Sarah Capper

Sarah Capper

Policy, advocacy and communications officer at Victorian Women’s Trust
Sarah Capper is the policy, advocacy and communications officer at the Victorian Women’s Trust. She’s also the inaugural editor of Sheilas and a self-confessed political nerd.
Sarah Capper
Sarah Capper is the Editor of 'Sheilas'. She also manages policy, advocacy and communications at the Victorian Women’s Trust (which publishes Sheilas). She fled Queensland for Melbourne in the late 1990s to complete a journalism degree. A self-confessed political nerd, she is passionate about social justice, law reform, Virginia Woolf and her dog, Jasper.

Clive Palmer with Ricky Muir. Photo: Jacky Ghossein

By Sarah Capper

18 October 2013

It was perhaps the moment in which I found myself googling “Ricky Muir” + “poo” that served as the final straw in realising the need for Senate reform.

Not that I needed much convincing – the new Senator-elect from Victoria from the Palmer United Palmer Motoring Enthusiasts Party is just one of several fresh faces in the who’s new in the Upper House zoo.

Anyone who managed to successfully complete their below-the-line Senate ticket form in last month’s federal election deserves a round of applause [pats back]. Voting below the line is always preferable (pun intended) no matter how painstaking, as even the most “ethical” (ahem, cough, splutter) parties are still driven by self-interest when it comes to backroom Senate preference deals.

And boy are there some deals to be had, given the increasing plethora of candidates and parties to choose from. This is physically on display with the actual form handed (or more likely rolled) out to voters which ABC election analyst Antony Green simply likens it to a “tablecloth”.

This year’s Senate tablecloth canvassed candidates aplenty – from major party reps, to minor party reps, to independents and a myriad of inter-galactic micro party representatives in between.  Oh for the days of ye olde micro parties! – when it was “just” the not-so-harmless Shooters and the Fisherperson’s on one end of the scale, and the occasional Wilderness (be kind to the fish) friendly crew on the other.

Slowly, over time, the Senate ticket has grown and grown and grown, and now includes a bunch of bizarre right-wing-religious-teeny-tiny-tea-party-esque groups, some which have deceptively adopted or bandied about the word “Family” (eg. there’s nothing family-like in hating homosexuals), or single-issue/agenda parties (like the Australian Sports Party, Julian Assange’s Wikileaks Party, and even the Pirate Party (yep, you read correctly. Harr-harrrrrr)).

In NSW alone, a record 110 candidates contested the Senate. Even ABC Radio National Breakfast host (and the incredibly politically savvy) Fran Kelly has said that she found the process of voting below-the-line complicated. While only two per cent of voters took up this below-the-line fill-in-the-entire-tablecloth “challenge”, if Fran Kelly struggled with the task, you can imagine how the ‘average joe’ coped.

Even though this is an above-the-line example, senate form confusion was no better demonstrated than in NSW, where ‘Liberal Democrat’ candidate David Leyonhjelm picked up a Senate seat with voters reporting confusion in thinking they were voting for the Liberal Party (note, there aren’t any reports of any confusion with the Australian Democrats). As Tim Colebatch reported for Fairfax,“Hundreds of thousands of voters saw the size of the ballot paper, saw the word ”Liberal” in the first box, and just put a 1 against it. The LDP won 434,002 votes, or 9.5 per cent – 50 times the vote it won in 2007 before it adopted the name ‘Liberal Democrats’.”  Leyonhjelm was also particularly lucky in securing the first column on the left hand side of the ballot paper.

The Senate ballot paper was so physically long in some states due to the number of candidates, that it didn’t actually fit in the AEC voting boxes. The length of Senate papers in Victoria were 1.02 metres! And with so many candidates, this was the first election in which magnifying sheets were available at polling booths for the small font size of candidate names squeezed onto the ballot paper.

On the ABC’s website, Antony Green recently referred back to a 1997 article in which he “prophetically” wrote:

“The result of the election could be determined by voters incapable of reading the ballot paper, unable to manipulate a ballot paper one metre square, or simply bewildered and unable to find the party they want to vote for.”

