even former Parliamentary opponents of the the reform in the Labor Party and (former) Family First Senator Bob Day have fallen silent on the issue.
Former Senator Day challenged the Parliament’s constitutional capacity to enact the reforms in Australia’s High Court, but his case was unanimously rejected in April.
Claims that the reforms would prevent the election of minor party and independent senators evaporated once in contact with the voters themselves, who in July elected 9 Green and 11 more cross bench senators – easily a record number.
The long-established electoral reform societies in New South Wales (submission 61) and South Australia (submission 65) also welcomed the ballot reforms, but called for further improvements such as abolishing the ‘above-the-line’ option to vote between parties, and rotating names of candidates on different ballot paper variations.
Update: A recently added submission from the Proportional Representation Society of Australia (submission 102) raises another key issue: the long-known defect in the Senate election vote counting process which can have the effect of increasing the value of some votes. Introduced in 1984 and known technically as the ‘unweighted inclusive Gregory method’ problem, it’s an outright mathematical defect, mis-weighting the value of certain parcels of votes during the counting calculations. The flaw manifested again in at least the Victorian and Queensland counting of Senate votes this year, according to PRSA, but fortunately did not change any election results. In a public hearing in Hobart this week Tasmanian psephologist Kevin Bonham called on the JSCEM committee to get the problem fixed.
Another issue which the Inquiry reference specifically raised is the use of electronic technology in running the election.
Alarmingly, the AEC in its submission noted that “the AEC’s election and roll management systems are at the end of their useful life.”
Many submissions to the Committee discuss options for using more advanced roll management, voting day and vote counting technology, and several technology businesses have used the JSCEM submission process to put their own capabilities into view. There seems to be general agreement that more technology should be used to ease election day processes and speed up election results.
Some commentators are wary of actual online voting however, despite promises that secure online transactions would be possible.
JSCEM’s second report of 2014 already examined the technology matter, but no reforms were forthcoming.
The Inquiry was also tasked to examine aspects of the nation’s scheme for political donations, financial disclosure, expenditure and public funding.
Two powerful but frustrated submissions from Australian academics Professor Joo Cheong Tham at Melbourne University (submission 25) and Professor Colleen Lewis at the National Centre for Australian Studies at Monash University (submission 77) tell the story of extensive work by advisers to the federal government and to JSCEM between 2008 and 2012 that has gone entirely unaddressed. Professor Lewis is scathing:
“… the current state of political donations laws in Australia needs urgent attention. Reform is long overdue and the only thing that seems to be standing in its way is personal and party interests. They should no longer be allowed to take precedence over the public interest.
“Taxpayers’ lack of trust in MPs and the political process is understandable when they are expected to invest in endless research and development that achieves no outcome. They deserve better than this. The electorate and broader community are entitled to action and that action must result in a national funding regime that all Australians can be proud of, rather than one they shun. The current disparate arrangement fails the public interest (and pub) test.”
Lewis and Tham provide the Committee with copies of the extensive reports written earlier this decade which could help establish a more credible political finance regime, integrating both the federal and state political landscapes.
Finally, the inquiry is tasked to look into a number of issues surrounding election campaign claims and statements, the conduct of non-party interest groups in election periods, and ‘truth in advertising’ issues.
Some of the pressure is coming from government figures displeased that third party campaigners (such as GetUp!, which contributed submission 81) had an active role in issues campaigns at July’s election, and may have impacted on voter support for the government.
But all kinds of interest and lobby groups, as well as charities and business representatives, have a legally accepted role in the process of choosing of Australia’s parliamentary representatives, with a series of High Court judgements in recent decades confirming the role of free political activity and speech in election matters.
Submissions from two frequent election law commentators – Sydney University’s Professor of Constitutional Law Anne Twomey (submission 24), the University of New South Wales’ Dean of Law Professor George Williams (submission 19) – as well as Western Sydney University’s Dr Luke Beck (submission 29), discuss the limits of Parliament’s powers to legislate controls over conduct and speech at election times.
Curiously, the federal government itself is having to deal with a backbench demand for liberalisation of laws relating to free speech on other matters. How JSCEM handles this question may well become entangled in that political debate.
With excellent timing, Professor Graeme Orr of the University of Queensland School of Law made a specific contribution (submission 86) relating to the law on disqualifications of candidates who run for parliament. Two senators – Bob Day and Rodney Cullerton – had their qualifications questioned earlier this week; Day has resigned, and Cullerton’s case will go to the High Court. Professor Orr’s analysis will be compulsory reading.
Finally, an interesting submission from the Electoral Integrity Project – an academic undertaking by the University of Sydney and Harvard University in the US – argues (submission 52) that there is strong public demand to find ways to make voting more convenient to people, supporting the push for electronic voting options, and more options to vote earlier than on the traditional polling Saturday.
The Committee is holding hearings around Australia through the remainder of this year, and has been asked to report to Parliament by early March 2017.
On Elections 
I have to briefly say that I totally disagree with your argument that the House of Representatives isn’t representative. I guess it depends on how you think of the word “representatives”. Each electorate in the nation is represented by one member.
The problem with having a proportional House of Representatives is that it would likely make the Senate redundant with similar levels of representation and could result in a Governing Coalition being able to pass legislation through both houses without scrutiny.
You could argue about which house should have the power to form government but I strongly believe that they need to be elected in such a way as to produce differently composed houses.
“A formidable sinister interest may always obtain the complete command of a dominant assembly by some chance and for a moment, and it is therefore of great use to have a second chamber of an opposite sort, differently composed, in which that interest in all likelihood will not rule.
The most dangerous of all sinister interests is that of the executive government, because it is the most powerful. It is perfectly possible — it has happened, and will happen again — that the cabinet, being very powerful in the Commons, may inflict minor measures on the nation which the nation did not like, but which it did not understand enough to forbid. If, therefore, a tribunal of revision can be found in which the executive, though powerful, is less powerful, the government will be the better; the retarding chamber will impede minor instances of parliamentary tyranny, though it will not prevent or much impede revolution.” – Walter Bagehot, The English Constitution (1867)
Thanks Nicholas for that comment, which goes to the heart of what interests me – what is representativeness? My recent submission to the Australian parliamentary committee on electoral matters sets out my views at some length. An extract from my criticism of SMDs:
“The use of single-member divisions is so endemic and widely tolerated in electoral democracies that most who confront these issues have trouble accepting that the results of using them can be termed ‘unrepresentative’. It is of course easy to say that the 150 members of the current House – or their equivalents in many other parliaments – are ‘representative’ of the Australian electorate, but to state that is to use the word ‘representative’ with hardly any more meaning than if they were 150 random individuals, or if they were appointed by a jury-style ‘sortition’ process.” (p.12).
You argue that having two chambers elected by different methods is a check on the executive dominating at least one of them. Of course that can be true – and has been mostly true in Australia for the past four decades – but is not guaranteed to be so in all circumstances.
I would still maintain that the House should be elected by a better system than SMDs, and I would also expect that using STV for each house would provide even greater checks on executive domination.
The possibility that both houses are elected by the best available voting system (which to me means STV in some form) would not seem to me to advantage the executive in any way.