A list order change under Australian Senate rules

The voters in Tasmania have pushed a Labor Senator up the ranks and she will be reelected ahead of other candidates of the party.

Under the old system, most voters cast ticket votes, making the order of election in any given party more closed list than open or STV. Now, voters can rank “below the line” without having to rank all candidates. (Alternatively, they can rank parties “above the line”.)

The article notes that Tasmanian voters have tended to vote below the line more than voters in other states, anyway (probably because they use STV for their state assembly).

There are also some strange ballot rankings above the line. ABC says, quoting Polling analyst Kevin Bonham:

I’ve seen cases like people voting One for the Shooter, Fishers and Farmers, and Two for the Animal Justice Party, two parties that are more or less totally opposed to each other in the views. I saw people voting for the Sex Party, then Family First – one exists to basically negate the other. People are viewing parties in quite a strange way.

89 thoughts on “A list order change under Australian Senate rules

  1. The early counting appeared to show a change in list order among the Liberals as well, but that has now faded away.

    • Any number of people who were absolutely certain that the reform would lead to mass disfranchisement and a takeover of the senate by the major parties, accompanied by floods, fire, storms, Lake Burley-Griffin turning into blood, plagues of locusts and the death of every firstborn in the country seem to have fallen surprisingly quiet since the election.

  2. Maybe they are just raising a Turkey, I heard with STV, one can do that with there vote, by voting for candidates they don’t expect to win because the vote will later transfer. I am not sure if that is true or not.

    • You’re right, some tactical voting does occur. It’s the opposite of the UK version, where (eg) a Green voter will vote Labour because the Green candidate has no chance of coming first or second. With AV, a Labor voter may give their first preference to the Greens as a way of signaling that they want the Labor Party to move leftwards (on climate change, same-sex marriage, etc). The same voter, however, might not vote for the Greens if it were a PR election and their vote was likely to elect someone from their first-preference party. (Which means it’s still “tactical” voting and not “strategic”).
      Having said that, votes for Australian minor parties are usually higher in the PR-elected upper houses than for the lower houses (even with AV), so the number of protest voters who take this option is presumably small.

      • One would think with “raising a Turkey” because of the preferential nature of STV/Alternative Vote, that would lead someone to use their first Preference to vote for a more extreme political party but later preferences are for more moderate parties. Why is there this perception that preferential voting whether in SMD or STV using MMD leads to moderation?

      • Tom, I suspect that higher votes for minor parties (especially the Greens) in the House than in the Senate has more to do with the higher number of candidates for Senate seats than House ones.

        For example, in my own electorate of Gelibrand, the Green House candidate has 21.5% of the vote, while the Green Senate ticket only has 16%. However, if you add up the votes of the minor parties I would consider somewhat sympathetic to Green aims (including but not limited to the Marriage Equality Party, the Sex Party, the various socialist groups, and the Animal Justice Party), you get about 21.8%, which is where I suspect that excess is hiding.

      • The moderating effect of STV is not so much that people use first preferences, like the French, to vote their heart and then later preferences to vote their head. It is that campaigns are limited in how much they can offend the electors for other campaigns because they may need their preferences. Equally, minor parties and independents get a place at the table in the negotiation of preference recommendations.

        Logically that does not give STV an advantage over FPTP but over any system of truncated voting* where the electors are denied the right to vote more than 1 preference. See, for example: The Single Transferable Vote and Ethnic Conflict: The Evidence from Northern Ireland, 1982-2007

        A second, and less obvious, moderating effect, began to emerge in this election in Tasmania. If parties can no longer dictate list order than the practice of putting extreme ideologues like Corey Bernardi in SA at the head of the ticket no longer works to the party’s advantage.

        *Truncated voting includes FPTP, MMP, any closed list system and a number of other voting systems

  3. Today’s edition of The Australian tells us that Tasmanians now using the Senate voting system as it was originally intended is “unprecedented” (“Voters buck tickets to pick senators”, 26/7), but, in 1949, they elected the No. 4 Liberal candidate (the famous Reg Wright, who had 22.9 per cent of the total vote) before the No. 1 Liberal candidate. The Nos. 1, 2 and 3 candidates were eventually elected. They elected the No. 4 Labor candidate (the famous George Cole, who had 8.1 per cent of the total vote) before the No. 3 Labor candidate, who was not eventually elected.

    It is the uncontroversial removal of compulsory preferences after the first six below the line, not the introduction of optional preferences above the line or the dishonest instructions on voting requirements or the scandalous discrimination in the definition of formal votes for those who vote below the line as opposed to those who vote above the line, that has give voters the confidence to seek this result.

    • I think the ‘unprecedented’ comment has more to do with this being the first case of a Senator elected outside ticket order with above-the-line voting. I would also argue that there is nothing unusual in Australian electoral law about savings provisions being hidden, and that encouraging voters to cast larger numbers preferences is a worthy enough aim to justify this.

      • 1. I’m prepared to amend my “since 1948” column to “in the past 66 years” rather than “in the past 68 years”.
        2. What the Tasmanians (not surprisingly) have accomplished can now be easily followed by voters in other states. It was effectively impossible when the Karl Bitars of each party were handed a million or so notional proxy votes up their sleeve to trickle down the ticket in fixed order.
        3. If anyone can find me a voter for the DLP-Sex-Party-Hanson-FF-Animal-Justice Coalition who can persuade the High Court that it was an intolerable burden for them to write the numbers 1 to 6 on a ballot paper, thus depriving them of the benefits that all-candidate one-in-the-box ticket-voting delivered to the Australian polity between 1984 and 2013 (Peter Garrett loses with 9%, Robert Wood gets in with 1%), I will buy that person a six-pack.
        4. I didn’t vote or wouldn’t have voted for Hinch or Hanson, but I had at least heard their names before they were seated as Senators. Their winning seats was not a lotto draw.
        5. Senate elections until the 1970s had only two or three dozen candidates. There were more Senate candidates for twelve seats in NSW alone in 2016 than there were candidates for all 30 Senate seats across Australia in 1948. Change the scale = change the character. Having to number 15 or 20 or 25 squares (even if any repeated or skipped numbers invalidates the ballot-paper) is not an undue burden on the right to vote. But now the number of candidates has grown – thanks in large part to ticket-voting. Having to number 100 or more squares (with very little margin for error) is an undue burden. Full-preferential is not scaleable to large numbers of candidates, and trying to plug the gap with “deemed” full preferences – phantom voters whose preferences exist only on paper, like Gogol’s “dead souls” – is not a fit substitute

      • I would have agreed with you before the debate on the electoral reform bill. There was a massively adverse reaction to both savings provisions on social media that could endanger popular confidence in the electoral process. Logically, the right to express more than one preference has to include the right to express a single preference.

      • According to Ben Raue only 2.8% of votes exhausted and the twelfth candidate was elected on 80% of a quota. Proclaimed fears that the changes would disfranchise electors or amount to FPTP have proved, in Tasmania at least, to be so much hot air. It will be interesting to see if that figure holds for other states.

      • Henry,

        The article does not mention “this being the first case of a Senator elected outside ticket order with above-the-line voting”. It says said, “Voters are using the new Senate system in unprecedented numbers to protest against factional selections within the major parties, to defying voting directives and to embarrass sitting Senators.”

