In Summary

Analysis for The Conversation by Paul Rodan, Swinburne University of Technology

When the Victorian Labor government legislated in 2003 for the Legislative Council to be elected using proportional representation, it was widely believed that the model it chose would guard against the election of micro-parties that was seen to have blighted the reformed upper houses of New South Wales and South Australia. With statewide upper house electorates in both states, the quota of votes a party needed for election was relatively low: 4.5 per cent for the NSW house and 8.3 per cent for the SA chamber.

The Victorian legislation divided the state into eight upper house regions, each with five members, producing a quota of 16.7 per cent. This was high enough, it was thought, to guard against the election of any of the assorted odds and sods who routinely contest upper house elections in Australia, a point premier Steve Bracks made in 2003 when he explained the decision to use a system of regions rather than a single electorate.

Unfortunately for Bracks, evidence that his optimism may have been misplaced came soon after the passage of the legislation. At the 2004 federal election, Family First candidate Steven Fielding was elected to the Senate with a party primary vote of just 1.9 per cent in a system with a quota of 14.3 per cent. He was assisted by Labor preferences, among other things, though it is a fair bet that Labor officials hadn’t envisaged that a group polling less than 2 per cent of the vote would be a beneficiary of that ideologically curious decision.

But the first election for the new Victorian upper house in 2006 went largely as expected, with seats mostly shared among Labor, the Liberal–National Party Coalition and the Greens − much as had been envisaged when Bracks proposed the reforms. The one exception occurred in the Western region, where the previously defunct Democratic Labor Party, or DLP, polled a primary vote of just 2.6 per cent but secured the election of its lead candidate Peter Kavanagh. Like Fielding, Kavanagh was assisted by Labor preferences. With the re-elected Labor government and the Greens holding a combined twenty-two votes in the forty-member chamber, though, the practical effect of Kavanagh’s success was minimal.

Because of Victoria’s four-year terms, two federal elections were held between the 2006 and 2010 state elections, and while the 2007 Senate election saw no repeat of the Fielding surprise, such was not the case three years later. This time, the DLP replicated its state success by winning a Victorian Senate seat, with John Madigan elected on a party primary vote of 2.3 per cent. The system, it was now clear, could be “gamed” to help secure the election of micro-parties.

That result fuelled speculation that the 2010 Victorian election might see the election of several upper house candidates on miniscule votes. While the battle for last spot was close in some regions, those hopes or fears were not realised. Three-party dominance prevailed, with seats shared by the Coalition (which won government and an unexpected upper house majority), Labor and the Greens.

And last November’s election? Before we look at that result, it’s instructive to reflect on the statewide votes that produced the outcomes at the earlier polls. Between them, the main players – Labor, the Coalition and the Greens – polled over 90 per cent of the upper house primary votes in each of the 2006 and 2010 elections, and while the figures varied from region to region, the overall picture was one of three-party dominance. Fewer than 10 per cent of voters opted for other candidates.

This pre-eminence was radically diminished last November. Although Labor defeated Denis Napthine’s Coalition government, a substantial cross-bench emerged in the upper house: Labor secured fourteen positions, the Coalition sixteen, the Greens five, and five went to others (two to Shooters and Fishers, one to the DLP, one to the Sex Party and one to Vote 1 Local Jobs). The proportion of voters opting for other than Labor, the Coalition or the Greens more than doubled, from 9.4 per cent in 2010 to 19.6 per cent. The vote for “others” ranged from a formidable 24.8 per cent in the Northern Victoria region to 16.1 per cent in Eastern Metropolitan.

Of those elected from micro-parties, the candidate with the lowest group vote secured 1.3 per cent (Vote 1 Local Jobs, in Western Victoria) and the highest was 3.5 per cent (Shooters and Fishers, in Northern Victoria). These primaries are obviously small, but they were far in excess of the 0.5 per cent achieved in the 2013 federal election by the Australian Motoring Enthusiast Party, whose candidate (Ricky Muir) was elected in to the Senate for Victoria.

The success of these micro-parties doesn’t just reflect the gaming of the voting system; it is also a manifestation of an obvious state of disrepair in the relationship between the main parties and the voting public. And it certainly isn’t limited to Ricky Muir’s home state: while nearly one in five Victorian voters opted for a micro-party or independent alternative in the 2014 upper house election, the figure was one in four in the Senate re-run election in Western Australia last year and over 40 per cent in the 2013 SA Senate election. If the main parties were not as unpopular as these figures show, there would be less “spare” quota to help elect non-mainstream candidates.

