Newsletter of the Proportional Representation Society of Australia


December 2000



Federation is 100: Links to Senate PR

On 1st January 2001 Australians will begin celebrating the survival of the Commonwealth of Australia for its first century. The Commonwealth Electoral Act 1918, which specifies the electoral systems used for both Houses of the Parliament of the Commonwealth, has prescribed a proportional representation electoral system for the election of the Senate since 1948 - for more than the entire second half of the first century of the Commonwealth’s existence.

Although proportional representation was not used for Senate polls until 1948, the decisions made by the Constitutional Conventions of the 1890s played a major role in setting the scene for that eventual adoption of PR. Major participants in those conventions had opposing views on the virtues of the new Senate being elected using a PR system. The concept of a PR electoral system was known to many of them as it was adopted for elections in multi-member districts to Tasmania’s House of Assembly in the 1890s (it is still in force there), following advocacy by Tasmania’s Attorney-General, Andrew Inglis Clark - a leading member of the various Constitutional Conventions.

The first large-scale gathering to be empowered by the various Australian colonial parliaments to develop formal proposals for a possible Constitution for a federation of those colonies was the first National Australasian Convention, which opened on 2nd March 1891 in Sydney. It comprised the Premier and six other delegates from each of the six Australian colonies, and the Premier and two other delegates from the Colony of New Zealand. In each of those colonies most of the delegates were appointed by the Lower House of the Parliament, with the remainder being appointed by the Upper House. In each colony both Government and Opposition delegates were selected. The Convention appointed the Premier of New South Wales, Sir Henry Parkes, as its President, largely in recognition of his efforts in stimulating the creation of the Convention.

That Convention debated a series of general motions proposed by Sir Henry on the form of the proposed Constitution. The outcome of that debate was then submitted to several committees, whose deliberations were considered by a four-member sub-committee, which produced the draft of a Bill to Constitute the Commonwealth of Australia. That sub-committee included Mr Andrew Inglis Clark. The draft it produced was adopted by the convention with only three changes, but it differed from the Bill adopted in 1901 in important respects. For example, the draft provided for senators to be appointed by the State legislatures, as applied in the USA until 1913.

The 1891 draft served as a useful starting point for the federal cause to build on. An 1895 Premiers’ Conference took up the ideas of Dr John Quick, and set in train the successful passage of Enabling Acts in each colony to provide for the election of ten delegates from each colony to a Constitutional Convention empowered to draft a Constitution for direct submission to a referendum of the electors, except that Western Australia’s delegates were appointed by its Parliament, and Queensland failed to have any. It was further provided that if a majority of the electors, and a majority of the electors in a majority of the colonies, accepted the Constitution, it would be submitted to the Imperial Parliament with a request that it enact a law to establish the Commonwealth under that Constitution.

Each of the four colonies that held elections, in 1897, used a multiple first-past-the-post system, which excluded major viewpoints in each colony. Ballots were invalid unless exactly ten candidates were voted for. Such a system resulted in all voters’ first preferences having as much electoral weight as each of their remaining nine preferences. Voters that found they approved of fewer than ten candidates could only assist those candidates by simultaneously giving equal vote value to certain other candidates they disapproved of, and who could have been opponents of the candidates they wanted elected. Alfred Deakin, one of 29 candidates in Victoria, Richard O’Connor QC, one of 29 in NSW and Andrew Clark, one of 32 in Tasmania, were three prominent supporters of proportional representation to be elected. Catherine Helen Spence, Australia’s leading PR campaigner, was one of 38 candidates in South Australia, but she was not elected. These leading advocates of the PR cause were assisted by the more technical and educational work of people like J.B. Gregory and Professor E.J. Nanson, both from Melbourne.

The Convention met first in Adelaide in 1897, and decided to prepare a new draft for the purposes of debate, and not to build on the 1891 draft. The new draft provided for senators directly elected by the people of each State, with each State voting as one electorate. At Adelaide, Mr Lyne, the NSW Opposition Leader, criticized the policy of making each State one electorate, and advocated single-member constituencies. The new draft was submitted to the Parliament in each colony for its consideration.

The Convention met next in Sydney in 1897 to consider some 286 amendments suggested by those Parliaments, although Queensland had still not sent any delegates. At Sydney, suggestions by the NSW Assembly, and by both houses in all the other colonies, to omit the words “as one electorate” were discussed. Sir John Forrest, the Premier of Western Australia, suggested three electorates, seeing that the three senators for each State were to retire periodically. Mr Simon Fraser of Victoria suggested six electorates. After debate, the words “until the Parliament otherwise provides” were inserted by 29 votes to 19; and the words “as one electorate” were retained by 29 votes to 18.

