So … Who did put Family First?

Political conservative Bob Day resigned from the Australian Senate late in 2016, but the intriguing history of his encounters with the electoral system have left a legacy of voting system issues to consider.

Day, a member of the Christian-themed Family First minor Australian political party, was elected to the Senate twice – in September 2013 and again in July 2016.

Late in 2016 a controversy broke out regarding an office space commercial leasing relationship between a company connected to Day and a federal government department. The issue turns on whether Day had a personal financial interest in expenditure by a Commonwealth agency, which if true meant he was ineligible to be elected and sit as a Senator. The reason lies in strict grounds of disqualification that are stated in the Australian Constitution.

On one plausible reading of the facts, the deal meant that from December 2015 onward – including during the 2016 election – Day was ineligible to sit as a Senator, or be elected as one.

While the issue unfolded, the Senator resigned from the Senate in November 2016, nominally for an unrelated reason. But one possible legal interpretation is that Day couldn’t technically resign because he was never validly elected in the first place.

The difference affects how Day’s replacement as a Senator will be determined.

[Reader warning: this post is a long read – maybe 15 minutes – as it covers the history of two election counts, intervening legislative reforms and High Court litigation.]

Late in 2016 the Senate itself referred to Australia’s High Court the task of determining the precise legal basis on which former Senator Day departed. The case was heard by the Court in February 2017 and is due for decision in early April.

Whatever the outcome of the litigation, Day’s legacy will include important lessons about the design and recent history of the voting system by which the Senators are elected.

There is ambiguous evidence as to whether Bob Day was aware of the eligibility defect when he nominated again in 2016. While there were political disagreements last year about who knew what when inside the government, and who might have been covering up the problem, on the whole the reason for Day’s ineligibility (if it is correct) isn’t about any real sense of corruption.

Given Day’s assumed personal wealth and his right-wing approach to government and business policy issues, the argument that he was in thrall to the dominance of the national bureaucracy and to the government’s political directions because of a personal financial dependency arising from the office lease is pretty weak. He supported the current government in the Senate on many issues, but he hardly did so for any reason related to the fairly minor lease value.

Day’s home construction business empire experienced major financial difficulties in 2016, so he had other things demanding his attention. Nonetheless, the shadow hanging over his electoral eligibility ended up being an odd way to exit public life.

Bob Day resigned from the Senate late in 2016, but how he got into it is actually more interesting

Nonetheless parliamentary eligibility rules do need to be interpreted very strictly, to prevent casual exemptions from being handed out by governments case-by-case. Day’s situation has been referred to the Court for a ruling on the meaning of the Australian Constitution’s ambiguous phrasing, drafted back in the 1890s.

But how Day got elected to the Senate – twice – is actually quite unusual, and the story below provides an intriguing illustration of how the Senate’s single transferable vote electoral system works to the benefit of choice by Australia’s voters, and how until only recently it used to malfunction.

Day’s first election – September 2013

The 2013 election was for six Senate vacancies in each Australian state. Under the single-transferable vote (STV) electoral system used for elections to the Senate, the quota for election as each Senator for South Australia was for 1/7th of the vote, or around 14.3% – which was eventually determined to be 148,348 votes.

The counting of Australia’s STV ballots begin with a tallying of each individual candidate’s first preference votes, and then proceeds through a large number of counting stages – potentially hundreds of them – as each unsuccessful candidate is eliminated and preferences are transferred.

Later in the exercise, as more and more successful candidates reaching the seat quota, ballot with partial values (ie: less than one vote) come into existence. As a result each new elimination can take more than one count, resulting in the large number of count stages, represented as ‘lines’ of fresh vote tallies in the counting tables.

After election day the prospects for Family First and the party’s three candidates looked very bleak. They had won 39,032 votes between them: 0.26 of the required quota. Bob Day, the party’s lead candidate, personally had almost all of these votes, starting the official count with 38,909 votes.

Day needed to somehow acquire another 109,439 votes in preferences.