        Whether so-called savings provisions are hidden or not or unusual or not does not justify the AEC telling voters they must vote in a particular way when there is no requirement for them to do so at all.

    • According to Kevin Boneham’s excellent analysis of the Tasmanian outcome.

      Singh is the first candidate to buck a ticket order and win election to the Senate since Labor’s Bill Aylett in 1953. Australia first adopted a proportional-representation system for the Senate (without above the line votes) at the 1949 federal election, and at the first three such elections Tasmanian candidates (sometimes on both sides) bucked the ticket order – in some cases because their parties deliberately selected them down-list for strategic reasons. However after the first few runnings of the system, this stopped happening, and under the “group ticket voting” system brought in by Labor under Bob Hawke this became effectively impossible. The new system gives the power back to voters to overturn bad party preselections.

      The major party takeover of the senate that was predicted by the opponents of reform did not happen, and I suspect this list order change will effect the way tickets are constructed across the country.

      • Since 1953!

        Well, the electoral system change matters, apparently. I assume this will become (at least somewhat) more common. And, as Alan says, knowledge that it can happen is likely to affect how parties make up their tickets in the future as well.

      • Take a look at the list of candidates for the 1953 Tasmanian Senate race: https://en.wikipedia.org/wiki/Candidates_of_the_Australian_Senate_election,_1953#Tasmania

        Thirteen names. Count ’em, thirteen. And for six seats, the exact same number as at the bed-sheet-ballot elections between 1990 and 2013. (The first five candidates to reach quota got six-year terms, while the last one in got to fill a casual vacancy for its remaining three years. This was before Senate by-elections were abolished by the 1977 constitutional amendment).

        The 2016 system of semi-optional Senate preferences (“number at least 12 candidates”) would have been indistinguishable from full mandatory preferential voting in this situation.

        If Chris wants to cite Tasmanian examples from seven decades ago as evidence that it really weren’t no thang for voters to re-arrange the party lists’ order under the pre-2016 system, I submit that there’s an issue of scaleability here.

      • Tom,

        Sorry, my previous reply was meant to be to your post higher up.

        You can’t even correct a factual mistake these days without being dragged into some post-modern, deconstructionist typhoon.

        The article said the election of a senator out of the party’s order was “unprecedented”. I pointed out it was not by quoting two examples. I didn’t go into the reasons. The mistake exists irrespective of the reasons.

        The other general point I will make here is that we have not seen the effects of the Coalition-Greens-Xenophon deal in a normal half-Senate election yet.

      • At some point, Chris, someone will calculate exactly what the results of this Senate election would be for only six seats. However, given the fact that the vast majority voters (at least in TAS) appear to have followed the instruction of the AEC and parties to number six boxes, Jacquie Lambie’s 8% would probably be enough for her to be re-elected, as would be the case for Hanson in QLD and likely Derryn Hinch in VIC.

      • Henry,

        I guess somebody with access to all the AEC primary data will do so one day, and it would be very interesting, but we would have to consider that there would be fewer candidates in a half-Senate election and thus some unpredictable differences in the result. There has been talk of using a little-known provision of the Electoral Act to recount the ballots officially as if there were only six vacancies in each state to determine who gets the long Senate term and who gets the short ones, but that would count would exclude anytime who was not in the 12 elected by the real count. My own view is that each party should simply split its senators in half, but that produces a problem with parties that have uneven numbers of senators. The problem can be solved in a fair way, but will it?

    • Tom,

      1. You’ll have to amend your comment to say “in the past 63 years” as similar events occurred in both the 1951 and 1953 Senate elections.
      2.What the Tasmanians have accomplished could easily have been followed by electors in other states in 1949, 1951, 1953, 1955 and so on in al elections with small numbers of candidates, but it never was. While optional preferences make it easier, it’s really how much the electors care that will determine if it will be done or not.
      3. I can’t imagine anyone seeking to claim that putting the numbers 1-6 on a ballot is an intolerable burden and have never heard that argument made.
      4. No one has ever won a seat on a Lotto draw. Every senator ever elected, whether you have heard of them or not, has been elected by a precise mathematical formula. No one has ever had to vote above the line. Everyone has been free to vote below the line, as time-consuming as it is.
      5. I agree that is unreasonable to expect people to number 100 squares, even though I do so myself, but it is possible to make preferences optional after a certain number below the line while also tightening party registration and nomination fee requirements and keeping the convenience of group voting tickets.

      • Chris
        I agree with you 100% that group voting tickets are convenient. However, as the Tasmanian example lays bare for all to see, party diktats in regard to preferencing are blatantly unrepresentative of the interests of voters. At this election, party preference orderings were given out to voters, in the form of how-to-vote cards. The share of voters following these cards ranged from 12% to 0.1%. Even for a how-to-vote card that would be in the hands of most voters, the Labor one, only 2.8% of voters followed the preferencing instructions. Under the previous system, this, plus more, would be considered to be the preference ordering of all voters who voted Labor. There is much more to elections than convenience.

      • Henry, I agree with you 100% except for language. Elections are not about the ‘interests of voters’ but but about the will of voters. The ‘interests of voters’ crowd are those in the ALP who argued that the electoral reform would disfranchise the electors when actually they were concerned about their own ability to impose party diktats. the special minister of state’s crack in the senate that Stephen Conroy is the national secretary of the backroom political operators union still gets me smiling.

        Some of the commentary about the Tasmanian result has been quite strange. For example some in the media have sniffed about the 18% of Liberals who voted Labor their second preference.

        If you believe strongly in a two-party system, and that’s a valid political choice, voting 1 Liberal 2 Labor is a completely rational expression of your political beliefs. STV allows the electors to make those decisions in a way that no other electoral system even approaches.

      • With 1984-2013-style full (inter-party) ticket-voting, all of the party’s ATL votes moved in lockstep one way – or, if they were split two or three ways, it was in arbitrarily equal numbers without regard to the number of supporters who, eg, wanted to preference Labor over Liberal-National or vice versa. Whether a single ticket or two or three split tickets, they were drawn up weeks before a single vote was cast. Whereas abolition of full (inter-party) ticket-voting now means that, if (say) 20% of Greens supporters prefer Liberal over Labor, or if 15% of National supporters prefer Labor over Liberal, then 20% of Greens votes will go to Liberal, and 15% of National preferences will go to Labor. The new system ensures – what’s that phrase again? – “proportional representation” of the minority faction within each party, based on votes actually cast by living, breathing human beings; and as a supporter of this “proportional representation” idea I think this is a good thing. Now, if (say) 784,296 votes are counted as transferred from One Nation to Liberal or from Animal Justice to Labor, this will be because 784,296 people wanted that, not because five or six people wanted that.

      • Henry,

        We have been over this ground many times. I have no problem with parties doing deals that they see to their own overall advantage on group voting tickets as long as voters are not intimidated into voting above the line by the difficulty of voting formally below the line. Having optional preferences after a certain number below the line solves that problem.

        I’ll reserve judgement on how many followed the party tickets until all the results are in.

  4. Lisa Singh has been re-elected to the Senate, ahead of ticketmate John Short, off 6.12% of the primary vote. However, Richard Colbeck was not elected; he received only 4% of the primary vote, and finished below the One Nation candidate, allowing the second Green Nick McKim to be re-elected.

