The Government's proposed changes to Senate voting will make it almost impossible for small parties to win a seat, based on similar reforms made to NSW upper house elections.
It is also know from the experience with the NSW upper house elections that it will default to a 'one above the line' choice for vast numbers of people, which will mean anyone who votes for anyone other than a major party, their vote is likely to be exhausted," the NSW experience show that most people chose to vote for only one party when voting reforms were introduced and is that experience relevant to the Senate reforms?
Each state and territory has a set number of Senate vacancies, a successful candidate is one who receives a set proportion of votes, known as "a quota".The Australian Electoral Commission explains that determining results under the proportional representation system involves a complex process of transferring votes surplus to the quota received by successful candidates to candidates who were the second choice of voters, and later distributing preferences of candidates with the lowest number of votes after they are eliminated during the count.
Voting below the line;
All the Senate candidates are listed "below the line", arranged in columns according to party, with independents in an un-grouped list at the end.Voters can choose to number each of these candidates in their order of preference (voting "below the line") and they must number every box in sequential order and their preferences are distributed in the order they specified.
The legislation lets two or more candidates request to be grouped together in one column and in a specific order.They are given a box "above the line", with their party name next to it, if they represent one, or no name if they are a group of independents.The elector who chooses "above the line" voting is instructed to put a "1" next to just one box above the line.
Since the voter doesn't specify their second, third or further preferences in above the line voting, this is done by the party or group.
The Government says its legislation to reform Senate voting will "empower voters, returning control of their preferences to them".The legislation includes abolishing group voting tickets, and introducing optional preferential voting above the line.The first change prevents parties from deciding where the preferences of voters who selected them above the line will go.
That means parties or individuals can still request to be grouped in the same column on the ballot paper but they can't specify where their preferences will go beyond their own grouping.
If the changes were all about improving voter choice optional full preferiencial voting would have been applied to both houses of parliement, yet these changes point the finger at control of the senate by self interest.
The second change; is that voters will now be advised to number, in order of preference, at least six squares.Voters therefore would have two choices — vote above the line, specifying their group or party preferences in order of one to six, or vote below the line.The legislation has been reviewed by a joint committee, with the Coalition, Greens and Senator Nick Xenophon expressing support and Labor and Senator Muir dissenting. Crossbench Senators by primary vote.'Savings' provisions So-called "savings provisions" have been included in the legislation to "capture voter intent and reduce the risk of increased vote informality", according to the explanatory memorandum.
Under one of these provisions, voters can put just one number in a box above the line and their vote would still be considered formal.
This fact is not being published in most explanations.
The explanatory memorandum notes that the current Senate voting system, requiring voters to number only one square above the line, has been in place since 1984."Since then, a very large majority of voters have followed the practice of numbering only one square above the line," it said."It is important that voters who continue to number only one square above the line, even though contrary to the new subsection 239(2), should not have their votes treated as informal: they have expressed a clear choice albeit one that might not give their vote a long life in preference distribution.
The issue here is votes will be extinguished, so a usual quota (amount of vote needed to elect a senator) is usually over 70,000 in SA, a double dissolution will all but half this to 35,000, and then the final result will be missing hundreds of thousands of vote, due to extinguished votes.
A record 264 candidates stood in the 1999 election, spread across 80 groups on a ballot paper measuring one metre long.Group voting tickets, and an instruction to place just one number above the line, had been introduced toNSW upper house voting
twelve years earlier.If voters numbered other squares above the line, these numbers were disregarded so there is no data to show how many people put more than one number above the line.After the 1999 election group voting tickets were abolished
and NSW voters were instructed to continue to place a '1' above the line for their party or group of preference, or to vote for additional groups in order of their preference if they wished.This differs from the proposed changes to Senate voting in that if Senate electors choose to vote above the line, they will be instructed to put at least six numbers in order of preference above the line.The NSW change had an immediate effect.Although there were 284 candidates in the next election in 2003, only 15 groups nominated
for above the line positions and seven candidates were ungrouped.Even though NSW voters could number more boxes to indicate their preferences if they wished, Senator Leyonhjelm claims that the change caused the majority of NSW voters to default to a "one above the line" choice.The chart below shows that from 2003 onwards, around 80 per cent
of voters chose to number just one box above the line.EMBED: A breakdown of how electors decided to vote in NSW upper house elections since the reforms in that state were made.
