16 December 2019
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Turnbull's Senate reforms may come back to haunt him

Malcolm Mackerras
5 June 2016

By Malcolm Mackerras

On the night of Thursday 19 May I was on Switzer talking to Peter about election prospects. I followed that up with an article predicting Malcolm Turnbull would still be Prime Minister post-election with a reliable majority in the House of Representatives. That article was posted on this website on Thursday 26 May and was titled: “Are the odds in Malcolm’s favour?”

I then made this promise to the editor of Switzer Daily: “when nominations close I shall write an article on the Senate, giving predictions.”

I firmly intend to keep that promise, but I have decided to precede that article with another on Senate reform. The question I ask is for history to judge: will Turnbull come to regret that he did deals with The Greens and Nick Xenophon to push through a controversial new Senate electoral system? I believe he will regret it, but I cannot be sure. Of this I am certain, however. The big winners from this reform will be Senator Xenophon and The Greens, the latter to a lesser degree than the former. There may be something in it for the Liberal Party in the short term but I doubt it. I feel entirely sure that if Tony Abbott had remained Prime Minister the Senate reform would have been better and very different in character – and there would not have been a double dissolution.

The double dissolution is a gift to Xenophon and, combined with the implementation of HIS kind of Senate reform, governs my feelings about the trade deals done while Abbott was Prime Minister. The Liberals tell us, quite correctly, that Abbott’s deals are in the national interest. They also tell us, again quite correctly, that Xenophon wants them undone because South Australia was not, in Xenophon’s view, treated generously enough. Why then, did the Liberals choose to implement a Senate reform tailor made to suit Xenophon’s interests?

The elections on 2 July will be the 45th general election for the House of Representatives and the 8th general election of senators. Earlier such occasions were in 1901, 1914, 1951, 1974, 1975, 1983 and 1987. Under the Constitution the Senate, following such a general election, divides itself into classes by its own resolution – giving half the elected senators six-year terms and half three-year terms. I speculate that the formula used for that operation will be different from that used on those earlier occasions. I speculate further that Xenophon and The Greens will be the winners both in the election of the whole Senate and also in the election of the long-term senators. Time will tell.

I have several friends who are hostile to this reform, precisely because of the above consideration. They dislike the politics of the expected beneficiaries. While I admit to having noticed the point I do not admit that such is the main reason for my hostility. Mine is based on principle and I can explain it simply by analysing the new system and the things said in its support by its proponents. Its details cannot be explained in terms of democratic values. Nor can they be explained in terms of being likely to produce good government. Rather, they are explained by the need to get a Senate majority to be able to pass it through the Parliament.

The most obvious feature of the new system is its dishonesty. That dishonesty is best illustrated by the ballot paper instructions. Those instructions have compelled the Australian Electoral Commission to publish advertisements which (let me call a spade a spade) tell lies about what the elector can and should do. The advertisements are to be found all over the place, are all the same and begin with a statement (in the first two paragraphs) which is fair enough. It reads: “At this year’s federal election, the way you vote for the Senate has changed and it’s important that you understand how to vote correctly. On the large white Senate ballot paper, you can choose to vote either above or below the line.”

It is at this point that the advertisements deviate into outright dishonesty. The third paragraph reads: “If you choose to vote above the line, you now need to number at least 6 boxes. Put the number ‘1’ in the box for the party or group that is your first choice, a ‘2’ for your second choice and so on until you’ve numbered at least 6 boxes.”

That is not true. You do NOT need to number at least six boxes. Speaking for myself, I shall follow the advice to “Vote ‘1’ only”, knowing that my party vote is a formal vote, due to the so-called “savings” provisions. Electors should be told that, but, for base political reasons, they are not told the truth by the ballot paper or the advertisements.

The fourth paragraph reads: “If you choose to vote below the line, you must number at least 12 boxes, from 1 to 12, for individual candidates in the order of your choice”. Once again that is wrong. There is no “MUST” about it. There are merely politicians who are trying to intimidate voters into choosing the above-the-line option. If I decide to vote below the line I shall treat the advice as though it reads: “Place the numbers 1 to at least 6 in these boxes to indicate your choice”. Were I to do that I would still be casting a perfectly formal vote.

I lack the space to describe how this all came about. The essential point is that alternative reform options were better (from a democratic point of view) but were unattractive to the machines of the Liberals, The Nationals, The Greens and Senator Xenophon. So, the most dishonest reform was implemented and, unfortunately, was upheld by the High Court in the challenge my friend Bob Day launched. (For details about Senator Day see my article here “Why I admire Bob the Builder”, posted on Monday 11 April).

The key to the passage through the Parliament of this reform was the need for the Liberals to get The Nationals on side. The Nationals have always feared being, in effect, prevented from contesting Senate elections in Western Australia. Again I lack the space to explain why. Anyway, The Nationals wanted to keep the old system but were willing to support the Liberals in THIS reform but not any other type of reform wanted by the Liberals. That explains the details of this reform – and not any attachment to democratic values. Independent analysts who argue for this reform are not being honest in the way they describe it.

(Malcolm Mackerras is a visiting fellow at the Australian Catholic University’s Canberra campus. malcolm.mackerras@acu.edu.au)

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