    • (It is also worth noting that McKim only ended up 141 votes ahead of One Nation in the contest for the final seat, though Colbeck was excluded behind One Nation by a much larger 1,218.)

  5. The preference flows from the Tasmanian senate count demonstrate that the decisions of parties and voters in relation to preferencing are substantially different. This site shows how voters from different parties cast their first six preferences, and it is substantially different to the way parties, especially small parties, drew up their how-to-vote cards. For example, the Australian Recreational Fishers Party recommended people vote 2 Renewable Energy, 3 Green, 4 Shooters and Fishers, 5 Sex, 6 Lambie, and a whole 44 people (or 2% of the party’s ticket vote) followed those recommendations. Under the old system, everyone who voted Recreational Fishers would have followed that ticket automatically. The Renewable Energy Party had an even lower follow rate: only two of their voters (yes, two, or 0.2% of their ticket vote) fully followed the party ticket.

  6. WA Senate results (unconfirmed) sent to me by a friend:
    1 Cormann (LIB)
    2 Lines (ALP)
    3 Ludlum (GRN)
    4 Cash (LIB)
    5 Sterle (ALP)
    6 Smith (LIB)
    7 Dodson (ALP)
    8 Reynolds (LIB)
    9 Back (LIB)
    10 Pratt (ALP)
    11 Culleton (PHON)
    12 Siewart (GRN)
    That is 5 Liberal, 4 ALP, 2 Greens, 1PHON (PHON = Pauline Hanson’s One Nation). The Nationals do not run on a joint ticket with the Liberals in WA.

    SA results are also due to be announced today.

  7. The ACT and NTA have each elected 1 Coalition, 1 Labor, precisely as they have at every election since the establishment of territory senators. The territories are a very good argument for why STV districts of even magnitude are a bad idea.

    • While I agree that even magnitude districts are an issue, I believe that the ACT and NT election results are more of an indictment of 2 member districts in almost ANY proportional system. It is just too easy for them to default to “one member from each of two largest parties.”

      • Though the genius of group ticket voting nearly made that ‘1 member of the largest party, and 1 member of a party with 5% support’ in the NT last time, when the First Nations Political Party received group ticket preferences from every single other party running, which could potentially have unseated the Labor incumbent Senator.

      • I believe MSS has commented previously that some systems of proportional representation work better in even magnitude districts.

    • Since the federal Parliament has pretty much untrammelled constitutional power to allocate (voting) federal MHRs and Senators to Territories, even numbers of seats and 1 ALP/ 1 L-NP results not a bug but a feature. If some issue strongly unites all Territorians (or at least 66.667% of them), that’s 2 extra votes against it to zero for. If it’s the usual 51.7% to 48.3% partisan split, their votes cancel out.
      I would not want to see anything other than 2 Senators (no more, no less, as Master Yoda would say) per internal Territory unless and until some kind of fixed algorithm for population-passed Territory/ New State representation is adopted – either entrenched in the Constitution (preferable), or at least agreed as a political convention backed by wide and deep consensus.

  8. SA Senate results:
    1. Simon Birmingham (Liberal)
    2. Penny Wong (Labor)
    3. Nick Xenophon (Nick Xenophon Team)
    4. Cory Bernardi (Liberal)
    5. Don Farrell (Labor)
    6. Stirling Griff (Nick Xenophon Team)
    7. Anne Ruston (Liberal)
    8. Alex Gallacher (Labor)
    9. David Fawcett (Liberal)
    10 Sky Kakoschke-Moore (Nick Xenophon Team)
    11. Sarah Hanson-Young (Greens)
    12 Bob Day (Family First)
    That’s 4 Liberal, 3 ALP, 3 Nick Xenophon Team, 1 Greens, 1 Family First

    • Chris, those figures simply cannot be right. I have the vote numbers in front of me. They are LIB 4.23 quotas, ALP 3.55 quotas, NXT 2.82 quotas, GRN 0.76 quotas, ONP 0.39 quotas, and Day 0.37. I was also assured by no less an authority on the matter than Senator Day that the massive exhaust under the new system would mean that no candidate could possibly beat that fourth Labor candidate on preferences, what with his substantial primary lead and the patent inability of voters to number six boxes.

      • Henry,

        I’m quoting The Adelaide Advertiser on line
        (http://www.adelaidenow.com.au/news/south-australia/bob-day-wins-12th-senate-spot-for-south-australia-labor-and-liberal-senators-out/news-story/ab561f14c51aebce726b9852fb7b52b6). I guess it is possible the media have got it wrong – it wouldn’t be the first time.

        The exhaustion of preferences does not matter so much in a double dissolution election because of the lower quota. The true test of the Senate voting “reforms” will be the next half-Senate election, if they survive that long.

      • Chris, the list of Senators you have elected is accurate. I was merely being facetious in relation to Mr Day’s claims about Senate reform.

      • Sorry, Henry.

        “Facetious” in regard to a politician! I never!

        To go off on a tangent, I’m not sure what holds Family First together. Bob Day is a hard right, anti-worker, anti-union, anti-family (the same thing in my view) Liberal who failed to win Liberal preselection. By contrast, the Victorian Family First senator, Steve Fielding, was pro -worker, pro-union and pro-family. He voted against WorkChoices, the Howard government’s anti-worker, anti-union, anti-family legislation, and for its repeal, though the Greens and the perennial candidate Stephen Mayne lie that he did the opposite. I guess a micro-party’s stances end up being the stances of its only MP.

  9. Victoria Senate results
    1. Mitch Fifield (LIB)
    2. Kim Carr (ALP)
    3. Richard Di Natale (GRN)
    4. Bridget McKenzie (NAT)
    5. Stephen Conroy (ALP)
    6. Scott Ryan (LIB)
    7. Jacinta Collins (ALP)
    8. James Paterson (LIB)
    9. Gavin Marshall (ALP)
    10. Derryn Hinch (DHJP)
    11. Janet Rice (GRN)
    12. Jane Hume (LIB)

    5 L/NP 4 ALP 2 GRN 1 DHJP

  10. Queensland Senate results:
    1.Brandis (LNP)
    2.Watt (ALP)
    3.Hanson (PHON)
    4.Canavan (LNP)
    5.Chisholm (ALP)
    6.McGrath (LNP)
    7.Moore (ALP)
    8.Macdonald (LNP)
    9.Waters (GRN)
    10.O’Sullivan (LNP)
    11.Ketter (ALP)
    12.Roberts (PHON)
    12 Bob Day (Family First)
    That’s 5 LNP, 4 ALP, 1 Greens, 2 PHON

    Victorian Senate results:
    5 Coalition, 4 ALP, 2 Greens, 1 Hinch

    NSW Senate results:
    5 LNP, 4 ALP, 1 Greens, 1 PHON, 1 LDP

    Overall (including ACT and NT):
    Coalition: 30 (down from 33 in the last Senate)
    Labor: 26 (up from 25)
    Greens: 9 (down from 10)
    PHON: 4 (up from zero)
    Nick Xenophon Team: 3 (up from 1)
    Liberal Democrats: 1
    Derryn Hinch Justice Party: 1 (up from 0)
    Jacqui Lambie Network: 1
    Family First: 1

    The Senate is free to determine who gets the six years and who gets the three in any way it likes. A fair distribution of long-term and short-term senators for the states would be half of each, giving the following numbers of long-termers: Coalition 14, ALP 13, Greens 4, PHON 2, NXT 1, to be determined by some fair mathematical formula 2. I have already suggested to Sam Dastyari that those with the highest percentage get the long terms, while those with the lowest percentage get the short terms. You need to use percentages in each state too. Otherwise, the senators from the small states will end up with the short terms and the senators from the big states will end up with the long terms, which will make no sense as each state has to have 6 long-term ones and 6 short-term ones. I think that would give Jaqui Lambie a long term and leave the last long term to be sorted out between an NXT senator, a Green, the LDP senator and Derryn Hinch.

