I said the other day I’d have more to say about Senate voting, and why I believe it has descended into an undemocratic farce.

The Australian Senate is an artefact of our history. Our founding fathers in the 1890s, looking to unite six colonies into a single federated Commonwealth, had one eye on the British Westminster system of government, and the other on the American congressional model. The result, to put it mildly, was cross-eyed.

The Lower House was no problem at all. Our House of Representatives was copied from the Legislative Assembly established in all six colonial governments. It closely approaches both the American Lower House of the same name, and the British House of Commons. The principles, practices, traditions, rubrics and ceremony are all lifted directly from the Commons. It is geographically-based, proportionally democratic, elected by universal adult suffrage and, in my opinion, uses the best (actually, the least-worst) voting system on earth. For all the trials and tribulations, human failings and venality over the past century and a decade, it has never failed us. For that, we have the foresight of the founding fathers to thank.

The Upper House, however, was an entirely different kettle of fish. We knew right from the start that we didn’t want our own House of Lords, no hereditary aristocracy to rule over us. A single monarch was quite enough, thank you mate. So we went for a modified version of the United States Senate. The idea behind this was that a) as per the 1787 Connecticut Compromise in the United States, smaller states would not be trampled on by larger ones, each state having an equal number of Senators—that the country, in other words, wouldn’t be ruled over as a fiefdom by the residents of just Sydney and Melbourne, and b) also like the U.S., elections are staggered, only half the Senate facing election every electoral cycle, granting (so the theory goes) stability and continuity reaching beyond the changing political hue of the Lower House.

However, there were several problems with this lofty ideal. The first was that Australia has only six states, not the forty-five that existed in the American federation in 1900. Each Australian state sent six Senators to Canberra, not just the two as in America. That is, three at each half-Senate election. The 6 was increased to 10 in 1948, then 12 in 1984; in 1975, the Northern Territory and the Australian Capital Territory were granted two Senators each, bringing today’s total Senate to 76.

Now, back in 1900 in America, it was state legislatures that selected Senators, until the passage of the Seventeenth Amendment to the United States Constitution in 1913 formalized popular election to the Senate. Australia, conversely, adopted popular election to the Senate from the outset; initially, by the first-past-the-post (simple block) system that America ultimately chose (with an eye to the Australian Senate, ironically); however, with three Senators chosen in each state at each election, it quickly became clear that the Senate composition did not reflect the will of the people.

So, in 1918 we moved to a preferential block voting system. Once again, however, democracy was ill-served. Results tended to be hopelessly lop-sided, with the Nationalist Party holding 35 of the 36 Senate seats from 1919 to 1922, and Labor holding 33 of the 36 during the Chifley post-war government of the 1940s. In 1948, therefore, we moved to proportional representation in the Senate, using a single transferable vote. This is the system we have today, but with a truly unfortunate modification; more on that in a moment.

The second problem is that the founding fathers foresaw neither the pervasiveness nor the ubiquity of party politics. Political parties did exist in Australia in 1900, most notably Labor, but they were viewed as loose amalgamations of individuals about a central, broad ideology. Senators were sent to Canberra to represent the interest of their state, and their state alone. But national political parties promote national policies which disregard state borders, and party discipline is extraordinarily strict; it is long since any party-based Senators voted in the interests of their own state, at the expense of their party. Legendary Clerk of the Senate Harry Evans was particularly scathing about the party system, railing that modern political parties are a radical negation of Parliament as an institution. Evans, a perennial gadfly whom successive Prime Ministers of both parties unsuccessfully tried to remove (believing him to be a mole for the other side!), openly colluded with independent and minor-party Senators, advising them on procedural means to thwart major-party steamrolling of legislation without due oversight or review.

