Greens' senate reform spin is sweetened nonsense



And so it is underway. A High Court challenge has been announced by Senator Bob Day of the Family First Party and Liberal Democratic Senator David Leyonhjelm to the constitutional legality of the electoral reforms that last week kept Canberra's entire political establishment up for hours.

David Leyonhjelm and Bob DayThe government's voting reforms, which passed in the Senate with the assistance of the Greens and Senator Nick Xenophon, mean that voters can allocate their own preferences above the line on the Senate ballot paper at any election after 1 July.

If considering below the line voting, electors will have to number at least six squares, a point designed to make sure the vote 'has a reasonable life upon the distribution of preferences'. This effectively puts pay to the idea of group voting tickets, ostensibly eliminating the micro-party preference game.

Day's fighting words centred on disenfranchisement, specifically of 3 million voters. 'The Liberal Party, Nationals, Greens and Nick Xenophon teamed up to get rid of independent senators and minor parties. We think that is undemocratic.'

Prior to the electoral changes, Leyonhjelm claimed that similar reforms to the NSW upper resulted in a 'default to a "one above the line" choice for vast numbers of people, which will mean everyone who votes for anyone other than a major party' will result in that vote's exhaustion.

A point of difference to the current Commonwealth change, however, is that voters in a federal election are required to number more squares than the mere single option in NSW.

The arguments by Day may well be considered dramatic, but they are significant enough to warrant a concern about what will happen in the highest court in the country. In point of fact, when 1375 votes went missing in the official count of the West Australian half-senate election in 2013, the High Court sitting as the Court of Disputing Returns declared the result null, necessitating a re-run.

This unfortunate turn in Australian politics also reflects the continued scepticism, if not outright hostility, of traditional party machines which spout the rhetoric of political gaming as if it were unique to micro parties. Labor's Gary Gray typified this when he expressed unhappiness at his own party's opposition to the voting reforms, suggesting it preferred 'ballot manipulators' and 'pop-up' parties.


"The notion of a 'deal free' environment that manifests actual voting intention is a patent fiction. Party machineries constantly make tactical decisions to preference individual candidates that have policies less opposed than others."


Any suggestion that the High Court challenge will favour the senators should be taken with caution. When it comes to various facets of Australia's election laws, the High Court veers between deferring to parliamentary wisdom and occasionally questioning it.

Such jurisprudence as that on freedom of speech is a poor substitute for an entrenched bill of rights provision, and it does not necessarily hold that the bench will be swayed. The High Court remains overly focused on proper procedure, rather than abstract ideas of democracy.

There is also legal authority suggesting that Day and Leyonhjelm are barking up the wrong constitutional tree. 'The argument about disenfranchisement is plainly wrong,' wrote Anne Twomey dismissively in The Australian on Monday.

Twomey's arguments betray a curiously limited view of the Senate system, largely in the way they privilege the dominant parties as wise, non-manipulative and sound. Such reforms, she argues, actually eliminate 'above-the-line preferences ... dictated by party powerbrokers'.

Additionally, 'no longer can voters be deceived by backroom preference deals that cause a vote for one party to be used to elect a person from another party with completely opposed policies'.

The notion advanced by Twomey of a 'deal free' environment that manifests actual voting intention is a patent fiction of the Australian political system. Party machineries constantly make tactical decisions to preference individual candidates that have, if not opposed policies, policies less opposed than others.

This phenomenon is repeated at every election, often based on personal matters between candidates veering between the self-serving and sordid.

The very notion of a preferential system is one that diminishes the strength of a primary vote in favour of a secondary one that accepts that second-best is necessary. While the first-past-the-post system is decidedly iniquitous, the preferential system has not served to eliminate its own set of problems.

The idea that these laws are, in Twomey's words, 'more conducive to representing the genuine choice of the people in electing their Senate' is untrue. It is a view expressed by Greens leader Senator Richard Di Natale, who suggested 'the Senate that's delivered after the next election is the one people vote for.'

What these voting reforms serve to do is give the false impression of eliminating manipulation while diluting Australia's political base in favour of monochrome party politics.