    It will fascinating watching all sorts of people find reasons of high principle to justify why they should have the six-year terms.

      • Alan,

        The Senate is the parties. The Australian people have divided themselves among various parties. They have not said that some of them get to be overrepresented in long-term positions and underrepresented in short-term positions. For the Coalition and Labor to combine to snatch the long-term positions for more than half of their elected senators each would be to deny the vote of the people. In this case this would be the sweetheart deal.

        About one million Senate votes were exhausted under the voting Coalition-Greens-Xenophon voting deal (http://www.theaustralian.com.au/federal-election-2016/federal-election-2016-million-senate-votes-elected-no-one/news-story/dbe0f11adbd08543f8073faf99087ca1). This is a large number, but not as large as I expected. I guess it shows that the overwhelming majority of people couldn’t be bothered voting below the line and filled in lots of squares above the line.

      • Your premise is meaningless. The constitution requires the senate to classify senators.it canted legate that power to individual political parties. Saying the senate is the parties may make great copy but it’s not an argument I would like to make to the high court. Nor would I like to speculate on how we would divide each of Bob Day, Derryn Hinch, Jacqui Lambie, or David Leyonhjelm in half. Adding the requirement under your scheme to also vivisect a Green and an NXT there will be considerably more blood on the senate floor than we have seen since a certain event in Rome in 44BC.

      • Alan,

        As I predicted, here are the Greens complaining and demanding a ‘fairer’ method to share out the long-term positions:
        https://www.theguardian.com/australia-news/2016/aug/05/greens-lee-rhiannon-labor-method-six-year-senate-terms-double-dissolution
        I think they have a case, but the sheer chutzpah of it is galling!

        I can quote some of the paywalled article:
        ‘Senior ALP figures vigorously opposed the electoral reform in March, arguing the law was a ­“disgraceful voting rort” that would “disenfranchise” a quarter of voters who favoured micro-parties and independents.

        ‘But 1,040,865 ballots — equivalent to 7.5 per cent of the vote — were extinguished before flowing to a successful candidate. Far from clearing minority voices out of the Senate, the crossbench swelled from eight members to 11.

        ‘Under the previous law in 2013, 6654 upper-house votes (0.05 per cent) were exhausted before reaching a winning candidate….’

        You can usually get access to three articles in The Oz in any day by Goolging the titles.

        Like you, I am not sure of what they mean by ‘exhausted’.

        I have already explained how I would deal with solo senators and parties with uneven numbers – those with the highest vote get the long terms. The Senate has, with rare exceptions, voted on party lines since 1901. If the parties in it make an agreement on how to divide the terms and then their senators vote to enact that agreement, I can’t see a problem, though I look forward to the High Court having to deal with ‘directly chosen’ again.

    • In general, simply dividing the number of seats by two would not be a totally satisfactory method, as it would leave unclear the issue of which specific Senators would serve the differing term lengths, and it would be unable to deal with parties with odd numbers of elected members.

      Two methods seem the most likely; using the order candidates were elected in (the method that has been used each time the Senate has needed to do this), or recounting the ballot papers as if the election had been for six spots (including only the twelve victorious candidates, for obvious reasons). This second method is specified in the Electoral Act as a duty of the AEC, but has not been used.

      The first method, order of election, would give the following breakdown (3 year term/6 year term)

      L/NP 12/16
      ALP 11/13
      GRN 6/3
      NXT 1/2
      JLN 0/1
      PHON 3/1
      FFP 1/0
      DHJP 1/0
      LDP 1/0

      However, if the second method were adopted, this analysis suggests that the results would be

      L/NP 13/15
      ALP 12/12
      GRN 5/4
      NXT 1/2
      JLN 1/0
      PHON 3/1
      FFP 1/0
      DHJP 0/1
      LDP 1/0

      • (sorry, JLN should be 0//1 in both counts. Also, these figures do not add up to 76, as they exclude non-rotated Territory senators)

      • Henry,

        I do not agree. The parties could easily work which senators serve which terms. The would start by dividing their senators in each state evenly where possible and then negotiate an arrangement for the states in which they had an uneven number of senators. That arrangement would have to take account of the parties whose totals were uneven.

        I can’t see any justification for the use of the order of election. That distorts the public vote by giving some voters overrepresentation in the six-year group and others underrepresentation. Thus, under your figures, the Coalition has 38.9 per cent of all the state senators but would get 44.4 per cent of the long-term senators and only 33.3 per cent of the short-term senators and Labor has 33.3 per cent of all the state senators but would get 36.1 per cent of the long-term senators and only 30.6 per cent of the short-term senators, while the Greens have 12.5 per cent of all the state senators but would get only 8.3 per cent of the long-term senators and 16.7 per cent of the short-term senators and PHON has 5.6 per cent of all the state senators but would get only 2.8 per cent of the long-term senators and 8.3 per cent of the short-term senators.

        I do understand that NXT would have to split 2.8 per cent to 5.6 per cent, but that is an unavoidable variation.

        I also understand that politicians are tempted to put their own advantage ahead of democratic principles, so the Coalition and Labor, as the big players, would be attracted to an arrangement that gave them an advantage over the minor players, but that is why so many people hold politics in contempt. They ought to resist the temptation.

        The second method gives a slightly more balanced result for the Coalition, Labor and the Greens but is still unfair because it distorts the voters’ votes in regard to the Coalition and PHON, both of which can be divided evenly. I can see Greens supporting it because their long-termers go up and Labor and the Coalition opposing it because their long-termers go down.

        I am sure a fair method of allocating the last senator in each unevenly numbered group and each solo senator can be devised, but that does not mean it will be.

      • Having the parties determine which of the senators served long terms is contrary to the constitution which says the senate must make that determination. It is also contrary to the logic of STV. The Australian people have just taken control of their own preferences. This is not the time to ignore their preferences and restore to the parties by the backdoor the power they lost over order of election when the electoral reform was passed.

        The senate has always applied the principle of order of election and almost any other method would give rise to justified accusations of a sweetheart deal.

      • I’d also note that the precise figure for the exhaustion rate is calculated is controversial.

        I took the view that the value of votes that count towards the election of a candidate, and those that are with the last defeated candidate are not exhausted. By this calculation, exhaustion was around 5.22%, around a quarter of Sen. Conroy’s prediction.

        That article also notes that electors can take perfectly rational decisions not to allocate references beyond a certain point.

        Without access to the paywalled figure quoted in the Australian, I cannot comment on what they say.

