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PROPORTIONAL REPRESENTATION SOCIETY OF AUSTRALIA

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2016-08-02

Why should the Electoral Act be able to stage-manage candidates' order of election?

“I always voted at my party's call, I never thought of thinking for myself at all.”
   

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Sir Joseph Porter KCB (HMS Pinafore)

Ballot Paper Order: Australia's political party organizations first stage-managed Australian Senate elections - insofar as it has an effect on which of the individual Senate candidates of each of the parties participating is elected and which is not - by simply recognizing, and then exploiting, certain provisions of the then law relating to the order in which candidates' names were printed on ballot papers.

Party organizations' growing awareness of their power: That first achievement showed how much easier and more convenient stage management seemed to be for the party organizations than having candidates within a party publicly and genuinely competing against each other, and also having such competition between parties. Australia's electoral laws have since evolved to give party organizations their present much greater de facto control of candidates' fate. Such ploys have been a contentious, unsavoury aspect of Australian Senate elections for a long time - existing well before proportional representation for Senate elections began in 1948. Initially it was not deliberately built into the Commonwealth Electoral Act, but was possible by exploitation of at least one of its earlier weaknesses.

Under the Commonwealth Electoral Act 1902 of Edmund Barton's Protectionist Government, Senate ballot papers listed candidates' names in a single column in alphabetical order, without any indication of, or grouping by, party affiliation. Voters had to mark exactly as many crosses as there were vacancies. That single column was of no significance until the Commonwealth Electoral Act 1919 of W.M. Hughes's Nationalists, which changed the winner-take-all, multiple vote from its original 'first-past-the-post' form to a preferential form, and required that ballot papers be marked with consecutive preferences for at least twice the number of vacancies plus one, in order to be valid.

From 1919 parties realized that the order of candidates' names on the ballot paper was of significance, so Hughes's Commonwealth Electoral Act 1922 retained the single column on the ballot paper, but instituted grouping of names down that column by candidates' mutual consent. The groups were identified solely as 'A', 'B', 'C', 'D' etc. Surnames within each group were listed alphabetically. The order of the groups down the ballot paper was set by the 'alphabetical order rank average' of candidates' surnames. Presumably the drafters of that provision expected it to operate fairly and impartially. Some party organizations' focus on the order of candidates' names grew after the Commonwealth Electoral Act 1934 of Joseph Lyons's United Australia Party Government required voters to mark all preferences consecutively for a valid vote (The CEA 1940 removed that requirement for the last preference)

The unexpected first attempt, in 1937: At the periodic Senate election in New South Wales on 23rd October 1937, the surnames of the four ALP candidates were Amour, Armstrong, Arthur and Ashley. The Four ‘A’s, as the ploy became known, ensured, as no other group had conspired to have all its candidates having surnames beginning with the first letter of the alphabet, that under the existing Commonwealth Electoral Act the group appeared as the first group, at the top of the ballot paper. The group, like all the groups, could not be identified by any explicit party designation, and was designated solely as Group 'A', on the single column of groups of names on the Senate ballot paper. That enabled the ALP's how-to-vote cards to be very straightforward, and enabled, for ALP voters, the easiest and least error-prone transcription possible from the how-to-vote card to the ballot paper.

'Donkey voters', fulfilling their duty to vote [a citizens' duty still imposed by Section 245(1) of the Commonwealth Electoral Act] by mindlessly numbering the squares on the ballot paper from '1' downwards, would have effectively supported the Four ‘A’s. As the figures at that hyperlink show, under the winner-take-all multiple majority-preferential counting system in force, all four NSW Senate vacancies were won by the ALP, each by an absolute majority of 0.6 percentage points or less. The informal vote was 8.9%. The ALP's rivals accused it of adopting a grubby stratagem for electoral advantage.

Retaliation increased stage management, in 1940: The response by R.G.Menzies's UAP Government, the Commonwealth Electoral Act 1940, was for the electoral law to explicitly let party organizations exercise an almost overwhelming influence on which of a party's Senate candidates would be likely to be elected, and which would not be. The Act replaced the single column with the present below-the-line layout of separate vertical group columns set by lot side-by-side left to right, but with the order of names down each column set by a joint written statement of the candidates in the group that they would have their names appear in the order specified in the statement (the amended Act did not refer to parties, but candidates within each group were inevitably of the same political party).

Group Voting Tickets, from 1983 to March 2016: That critical, very manipulative, move from an alphabetically-based order to an order by candidates’ mutual consent, rather than a randomized order, was made 43 years before the Commonwealth Electoral Legislation Amendment Act 1983 of R.J.L.Hawke's ALP Government introduced Group Voting Tickets, and the related new layout of Senate ballot-papers with their above-the-line and below-the-line voting options. Statutory display of Group Voting Tickets was not always effected at polling places on election day and, even if it had been, the very fine print deterred their use. The below-the-line option continued (with some minor relaxation from having to mark all preferences) the system that had applied since the end of alphabetical ordering within columns. Continuing it seem to be needed to save the 1983 law from a High Court challenge that omission of the below-the-line option would conflict with the important requirement of Section 7 of the Australian Constitution that State senators be '... directly chosen by the people ...'.

That established and customary system was put in the less immediate and noticeable position below-the-line on the ballot paper. The new option was put in the conspicuous position above-the-line. The dividing line was the thick black line printed right across the ballot paper between the provisions for the two options. The easy option was marking a single box above-the-line. That implemented one or more fully preferential voting orders pre-registered with the Australian Electoral Commission, covering all candidates, either a single order, or an effective division of the vote into two or three orders (fall-back provisions in the Act recognized grave constitutional doubts there). Revealingly, on how-to-vote cards, as shown at that hyperlink, the Coalition discouraged the use of the below-the-line section by stating, 'No need to use this section'. The ALP also discouraged its use by stating, 'Do not use this section'.

