Who gets to choose – voters or party officials?
A vacancy in the Australian Senate exists – for one of the 12 representatives elected by voters in the state of South Australia – and the nation’s High Court will this week determine whether voters, or party officials, have the right to fill it.
When former South Australian Senator Bob Day of the conservative Family First party was fighting in early 2016 to prevent Parliament from reforming the system of ‘group voting tickets’ for elections of Senators, one of his arguments was that voters should have the ‘choice’ to use GVTs if they wanted.
GVTs are the system used in several Australian elections where ‘above-the-line’ votes are turned into uniform statements of the order of preferences for each ballot, as determined in advance by one political party which the voter selects.
They create an opportunity for political parties – indeed, they effectively force the parties – to trade among each other about the preference orders they will lodge with the electoral authorities beforethe poll.
GVTs are not used at all in the state-level voting systems in Tasmania and the ACT, where all preferencing is voluntary. Nor are they used in Senate elections (since 2016) nor in elections for the New South Wales state upper house.
The GVT device is still used in state elections for the Victorian, South Australian and Western Australian upper houses, as well as for the Melbourne City Council, where they became the subject of a significant legal dispute last month.
GVTs have no relevance to the electoral systems based on single-member electoral divisions that are used in most of the other Australian lower houses, including the national House of Representatives. In these systems parties can urge their voters to follow how-to-vote cards, but these are largely ignored, and preferences are entirely voluntary for every voter.
Whilst Australia is unique in adopting the GVT system, that is largely because Australia is one of the few countries to even use the single-transferable vote system (‘STV,’ but normally called the Hare-Clark system in Australia), for which GVTs are a plug-in additional voting technique.
Dozens of nations around the world use even more party-based systems where voters only get to support one political party, and parliamentary seats are allocated proportionally to party lists of nominees.
But in those British-origin democracies that have adopted some form of proportional representation – including Australia, Ireland, and others – the STV system was until very recently almost always the preferred model.
Australia’s electoral systems have been traditionally based on the direct election of MPs as individuals, chosen through by voter-directed preferences. The Australian Constitution even directs that members of Parliament must all be “directly chosen by the people”.
When the GVT system was adopted for the Senate in 1984 its constitutional validity was challenged, and the High Court only ruled that the ‘above-the-line’ GVT ballot paper option was acceptable while the ‘below-the-line’ alternative (where voters can direct their candidate preferences in detail) was also provided.
That curious decision means that GVTs could not survive constitutional testing on their own, and needed the life support of being paired with real choice voting to survive the challenge.
It’s not entirely clear why the logical alternative of simply declaring non-choice voting to be invalid wasn’t followed. The single judge in the Mackenzie v Commonwealth decision, Chief Justice Gibbs, wrote briefly that “the electors voting at a Senate election must vote for the individual candidates whom they wish to choose as senators but … the Constitution [permits] the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket.”
Like many judicial decisions on electoral matters, the Mackenzie ruling had to be reached in some haste with an election looming. Moreover in 1984 the brand-new GVT scheme was being sold as a convenience to voters and a means of preventing informal voting.
The system’s negative impacts, such as distortion of the election results, have become obvious only in the past few elections, and were not yet to be apparent in 1984.
For the Australian Senate that is all history now, because the reforms of early 2016 finally did abolish the GVT system. The July 2016 Senate election result then proved beyond all doubt that the lack of GVTs would not prevent minority voices from achieving representation in the Senate.
Bob Day’s ‘choice’ argument remains important however, not least because the debate must continue in the remaining jurisdictions where GVTs are still in the electoral law.
Day was saying, in effect, that voters should have the option of passing over control of their choice or representatives to a political party. They should have, that is, the choice to give up their choice.
Leaving aside the obvious logical loop this claim creates, the argument is authoritarian, and perhaps even Orwellian in the way it attempts to redefine the meaning of the term choice.
The argument calls for great faith to be placed in the role of political party officials and leaders in knowing what’s best for the voters, which is strange at a time when public trust in political parties and even the institutions of democracy is polling at record lows.
Around the world, voters are looking for alternatives to established political parties, and are showing less and less trust in being led by, and then taken for granted by, even those political parties which they do more or less support.
The issue is, strangely, also bound up with the fate of Day’s own former Senate seat, which will be decided by the High Court this week.
Australia’s High Court in session
Former Senator Day purported to resign late in 2016, only a few months into his new term. But the Senate itself asked the High Court to sort out the vexed question of whether he had ever been eligible to be elected.