His race to do so did not start well. For over half the count, virtually nothing flowed to him. As his two party companions were eliminated he picked up around 100 preference votes from their tallies. But for most of that period of counting hardly anything else happened to Day’s score. By counting stage No. 156 – around two-thirds of the way through the whole process – he had gained just 444 extra votes.

Such a limited preference flow is actually quite unnatural in ordinary STV-system elections where preferencing is all voter-directed. In such cases votes would be expected to transfer in a way broadly reflecting how voters would see each party and value each individual candidate on their public reputation.

But what was happening behind the scenes is that under the group voting ticket (GVT) rule through which parties could direct voters’ preferences, almost all the transfers that were happening were moving in solid blocks to specified candidates in other parties. They just weren’t being directed to Bob Day.

All Day was picking up was the votes from his party companions, and a smattering from those voters (less than 5% of them) who had voted using the below-the-line part of their ballot, and who had happened to voluntarily place Day highly.

And then suddenly a candidate named T Crago, of the AIN party, was eliminated, and Bob Day abruptly received 1,937 votes – 90% of the 2,149 votes which candidate Crago was yielding up. On this occasion Day happened to be the beneficiary of the party-vote-direction rule, because the directions which the AIN party had made had placed Family First, if not necessarily first in their preferred order, at least in front of any of the other parties which were – at that point of the counting – still in the race for seats.

(Strictly speaking, the GVT preference directions are applied by individual candidate, not by political party, but most of them were lodged with party groups used as the main basis of their candidate ordering.)

Now things started to accelerate. Day picked up 380 votes when an Australians Christians candidate was eliminated. These came from below-the-line votes, not party directed GVTs, but the Family First and Australian Christians parties will have a lot in common, so it is unsurprising that their supporters cross-preferenced in this way.

Then he got 570 votes from voters who had been supporting the Sex Party, which is a lot harder to explain politically! But these only amounted to just 3% of the 19,000 votes being transferred from Sex party below-the-line supporters, so they probably represent generic anti-major party voters.

Day was by now starting to accumulate constant small numbers of sundry below-the-line votes, adding creeping numbers to his total. He had reached 43,067 votes, a gain of 4,158 since the count began – but he still only had 0.29 of the necessary quota.

And then – bang! – 38,245 votes arrived in a moment, as the last Liberal Democrat party candidate was eliminated, and Bob Day – thanks to the party-directed tickets – was handed 97% of that group of preferences.

While both these parties have a form of right-of-centre political outlook, their attitudes to religion are sharply discordant. The notion that 97% of Liberal Democrat supporters would prefer the religious conservatives to other available options really beggars belief. Yet that’s what happened. Day’s accumulated total nearly doubled, to 0.55 of the quota.

At this point, 219 of the eventual 229 preference counting stages had now been completed, and the process was coming to its end. In the race for six Senate seats, three had been awarded by this point, and the six contenders still in the race for the last three seats included Liberal Simon Birmingham on 139,212 votes, independent (or NXT) Senator Nick Xenophon’s running mate Stirling Griff on 114,151, the Greens’ Sarah Hanson Young on 111,946, Labor’s Don Farrell on 88,708, Bob Day on 81,312, and No Carbon Tax Climate Sceptics candidate Leon Ashby on 57,599.

In the contest for the three remaining seats, the best-placed three – Birmingham, Griff and Hanson-Young – were well clear of the last three, and Day was in second-last place.

But then ‘No Carbon Tax Climate Sceptics’ party candidate Leon Ashby was eliminated, and 72% of the votes of his supporters (41,235) flowed to Day, lifting him up suddenly into 3rd place of the remaining contenders. That meant he survived the next elimination decision, and instead Labor’s Don Farrell went out – losing the Senate seat he had previously held. Following Labor’s preference ticket, Farrell’s votes mainly flowed to the Greens’ candidate Hanson-Young, putting her way over the top and winning her the 4th Senate seat.

