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PROPORTIONAL REPRESENTATION SOCIETY OF AUSTRALIA

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2016-12-07


5. Group Voting Tickets - discontinued in March 2016 - badly distorted Senate PR-STV:
The Commonwealth Electoral Legislation Amendment Bill 1983 amended the Commonwealth Electoral Act 1918 by introducing the unfortunate Group Voting Tickets provision in Section 211 of that Act, which increasingly distorted the Senate PR-STV system. The Hawke ALP Government initiated that provision, ostensibly to reduce the high incidence of informal voting that compulsory marking of virtually all preferences caused, instead of introducing the more obvious and effective measure of at least partial optional preferential voting that the Whitlam ALP Government sought in 1974 and 1975, and the Menzies Coalition sought in Opposition in 1948. It did not even restore the fixed number of preferences required for a valid vote (twice the number of senators to be elected, plus one) that existed before the Commonwealth Electoral Act 1934 replaced that with a requirement to mark preferences for all candidates, regardless of how many there might be, which survived little-changed to play havoc with Senate voting until that changed in March 2016. The minister introducing the 1983 Bill, the Hon. Kim Beazley MHR, delivered his second reading speech supporting the Bill. Dr Richard Klugman MHR, the Chair of the Joint Standing Committee on Electoral Reform, supported him. Dr Klugman claimed that the Liberal Party had lodged a submission supporting Group Voting Tickets (confusingly referred to as "list voting"), provided that the tickets had to indicate the preferences for all candidates.

The Group Voting Tickets provision existed from 1983 until the Turnbull Liberal Government, with the support of the Greens Party senators and South Australian Senator Nick Xenophon, repealed it in March 2016 and also replaced the virtually full preferential formality provision that had existed since 1934 with a partial optional preferential provision. Group Voting Tickets were introduced in 1983 with the joint support of the Australian Labor Party and the Australian Democrats, but were, notwithstanding Dr Klugman's claim above, opposed at the outset in the House of Representatives by the Coalition Opposition. Speakers against the provision included Hon. Steele Hall MHR. The Coalition senators and the independent Senator Brian Harradine also opposed it. In his 1983 Senate speech, in which he included the letter from the PRSA President referred to above, Victorian Liberal Senator Alan Missen referred to his concerns about the ALP Government's Group Voting Ticket proposal, as did NSW Liberals, Senator Sir John Carrick and Senator Peter Baume, the National Party's Senate Leader Senator Douglas Scott of NSW, the Nationals Queensland Senator Florence Bjelke-Petersen, and Tasmanian independent Senator Brian Harradine. Surprisingly, the then ALP Senator Malcolm Colston pointed to the unreasonable imposition that the existing full preferential marking requirement placed on voters, but he did not explain why the Government was to continue the use of that system, leaving it as the only alernative to the above-the-line voting proposed. ALP Senators Gareth Evans and Graham Maguire, and Australian Democrats Senator Jack Evans, each spoke in support of Group Voting Tickets.

The resulting above-the-line Group Voting Tickets were part of a history of ballot-paper designs for preferential voting in Senate elections that began in 1919. It involved stage-managed ballot paper design that was made even less even-handed - to better suit party organizations - in 1940. Those designs saw a system evolve that the reforms of March 2016 have not entirely eliminated. Nearly all voters at Senate elections have been inveigled into just endorsing their party's ticket without needing to be persuaded of the merits of its individual candidates or - until the 2016 reforms - other candidates, as the direct election provision in the Constitution envisaged, rather than the far more participatory approach of considering the relative merits of the various candidates and choosing the order of preference among them explicitly, as fortunately still occurs with Hare-Clark. That hyperlink shows that Tasmania's Parliament rejected Group Voting Tickets, so first preference votes at its Assembly elections are not highly concentrated on just two candidates, as occurs at Senate elections, leaving almost all elected senators gaining only a tiny number of first preference votes, which can disadvantage major parties. Tasmania uses partial optional preferential voting and Robson Rotation for both State houses, and for municipal elections.

That concentration of first preference votes on a single candidate of a party, which Dr H V Evatt called regimentation of the vote, preceded Group Voting Tickets and even the Senate's proportional representation system. It now perversely and unfairly increases minor party representation at the expense of that of the major parties, as described in a 1988 article in The Canberra Times, but that seems either not to be understood by the parties, or their operatives prefer instead to sacrifice some representation in order to retain their power of controlling the order in which candidates appear on Group Voting Tickets, or how-to-vote cards, rather than avoiding their loss by using Robson Rotation. A good comment on Antony Green's website explains how this folly of the major parties let Jacquie Lambie, of the new Palmer United Party, win the sixth Senate seat at Tasmania's 2013 polls when less concentration of the Liberal first preference vote on just one of its candidates would have seen a third Liberal winning that last seat instead of her.