That compromise - State-wide Senate electorates entrenched conditionally - rather than absolutely, as first sought, yielded the final wording of the first sentence of Section 7 of the Constitution. That wording still exists, and facilitates proportional representation. Parliamentarians of both major parties have suggested, as late as the 1990s, that Parliament should “otherwise provide”, yet the only “other provision” that the Federal Parliament has made regarding Section 7 was the removal, by the Commonwealth Electoral Legislation Amendment Act 1983, of the never-used power the second sentence gave to the Queensland Parliament to divide Queensland for Senate elections.

The final meeting of the Convention ran for almost two months, in Melbourne in 1898, but it made no further changes to that significant sentence, which reads, “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.” This wording is a definite improvement on the US equivalent then, which read, “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof “. The USA lagged behind Australia here - it generally still does in electoral matters. The US Constitution is still silent on the direct election of senators.

That sentence of Section 7, as Emeritus Professor Joan Rydon pointed out at the Joint Senate-ANU Conference in August 1999 to commemorate the 50th anniversary of the use of PR for Senate polls (see QN1999C), ensured that it would eventually be recognized, and accepted, that a PR electoral system was the logical choice for Senate polls.

A significant, but little-known fact is that PR made a strong, but not sufficiently strong, showing when the first Federal Government, led by Sir Edmund Barton, who had in 1897 been elected to the Convention with the highest number of votes in NSW, had the House of Representatives pass the Commonwealth Electoral Bill 1902. It provided for proportional representation for Senate polls, and preferential voting in single-member divisions for the House of Representatives, with fully optional marking of second and later preferences for each House.

However the Senate amended it to provide for first-past-the-post voting for each House despite the best efforts of the Government’s Senate Leader, Senator Hon. Richard O’Connor QC, from NSW. Debating the Bill in the Senate, he is recorded in Hansard for 31st January 1902 as saying, “I take the actual numbers of votes polled, and I find that in NSW my honorable friend Senator Walker received 79,800 votes; Senator Millen, 75,010; Senator Gould, 74,253; Senator O’Connor, 72,000” and he had no right to be in that position on party principles at all Senator Neild, 70,563; and Senator Pulsford, 70,468. Then I take the protectionists, beginning with Manning, who received 48,000 votes, Kidd received 44,000 odd; Mackay, 41,000 odd; Waddell, 32,000 odd; and Hammond, 32,252.  If the representation of New South Wales was to have been a fair representation in accordance with the opinion of the people of NSW, one would suppose that the protectionists and the labour party would certainly have had representation as well as the free-traders. However the result was that there were five free-traders returned, one protectionist, and no labour representative. With regard to the protectionist – myself – it was generally admitted, and I am only stating now what is a matter of history, that if it had not been for special circumstances connected with my position in federal politics, which gave me a number of votes from the free-trade party, there would have been no protectionist returned, and the whole of the representatives returned for NSW would have been free-traders. …’.

Senator O’Connor said, ‘… at the New South Wales election for the Senate … something like 22% of the votes … were informal … That perhaps stands as the highest record of informality … with any election throughout Australia. The elector had to record his vote by striking out the names of those for whom he did not wish to vote. … The electors had to leave only 6 names out of 50 on the ballot-paper, so that the difficulty they experienced must be obvious. …’. The version insisted on for Senate polls by a majority of senators was the multiple version used in the 1897 Convention poll, and the system that had elected all but Tasmania’s senators, who had been elected under the Hare-Clark PR system. The Government accepted the Senate’s amendments, and probably had little option to do otherwise. The flawed system was replaced in 1919, but the further change to PR in 1948 showed that the eventual long-term stable system was a PR system, although it differed from that originally proposed in 1902 in requiring that a preference had to be marked for each candidate.

Independent MHR: Voting Reform is Urgent

The Guest speaker at the October Annual General Meeting of the PRSA’s ACT Branch was Mr Peter Andren, the Independent MHR for the central western NSW rural federal electorate of Calare, which includes the centres of Bathurst, Blayney, Lithgow, Oberon, Orange and Rylstone. With a teaching and media background, Mr Andren in 1996 won the seat in a field of eight, with almost 30% of first preferences and 63% of the two-candidate-preferred vote. He won again in 1998 as the then only Independent in the House, in a field of nine with over 40% of first preferences and 72% of the two-candidate-preferred vote.

Mr Andren has not only spoken up on issues of particular importance for his electorate, but he has been prominent in seeking higher standards and greater accountability in public life, often challenging the prevailing parliamentary ethos about members’ entitlements, such as travel and telephone claims and superannuation.

