Criticism of the Parliamentary (Constitution Reform) Bill
Overview
This document contains criticism of the electoral provisions of the
Parliamentary (Constitution Reform) Bill,
2003, introduced into the Victorian Parliament in February.
Our
submission to the Victorian Constitution Commission provides
background material.
This document was last updated on
Sat Mar 29 15:32:54 EST 2003
Proportional representation is long overdue for the Legislative Council,
and the Bill should be praised for introducing entrenchment of some
provisions and optional preferential voting. However, there are also
many unsatisfactory aspects of the Bill.
Casual Vacancies (Clause 9)
Filling casual vacancies by party appointment violates the fundamental
democratic principle that all MPs should be directly elected by the
people. This principle is worthy of entrenchment in The Constitution,
as has been done in Western Australia. A joint sitting of both Houses of
Parliament is farcical when the party nominee must be chosen.
Furthermore, this clause fails to deal adequately with the many things
which can happen to political parties between an election and a casual
vacancy arising. Parties can cease to exist and can split and the
rightful voice of the party can be disputed. Even the simple case of a
party changing names arguably precludes a party member replacing a
member of that party - depending on the precise legal interpretation of
sub-section (3).
The clause also imposes no time limit on the filling of a casual
vacancy, and has no remedy if the joint sitting fails to decide on a
replacement by the specified majority. If a government has a very slim
majority which is eroded by the creation of a casual vacancy, the
opposition may be able to prevent the vacancy being filled.
A democratic, well-tested and low cost alternative is the Hare-Clark "countback"
method used in the ACT and Tasmanian Lower House. Countback was proposed by
Craig Ingram as an amendment to a Bill in the government's previous term of
office, and was accepted by the government. The assertion by the Constitution
Commission that the cost of storing ballot papers is a significant impediment to
countback is laughable. Countback has been used in Tasmania for almost a century,
and though the number of ballot papers is relatively small, the resources of
Tasmania are relatively even smaller. With electronic counting of votes, as is
done in the ACT, the data can be stored on a single compact disc and the result
of a countback available within minutes of the statutory deadline.
Group voting tickets (Clause 27) - General Objections
Group voting tickets introduce an unnecessary and unwanted distortion into
the electoral system. They are not voter-friendly and although many voters are
lured into saving a relatively tiny effort every four years, the
longer term consequences are bad for voters.
-
Group voting tickets are unnecessary.
They were introduced to reduce informal voting in senate
elections, where there was compulsory marking of all preferences. The Bill
proposes optional preferential voting for the Legislative Council, with only
five preferences required. The level of informal votes is thus likely to be
small. Legislative Assembly elections with five or more candidate are not
uncommon but the level of informal votes is not considered a significant problem
- the Bill does not seek to change the rules for Assembly elections.
-
It has been argued that group voting tickets will reduce confusion because they
are used in Senate elections. The use of ballot papers which look similar to
Senate ballot papers and have similar instructions to voters will actually
increase confusion because the instructions are not the same:
optional preferential voting is allowed "below the line".
-
Candidates should be fairly elected on their merits, as judged by the voters.
Under Hare-Clark with Robson rotation, all candidates have an equal
footing and it is the voters who decide who gets elected. With group
voting tickets some candidates are virtually assured of winning from the
outset.
-
MPs should be primarily representatives of and accountable to
the voters. Groups voting tickets make them
primarily representatives of and accountable to parties.
Their election depends primarily on their position on the group voting
ticket, which is determined by their party or a faction within the
party. The voters' opinion of the candidate is generally of
little consequence.
-
Voters should know who they are voting for. With group voting tickets,
parties actively discourage voters expressing
preferences for individual candidates. Most voters don't know who their
vote ends up electing (Clause 30, "Group voting tickets to be
displayed" is based in Federal legislation which has clearly failed to
solve this problem). This encourages large numbers of candidates to
run and try to ensure their election through back-room deals with other
candidates and parties rather than appealing to the voters (as seen in
the NSW Upper House).
Group voting tickets with optional preferences (Section 69B)
Note: since the Bill was ammended this section no longer applies
The Bill allows for group voting tickets which only specify five preferences,
rather than preferences for all candidates. This is an untried and potentially
dangerous combination which can lead to many wasted votes. If parties
take advantage of this provision, filling the last vacancy in each five member
electorate (the only vacancy for which there is any real contest) may
end up like a "first past the post" election with correspondingly
undemocratic outcomes.
For example, with two major parties obtaining slightly less than 2.4
quotas of votes and two minor parties obtaining slightly less than 0.4
of a quota, more than a quota of votes would become "exhausted" and
hence wasted. A group of "micro-parties" and/or independents who trade
preferences would be successful with 0.4 of a quota, only a slightly
higher percentage of the votes than that required (and obtained) in the
farcical 1999 NSW Upper House election.
Although such vote wastage is also theoretically possible
under Hare-Clark, in practice it does not occur. A large number of
voters put preferences for more candidates than the number of vacancies,
there is a much greater spread of preferences amongst different
candidates and groups and the vote counting rules are designed to
reduce vote wastage due to exhausted votes. With the system proposed in
the Bill, however, it is likely a high very percentage of voters will vote
"above the line", regimenting their votes and giving control over the number
of preferences to a handful of party power-brokers.
Expressing optional preferences (Clauses 33 and 35)
The wording of the requirement for voting below the line,
Section 93A(2)(b), is flawed (or
at least unclear). The same wording is used in relation to group voting
tickets. The sequence 1,2,3,3,4,5 is (arguably), "an unbroken
numerical sequence" and is thus allowed. It is doubtful that the intention is
to allow these "Langer-style" votes.
Vote counting rules (Clause 39)
The vote counting rules are long and unclear and could certainly be
improved.
Candidates tied for the last vacancy
When there is one remaining vacancy to fill and two continuing candidates with
the same number of votes, the Bill proposes two conflicting procedures:
114A(18) states "the result is to be determined by lot" whereas 114A(25)
specifies a different procedure. Neither subsection apparently overrides
the other.
Transferring surpluses
The procedure for dealing with surpluses, sub-section 114A(7), can
violate the "one vote, one value" principle. Also, it does not reduce
vote wastage due to "exhausted" votes. Technically better rules exist,
for example, those used in the ACT.
Computerised vote counting
The Bill makes no allowance for computerised counting, which is used for
the Senate, the ACT and in some local government elections in Victoria.
With computerised counting it is much easier to implement technically
better counting rules, including countback for filling casual vacancies.
Lee