Di Natale's argument that this 'strengthens our democracy' by a redistribution of power to the elector is sweetened nonsense. The Senate will cease being a forum giving expression to voters angered by parties who have estranged the electorate, rather than embrace it.


Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Topic tags: Binoy Kampmark, Senate voting reforms, High Court, Independents



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Existing comments

The author can only make this point: "What these voting reforms serve to do is give the false impression of eliminating manipulation while diluting Australia's political base in favour of monochrome party politics." Wrong: we're not so naïve as to think that politicians aren't manipulators, and if you think the mainstream parties are monochrome then it's because you can't see a difference between Abbott and Turnbull, or Gary Gray and Albo. The changes don't make for a perfect system, but they are certainly an improvement.

Russell | 22 March 2016  

If voting for the party of your choice above the line is not a form of group voting, what is it? How come Michaelia Cash was elected (and appointed a minister no less) while receiving less primary votes than Ricky Muir?

Denis | 23 March 2016  

This article adds little to the conversation. It is simply unsupported assertions. I do not think that the changes eliminate manipulation but simply make it more transparent. The backroom deals on preference swapping had become a joke. At least I will be able to determine where my preferences are going.

Malcolm McPherson | 23 March 2016  

yes, there is a problem with a political class self selecting to the Senate, but the existing system means voters don't know where their vote goes if they vote above the line - and in my mind that is even less democratic. I think we've got a pretty good bunch of crossbenchers this time, but it's a lottery. If we want to have a random process to generate a diverse crossbench then secret backroom deals between political parties is actually not the way I would like it to work.

Roland | 23 March 2016  

The reformed system does take power away from backroom operators and give us a more transparent voting system. That is unarguable. The results are unlikely to see minor parties exit the Senate - a consultation of psephologists Anthony Green, Ben Raue and Kevin Bonham have made this clear. The previous system was indefensible and a blight on the democratic process.

Doug | 23 March 2016  

Where is the disclosure that Dr Kampmark was on the Wikileaks Party ticket at the last Federal Election as its candidate for the Senate in Victoria? I think that fact places his position on this matter in perspective.

Paul Bolster | 23 March 2016  

The reform is commonsense. Number 1-6 above the line. I disagree with the writer's take.

Robert Colquhoun | 23 March 2016  

It's disappointing reading this article as it takes too long to get to the point it wants to make and then fails the argument when its made. Its a pity as its a significant issue to debate. I wonder what effect the change will have on the number of women in the Senate given that the major parties have been woeful about pre-selecting women candidates. I fear that it will become more and more male and entitled.

Carol | 23 March 2016  

Whether these changes are an improvement in "fairness" or not, Senators Leyonhjelm and Day owe us more than a ritualised High Court challenge. They are in danger of ignoring the political reality that has secured their senate seats: the long-term electoral. failure of the Coalition, Labor and now the Greens to educate and advocate just representation in our parliaments. The Senators should be advocating "root and branch" overhaul of our democratic politics whether they retain their seats or not. Their complaint is at one with the mindless self-interest of our "political elites" now that political parties function as dumbing-down public relations firms committed to brokering their own self-preservation. Where are the well-elaborated and comprehensive policies that invite citizens to be full participants in political discussion about long-term electoral reform? Where are the political parties willing to work for such long-term reform without compromising their political principles in order to gain ground short-term? We not only need an overhaul of our system of parliamentary representation; we need parties that invite debate about how a party should be busy serving the common good. Such ballot changes, and High Court appeals bring us no nearer to just representation in our parliaments.