From 1934 to 1983 voters had to mark a preference number against the name of all but one of the candidates, but after 1940 the parties' how-to-vote cards invariably instructed voters to effectively 'donkey vote' within each column, i.e. mark the squares in each consecutively downwards - an outcome tailor-made to the wishes of nearly all party organizations, but only for Senate polls. Voters' tendency to take the easy course and follow the party instructions certainly strengthened the power and influence of those few party people that were empowered to determine the order in which candidates' names would appear on the ballot paper. The Group Voting Ticket system consolidated that tendency of voters. The percentage voting above-the-line at the 1998 polls was:

NSW

Vic

Qld

WA

SA

Tas

ACT

NT

Aus

96.2

96.8

95.8

94.2

92.9

78.2

78.2

85.6

94.9

 

Party operators' power works against maximizing their electoral outcome: This stage management of the Senate's single transferable vote system of proportional representation to its near-ultimate 1983-2013 stage of success in making it extremely easy for voters to implement their party's wishes, and relatively hard, and unusual, for voters to differ from those wishes, developed gradually. A little-realized self-defeating outcome of that stage management is that a party's representation is minimized for a given level of support where it has more than one quota. In impressive contrast, successive changes in Tasmania's Electoral Act have operated in the opposite direction of making stage management more and more impractical. Tasmania introduced separate columns in 1941, but they each continued to be in alphabetical order until a 1973 law required the order to be by lot. Tasmania has never had the Commonwealth's extraordinary law whereby candidates are empowered to decide the order in which their names will appear on the ballot paper.

Tasmania's ultimate refinement in this matter was 'Robson Rotation' - a 1979 law introduced by Neil Robson MHA. Ever since, it has required that ballot papers in elections to each house of the Tasmanian Parliament be printed in batches so that the name of each candidate has an equal chance of appearing at prescribed advantageous positions down the ballot paper - forestalling Senate-style stage-management, and nullifying donkey voters' effect on choice of a party's candidate, but not on its overall vote.

Public pre-selection disputes lower parties' reputations: Fierce squabbles within parties over the position of their candidates' names on ballot papers is the inevitable consequence of the Senate ballot paper law. Such Assembly squabbles in Tasmania and the ACT are settled at the general election, by the voters, as they should be, avoiding the notorious public disputes about internal party matters, and leaving it to the voters to fine tune the factional balance within each party's elected MPs.

A classic case of the rancour caused by a party organization's involvement in an issue that should be the exclusive province of the voters occurred in the Victorian Division of the Liberal Party in 1998. At the October 1998 periodic election of senators, the three Coalition senators seeking re-election were Senators Judith Troeth, Julian McGauran and Karen Synon. The first two, and Senator Jim Short, were elected at the 1993 periodic election of senators. Karen Synon replaced Senator Short when he resigned in 1997. She was in favour then.

The Liberal Party's choice and order of candidates for the 1998 periodic election of senators was made within the party. Party rules provided that a number of State Liberal MPs, chosen by the State Liberal MPs overall, form part of the group that determines that choice and order. However, accounts suggest that, instead of calling for nominations in the party room, and holding a ballot, the Premier, Jeffrey Kennett, proposed that certain MPs be appointed, and the party room meekly acquiesced in his proposal.

The choice and order selected for the Group Voting Ticket was Senator Troeth, Senator McGauran, Mr Tsebin Tchen, and Senator Synon. Senator Synon was 'dumped' - to use the term used for this manoeuvre. She was relegated to an effectively unwinnable fourth place on the ticket, and was reported to have obtained advice of a Queen's Counsel as to whether the action of the party had invalidated the choice made. Reports indicated that she might have a case, but no further action resulted.


Discontinuance of Group Voting Tickets: An Act to amend the Commonwealth Electoral Act 1918 was passed by both Houses in March 2016 to discontinue the provision for Group Voting Tickets, but an above-the-line voting option was retained. The squares above-the-line now each allow a voter to mark preferences for the order in which the preferences for the groups of candidates represented by each square, denoted with its group name, and its group logo if desired, is given effect to in the vote counting.


In effect, the former Group Voting Tickets, which were deemed to represent a full list of preferences for all the candidates on the ballot paper, have been replaced by a more limited arrangement whereby it is made convenient for voters to adopt individual parties' preferred preference order among their various candidates, and easy for parties' how-to-vote cards to urge them to do so rather than exercise their own judgement, as is their right under the direct election provision of Section 7 of the Australian Constitution. In the debate on the amending Bill, Senator Ricky Muir of Victoria moved for the adoption of Robson Rotation to give equal advantage to each candidate within a party column, but his motion was lost.


A preference marking in an above-the-line square is deemed to be a vote for each of the individual candidates represented by that square, for which there must be at least two, in the order lodged by those candidates collectively, which is the order agreed to within the group. That group's candidates are shown in that same order in the corresponding column for that group below-the-line, with a formal below-the-line vote taking precedence over any above-the-line marking that might have been made.


The ballot paper instruction is to mark at least 6 squares above-the-line or at least 12 below-the-line for a formal vote, but a ballot is nevertheless deemed to be formal provided that it shows at least one first preference above-the-line, or at least 6 preferences below-the-line.


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