Most parties' how-to-vote cards urged voters not to vote below-the-line, as that would give effect to voters' rather than parties' wishes. With a new record number of Senate candidates (110 in NSW in 2013) stimulated by the unprecedented power that Group Voting Tickets let voters delegate to party machines, it became very difficult for many actual and would-be below-the-line voters to comply with the extremely arduous demands of the unneccessary formality provision of full marking of all preferences being required for a formal ballot. A ballot correctly marked for the number of seats to be filled should be enough for a formal ballot, but even a single first preference is better than an informal ballot. Anthony Green explained the role of Group Voting Tickets in electing candidates of certain micro-parties at the 2013 Senate election.

Group Voting Tickets also led to candidates of very small parties being elected as a result of several larger parties all placing them at relatively high positions on their tickets and thus having them elected, when it is clear that their total vote without that support would have left them unelected. An example of that was the 2004 election of Victorian Senator Steve Fielding of the Family First Party, with only 1.85% of first preference votes gained by him, with his eventually-attained quota of 14.29% consisting of those first preference votes, plus 12.44% of the overall vote as valid transfers to him from votes for other candidates in his party (0.03%), plus other candidates outside his party whose progress totals in the count remained lower than his throughout the count (12.41%), and who were unsuccessful. Senator Helen Coonan's misconceived threshold proposal to prevent this consequence of persisting with the concept of Group Voting Tickets was unfair, and was fortunately never implemented.

The percentage of below-the-line Senate voters in NSW and Victoria reached about 4%, but in the two Senate electorates where Hare-Clark is used for Assembly elections, Tasmania and the A.C.T, the awareness by many voters of the merits of an untramelled quota-preferential PR with Robson Rotation kept the below-the-line vote at a far healthier figure of about 20%, which helped avert some of the worst effects of Group Voting Tickets in distorting electoral outcomes. Group Voting Tickets' discrimination against voters that do not want to vote that way or that do not investigate the preference order they represent, and those tickets' consequent undermining of the Constitution's ideal of direct elections justified abandoning this distorting influence on Australia's democracy. Informal voting is far more satisfactorily reduced by moving from the Senate's virtually full preferential voting to at least a partial optional preferential system.

Challenge in the High Court, to one aspect of Group Voting Tickets in the important, but inadequately resourced, 1984 case of Cyril John McKenzie failed. A 2016 article in The Canberra Times advocated a new, properly resourced challenge that would feature the weaknesses that some 30 years of use of group voting tickets has revealed. The 1999 case of D K Ditchburn also failed. Above-the-line Senate voters' task was far less onerous, and they were far less likely to vote informally, than below-the-line voters, as formal above-the-line votes required just a single mark, whereas below-the-line votes had to have nearly every box marked correctly. Partial optional preferential voting below-the-line, which has long applied for NSW Upper House polls, now also applies for Victoria's Legislative Council and, since March 2016, to the Senate.

An aspect of the Group Voting Tickets provisions that was not raised by litigants in the above High Court challenges, but would seem to be in marked conflict with the direct election requirements of Section 7 of the Constitution, and could have been the subject of a future such challenge, is that Section 272(2) and Section 272 (3) of the Commonwealth Electoral Act 1918 allowed a group to lodge two or three different tickets, to which effect had to be given at the scrutiny in accordance with that Section by a random allocation of ballot-papers that allot that ticket to each of the two or three groups equally. Section 272(4) and Section 272(5) made provision for cases where such effect cannot be given for any reason (which might include a successful High Court challenge). That latter sub-section provided that, in such cases, later preferences - beyond the point where the earlier preferences are identical for all relevant ballot-papers - had to be disregarded and be of no effect. No elector voting in that way could be certain that his or her vote - beyond the point at which the preferences in corresponding multiple Tickets differed - would directly elect any of the candidates there, whereas it might have if that provision for multiple Tickets had not existed. Senator Robert Ray spoke on this matter in the Senate. Western Australia, which is alone among the States in having a constitutional requirement for direct election, has chosen to provide for single Group Voting Tickets only.

