PROPORTIONAL REPRESENTATION SOCIETY OF AUSTRALIA

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info@prsa.org.au

www.prsa.org.au

2014-10-26

 

Direct Election of Candidates

 

Voters in an election have the maximum opportunity to ensure that their vote is reflected in the outcome of the election - for a given system of counting votes - when, along with the use of proportional representation, all the representatives to be elected are directly elected by the voters.


Direct election of candidates occurs only where voters vote for individual candidates only (notwithstanding mutual indication possibly given by particular candidates that they are part of a group), and voters are not involved in:

  • voting for groups of two or more candidates, subject to election rules that prevent voters from indicating preferences as they independently see fit, among the members of the group (e.g. Party Lists, or systems arbitrarily and unnecessarily restricting voters' powers and choices such as the requirement that candidates for Lord Mayor and Deputy Lord Mayor of Melbourne must be nominated jointly), or

  • voting for people that are then empowered to choose the person or persons that ultimately fills the position or positions to be filled (Electoral Colleges), which usually distort the voting intentions of those that vote for their members.

 

Electoral systems that use, in whole or part, a Party List form of proportional representation, such as all the PR systems in Europe, Africa and Latin America, and the recently adopted "Mixed Member Proportional" system in New Zealand, are not fully direct systems of election, whereas most countries, such as Australia, UK, Eire, Canada, USA, and India, with single-member districts, or multi-member electoral districts with the Single Transferable Vote (quota-preferential) have at least a fully direct system of election.

 

Federal Elections: Australia has limited constitutional protection for direct election. Section 7 of the Australian Constitution requires that State senators be "directly chosen by the people of the State", but Section 122, which empowers the Federal Parliament to provide for senators for the territories, has no requirement for direct election.

 

Section 15, which provides for the filling of Senate casual vacancies, has required, since a 1977 referendum, that Senate casual vacancies be filled, not by the choice of the people, but by the appointment, by the relevant State Parliament, or Governor, if the Parliament is not in session, of a member of the same party as that of the vacating senator. Section 24 requires that Members of the House of Representatives "be directly chosen by the people", and Section 33 provides for a poll to fill a casual vacancy.

A significant extra word appears in both of the following two sections of the Australian Constitution, compared to the wording of the United States Constitution that they were modelled on, whereby members of both houses of our Federal Parliament are required not just to be "chosen by the people" - as in the U.S. - but to be "directly chosen by the people".

The Australian Constitution's Section 7, which refers to choosing senators for the Australian States, was modelled on the U.S. Constitution's corresponding wording at the time, but with a prescient anticipation, by 13 years, of Clause 1 of its 17th Amendment.

The Australian Constitution's Section 24, which refers to choosing members of Australia's House of Representatives, was modelled on the corresponding wording of the U.S. Constitution's Article1 Section 2.

That extra word, "directly", appeared in Section 9 of the draft Constitution adopted by the 1891 National Australasian Convention, based largely on the draft by the one person that took the trouble to circulate a suggested draft constitution, one of its Tasmanian members, Andrew Inglis Clark, who was also the instigator of Tasmania's celebrated Hare-Clark electoral system, which is a quota-preferential (Single Transferable Vote) form of proportional representation. Its continuation in Section 7 and extension to Section 24 of our present Constitution has fortunately prevented our Federal Parliament from being empowered to adopt a party list form of PR for either of its houses, but it has not prevented the use of Group Voting Tickets, which corrupt the Senate's PR system, nor has it required the use of countback to fill casual vacancies, as that is controlled by a different section of the Constitution, Section 15.

Nevertheless, only one State, Western Australia, has a similar constitutional prohibition. Party list systems have been proposed, and have operated briefly, in some of our States and Territories, but such systems are fortunately no longer operating in Australia.

Group Voting Tickets: Australia's unfortunate introduction in 1983 of Group Voting Tickets for its Senate elections has greatly increased the tendency for voters to follow their party's recommended order of preference for candidates, as it has made it as easy as possible to vote "above-the-line", while still maintaining unjustifiably onerous requirements for a valid vote for independently-minded voters voting "below-the-line" to mark preferences for nearly all of what is often scores of candidates.