    • Chris

      As stated, that definition of exhaustion is not uncontroversial. Although have some qualms about the recount method it is in the legislation and moreover has been endorsed by the senate on a number of occasions.

      On 29 June 1998 the Senate agreed to a motion, moved by the Leader of the Opposition in the Senate, Senator Faulkner, indicating support for the use of section 282 of the Commonwealth Electoral Act in a future division of the Senate.[37] The stated reason for the motion was that the new method should not be adopted without the Senate indicating its intention in advance of a simultaneous dissolution, but it was pointed out that the motion could not bind the Senate for the future.[38] An identical motion was moved by Senator Ronaldson (Shadow Special Minister of State) on 22 June 2010 and agreed to without debate.[39]

      Referring to the recount method as a sweetheart deal is a long, long bow. Advocating the bisection method as inherently superior to order of election or recount and then using order of election or recount to decide 6 of the 72 state senators anyway only reveals a certain underlying logical weakness in the bisection method.

    • Classifying the senators by order of election has been the practice followed by the senate after every double dissolution since federation. There is no obvious democratic gain in adopting a new practice that has previously been unknown and removes the choice of longterm senators from the Australian people and gives it to the senate or the political parties.

      The high court would probably not uphold such a practice because of the rule that senators must be directly chosen by the people. It would be a very challenging argument before the court to say that the longterm senators could be designated by political parties or by lot without breaking that rule.

      • On this matter, I would agree with Alan. In order to win a six-year term under normal circumstances, a candidate must win a much higher quota than that won by certain elected members in this double dissolution. I see no reason why this should not be applied when choosing candidates to fill the six-year terms, though I disagree with Alan when it comes to the specific method (I prefer that outlined in the Electoral Act, since it is more representative of candidates who would have actually been elected had this been a half-Senate election).

        As to the exhausted votes, the Australian article Chris linked to is paywalled, but I would be cautious as to whether this figure includes exhaustion at irrelevant distributions, where the AEC has distributed the preferences of a candidate despite the identity of the elected candidates being clear. Kevin Bonham estimated that about 6% of votes actually exhausted, with the inclusion of these irrelevant distributions adding 1.5%.

      • I’d be happy with either order of election or the S282 recount. My only qualm with the recount is what effect the exhausted votes will have, given that the exhaustion rate will increase with the exclusion of all non-elected candidates.

        I’d be happiest of all with a constitutional amendment that specified either order of election or recount so that the rule was fixed before the election.

      • The High Court would not agree to hear the matter. The Constitution commits the decision in clear words to the Senate, and the Court is extremely reluctant to intervene in the internal workings of legislative chambers, even when the chamber’s constitutional duties are specified. Section 57 spells out the double dissolution criteria, and even then the Court has said that it will only intervene by nullifying any invalid pseudo-Acts that may emerge from the process. A fortiori when the Constitution spells out no criteria that the Court can enforce with any authority. You may as well ask the High Court to make the King-Byng conventions an implied and judiciable restraint upon the Governor-General’s power to dissolve the House.

      • @Tom

        That is certainly the traditional view, and yet in Egan v Willis and Egan v Chadwick the high court, for various reasons, rejected arguments grounded in the traditional view:

        For Gaudron, Gummow, Hayne and Callinan JJ, the question before the High Court was whether there was any justification for the trespass constituted by Mr Egan’s removal from the chamber to the limits of the Parliamentary precinct. The justification pleaded was the Council’s order to suspend Mr Egan. Gaudron, Gummow and Hayne JJ held that, in order to decide the question of justified trespass, the High Court had to consider whether the Council had the power to remove Mr Egan for non-compliance with its resolutions.(22) According to these three judges, it was only by means of the trespass issue-an issue which arose under the general law-that the validity of paras 2 and 3(a) of the resolution of 2 May 1996 became justiciable.(23) Callinan J saw no such barrier to the judicial declaration of the Parliament’s powers and privileges and therefore did not comment upon the issue of justiciability.

        The court took a similar position in the Prisoner Franchise case where the traditional arguments were rejected in favour of a view that the court could review, indeed disallow, amendments to the electoral act on the grounds that the ealing ‘directly chosen by the people’ had changed since Federation.

        If the senate adopted the bisection method it is possible the court would respond as you say. It is also entirely possible, and I think somewhat more likely, the court would apply the Prisoner Franchise analysis and hold the bisection method contrary to the constitution.

        @Chris

        The bisection method requires the bisection of many more senators than you think. The senate must divide the senators from each state into 2 groups of 6. In NSW the results were 5 Coalition, 4 Labour, 1 Green, 1 PHON, 1 LDP. The bisectable senators would therefore be 1 Coalition, 1 Green, 1 PHON and 1 LDP. A method that excludes order of election except for 4 of the 12 NSW senators has its problems.

      • Alan,

        Okay, granted the Court will intervene if a chamber tries salami-slicing as to which of its members can and cannot attend and vote. (See: Powell, Adam Clayton). But provided all duly qualified members who want to attend and vote can do so, I would be very surprised if a court intervened with how they chose to exercise a very broad and untrammelled discretion conferred on them by the Constitution.
        Trends towards activisim ebb and flow. The High Court under Mason started to become very activist in 1987 (Davis and the Bicentennial logos), peaked in 1992 with Mabo and ACTV and Cleary, but then started to back off by 1996. Like any exercise of power, it tends to attract a reaction, sometimes successfully. Sometimes the precedents laid down at the high tide remain in the sand, but other times they are washed away. I suspect sometimes the Justices are a bit scared by their own adventurousness. Or the Warrens and Masons retire or die and get replaced by Rehnquists and Callinans.

      • This is perhaps an academic discussion because the prospect of the court adopting anything other than the previous method or a S282 recount is nil. However, if the senate say classified 7 NSW senators as longterm and 5 as short-term I think we would both agree that the court would have to intervene. One could argue that there is a bright line between classifying the wrong number of senators as longterm and using some other method that produces the right number of senators. I don’t think that there is such a bright line and I think the court would at least hear the case. I have no doubt that in 1903 the court would have found that it is entirely in the hands of the senate.

        No-one expected the prisoner franchise case to succeed and no-one expected the online enrolment case to succeed, but both did. Those are both quite recent cases and were both based squarely on the principle that MPs be directly chosen by the people. I just don’t see a bright line between the principle that senators be directly chosen by the people and that longterm senators be directly chosen by the people. The task conferred on the senate is then to identify which senators were directly chosen by the people to be longterm and which were directly chosen by the people to be short-term.

      • Alan,

        You say, “The bisection method requires the bisection of many more senators than you think”. Not so! I already said, “The parties could easily work which senators serve which terms. The would start by dividing their senators in each state evenly where possible and then negotiate an arrangement for the states in which they had an uneven number of senators. That arrangement would have to take account of the parties whose totals were uneven.” You may not agree with my proposal, but I did say it.

        I can’t justify a result that gives the Coalition any fewer or any more than 13 long-term state senators, Labor any fewer or any more than 12, the Greens any fewer than 4 or more than 5, PHON any fewer or any more than 2, NXT any fewer than 1 or any more than 2. That is in my view how the voters voted. I can’t see the High Court objecting to such an arrangement, but then the High Court is totally unpredictable. I was not surprised that it upheld the above-the-line preferences or the optional below-the-line preferences in the new voting system, but I was surprised that it upheld the discrimination in how many preferences constituted a formal vote and the misleading statements of what a formal vote was. Well, I would have been surprised if I hadn’t read the tied-in-knots arguments of Bob Day’s counsel.