In his AGM address, Mr Andren said that commodity prices and droughts harmed rural communities in the 1980s and since then vital infrastructure has not been maintained, under a prevailing economic orthodoxy that also overlooks the extent to which the world’s trading marketplace is manipulated. He then gave examples, such as the taxation of constituents earning income both on and off farms, where other MHRs are stifled in taking up concerns once party-room decisions are made. The Executive prevails in an atmosphere where major parties take the cynical view that with compulsory marking of preferences in single-member electorates, voters have ‘no other option’ than eventually being taken to support one side or the other.

Mr Andren said that in the days before the AGM, the major parties had ganged up to make it harder for small parties to be registered, but they did not support his amendments to prevent larger parties from warehousing catchy names. Prompted by the attempt of David Ettridge and David Oldfield to register parties without active membership, the amended legislation would not, for instance, prevent the Coalition from registering a ‘No GST’ party.

At the end of the 1996 campaign, Mr Andren had to move quickly to counter Coalition claims that a vote for him was a ‘vote for Keating’. In his hurriedly-organized television advertisement, he countered by saying, ‘A vote for Peter Andren is a vote for Peter Andren’, and highlighting the fact that he was making no recommendation as to preferences. Since then, he has advised another independent in the region to stand alone rather than in a group in local government PR elections (for which above-the-line voting has regrettably been introduced in NSW) and to emphasize that fact in what turned out to be a successful campaign with nearly a quota of first preferences obtained.

In his view, it is an extremely defective electoral system that has left him as the only MHR representing the 20% of Australian voters that did not support the major parties - yet another result ‘voters don’t believe in and don’t want’. The One Nation Party vote, largely one of disillusionment, is waiting for another option while the process of major party decline is ‘irreversible’ because local members are not allowed to represent constituents’ interests and to raise issues where party political considerations intervene.

On the other hand, Mr Andren is impressed with the way the Hare-Clark system works fairly in Tasmania and the ACT, and lets voters determine who gets elected. He sees three-member electorates as ideal in rural areas federally as they would still allow elected members to maintain a close geographical connection with their entire constituency. Very good radio publicity was obtained along with a brief Canberra Times report and columnist’s discussion of the paper Mr Andren prepared for the occasion.

After tumultuous scenes in the House on 30 November 2000 involving the Speaker, Mr Andren issued a statement calling for urgent electoral reform, saying, ‘Today's pitiful debate and censure motions in Parliament only underline the need to reform the corrupted winner-take-all, two party system.’ He continued, ‘Compulsory preferential voting should be abolished. No voter should be forced to allocate preferences beyond their first vote if that is their wish.’

The fairest system was PR such as Tasmania's Hare-Clark as ‘Parties could then run as many candidates as they like, letting the public decide who best represents them rather than [having] candidates foisted on them through back-room pre-selections run by a few faceless party branch members, manipulated by big unions or big business.’

Proportional representation in Senate elections delivered members to that chamber representing the Australian political kaleidoscope, but ‘The election system has been corrupted by compulsory preferential voting and how-to-vote cards engineered and paid for by major parties. This present system allows and encourages dummy parties and dummy candidates. … Above-the-line voting is another corruption of a fair voting system and this should be abolished. The public is waking up to the deceit of how-to-vote cards and the devious behaviour of the big parties.’

‘Above-the-line voting, with its Group Voting Tickets, is also infecting local government as well as state and federal systems, delivering results that bear little resemblance to many voters' wishes, and shoring up a two-party system which is held in growing contempt.’ Mr Andren concluded, ‘A democratic electoral system should reflect the will of the people, represent the majority, but also minorities, and each person's vote should be equal and count equally. None of these are delivered by our current system.’

PRSA Submission on Enrolment Issues

In August 2000 the Special Minister of State asked the Joint Standing Committee on Electoral Matters (JSCEM) to examine the issue of the integrity of the electoral roll and fraudulent enrolment. The following month the Committee set as the terms of reference of its current public inquiry on these matters:

  • the adequacy of the Commonwealth Electoral Act 1918 for the prevention and detection of fraudulent enrolment;
  • incidents of fraudulent enrolment; and
  • the need for legislative reform.

After Karen Ehrmann, Queensland Labor Party operative and one-time endorsed candidate for the State seat of Thuringowa, was gaoled in August 2000 for her part in fraudulent enrolments in the Townsville area, the Criminal Justice Commission has been inquiring into such practices across Queensland. Public hearings have aired allegations of widespread systematic manipulation of the electoral roll for swaying preselections, predominantly in safe seats, and the funding of how-to-vote cards put out by other parties. Some political careers were swiftly curtailed amid national attention focusing on shoddy preselection practices.