His 1999 article on the NSW Legislative Council election could just as easily have been applied to September’s federal Senate election:

“Voters will be faced with a farcical ballot paper stacked with stalking-horse parties, the final result owing more to shady backroom deals and the random chance of the draw for ballot positions. The state’s political balance of power may well fall to a bunch of ragtag political fringe dwellers.”

So how did we get here? To appreciate this, it’s worth casting an eye back along the potted (and pot-holed) road of Senate history.

Senate 101

The Australian federal Senate or ‘Upper House’ was created with Federation and the development of Australia’s Commonwealth of Australia Constitution Act (1900). According to the parliamentary library, the Australian Senate “is generally considered to be, apart from the Senate of the United States of America, the most powerful legislative upper chamber in the world” (‘The Origins of the Senate’, Parliament of Australia, Library).

A hybrid creation of the Westminster system, it imitates the United States Senate with all Australian states issued with the same amount of senators, regardless of significant population discrepancies. This in itself has been subject to criticism over the years, one of the most blistering coming but-of-course from former Prime Minister Paul Keating, who referred to the “unrepresentative swill” of the Upper House.

Swill aside, the Australian Senate is a powerful entity, known as the ‘House of Review’, serving as the counterpart to the House of Representatives. Legislation simply cannot be passed without the support of it. Bills can be introduced in the Senate, bar ones concerning public expenditure or taxation. As former Australian Democrats leader Don Chipp successfully championed, the Senate can serve as a back-stop to unfettered House of Representatives power. Or in other words, it can in a way, “Keep the bastards honest”.

There are 76 senators in the Australian Senate (deliberately aroundhalf the number of House of Representative seats, as per the Constitution), with 12 senators for each Australian state and two spots each for the territories. Each state Senator is elected for a six-year period, meaning they face re-election after two terms. It’s worth considering this for a moment – a six-year job at around $190,000 a year, plus benefits – your own driver, and it seems potentially generous allowances to attend sporting events, weddings, parties, and anything on the public purse (unless you get caught, in which you might have to pay some funds back later).

From its origins stemming back to 1900, in 1948 the Senate adopted a proportional representation model of voting. In 1984 (nod to George Orwell), prior to the days of senate voting papers stretching for kilometers, above the line voting was introduced.

Writing in Fairfax newspapers last month, Antony Green explainsthat this move was to address a “scandalously high informal vote”. Green:

“Instead of numbering all squares on the ballot paper, voters could simply adopt a party’s preference ticket by selecting a single square above the line. It more than halved the informal vote and gave voters a quicker and easier way of expressing their vote.

Parties also liked the new system because it allowed preference deals that would help determine the composition of the Senate crossbench.

But what was good for the major party goose, became good for minor and micro-party ganders.

Apparently so, as the banter between the chief ganders Prime Minister Tony Abbott and Palmer United Party (PuP) Clive Palmer begins, with 1 July 2014 in the sights. Palmer has certainly been vocal as he awaits the recount on the Queensland Lower House Seat of Fisher he might soon be representing. He seems to do all of the talking for his three Senators elect.

And last week he kept up the gander banter with the announcement of his Party’s (so humbly named after himself) new ‘memorandum of understanding’ with Victorian Senator-Elect Ricky Muir of another new micro party, the Australian Motoring Enthusiasts Party. While Palmer smears the AEC with accusations of “rigging” the recount in Fisher, the Queensland mining magnate refuses to release details of the deal he has made with the Victorian Senator-elect Muir of another micro party from another state, while forming a bloc which will potentially have ramifications for the rest of the country.

This has presumably been lined up in the instance the PuP loses the WA Senate seat in the current recount. And if they don’t, it provides Palmer with extra “insurance” in holding the balance of power and dominating the cross-benches.

Prior to the MOU announcement, Palmer was interviewed by the ABC’s Tony Jones (The Australian’s Strewth section documents Palmer’s love-in with Jones here), in which he requested more resources for his new Senators elect. Palmer provided this possible ransom note to Jones, “It’s the volume of work, not about how many senators you’ve got, and of course if we don’t get any resources you can well imagine it will take longer for the three people to do their job and maybe you’ll only get one bill through a year.”

One bill, per year, uh huh. I know Tony Abbott and his new Government is keen to slow down the 24 hour news cycle, but “one bill a year” would really take things to a new level.  And it would certainly make a mockery of Abbott’s so-called “Australia is open for business” claims, grinding government legislation to a halt.