        However, getting politicians to put democracy ahead of short-term advantage is very rare, so I expect political calculations to decide the method chosen, but, whatever the method chosen, it will be justified on grounds of high principle by the winners and condemned on grounds of high principle by the losers.

      • Chris

        The fact is that the bisection method implies that all the Senate terms are equal, which they most certainly are not. As I have said, a six-year term should be harder to get than a three-year one. If we count how the ballots would have counted had this been an election for six seats per state, we get a different result to the bisection method. Weighting six-year terms towards parties that received more votes seems perfectly fair to me.

      • Henry,

        I’m not convinced that “Weighting six-year terms towards parties that received more votes” is fair as the only principle, but, even if I were, that would not determine how much that weighting should be. You are not proposing that the Coalition should get 26 long-term senators because it had the highest vote and Labor should get six because it had the next highest. You’re leaving it to a recount of the ballots as if there had been only six to be elected in each state, even though, technically that could result in the election of someone who was not even elected among the original 12, which is why the recount proceeds by excluding such people.

        I am allowing the parties with more votes to get the positions once the evens have been divided in two, so I am taking account of your point, just not to the extent that you are.

  11. What I’d put in the Constitution would be a rule that the votes in each State at a double dissolution are first counted to fill half the seats by PR (ie, first six seats, quota 14.28%) and then recounted afresh, after resurrecting any eliminated candidates, to fill the other half of the seats by PR.
    The quota would no longer halve for a double dissolution so the Section 57 process would re-take its intended place in the constitutional architecture as a double-or-nothing gamble for a Prime Minister facing an obstructionist Senate (whether dominated by a determined opposition, as in 1975, or by fractious crossbenchers) rather than as a guaranteed method for putting even more crossbenchers into the chamber.
    This should be tied in with a constitutional referendum proposal permanently fixing the number of Senators per State at 14 (7 per half-Senate election), but at the same time abolishing the nexus ratio so that the House is not twice the size of the Senate but instead grows automatically with population on a sliding scale. If the cube root rule is considered too radical, something like “51 MHRs plus four additional MHRs per every whole million of the population” would give Australia around 150 MHRs right now, same as present, but allow the number to rise (or fall) naturally without either the partisan bunfights that Queensland has seen or the deliberate back-and-forth fiddling that New South Wales has seen.
    A similar proposal failed in 1967, at least in part because it offered the minor parties nothing – the Holt Government wanted to abolish the 2:1 nexus ratio, replacing it with power for parliament to fix any quota per seat not less than 100,000, but fixing the number of Senators per State at ten in perpetuity. The DLP in particular saw nothing in this for them – whereas keeping the nexus held out the hope of an expanded Senate and lower quota in future decades — so they campaigned to defeat the proposal.
    This version would offer a sweetener: an immediate increase of one extra Senate seat per state right away, while ruling out the prospect of eight-seat or nine-seat half-Senate elections down the track. It would also make deadlocks less likely by insisting on an odd number of Senators per State.
    It is tempting to stipulate that the House, too, must have an odd number of MHRs to avoid ties. This could be done by using a highest-averages system to apportion seats among States: Sainte-Laguë would come closest to the current “remainder over half” method, ie, the current allocation of MHRs among States is the same as if one used Sainte-Laguë to allocate 145 MHRs one by one, and if every State started off with a minimum 5 seats.
    However, one advantage of a “remainder over half” method is that States are not directly competing against each other for seats. If NSW has a remainder of 0.7 quota and Queensland has a remainder of 0.69 quota, both States can each get one extra MHR: the chamber varies slightly, but it’s not zero-sum. Contrast, I think, the 2000 US reapportionment when Utah sued because its Huntington average was only a fraction behind whatever other State got the 435th seat.
    The downside of rounding off remainders is that on its own, it doesn’t guarantee an odd total number. Perhaps a caveat that if rounding off every State’s remainder to the nearest whole number over 4 produces an even number of seats, or at least an even number under (say) 300 – dead heats are less common in the Commons or the Bundestag — one extra seat is granted to the State with the largest average below 0.5 quota).
    As for double dissolutions, the 2:1 ratio in voting power between chambers at a joint sitting could very easily be accommodated by stipulating that each Senator casts as many votes as there are (total) MHRs, while each MHR casts as many votes as there are (total) Senators.
    So, assuming 88 Senators – (14 x six States) plus (2 x two internal Territories) and, let’s say, 183 MHRs, if each Senator casts 183 votes and each MHR casts 176 votes, the combined voting strengths of upper and lower chambers will be 16,104 for the Senate and 32,208 for the House respectively. Or if that’s too confusing to put in a referendum booklet – although I’d say most of the deadlocks procedure is already too abstruse for the average voter to follow anyway – copy the ALP leadership rules, convert each chamber’s votes to a percentage, double the House’s to 200, add them together. I think Uruguay or Venezuela used to use some variant of this method when the Congress had to elect the president. You might get some rounding error but the joint sitting procedure is so rare that it probably doesn’t matter that much.
    My reason for specifying “four additional MHRs per whole million” rather than “one additional MHR per whole 250,000” is that redistributions would be less frequent and less disruptive – at least redistributions that are required because the population total has changed, assuming the relative distribution among regions remains the same (admittedly a big if).

  12. Alan,
    If the Constitution says “The Senate shall divide the Senators for each State into two classes, equal or as nearly equal as practicable in size’, then distinguish two cases;
    1. Senate divides NSW delegation into 7 long-term and 5 short-term Senators = clear violation of the Constitution’s words – High Court would certainly intervene, at least with a declaration if not with mandamus/ injunction
    2. Senate divides NSW delegation into 6 long-term Senators (5 ALP + 1 Green) and 6 short-term Senators (4 Liberal + 2 Nat) = arguable violation of something not expressed in the Constitution = much less likely (I agree, not impossible) the High Court would intervene.
    Pointing out that a court will stop a clear breach does not necessarily mean it will stop a debatable breach. There are lines that judges are reluctant to cross. My rough empirical working rule of thumb for Anglo-English common law courts is courts will only intervene where there exist at least two, or all three, out of the following:
    (a) clear violation of a superior legal norm (literal words or unambiguous implication)
    (b) very obvious and simple remedy (usually invalidation), and/or
    (c) a clear advantage in institutional legitimacy for the court to override the legislature – either because the legislators are “marking their own homework” (eg, US judges and reapportionment) or because the judges are experts in that particular field (criminal procedure in the US, “judicial power” and natural justice in Australia.
    Observers will sometimes see a case where, eg, (b) and (c) were present (eg ACTV) and wrongly assume that only one of those two factors was needed.
    The above holds for a striking number of Australian and US judgments and, as far as I can tell as a non-expert, Canadian as well.
    Of course, when we look at European courts, it’s either judicial review all the way (Karlsruhe telling the Bundestag how to structure its parliamentary committees) or none (Finland and Switzerland today, France before the 1970s).