The relatively large number (compared to America) of Senate seats up for grabs in each state, combined with proportional representation, has led to an ever-increasing number of candidates standing for the Upper House elections. As voters are required by law to number at least 90% of the squares next to candidates’ names, informal voting rates grew to over 10%. To counter this, changes to the Electoral Act in 1984 allowed “above the line”, or group-ticket voting. A modern Senate ballot paper looks like this:

Voters can choose to number the squares below the line, in order of their individual preference; or they can simply place a “1” in the box above the line which corresponds to the party of their choice. Should a voter choose this far simpler, latter option, he is indicating that his preferences should be distributed according to the “group voting ticket” that that party registers with the Australian Electoral Commission before polling day. And this is where the problems start.

The AEC has reported that well over 90% of the electorate now use “above the line” voting, and it has indeed resulted in a dramatic drop in informal voting; yet almost no voters have any idea how their party of choice has distributed their preferences, or what back-room deals have been done to secure them. A small personal tale may serve to illustrate.

Some years ago, I was approached by a minor (very minor) political party who were interested in starting up a Tasmanian branch of their organisation, and possibly even having me run for the Senate in this state under their banner. I had a number of discussions with their senior officials, and eventually attended a party meeting on the mainland. Expecting a lively debate about policy development, I instead found myself ensconced in a tiny function room with about six or seven party members and a smattering of visitors from other minor political parties. To my horror, the meeting’s entire two hours were spent wheeling and dealing with group ticket preferences, and swapping tales about similar deals with the major parties. But what about policy development?, I finally managed to ask. The party State Secretary (if I remember his title correctly), who had not noticed me till that point, looked at me, leaned back in his chair, put his hands behind his head and addressed me as he might a three-year-old. Ideas?, he asked derisively. Don’t need any ideas. Got lots of ideas. I started to reply, but how— He cut me off. Mate, we’re trying to get elected here.

Preference deals, it seemed, were all this party ever did. You could say it was an education for me, and disabused me of any naïve preconceptions I might have had about politics in this country. I left the meeting, and never returned.

The ABC’s resident psephologist Antony Green in this article sums up the idiocy—not to mention the cost to democracy—of above-the-line Senate voting:

The good that has come from ticket voting is the dramatic fall in Senate informal voting. But the acceptance of group ticket voting has involved a trade-off. With the vast majority of ballot papers now tied to party tickets, increasingly Byzantine preference deals are being engaged in by political parties in an attempt to engineer election results. A democratic deficit has developed, with serious questions as to whether the results engineered by group ticket voting truly represent the will of the electorate.

The democratic deficit is clear when you look at the choices faced by voters. Group ticket voting produces the ridiculous situation where voters are forced to choose between voting above the line for a party ticket they don’t know, can’t find out about and probably wouldn’t understand if they could, or to vote below the line giving preferences to a vast array of candidates they don’t know and don’t care about just to have their vote count for the smaller number of candidates they do know.

Green goes on to detail the methods by which democracy can be, and has been, subverted by both major and minor parties gaming the group ticket system, and it is worth quoting him here at length:

Ticket voting has introduced two tactics that are distorting the proportionality of the Senate’s electoral system. The first I will call preference “harvesting”, and is a tactic employed by minor and “micro” parties to keep preferences away from major parties. The second I will call preference “corralling”, deals done between minor and major parties to engineer results.

Preference harvesting has produced unseemly “show and tell” meetings in foyers of Electoral Commissions across the country, as parties and candidates with no ideological affinity engage in the game of keeping preferences away from the bigger parties. Its first successful use was at the 1995 NSW Legislative Council election, when Alan Corbett was elected on behalf of a party called “A Better Future for Our Children”. The tactic was also successful at the 1997 South Australia election, when anti-poker machine campaigner, Nick Xenophon, was elected after harvesting the preferences of every other minor party on the ballot paper.

The game reached new heights at the 1999 NSW election. A plethora of so-called “micro” parties created a ballot paper the size of a tablecloth, with 264 candidates and 81 groups across 3 rows. Despite finishing 29th on the primary vote, Malcolm Jones from the Outdoor Recreation Party stormed to victory with just 0.2 per cent of the vote, or 0.04 of a quota. Jones harvested preferences from 21 other parties, including 8 that had achieved a higher primary count.

