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Australia: Changes to Senate Electoral Law Passed Following Overnight Debate

(Mar. 28, 2016) On March 18, 2016, the Australian Parliament passed the Commonwealth Electoral Amendment Bill 2016, which makes changes to the voting system used to elect Senators under the Commonwealth Electoral Act 1918.  (Commonwealth Electoral Amendment Bill 2016, Parliament of Australia website (last visited Mar. 18, 2016); Commonwealth Electoral Amendment Act 2016 (Cth), amending the Commonwealth Electoral Act 1918 (Cth), Federal Register of Legislation.) The bill had previously been passed by the House of Representatives in February 2016 and was the subject of an overnight 28-hour debate in the Senate (with debate covering 40 hours in total) before finally being passed; the House subsequently agreed to the amendments made in the Senate.  (After 28-hour Marathon, Senate Passes Voting Changes, SBS (Mar. 18, 2016).)

Senate Voting System

The Australian Senate was largely modeled on the U.S. Senate.  Currently, twelve Senators from each of Australia’s six states and two from each of two mainland territories, are elected for six-year terms. Elections for half the Senate are held every three years. (See generally, Kelly Buchanan, National Parliaments: Australia, LAW LIBRARY OF CONGRESS (Jan. 2016).)  Since 1948, Senators have been elected using a preferential or ranked voting system that is a “variant of proportional representation through single transferable vote (STV).” (Damon Muller, Commonwealth Electoral Amendment Bill 2016, BILLS DIGEST NO. 96, at 4 (Parliamentary Library, Mar. 1, 2016).)  Under this system, voters rank the candidates (or candidate groups or parties) standing for the Senate in their order of preference.  (See No. 1: Electing Australia’s Senators, Parliament of Australia website (last visited Mar. 23, 2016).)

Since changes were made to the system in 1984, there have been two approaches to ranking parties and candidates, called “above the line” and “below the line” voting. Voters were able to select only one party “above the line” on the voting form, giving that party a “1” vote. Under this approach, the party given the 1 vote could determine how a voter’s remaining preferences were distributed across the other parties or candidates.  If a voter chose to use the “below the line” approach instead, they had to rank all of the candidates that were standing, which may number in the dozens in some states. If this approach is chosen and all of the candidates are not ranked, the ballot would be deemed an informal vote and put aside.  (See Scott Bennett & Rob Lundie, Australian Electoral Systems, Parliamentary Library Research Paper No. 5 2007-08 (Aug. 21, 2007).)

Under this system, parties could submit up to three different “group voting tickets” to the Australian Election Commission listing the full preference distribution for all of the candidates on the ballot paper. By placing a 1 vote above the line for a party, the voter’s preferences would be distributed according to the party’s lists. This system resulted in preference deals being brokered between parties, of which voters were unaware.  (Rob Lundie & Deidre McKeown, The Senate Voting System: Issues and Suggestions for Reform, in Parliamentary Library Briefing Book – 44th Parliament (2013).)

2013 Election Results

More than 96% of voters used the above the line approach in the 2013 Senate election.  Of those who voted below the line, more than 8,000 ballots were deemed informal.  (See Damon Muller, The Commonwealth Electoral Amendment Bill 2016 – Optional Preferential Voting Below the Line in the Senate, FLAGPOST (Parliamentary Library, Mar. 15, 2016).)  As in other elections in recent years, a large number of special interest minor or “micro” parties entered candidates on the ballot.  The outcome of the election “caused considerable surprise amongst the media and the general public,” with a number of unusual results occurring:

  • In five out of the six States, a candidate was elected from a party which had never previously been represented in the federal Parliament.
  • For the first time ever, the seats in one State, South Australia, were divided between five different parties.
  • In Victoria, a minor party candidate was elected after having polled only 0.5 per cent of the first preference votes cast in the State.  (Commonwealth Electoral Amendment Bill 2016, supra, at 4, quoting Michael Maley, Senate Electoral Reform, AUSTRALIAN PUBLIC LAW BLOG (Sept. 29, 2015).)

Changes to the Senate voting system were recommended by the Joint Standing Committee on Electoral Matters (JSCEM) following its inquiry into the 2013 election.  One recommendation was that the current preferential system “be changed to allow voters to allocate as many preferences as they desired either above or below the line.”  (Commonwealth Electoral Amendment Bill 2016, supra, at 2; JSCEM, The 2013 Federal Election (Apr. 2015).)

2016 Amendments

The changes made by the 2016 bill, as enacted, allow voters to list at least six parties above the line on the ballot paper, changing the system to one of optional partial preferential voting.  (Commonwealth Electoral Amendment Act 2016, s 20.)  In addition, voters will now be able to rank at least twelve candidates below the line, if they choose this option, rather than needing to rank all of the candidates.  (Id. s 19.)  This change was not originally included in the bill, but was proposed by the government following the advice of the JSCEM, which presented its report on the bill in early March.  (JSCEM, Advisory Report on the Commonwealth Electoral Amendment Bill 2016 (Mar. 2, 2016); Commonwealth Electoral Amendment Bill, Sheet JP109, Government Amendment (Senate).)  Furthermore, under the changes, votes above the line will be considered formal if at least one preference is indicated, while votes below the line will be considered formal if at least six preferences are listed.  (Commonwealth Electoral Amendment Act 2016, ss 21B & 22.)  If preferences are marked both above and below the line, the below the line preferences are counted.  (Id. s 24; see generally Muller, supra.)

The bill also eliminates the use of group voting tickets.  (Commonwealth Electoral Amendment Act 2016, s 13; Muller, supra.)

The other changes made by the bill include removing “the ability for one individual to be the registered officer for more than one registered political party concurrently,” and allowing for “political parties to nominate that logos be printed on both the Senate and the House of Representatives ballot papers alongside the party names.”  (Commonwealth Electoral Amendment Bill 2016, supra, at 3.)

Controversy and Debate

The bill was passed with the support of the Coalition, which is currently the governing group of parties, and the Greens, as well as one independent Senator.  Minor parties in the Senate and the opposition Labor Party voted against the legislation, with the latter arguing that the proposed changes were “an attempt to reshape the senate to one that would be more malleable to the Coalition’s agenda.”  (Max Opray, Controversial Senate Voting Reforms Explained, THE NEW DAILY (Mar. 15, 2016);  see also Rose Donohue, Vote Changes Passed After 40 Hours, THE NEW DAILY (Mar. 18, 2016).)  The Coalition forced the Senate to remain in session until the bill was passed, but did not have sufficient numbers to move to a vote.  The debate on the bill continued throughout the night, making it one of the longest debates on a single bill in the past 26 years.  (Senate Passes Electoral Law Changes, BUSINESS REVIEW (Mar. 18, 2016); Francis Keany, Senate Voting Reform: Federal Government Bans Upper House from Rising Until Bill is Passed, ABC NEWS (Mar. 18, 2016).)

The bill will come into force on July 1.  The prime minister indicated on March 21, following the passage of the bill, that he will call a double dissolution election for July 2 if certain other legislation is not passed by May, meaning that early elections would be held for both the House and the full Senate.  (Malcolm Turnbull has Threatened a July 2 Double Dissolution Election if ABCC Bills Rejected Again; Will it Actually Happen?, ABC NEWS (Mar. 21, 2016); Infosheet 18 – Double Dissolution, Parliament of Australia website (last visited Mar. 23, 2016).)