    • Finland has no judicial constitutional review? I remember reading somewhere that this was the case, but just as part of a list of countries without offering any details. In the constitution itself, article 74 charges parliament’s Constitutional Law Committee with ruling on the constitutionality of bills; yet, article 106 says “If, in a matter being tried by a court of law, the application of an Act would be in evident conflict with the Constitution, the court of law shall give primacy to the provision in the Constitution.”
      Tom, can you shed more light on this?

      • The Finns may have sneaked in judicial review recently when I wasn’t paying attention, like the Belgians.
        Wikipedia doesn’t seem to help and this website https://en.wikiversity.org/wiki/Comparative_law_and_justice/Finland#Judicial_Review doesn’t seem to be using judicial review in the normal Anglo sense of “when deciding civil and criminal cases, courts of law disregard Acts of the Legislature that the courts consider to conflict with the Constitution.”
        The trend of the world is towards judicial review, at least in some form – a constitutional council (or other body independent of the legislature) if not ordinary courts or even a special constitutional court. I believe even Switzerland has considered it.
        But certainly as late as the election of Mauno Kovisto in 1982 I remember reading a news report explaining that since Finland had no judicial review, the President’s power of veto was considered the main constitutional safeguard by the people.

      • All EU and ECHR countries have judicial review by the EU Court of Justice and the ECHR Court of Human Rights. One of the peculiarities of English institutional parochialism is their resentment of international judicial review. Evil European judges were widely criticised by the Leave campaigns in the recent referendum in a way that suggested leaving the EU would also mean leaving the Council of Europe although the two are entirely separate. The Russian constitution is perhaps not the most closely observed constitution in the world, but it does guarantee a right of appeal to international bodies of which Russia is a member.

      • As far as I know the European countries that lack constitutional review (of primary legislation) are the Netherlands, Switzerland and (of course) the UK. I may be wrong about Finland, but unless the translation is really off, it sounds like they have indeed introduced it. Belgium has had it at least since it became truly federal in the 90’s, although the Constitutional Court only received that title more recently, having previously been known as the court of arbitration.

      • If Finland introduced judicial review before 2013, my co-authors and I missed it when preparing the manuscript of A Different Democracy. Of course, it is entirely possible that we just missed it.

  13. (1) By “judicial review” I was thinking in particular of domestic courts within a nation enforcing that nation’s Constitution against Acts of otherwise-sovereign legislatures (national and State/ provincial) within that nation.
    Decisions by supra-national tribunals are a very wide spectrum, ranging from politely ignored (Australia and the UN, the US and the World Court) to technically binding in international law but requiring national legislation to have effect in domestic law (ECHR and the UK, EU directives in the UK) to having immediate effect in domestic law (EU regulations in the UK). Nations range from requiring the courts to deliberate ignore international rulings (various proposed amendments to the US Constitution), to permitting courts to have regard to international rulings when the domestic laws and/or Constitution are ambiguous (Australia, Israel), to requiring courts to follow to international rulings when the domestic laws and/or Constitution are ambiguous (NZ in specific relation to the Treaty of Waitangi), to requiring the courts to enforce international law against the legislature, along with the national Constitution (Germany) to requiring the courts to enforce international law against the legislature, even though they cannot enforce the national Constitution against the legislature (The Netherlands).
    (2) Not sure why I wrote “Anglo-English” when I obviously meant “US/ Australian”.
    (3) Having hijacked many a thread about Finland on this blog by introducing a discussion of Australia, I have now made some atonement by hijacking a thread about Australia to introduce a discussion about Finland.

  14. The whole discussion about the long and short term senators is apparently only about two seats, which the two major parties would win with order-of-election and would lose with recount (relying on https://sirgraha.me/senate2016 mentioned by Henry): in NSW Deborah O’Neill (Lab.) over Lee Rhiannon (Gr.) and in Victoria Ryan Scott (Lib.) over Derryn Hinch.

    So it wouldn’t suprise me if the two major parties agree on using the order-of-elected method once again.

      • Apparently, Derryn Hinch is threatening legal action against receiving a three-year term. Such a case would be charitably described as legally dubious, but perhaps Mr Hinch is merely following in the recent tradition of micro-parties involving themselves in pointless legal action (Day v. Australian Electoral Officer, and the apparently abortive attempt by the Democratic Labour Party to kick John Madigan out of his seat following him leaving the party)

      • Like Henry, I cannot see a legal action going anywhere, not because I think the high court would automatically reject any approach, but because order of election has been used at every previous double dissolution.

  15. Derryn Hinch’s legal action is laughable. I hope he gets the same lawyer as took Bob Day’s case.

    I’ve come up with my own system for allocating the long and the short terms in the Senate. It’s just, rational and democratic, so it won’t happen. In essence, I propose that the senators elect the 36 long-termers rather than pass a motion saying who they are. You might think that would automatically divide the senators elected from the states in any party with an even number in half, but the participation of the territory senators means it would not, which I concede is a flaw.

    I think constitutionally the territory senators would have to have a vote, which provides a slight inbuilt advantage to the major parties but may not always do so. (The long-term solution to this problem is to have four senators for each territory, elect in halves like senators form the states.) Each senator would have 100 votes (to allow for the calculation of a reasonable quota). There would therefore b 7600 votes cast. The quota would be, rounded to the nearest whole number 206 [7600/(36+1) + 1].

    The Coalition would have 2900 votes; i.e., 14 quotas/senators and a surplus of 16 votes.

    Labor would have 2600 votes; i.e., 12 quotas/senators and a surplus of 128 votes.

    The Greens would 900 have votes; i.e., 4 quotas/senators and a surplus of 76 votes.

    PHON would have 400 votes; i.e., 1 quota/senator and a surplus of 194 votes.

    NXT would have 300 votes; i.e., 1 quota/senator and a surplus of 94 votes.

    Bob Day would have 100 votes (less than a quota).

    David Leyonhjelm would have 100 votes (less than a quota).

    Jacqui Lambie would have 100 votes (less than a quota).

    Derryn Hinch would have 100 votes (less than a quota).

    That would fill 32 positions and leave preferences to fill the remaining four. It is pure speculation to whom those preferences would go, but I expect the Coalition would prefer Bob Day, putting him ahead of David Leyonhjelm, while the Greens, next to go out, could go for Derryn Hinch, NXT or Labor. If the Greens preferred Senator Hinch, he’d be on 176 votes, meaning NXT would drop out next and probably put him over the line. If they preferred NXT, NXT would still not have enough votes. If they preferred Labor, Labor would have 204 votes. If Senator Day were ahead of Senator Leyonhjelm, he would probably get the latter’s preferences and get in.

    Just for fun, let us imagine the following:
    Coalition – 14 senators,
    Labor – 12 senators and a surplus of 128 votes,
    The Greens – 4 senators,
    PHON – 1 senator and a surplus of 194 votes,
    NXT – 1 senator and a surplus of 170 votes,
    Bob Day -1 senator and a surplus of 10 votes,
    Jacqui Lambie -100 votes,
    Derryn Hinch -100 votes.

    If Senator Day’s preferences went to Derryn Hinch, he would have 110 votes, and Jacqui Lambie would be the next to drop out. If they went to PHON, it would have 204 votes and Senators Hunch and Lambie woud both be on 100 and we’d need a mechanism to decide which of the two should drop out.

    I won’t pursue all the permutations and combinations, but I think the principle is fair.