This success by micro-parties has produced the most disquiet concerning ticket voting. It has produced suggestions that a new “threshold” be introduced, a minimal level of primary vote that a party must achieve before it is allowed to stay in the count and collect votes as preferences. The problem with this idea is there would be no need for a threshold if it were not for ticket voting. It would also encourage larger parties to do even more preference swaps, secure that preference deals with small parties could never be reversed.

The second strategy of preference “corralling” has been less controversial to date. It was first seen at the 1984 Senate election when Labor and the Coalition did a preference swap in NSW to prevent the election of the Nuclear Disarmament Party’s Peter Garrett, despite him winning 9.1 per cent of the vote. Three years later, the preference deals were different, Labor helping to elect the far less threatening Robert Wood on behalf of Nuclear Disarmament, despite polling just 1.2 per cent of the vote.

This year’s federal half-Senate election promises to be even worse, with a record number of candidates and parties standing; Victorian and New South Wales Senate ballot papers will be over a metre wide. As the ballot papers cannot, for a variety of legal and technical reasons, get any larger than this, the AEC has had no alternative but to reduce the size of the typeface; in these two states, ballot papers will be printed with 6-point font. Given the majority of adults cannot read sans-serif fonts much smaller than 9-point, the Electoral Commissioner will distribute over 40,000 magnifying glasses at polling booths, simply in order to enable voters to read the bloody ballot paper!

Madness.

Not only that, but the counting of votes after the poll presents major problems. The AEC has formulated complex guidelines for polling staff and party scrutineers to assess the formality of senate ballot papers. It’s likely to be weeks before the full results are known, during which time the new government will have no idea how to proceed on such vital issues as the repeal of the Carbon Tax. Three of the criteria of the effectiveness of voting systems in the paper I referenced earlier, include how comprehensible the system is to ordinary voters, how quickly the results are known after the election, and how closely the result reflects the will of the electorate. Our current Senate voting system, as I have shown, fails all three.

This hilarious 2010 public debate gives a feel for the range of opinion on the way the Senate operates. There are some well-articulated arguments on both sides, but it is impossible not to notice the vested interests that permeate the nay side.

The work of Senate committees is important and worthwhile; I myself have appeared before a Senate Select Committee on more than one occasion, and have seen their work first-hand. It is tedious, unglamorous, but valuable work; but since it is performed overwhelmingly by politicians from the very same parties who formulated the bill in the first place, it is hardly in itself justification for the existence of an Upper House; party politicians from the House of Representatives could just as easily perform the work, with no greater conflict of interest.

The Australian Federal Senate as it exists today is neither a house of review, nor is it a states’ house. The domination of the Senate by party politicians has put paid to any pretence the Upper House may have to either of those two rôles. Nor is it a people’s house, as is the House of Reps, despite its use of popular election—a Senator from New South Wales represents ten times the number of constituents as does his colleague from Tasmania. The Senate, in fact, has become just another party house, like its green-upholstered neighbour across the Canberra Parliament House.

The range of possible solutions are many, but to quote the climate activists, the status quo is not an option. Few would be bold enough to advocate outright abolition of the Federal Senate; though as I have argued, each one of the original reasons for its creation has now faded into obsolescence. I would argue that, at a minimum, the combination of above-the-line voting and compulsory attendance at polling booths is untenable. One, or both, must go. The Senate could then make some semblance of a states’ house if Senators were selected by state parliaments, as they once were in the United States. As I pointed out back here, this currently occurs only in the event of casual vacancies created by the death or resignation of a Senator. Or, if the wish was to make it into a second people’s house, it could replicate the voting method of the Lower House (this option would, purely as a side effect, finish off the Australian Greens for good as a political force). Or, to make it a genuine house of review, restrict eligibility to stand as a candidate to those who have not been a member of any political party for (say) ten years.

Paul Keating had it even more right than he realized. The modern Australian Federal Senate are unrepresentative swill. It’s Time—either for reform, or abolition.