Despite these obvious causes, many commentators and practitioners see the election of candidates with very small primary votes as a threat to the quality of representative democracy. The fact that above-the-line voters (that is, the vast majority) rarely know how their preferences will be distributed is seen as further undermining the democratic legitimacy of the result, especially where the flow can be ideologically incoherent or contradictory. Such a charge is not restricted to the micro-parties, as Labor and the Greens often seem more intent on fighting their tedious turf wars than on respecting their voters’ values.

The voting system for Victoria’s upper house offers an alternative for voters who want to control their preferences. Under a system of optional preferential voting, an informed elector is not obliged to record more than five preferences. At least partly as a result, below-the-line voting doubled (from a small base of 4 per cent) in the state’s 2014 election. The “optional option” enjoyed more pre-election publicity than in the past and was also outlined at voting booths by polling clerks.

For the vast bulk of electors, though, above-the-line voting remains irresistibly convenient. And this means that their preferences will sometimes be ideologically inconsistent, reflecting the opportunism of party negotiators (or “preference consultants”). While this may frustrate supporters of the main parties, the situation is possibly more complex for those unwilling to support Labor, the Coalition or the Greens.

Not all voters are necessarily ideologically driven (especially in a system of compulsory voting) and it shouldn’t be assumed that what looks like an inconsistent distribution of preferences necessarily devalues a vote. Polling shows that most voters prefer a second chamber under neither government nor opposition control; where some of these voters opt for the micro or independent option, a decision to vote in a way that effectively maximises a crossbench of non-mainstream parties can possibly be viewed as rational voting behaviour.

Exactly this point was made by a Greens spokesperson during the Victorian campaign. Asked to defend some ideologically curious preference deal, his response made clear that the party’s priority was to prevent either major party from controlling the upper house, rather than primarily to determine who might hold the balance of power. (There are obvious exceptions to this proposition, where strong passions may be involved. A voter for the Animal Justice Party, for instance, is unlikely to see any merit in passively supporting the Shooters and Fishers via preferences.)

It could also be argued that the nearly 20 per cent who supported “others” in the 2014 Victorian upper house election were entitled to some “other” representation. Indeed, having attracted nearly 20 per cent of the vote but securing only 12.5 per cent of the seats, the micros and independents might contend that they have been short-changed. So, while the election of candidates with miniscule primary votes is a legitimate concern, the opposite problem – bigger parties with a combined 80 per cent of the votes securing 100 per cent of the seats – doesn’t sound too democratic either.

All this means that Victorian Labor’s confidence in its proportional representation model was misplaced. Its expectation that neither major party would be able to control the upper house was disproved when the Coalition secured such a majority at the second election after the reform was introduced. More importantly, its assumption that eight regions, rather than a statewide constituency, would produce a quota beyond the reach of micro-parties and independents failed to anticipate both the collapse in support for the main parties (especially in upper house contests) and the capacity of interested parties to “game” the system for their own advantage.

Ironically, if Victorian Labor, like its NSW and SA counterparts, had opted to create a single statewide electorate for upper house elections, the party would probably have been no worse off. For a forty-member Victorian upper house, the quota for election would have been 2.4 per cent, quite close to the primary vote that several successful candidates have secured under the regional system.

Interestingly, Victoria’s current Labor leader, Daniel Andrews, appears to have passed up an opportunity to remedy the “problem.” In a phone call with Andrews six months before the election, Coalition premier Denis Napthine proposed that a candidate would need to reach a threshold primary vote of 5 per cent, and that voters be able to express preferences above the line. According to Napthine (and not denied by Andrews, who is now premier), Labor was not interested in such reform. Had the Napthine model been applied to the 2014 upper house vote, Labor, the Coalition and the Greens would have secured thirty-nine of the forty seats, with one possibly going to the Liberal Democrats.

Clearly, it is much more difficult for governing parties to change the rules once the micro-party representatives are sitting in parliament. Like Tony Abbott federally, Andrews cannot afford to antagonise or alienate those who now hold the upper house balance of power. Why he declined Napthine’s offer is not clear, but he may simply not share the alarmism that informs much commentary on the issue. Possibly, he believes that he can assemble an upper house majority, bill-by-bill, issue-by-issue, by stitching together sufficient cross-bench support. (The need for the government to retain good relations with the Shooters and Fishers Party made it a very bad election for ducks.) As the new parliament has yet to vote on any legislation, this idea remains untested, but the inherent uncertainty makes for a very interesting time ahead in the Victorian Legislative Council. 

Written by Paul Rodan, Swinburne University of Technology. This article originally appeared in Inside Story. Read the original article