Bruce Wearne | 23 March 2016  

Dr Kampmark misses the point in many of his assertions. For example, the fact that major parties determine preference deals is only relevant to those who vote according to the ticket those parties print or, as has been the case for some time, for those who vote above the line in the Senate. Voters can choose their own preference order in the lower house but, if they wish to vote above the line in the now defunct system, can only do so for one party. The "deals" then swing in (as they do for the micro parties). It has always seemed obvious to me that it should be possible to apply a preferential vote above the line in the Senate and that this would necessarily be a better reflection of the voter's intent than the single vote under the old system. I also disagree with his notion that preferential voting diminishes the strength of a primary vote. How, exactly? There is no explanation for that assertion and I think it is patently wrong. Preferential voting means people don't waste their vote. I can support a candidate who is independent or from a smaller party to indicate my beliefs but can order my preferences to go to other parties. First past the post or majority systems don't allow for that. Under these systems, voting for an independent who is unlikely to win wastes your vote. In terms of the lower house, I think the Hare-Clark system used in Tasmania is an improvement on what we currently have. In terms of the Senate, I think these changes will allow voters to control their votes, which wasn't possible before if they voted above the line. Surely that's an improvement.

ErikH | 23 March 2016  

I was disappointed by this article: the strident claim of its title lacks a strong supporting argument. If this forum had Support/Reject indicators for each comment, I'd wholeheartedly support the comments of Malcolm McPherson and Robert Colquhoun. Most enlightening of all, I thank Paul Bolster for spotlighting the biased nature of this opinion.

Bob GROVES | 23 March 2016  

Well said, Binoy! In the 1950s we were warned against any country with Democratic in its name. In 21st century we should beware of Presidents who go to war to spread Democracy and politicians who alter voting systems so that the voters are not confused. Self-interest can be cunning, baffling and powerful.

Uncle Pat | 23 March 2016  

In response to a number of comments, the changes solidify the parties' access to the senate and largely eliminate wildcard independents. Parties command and demand a block vote, often leading to poor legislation. (The ALP has a rule compelling the vote for a caucus decision; I don't know about the Libs, Nats and Greens rules. As I could not vote independently of a party, I could never belong to it). Independents make negotiation happen, and, we hope, cause legislation to be improved. Apart from all that, what is the difference between a party determining a ticket behind closed doors and a "preference whisperer" doing the same thing?

Peter Horan | 23 March 2016  

So many arguments against the change are based on a perception of what will happen as a result, rather than any acknowledgement of the rights of the voter. Surely my preference is just that, mine to allocate, not for anyone else to do it for me, or even have a hand in it. As for the legal argument that this is "voting for a party and not for an individual as required by the constitution", I fail to see how the past system - no preferences above the line at all - was not much more vulnerable to this charge.

Bill Venables | 23 March 2016  

the worst reform ever was introducing voting above the line at all: If we had sufficient numeracy, and thoughtfulness, voters could turn their minds to whom they want least and whom they want most and everyone in between - I never miss the opportunity to indicate MY preferences

Anthony Grimes | 24 March 2016  

Thank you for at least taking up this issue. The old system was far from perfect but the new system is simply going to entrench a smaller number of dissident voices as most will vote along party lines. I thought the timing and the rush for a double dissolution simply proved the point that his was an inglorious grab for control of the senate. Ironically it is these loose cannon senators that are actually using the senate as a house of review which it was supposed to be. I'm simply disgusted.

Marie Ryan | 26 March 2016  

While I regard the changes as a net improvement, they do not address the imbalance in recourse, and therefore access to the electorate, that remain. Although parties and candidates will no longer be able to direct the preferences of those who vied for them above the line, they will still be able to influence them by distributing 'how to vote' cards. The major parties will have the resources to be able to do this everywhere, the minor parties and independents will be severely restricted and therefore in a much weaker position to encourage their voters to preference other minors. Nor do the new rules prevent major parties referencing their own candidates in a particular order. Our preferences will only really be our own when we adopt the Tasmanian system where candidates are not grouped but listed in random order on the ballot paper and in different order on each ballot paper. That way, WE, the voters, have to chose the people we want in the order we want.

Ginger Meggs | 29 March 2016  

A very odd peice of writing and analysis -the reforms at the simplest put the preference whisperers out of business and give voters choice -the Greens showed leadership in contrast to the personal interest driven cross benchers elected by rounding errors

David cornwell | 08 April 2016  

Thank you for your thought provoking article. I am pretty incensed by these self serving changes brought on with such indecent haste.

Marie Ryan | 13 May 2016  

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