There were now three contenders left for just two places, but at this point, the preference-ordering rule had its final impact. Because the Greens party had – for reasons that also defy explanation to their voters – placed the conservative Family First party ahead in its directed ticket ahead of the Xenophon team. So Bob Day received the preferences of 89% of the Green voters – amounting to 57,627 votes – and now rocketed ahead to win the 5th Senate seat.

The sixth and last seat was won by Liberal Simon Birmingham, with independent Stifling Griff losing out in 7th place.

Two of the three determinative events in this process which lifted Bob Day from what might have been a position of at best 9th place in the election count – and most likely even further back – were the voter support given in the name of each of Liberal Democrat voters and Green voters, the great majority of both of which would have been horrified.

The other event of significant support which flowed from the Climate Sceptics’ party supporters is a little more politically tolerable, although receiving 72% of those votes whilst alternatively available Liberal, Labor and Xenophon group candidates (whose teams had collectively won 73% of the original first preference votes of the state electorate compared to the Climate Sceptics 0.1%) also isn’t a plausible proportion of what voters would have determined by free choice naturally.

Had Day not been elevated in the rankings at three crucial points by the GVT directed-preference tickets, the almost certain alternative winner of the seat would have been the centrist, small-business oriented independent Stirling Griff, who would have made a more natural recipient of Liberal Democrat and Green voter support. (Griff, as it happened, went on to win a Senate seat three years later at the 2016 election.)

Day defends the system

During the last national Parliament’s consideration of the 2013 election results – handled as always by the Joint Standing Committee in Electoral Matters – multiple organisations and individuals called for the preference direction system to be scrapped. Many observers had been calling for that for years, in fact.

And indeed, at long last, the Committee did recommend that the GVT system be scrapped, in its report released in mid-2014. Coalition, Labor and Greens representatives all agreed to the proposed change.

The matter then lay before Parliament for over a year until, in February 2016, the government introduced legislation to implement the Committee’s recommendations. At which point Bob Day complained loudly.

Day took the view that voters should have the choice to give up their choice to political parties.

It’s a strange view, and apart from its logical problems, years of evidence had by now shown how the GVT mechanism could be misused.

But Day tried to argue that it was all a conspiracy to prevent minor parties being elected. While the Labor party chose to shift position and oppose the reforms, the ‘established’ minor parties in the Greens and Senator Nick Xenophon didn’t join in this argument at all.

Day was essentially arguing for a system by which contrived election results could be engineered by a technical device, rather than one that encouraged minor parties and independents to work to win a proper quota of votes in the community through genuine political action.

In any case, Day lost the parliamentary decision and the national electoral law was amended, abolishing the preference direction system and also giving the voters the option of ‘voluntary preferencing’, freeing them from the need to preference every single candidate in order.

Day immediately challenged the law in Australia’s High Court, now arguing that Parliament lacked the constitutional power to put in place the open choice system. Which was odd, because only since 1984 had the controlled-choice GVT system even existed, having itself been created by Parliament.

Senator Day lost his case in the Court by a vote of seven judges to nil, with the judgement rather brutally commenting that “None of the … arguments has any merit and each can be dealt with briefly”. The case now stands for the general precedent that Parliament has a very broad discretion in crafting the details of voting systems.

Day’s second election – July 2016

The 2016 election was an unusual case where the whole Australian Senate had been dissolved, meaning that all 12 seats for each state were up for election. This means that the quota fell to 1/13th of the formal vote, or around 7.7%. In theory, this was going to help all minor parties and candidates with small vote shares to maybe win one seat.

So this year, after the formal votes in South Australia were all tallied, the quota was determined to be 81,629 – just over half the quota from three years earlier, as would be expected.

But Family First’s total party vote had declined noticeably since 2013. The 39,032 total party votes won earlier had fallen by a quarter to 30,464. Yet because the quota was also almost halved, the party had now won 0.37 of a quota – significantly better-placed than at the previous election.