The Group Voting Ticket imposition has unfortunately spread to the PR systems in all other legislatures in Australia, except for those in Tasmania and the Australian Capital Territory, and it has even spread to municipal elections in New South Wales, and for the City of Melbourne. It has significantly compromised the quality of those systems, but it does not make them either real or de facto party list systems, because the "above-the-line" votes cast still operate as transferable votes, and the rules ensure that an unpredictable or excessive number of votes - either from surpluses or exclusions - are not wasted as a result of their number falling below an arbitrary threshold percentage or for other reasons, as happens with party list systems. Australia's only GVT systems for parliamentary elections that lack the punitive "below-the-line" requirements above are those for the NSW and Victorian Upper Houses, which each have partial optional preferential marking.


High Court Test Cases:
Test cases in the High Court of Australia have nevertheless determined that the Group Voting Ticket system, which falls short of being a Party List system, does not contravene Section 7 of the Constitution because the Court considered that each ticket is just a convenient simplified way for a voter to cast a vote in one of numerous possible preference orders, and that all voters are free to vote for any other preference order they choose, by voting "below-the-line".

 

The single judge, the then Chief Justice, Sir Harry Gibbs, wrote in his determination, "In my opinion, it cannot be said that any disadvantage caused by the sections of the Act now in question to candidates who are not members of parties or groups so offends democratic principles as to render the sections beyond the power of the Parliament to enact."  He thus determined that whether any perceived discrimination, or discrepancy between the effort, and risk of error and invalidation of a person's vote involved in those two different procedures was to be dealt with was a matter for the Federal Parliament, rather than the High Court.

 

Entrenchment of Direct Elections: In addition to the limited entrenchment of direct election in the Australian Constitution, Western Australia is the only State with a requirement for direct election of its members of Parliament entrenched in its constitution, so that the requirement cannot be repealed without a referendum. See this 1978 provision in Section 73 of Western Australia's Constitution Act 1889 [Section 73(2)(c)].


The Australian Capital Territory is the only Territory with an entrenched requirement for direct election of the members of its unicameral legislature.

 

Party List Systems All Rejected To Date: Australia has, fortunately, rejected the four major attempts at introducing or maintaining a Party List form of proportional representation, as opposed to STV, ever to emerge here, which were:


  • The Australian Labor Party's proposal that Tasmania's Hare-Clark system of direct election be replaced by a party list system was rejected by a Select Committee of Tasmania's Parliament in 1915 after John Humphreys, Secretary of the Proportional Representation Society of Great Britain and Ireland, travelled to Tasmania to place evidence before it of the superiority of the quota-preferential system used in Hare-Clark.

  • The Dunstan Labor Government's introduction in South Australia of a party list form of election for the Legislative Council in 1973, which the subsequent Tonkin Liberal Government, with the support of the Australian Democrats in the Legislative Council, replaced with a quota-preferential system of proportional representation.

  • The Wran Labor Government's proposal in New South Wales of a party list system for the election of the Legislative Council, where opposition to it led to the establishment of the present direct quota-preferential PR system instead.

  • A "modified d'Hondt" party list form of PR used for the first two elections of the Legislative Assembly in the Australian Capital Territory that was so unsatisfactory that a later plebiscite led to the present Hare-Clark system being instituted there.

 

Filling Casual Vacancies by Direct Election: It should be noted that the only direct way of proportionally filling casual vacancies after a PR election is by a  re-examination of the ballots cast at that election. The countback system used in Tasmania and the Australian Capital Territory, which preserves the intention of the majority of voters who contributed to the quota that elected the vacating candidate, and minimizes the work involved in a manual count, is recommended for this purpose.


Nevertheless, the recounting of all the original ballot-papers having regard to consenting candidates only, as used for the Western Australian Legislative Council, also meets the direct election criterion, and it is more convenient for some computer-based counts.


Filling casual vacancies by party nomination or other indirect means, as occurs for elections to the Senate and the South Australian, New South Wales and Victorian Legislative Councils is a regression from earlier democratic practices in that regard.

 

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