'Exhausted' votesSenator Leyonhjelm said the change to Senate voting would mean that the votes of people who voted for other than a major party were likely to be "exhausted"."There will be some people who will vote for a minor party and then a major party, but I guarantee the vast majority will not," he said.A ballot paper is said to be exhausted
when it has no more preferences marked next to the candidates still in the count and it is then excluded from the count.The explanatory memorandum
notes that the instruction on the ballot paper for voters to number at least six squares is to make sure their vote "has a reasonable life upon the distribution of preferences", even though the savings provision means their vote still counts if they decide to number just one box.The savings provision will not be mentioned in the instruction on the ballot paper.Rodney Smith from the department of government and international relations at the University of Sydney told Fact Check that in the case of the NSW upper house election, if an elector voted '1' above the line for a particular party, their vote can only go to that party's candidates and no others.Media player: "Space" to play, "M" to mute, "left" and "right" to seek.VIDEO: Watch John Barron present the facts. (ABC News)
"So if that party doesn't get enough votes to fill a quota or to be one of the parties that is closest to a quota once the full quotas have been filled, then those votes will just be exhausted, they will effectively disappear," he said.However, he noted that above the line preferences had elected a minor party in the 2015 NSW election."The Animal Justice Party was elected on a primary vote that was not even half a quota but it benefited from preferences above the line from Green voters, largely," he said.After candidates are elected by quota or surplus votes
, counting turns to distributing the preferences.Data from the 1999 NSW upper house election
showed that only 3 per cent of distributed ballot papers had their preferences exhausted by the end of the count, meaning that preferences from nearly all votes were still flowing between groups because these were specified by the parties in their group voting tickets.In the 2003 election
, the first after group voting tickets were abolished, 85 per cent of distributed ballot papers had their preferences exhausted by the end of the count.In his analysis of that election, ABC election analyst Antony Green noted that the new voting system clearly favoured parties with the highest remaining vote after the initial election of candidates with full quotas.He later said that similarly in the 2007
NSW elections, "more than 80 per cent of ballot papers exhausted their preferences during the distribution of Legislative Council preferences".What the experts sayProfessor Smith told Fact Check that Senator Leyonhjelm was broadly correct in his claim about the effect of NSW reforms on voters defaulting to voting '1' above the line.He said under the NSW system and the proposed Senate changes, many electors votes would "exhaust" but both major and minor parties are affected."It's a little bit of a lottery as to who this is going to ultimately benefit but we know that it will not benefit small parties that are nowhere near the quota," he said.
Antony Green told Fact Check Senator Leyonhjelm was citing correct data for the NSW elections, but in doing so had ignored the fact that the new Senate ballot paper, if the changes are adopted, would instruct voters to number at least six squares above the line."A worst case scenario would produce the NSW statistics, but we do not know what percentage of ballot papers will vote with only a 1," he said.INFOGRAPHIC: The instructions for voters on the NSW upper house ballot paper are different to those on the ballot paper for the proposed federal Senate reforms. (Australian Parliament House, NSW Electoral Commission)Referring the proportional split of those voters who vote above the line, he said: "I would guess that the Senate figures might be the reverse of NSW, with 80 per cent preferences and 20 per cent a '1' only. We just don't know."George Williams, a constitutional law expert from the University of New South Wales, told Fact Check Senator Leyonhjelm had a point, but voters putting just a '1' above the line in a Senate election would be disobeying the ballot paper instructions, which was a significant difference from NSW."I think the problem with the federal scheme is that it doesn't prevent parties advocating just a '1' vote," he said."There is a possibility of manipulating the system and advocating what will be a formal vote even if it's not the prescribed voting method."Sources