The dispute turns on some nuances of the financial relationship between Day and the Commonwealth government, arising from a tenancy agreement between a Commonwealth department and real estate in which Day had an interest.
The Court needs to untangle whether Day’s financial interests were significant – in which case he was ineligible to be nominated and win a seat under a corruption-preventing rule in the Constitution – or not, in which case he was rightly elected.
The dispute leads straight into how a replacement for his vacant Senate seat will be determined.
If Day was not a valid candidate, past precedents of the Court have established that all the 2016 election ballot papers for South Australia’s senators should be recounted.
Such ‘special counts’ create the slight risk that the replacement will come from a different political party to the departing senator, or the even more disruptive risk that the places of one of the other sitting senators might be disturbed – as actually happened in the recent Melbourne City Council election dispute.
However, in this case the ballot paper preference flow data is publicly available, and analysts such as Antony Green and others seem to agree in calculating that a special count will result in the second-listed candidate in the column of Day’s Family First party, Lucy Gichuhi, being included in the refreshed set of 12 South Australian senators, together with – unchanged – the 11 other senators that have sat since the last election.
This is at least one of the possible ‘democratic’ outcomes available, whereby the 30,000 voters who voted for the Family First party, together with many more One Nation, Liberal Party and other voters whose preferences eventually joined those of the Family First supporters to make up a total of 72,000 votes which – although short of the quota of 81,000 votes – won Day the final Senate seat for the state.
Will these voters now get a replacement representative Senator whom they supported on election day in July 2016?
This is, of course, precisely what preferential voting is all about. By marking their ballot papers last year, the voters who initially wanted Bob Day to represent them in the Senate indicated precisely what they wanted done if he was not available to them. According to expert analysts, it seems that they specifically recorded that they would next prefer Lucy Gichuhi instead.
(As an aside, as a result of the preference transferring system the ‘72,000 voters’ mentioned here actually includes a mix of ‘whole’ votes as well as the partially weighted ballot papers of a great many other voters. The collective will of this ‘quota’ of voters is therefore derived from a good deal more than 72,000 individual electors.)
If, on the other hand, the Court finds that Bob Day was eligible to be elected, and rightly took a seat for four months last year, then the legal outcome is determined by the fact that he resigned last December. In this case, the Australian Constitution allows the Family First party leadership – presumably still including Bob Day himself – to name the replacement.
And herein lies a new problem. Media reports late last year indicated that the party leadership would not want Gichuhi to take the seat, but may have someone else in mind. Apparently the political situation is that Gichuhi is not quite of the same ideological wavelength as the party leadership.
Not much has been heard from the party on the issue since late 2016 while the litigation has been underway.
But should the party officials’ selection prevail over the choosing which the voters exercised when they marked their ballots?
The irony here is that the settlement of this vacancy-filling dispute echoes Day’s earlier position about the GVT ballot rule issue, in which he argued that voters should be ‘free’ to give up their power of choice in favour of authoritarian direction by the political party.
Day appears to favour the outcome where the choices of the 72,000-equivalent South Australian voters who combined to win the 12th seat last year should not be followed, but that the decision should pass into the hands of the Family First party leadership, who would have the ability to overrule the voters’ ballot-expressed preference – apparently for Lucy Gichuhi – and make a ‘party knows best’ decision in their place.
Note also that the many thousands of preferencing voters initially supporting One Nation, the Liberals and others (including partial-vote ballots, adding up to 42,000 worth of votes) who joined the 30,000 Family First voters to make up the seat-winning total can hardly be said to have placed any faith at all in the Family First party leadership to take a ‘party knows best’ decision on their behalf.
It should be indisputable that the whole 72,000-equivalent voters in question deserve representation in the Senate of their own genuine choosing. They marked their ballot papers in July 2016 for exactly this purpose.
The previously used and High-Court endorsed special count procedure is readily available to easily determine which candidate that should be.
Despite this dispute’s obvious link to the constitutional imperative that members of parliament should be ‘chosen by the people’, the Court will most likely not decide this case on the basis of the choice issues. It will probably only be a raw legal interpretation of Mr Day’s eligibility to nominate and be elected in mid-2016 that matters. The political result will follow from that legal conclusion.
The Court’s decision is due to be handed down in Canberra on Wednesday morning (5 April).
Related:
Saturday Paper – Bob Day’s Resignation and Family First’s Future (22 October 2016)
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)
So …Who did put Family First? (3 April 2017)
Updates:
ABC – High Court to rule if Bob Day was validly elected to Parliament and how his seat should be filled (5 April 2017)
On Elections 