Incidentally, for all of Abbott’s insistence in Opposition that the Gillard minority Government was “dysfunctional” and “paralysed”, a study published in the Guardian newspaper has found that in terms of legislation passed, the Gillard Government tops the list in terms of being Australia’s most productive government (543 pieces of legislation passed).  Worth a look.

State of Senate Play 2013 – 2014

Currently, the Greens hold the balance of power with nine senators and will do so until the new Senate forms in July 2014. The 2013 election means the likely Senate make-up in mid 2014 will shift the balance of power from the Greens to a gaggle of eight independent and micro party representatives.

The new Abbott Government will need the support of 6 of the 8 cross-bench senators to pass legislation in the Upper House. Come July, the new Senate is likely to have, subject to the WA recount:

– 33 Coalition Senators,

– 26 Labor,

– 9 Greens (Janet Rice in Victoria, with Scott Ludlum’s spot in doubt in WA), and,

– 8 other cross-benchers.

At this stage these cross-benchers will be:

– Nick Xenophon in South Australia, who almost topped the state’s vote and outpolling the ALP, despite not much love in the preferencing stakes,

– Bob Day from Family First (South Australia),

– Ricky Muir from the Motoring Enthusiasts Party (Victoria), a 32 year-old out-of-work wood sawyer from Gippsland and father of five. Little is known of Muir but in an interview with the Australian, he talked of his love for going bush and his children having access to “this great country of ours”. Or as Greens Leader Christine Milne has explained, “I had a look at the motoring enthusiasts [who] say they want unfettered access to the environment. I think that means four-wheel drives and off-road vehicles and so on.” Muir shot to prominence soon after the result after a video emerged of him engaging in the great Australian tradition of throwing kangaroo feces (aka ‘Roo Poo’) at his brother. Aww, brotherly love, bless.

– David Leyonhjelm of the Liberal Democrat Party (NSW). *Note, if no Senate reform takes place between now and the next election, and you are keen to make a million dollars with six-years work, it might be worth exploring the creation of a political party called the ‘Greens Australian Labor Democratic Liberal Party’ to scoop the pool. I wish I was kidding.

– At this stage three Palmer United Party reps – Queensland’s Glenn Lazarus (of former Rugby League fame, nicknamed the ‘Brick with Eyes’ in such glory days, who, already without spending a day in parliament has had a longer career than his rugby league counterpart Mal Meninga (if you are ever having a bad day, or simply haven’t seen it, watch Mal’s now infamous interview launching the shortest political career in Australian historyhere)), Tasmania’s Jacqui Lambie (who provided this ominous warning after winning her seat “’If [the Prime Minister] thinks that Pauline Hanson was a pain in the rear end, Tony Abbott better look out,’”), and West Australia’s Zhenya ‘Dio’ Wang (The WA Senate recount (called by the Greens and the Australian Sports Party) could take 3-4 weeks. Palmer has labelled the WA recount “undemocratic”. He has also suggested the AEC will “rig” the recount currently occurring in Palmer’s House of Representative seat of Fisher in favour of his LNP rival).

The seven senators will join Democratic Labor Senator John Madigan (who was not up for re-election this time around) on the cross-benchers.

Fairfax newspapers Tim Colebatch profiled the new cross-bench senators in a piece shortly after the election. You can read about their interests and stances on issues here, however vague, as Colebatch notes – “some of them [are] virtually unknown entities with no track record and no known policies, [who] will be given the power to decide whether or not each government bill should be passed.”

Antony Green’s blog on the ABC election website also includes a handy summary of the changing nature of the Senate per state and Territory here.

 Senate Reform Possibilities

A post-election Sydney Morning Herald Editorial argued the need for reform, suggesting that voters have a right to feel cheated: “The triumph of micro-party candidates who earned as little as 1/500th of the Senate vote in their state betrays democracy.”

A number of the micro party reps have been elected with tiny percentages of the vote. Ricky Muir has been elected in Victoria with just 0.51{17ac88c265afb328fa89088ab635a2a63864fdefdd7caa0964376053e8ea14b3} of the vote – Muir effectively unseated current Liberal Senator Helen Kroger, who, by contrast attracted over 10{17ac88c265afb328fa89088ab635a2a63864fdefdd7caa0964376053e8ea14b3} of the vote.