Bob Day therefore started the preference distribution counting with 30,464 votes, and his target was 81,629. He needed another 51,165 votes.

Day’s additional votes came from many sources, but by far the largest were around 12,400 votes received when the 14th-placed candidate, Steven Burgess of the One Nation party, was finally eliminated just near the end of the counting.

Around 10.111 votes also flowed to Day when the last unsuccessful Liberal party candidate Sean Edwards was eliminated, also near the end of counting. At this stage Day won 49% of transfers from the former Liberal-voting ballots, indicating that of the few remaining candidates at that point – One Nation’s Steven Burgess, Labor’s Anne McEwen, and NXT party candidate Skye Kakoschke-Moore, who soon won the 11th seat – Day was relatively popular.

These 10,111 Liberal votes did not actually represent 10,111 voters, by the way. Having made their way through transfers in the earlier election of four Liberal senators, this number actually represents the ballots of a far larger number of Liberal voters, but all weighted at only a fairly low proportion of one vote.

In simple terms, somewhere up to a few hundred thousand Liberal voters marked their ballots in a way that included Day, and did so above the other final three or four rivals. The counting system kept the votes of these Liberal voters alive and – quite rightly – gave them their maximum possible effect, which was to each make a small contribution to adding up to 9,800 worth of votes to assist in electing Day.

Day got several other modest piles of votes during the count: 4,174 votes when NXT candidate Kakoschke-Moore was elected to the 11th place, 3,249 when the final unsuccessful HEMP party candidate was eliminated, and likewise at the eliminations of the final Liberal Democratic party candidate (1,831), Christian Democratic party (1,782), Animal Justice party (1,776), Shooters Farmers and Fishers party (1,721) and so on in smaller amounts from many others. All of this happened due to the genuine choice of voters as marked on their ballots.

But in the end, Bob Day didn’t quite get enough to make the quota. He ended up receiving an additional 42,080 votes, totalling 72,392 – over 9,000 votes short of the quota.

Yet Day was still declared elected despite this shortfall, because when the count had reduced the field to 13 candidates – 11 elected and 2 left fighting for the final place – Day happened to be in 12th place, rather than 13th place (which went to Labor party candidate Anne McEwen). So under the rules, Day won the final available seat ‘below-quota’.

Below-quota wins did not happen under the old pre-2016 system – where any ballot which might have run out of preferences was excluded from being counted altogether right from the beginning, disenfranchising that voter altogether.

In the reformed system many ballot papers do indeed run out of marked preferences, and are set aside as ‘exhausted’. This in most cases means one final candidate will become a below-quota winner, and sometimes two more than one can win a final seat that way.

Bob Day’s wild ride

The great irony of these two election results is that Bob Day was presumably qualified to run as a candidate in 2013, but arguably didn’t deserve to win the Senate place he won. The seat was given to him only because the party preference direction rule took the votes of Liberal Democrat and Green supporters and turned them into around 53% of the votes which Day ended up holding (23% of the final haul had come via the complex amalgamation of votes into the hands of the No Carbon Tax Climate Sceptics party; only 21% were Day’s original vote tally.)

In 2016, on the other hand, Day may not have even been legally eligible to run as a candidate, but on the votes themselves he did deserve to win, because under a system of free choice, many One Nation, Liberal and other supporters genuinely combined to collectively choose Day as their representative for the final spot.

As a below-quota winner in 2016, Day had just a little less legitimacy then the 11 other South Australian senators, and as such the voters who won him that spot have been artificially made a little more influential than other South Australians in securing his spot. But as a vote counting exercise, the result was a lot fairer than what happened in 2013.

All that is in the past now, with Bob Day gone from the Senate (on a legal basis yet to be resolved), and the GVT party preference-direction system abolished as well.

Future Australian Senate elections will be fairer as a result.

Related:

Antony Green – What Happens if Bob Day is Disqualified as a Senate Candidate? (1 November 2016)

Kevin Bonham – Bob Day Chaos Thrills The Crowd (2 November 2016)