In its December submission to the JSCEM, the PRSA [see www.prsa.org.au] stated that the demonstrated problem of safe seat preselections involving small numbers of people exceeded that of alleged fraud aimed at tipping the result in marginal electorates. Without more real power in voters’ hands on election day, voter alienation at preselection antics and lack of real accountability in single-member electorates will grow, possibly so much that communities might 'eventually support any movement challenging the status quo, irrespective of the viability of its policies'.

The submission observed that an electoral system in which ‘manipulation by relatively small numbers of people at key junctures can effectively determine an individual seat outcome and thereby have the prospect of a major pay-off for individuals’ careers or factions’ patronage and influence, will be vulnerable to systematic efforts at exploitation by the powerful or power-hungry’.

Formulating and enforcing appropriate party rules, or enacting legislation with minimum standards of conduct for parties registered for public funding and matching administrative resources, would make it riskier to cheat. However, eliminating safe seats is the only way to remove apparent short-cut routes to significant ongoing local political influence. Nothing short of the empowerment of voters achieved by the Tasmanian and ACT Hare-Clark proportional representation systems will secure that fully.

Voters in safe seats where there is branch stacking or other ruthless imposition of a candidate in the dominant party’s preselection process are entitled to be dismayed at such evisceration of the limited level of political contest that is ever possible in their area. Small margins obtained through stacking the numbers within party forums may effectively seal who represents an area for ten or twenty years, unless allegations of cheating lead to a disgusted defeated aspirant leaving the party and nominating, or a well-known local identity stands as an independent and gives voters an alternative with some prospect of being elected. Most commonly, however, voters angered by such actions cannot do anything about them in practice because there is little risk the seat will move to the opposing major party.

Primary elections akin to the American model but with preferential voting would ‘make it harder for small groups to impose their will through systematic fraud at a level in the process accessible in practice only to a minuscule portion of the electorate. However, they would not tackle the significant problems arising as, under a winner-take-all system, political activity in most areas is confined largely to the organs or processes of the dominant party’.

The PRSA submission noted that at the five general elections between 1987 and 1998, between 36% and 48% of individual seats won by Labor or the Coalition required a swing of over 10% to change hands to the other major party or grouping. Only two of these ‘safe’ seats did so during this period, both in 1996, one involving a candidate ‘disendorsed’ during the course of the campaign proper. Seats moving between Labor and the Coalition with a swing of over six per cent are uncommon. There were none in 1987, one each in 1990 (a ‘fairly safe’ seat requiring a swing of over 6%) and 1993, four in 1998 (all marginal) and 18 in 1996 (13 were marginal and 3 were ‘fairly safe’).

The submission noted that the nub of the actual problem is that in practice the majority of single-member electorates are ‘safe’ or ‘fairly safe’ for one party or another. The focus of a few members of dominant parties in their areas turns not unreasonably to picking up prizes available internally, while the fight for government concentrates on persuading the undecided in a few marginal electorates, which therefore get disproportionate facilities and attention.

Although most marginal seats are easily identified, electorates where 100 or even 500 votes might have made a difference are impossible to predict in advance accurately because of the large numbers of voters making their decision on the day itself. Despite numerous, sometimes lurid, allegations, in the past fifty years results at the federal level have not been overturned for multiple or wrongful voting. While the inability to question the accuracy of the rolls has made it hard for candidates to throw doubt over an outcome before the Court of Disputed Returns, the PRSA’s analysis of close outcomes showed that little credence could be given to claims that federal government itself may have been stolen through large-scale enrolment fraud.

Except in Tasmania, most federal electorates now have somewhat over 80,000 enrolled voters out of a population of over 120,000 people living within their boundaries. As happened in October 1998, 75,000 or more of these will tend to vote formally in each electorate. Where the successful candidate obtained more than 51% of the two-candidate-preferred vote, a plaintiff alleging enrolment and voting fraud would have to demonstrate irregularities accounting for a margin of over 1500 votes.

In the five elections between 1987 and 1998, the fraction of combined Labor and Coalition seats with such narrow margins varied from 2% (in 1987) to some 10% (in both 1993 and 1998). As the winner-take-all system usually exaggerates winning margins, only in 1993 and 1998 was there even a theoretical chance of government changing through systematic large-scale fraud in these seats. The PRSA submission concluded with a description of differences in candidate and party behaviour that would occur in a federal Hare-Clark electoral system.

ã 2000 Proportional Representation Society of Australia

National President: Bogey Musidlak 14 Strzelecki Cr. NARRABUNDAH 2604

National Secretary: Deane Crabb 11 Yapinga St. PLYMPTON 5038

Tel: (08) 8297 6441, (02) 6295 8137 Fax (03) 9589 1680 ggd@netspace.net.au

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