The Greens Party leader, Senator Bob Brown, introduced his Commonwealth Electoral (Above-the-Line Voting) Amendment Bill 2008 in a failed bid to have the above style of above-the-line voting replaced with a system where above-the-line voters would, for a valid vote, indicate their preference between groups by numbers in the squares above-the-line. See Senator Brown's second reading speech. Each square would relate to its party's candidates only, in an order the party lodged, and no party or group could lodge a preference order to be given effect to except for the candidates of that party, rather than the predetermined ordering of a voter's entire ballot that Senate Group Voting Tickets used to entail.

The Greens' Bill would have greatly undermined the ostensible rationale for introducing those Group Voting Tickets, which was to minimize informal ballots and avoid exhausted ballots, even at the expense of assuming, implausibly, that each above-the-line voter would know where his or her preferences were actually being transferred. The NSW Act, since 1999, has provided that the marking of later preferences in above-the-line party squares is fully optional, but in Bob Brown's Bill such marking was partially optional, as normally four party squares would have to be marked for an above-the-line vote to be formal, which would have increased the incidence of informal ballots. In each of those above-the-line cases, unlike the Senate Group Voting System introduced in 1983, many above-the line ballots were likely to become exhausted. For below-the-line votes, Bob Brown's Bill required full preferential marking, unlike the NSW Act, which has always provided, as has Victoria's, for partial optional preferential voting.

The Bill failed to move towards even partial optional preferential voting for below-the-line voters. Once the manipulative effects of above-the-line voting became strikingly evident at the 2013 elections, Bob Brown presented a case for his 2008 Bill to be pursued, but that showed no improvements for, but discrimination against, those choosing to vote directly for other than tickets, who can only vote below-the-line. Bob Brown erred when he suggested that below-the-line voting could be abolished, as the High Court has declared that it must be retained in order to comply with the direct election requirement of Section 7 of the Constitution. Voters exercising that right below-the-line found the lack of optional preferential voting there gave them a much harder task than above-the-line voters, with more risk of inadvertently voting informally.

Senator Nick Xenophon of South Australia introduced a 2013 bill similar to Bob Brown's, but it differed by proposing optional preferential voting below-the-line. A 2015 article in The Canberra Times by Senator Xenophon let him explain his bill, and Malcolm Mackerras's two telling analyses of his bill's unacceptability can be accessed by a hyperlink in that article, and an article on 18 January 2016. A letter by PRSA President, Bogey Musidlak, on 14 January 2016, gives the PRSA view.

In election campaigns under the Greens' and Senator Xenophon's proposals, party operatives would still ply voters with how-to-vote cards urging them to vote above-the-line. That pressure on voters to refrain from marking their own below-the-line ballot would still be heavily re-inforced in the Greens' bill by the existing and daunting unnecessary requirement for voters below-the-line to mark a preference for virtually every individual candidate, regardless of how many there are (110 candidates appeared on the NSW Senate ballot-paper in 2013). Senator Brown's Bill would unfortunately not have abolished the political parties' self-serving party-oriented above-the-line device in respect of any particular party's block of candidates, and would have also failed to remove the then daunting and unjustifiable requirement for below-the-line voters at Senate elections to mark virtually every square in order to be able to cast a valid vote. The Bill was thus not even-handed, nor did it make the workloads of both categories of voter more equal. By contrast, for Victoria's upper house ballot-papers, the minimum number of preferences to be marked for a formal below-the-line ballot is equal to the number of positions to be filled in the electoral district involved, and in NSW only 15 preferences need to be marked, although there are 21 vacancies to fill.

A major recommendation of the Joint Standing Committee on Electoral Matters in its Final Report on the 2013 Federal Election was to amend the Commonwealth Electoral Act 1918 to discontinue the provision for Group Voting Tickets, and to replace the present formality requirement for below-the-line votes to show full marking of virtually all preferences with a requirement that only a number of preferences equal to the number of positions be filled need be marked. It was proposed unfortunately to maintain an above-the-line option, but to replace its existing form by a so-called optional preferential vote for a block of candidates, to be grouped by party in the party's preferred order, much as in Senator Bob Brown's bill above. The Turnbull Liberal Government made commendable improvements to the Act in March 2016 to adopt that above-the-line option, and also partial optional preferential voting below-the-line, for a minimum of 12 preferences to be marked for a ballot to be formal, which was the first time such a mild formality requirement had existed for Senate elections since 1934, despite attempts to achieve that by the Menzies Opposition in 1948, and the Whitlam Government in 1974 and 1975.