This situation has evolved because of (1) the introduction of 1984 changes allowing people to vote above the line in the Senate, (2) the ability for micro parties to be able to register a party status box above the line by having only 500 members and (3) subsequent preference deals being done behind closed doors which can heavily favour micro candidates.

Such preference deals often go against voter intentions. Referring to his 1999 article recently, ABC election guru Antony Green compared voter intentions in the NSW Upper House above and below the line for a number of parties, and found that huge discrepancies take place.

SA Senator Nick Xenophon has continued to vocally champion Senate reform post the latest poll:

“[Micro Party Representatives] have been elected according to the current system. Now there’s going to be debate as to whether the system can be improved. I think the benchmark for any reform has to be ‘what do voters want?’ What is the fairest thing in a democracy to do? If somebody gets 80 per cent of a quota or 90 per cent of a quota and gets pipped at the post by someone who gets 0.2 per cent of a quota?” (ala Kroger and Muir).

According to the current system, once a candidate has been elected by reaching the required quota (for states, typically 1/7 of the vote or 14.3{17ac88c265afb328fa89088ab635a2a63864fdefdd7caa0964376053e8ea14b3}), any extra votes they receive are distributed along their preferences lines.

Like Xenophon, former Greens Leader Bob Brown has also been a long-time advocate of Senate reform, recently arguing in an opinion piece for Fairfax, “The grabbing Senate seats by micro-party candidates with a handful of primary votes and a manipulated preference flow, while other party candidates with hundreds of thousands of votes are bypassed, is a matter demanding reform.”

Even though Senate reform is bandied about following each election, it has not typically gathered much support from the major parties. However after this last poll, even Prime Minister Tony Abbott has indicated he is open to reforming the way we vote in the Upper House, but has said he will wait until the usual joint standing committee on electoral matters reports back to government.

Another long-term Senate reformer, election analyst Antony Green has compiled articles he has written since the 1990s on the topic, in this recent piece for the ABC. Green notes how people like Glenn Druery of NSW (who contested NSW Upper House elections in the 1990s) have worked out how to manipulate the system. According to Green, Druery has since been “advising micro parties as the so-called ‘preference whisperer’”, most recently as an advisor to the Australian Motoring Enthusiasts Party (obviously with some skill and success with Ricky Muir’s election).

But even Druery is now arguing for reform – not in terms of below the line reforms (like Brown’s 1-6 approach), but in terms of how easy it is to register a party and be issued with a box above the line (Druery suggests increasing the threshold from 500 members to 1000-1500 signatures). He has also defended his role in working with micro parties, telling ABC radio, “All I did was explain how the system worked and off they went and did their own deals.”

Antony Green’s proposes a number of reforms, including:

–  Tightening the regulation of parties (eg. increasing the current 500 party member threshold to be eligible for a box above the line (to be more in keeping with NSW requirements of 2000),

–   Keeping above the line voting but abolishing between party preferences,

–   Reforming deposit laws (to get above the line boxes),

–   Introducing simpler below the line preferences (similar to Bob Brown’s suggestion, which Green says “must” be introduced, so instead of having to fill out all the below the line boxes (as in NSW, 110), reduce this to a minimum requirement of say, five boxes needed to fill in order to be considered a valid vote.

Similar to this last point, Bob Brown proposes an uncomplicated response:

“Reform is simple. Six Senators are elected from each state. Voters would be required to number the parties from one to at least six in the order of their own choice above the line. That’s it … Below the line voting could be maintained, or abolished if this is needed to minimize confusion for ordinary voters. The corrupting system of parties dictating preferences would come to an end.”

It’s an exciting prospect, and one which would not only simplify the process, but which would better reflect voter intentions and ultimately vastly improve our democratic processes. Convincing the “ganders” of it, who will almost always favour current political advantage, may be another matter. Voters might need to shake some tail feathers to encourage it along (as long as we are spared from a repeat performance of Palmer “twerking”).

Sarah ( [email protected]) is the editor of feminist monthly Sheilas