    • The constitution requires that each senator have 1 vote on questions arising in the senate. A model that face senators different numbers of votes, or vested their votes in party groups, would not pass constitutional muster.

      One could adopt the STV Senatorial Rules and divide each vote into100 values, but I think that is about as far as one could go. An election within the senate would lead to extensive horse-trading and make the process look, as did the old process of electing NSW MLCs from an electoral college of continuing MLCs and all MLAs, like Bismarckian sausage-making and further vex an electorate that already takes a dim view of sausage-making.

      • Alan,

        I accept that it would be officially one vote per senator but that vote would be counted as 100 units for the purpose of getting a meaningful quota. However, the sausage-making would have to occur as an open election could not ensure that there were six long-termers and six short-termers from each state. I can’t see a way around that, so I will have to concede my method is not as good as I thought it was. Even so, I think it unfair that the Greens and PHON are underrepresented among the long-termers, though I can’t help smile that the Greens, having set out to remove the micro-parties by changing the rules, find themselves subject to cruel and unusual punishment.

  16. South Australia’s Labor government have introduced a bill to amend their state’s electoral system, which is at present identical to the pre-2013 federal Senate system. The bill leaves below-the-line voting with mandatory preferences, but changes above-the-line voting by making an above-the-line vote count only for the candidates of the party the vote is for. So, if a voter votes 1 ATL for Labor, that goes to Labor’s candidates, then exhausts. Only the first above-the-line preference counts, so a 1 Family First 2 Liberal vote goes to the Family First ballots and then exhausts.

    It seems somewhat remarkable that Labor, after moaning at the federal level about the millions of ballots that would be thrown out under optional ATL preferences, would introduce a system that entrenches a massive exhaust rate. The system is likely better than group tickets, but could certainly do with amendments.

    • Actually on this particular issue I would agree with what I assume is Chris Curtis’s view – this system would be worse than the “one square, all candidates” (1984-2013) system of voting tickets, as opposed the the “six squares, twelve candidates” method we now have, which is (sorry Chris) superior.
      South Australia has a history of questionable voting systems. Not sure which genius came up with the idea of electing 2 of 4 MLCs per province by MAV in rotation, but I can see no rationale for it. Then Dunstan introduced a system of optional preferential voting among closed lists. All lists under half a Droop quota (ie, 4.1667% with 11 MLCs to be elected) were eliminated (summarily, I think, but it may have been sequentially – Jack Wright’s MIRROR OF THE NATION’S MIND (1980) gives better particulars), and then the seats were allocated by largest remainders, without any further counting of “surplus” preferences. This had the odd result that if you voted for a party polling under 4.1667% (and preferenced a major-party list as a backup), your vote got counted for the latter; if you voted for a party over 8.334%, your vote also got counted; but if you voted for a party between 4.1667% and 8.334%, there was a good chance your vote could end up in the dustbin as it wasn’t guaranteed a quota and might not be one of the lucky largest remainders.
      SA also has theoretically full mandatory preferences for its Assembly, but ballots that would otherwise exhaust are instead saved by counting them for the first-choice candidate’s pre-registered voting ticket. I believe it is illegal to publicise this option by calling for a “Langer vote”.
      At one point the SA government was discussing open lists with Sainte-Lague allocation, until someone – possible Antony Green – pointed out this this can deny a party with 50% of the first-preference votes (which Labor – believe it or not – did achieve in some States in the 1970s, even while it was getting thrashed in federal elections) a majority of seats. (Eg, if votes for 11 seats divide in the proportions 54:25:25).
      I would strongly urge that if Sainte-Lague is used to allocate seats among competing parties based on numbers of votes received (as opposed to, used to allocate seats among regions based on numbers of inhabitants), it be used for remainder seats only, after each party has been awarded one seat for every whole Droop quota of votes. This would guarantee at least half the seats for any list over 50% of the votes.

      • I guess I’ll have to disagree with you and Chris. While this proposal is not ideal, and hopefully the Liberals will introduce some changes in the Legislative Council, it does at least make it easy for a voter to vote for the party they wish and have confidence that that vote won’t go in a direction that they do not like. Some votes will be wasted, but I think it will act as a strong disincentive for a proliferation of parties, pushing that waste downwards. I estimate here that about 16% of votes would be ‘wasted’, in the sense that they don’t form a quota or rewarded remainder. This is, again, not ideal, but hopefully voters would move behind larger parties.

      • Tom,

        I regard the SA Labor Party as idiotic.

        We have been over these issues so often that it can hardly be profitable for any of us to restate our positions, but, given the information supplied, I will share an email I sent to John Rau three years ago as ‘The Greens and voting “reform”’:

        ‘Dear Mr Rau.

        I read today (http://www.news.com.au/national-news/south-australia/greens-want-end-to-shadowy-upper-house-deals/story-fnii5yv4-1226739919999) that you were to give a speech on electoral reform on Monday.

        ‘I am a member of the Victorian branch of the ALP and am very concerned at the way the Greens get away with … just about anything really. Having helped destroy two Labor prime ministers and two Labor governments and having lost votes as a result they are currently pretending to stand up for voters, while really seeking to distort the Senate voting system for their own advantage (and it seems the SA Legislative Council voting system too). Their “reform” is designed to give them a lock on the balance of power by making it almost impossible for other parties to get in. Interviewers, who do not understand the voting system, never ask intelligent questions, so the Greens get a way with sounding pure yet again.

        ‘The Greens cloak their demand for above-the-line preferences in principle, but astute observers know they advocate this change from self-interest: they remain angry that the Victorian branch of the ALP dared to use preferences to put Family First into the Senate in 2004 and the DLP into the Victorian Legislative Council in 2006 instead of yet another Green and they think they will get preferences from Labor voters deluded into thinking that the Greens are Labor’s friends. They believe that this change will prevent Labor effectively preferencing other third parties. It’s a pity that other branches of the party do not approach the Greens with the hardheaded realpolitic of the Victorian branch. Had they done so, we would have fewer Greens in the new Senate; e.g., no Sarah Hanson-Young.

        ‘It ought to be inconceivable that Labor or the Coalition would support a voting system designed to give the Greens a lock on the balance of power in the Senate, whether it be above-the-line preferences or a threshold to prevent third party candidates other than the Greens from even staying in the count. I have attached some words on this topic too. I will make a detailed submission to the joint committee on electoral matters, but the Labor Party throughout the country ought to be forewarned about what the Greens are doing. Otherwise it will unwittingly give them a hand yet again while they continue to try to destroy us.

        ‘I have sent the attachment to Don Farrell too.

        ‘Yours sincerely,
        Chris Curtis’

        I got a reply that, in accordance with standard political procedure, did not deal with my particular points, but it came by snail mail, so I cannot post it.

        While I am a member of the ALP, I don’t think I would be if I were in any state other than Victoria.

      • I agree with Henry and do not wish to add anything to his arguments.

        I will note that the electoral reform bill presented to the federal parliament made no changes to below the line voting. That position did not survive the slaughter of the experts who appeared before the joint standing committee on electoral matters. Antony Green: ‘You have been herding voters for 30 years!’

        I suspect this South Australian bill, which I agree is deeply silly in its current form, will suffer a similar slaughter and ultimate amendment when the experts address the issue.

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