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Wednesday, 16 March 2016
Page: 2065


Senator XENOPHON (South Australia) (11:12): I may shock and disappoint you, and particularly disappoint Senator Dastyari, but I will not talk about GQ fashion shoots.

Senator Dastyari: Shame.

Senator XENOPHON: Well, 'shame', says Senator Dastyari, but I think it is important that we talk about the Commonwealth Electoral Amendment Bill 2016 and about the importance that it has to our democratic system. When all is said and done, at the very core of this bill for Senate voting reform is a principle of democratic will, of equity and of genuinely giving the power back to the people as to how senators are elected, because the current Senate voting system is broken and it needs to be repaired. It needs to be repaired in a way that encourages choice other than for the major parties or, for that matter, significant minor parties. It needs to be repaired so that voters are encouraged to consider alternatives in microparties and Independents, and I believe this bill will do that. Above all, it needs to be repaired to rid Australian democracy of the preference whispering, the backroom deals amongst the party apparatchiks of the major, minor and microparties alike, deals that lead to outcomes where many voters feel particularly cheated that their choice and their will has been subverted. For instance, how many Australian Labor Party voters in the 2013 federal election in South Australia, voting for the ALP Senate team, realised that their vote would end up electing Senator Bob Day from Family First?

Senator Day: All of them!

Senator XENOPHON: 'All of them,' says Senator Day. Senator Day's remarks are quite absurd. I think that maybe we should go halves, Senator Day, on a poll of voters who voted for the Labor Party and ask how many of them thought that they would be electing Senator Day to the Senate.

This is not a criticism of Senator Day or of his party. It is not a criticism of Senator Day himself, who has an excellent reputation as a businessman—a homebuilder—in South Australia. I admire him for his great success in the community; his award from the Australia Day Council was well deserved. But I do make this reflection: Family First policies have very, very little in common with the Australian Labor Party. In fact, many commentators would say that Family First policies are to the right of those of the Liberal Party. That is not a criticism. And yet, Labor backroom operatives preferred seeing Family First in the Senate ahead of candidates from the political centre. Go figure.

Before I discuss the history of the substantive provisions of this bill I will make this reflection: the Senate must unequivocally be a strong, robust house of review. We exist to keep the executive arm of government in check and balance or, as Don Chipp put it best, 'To keep the bastards honest, whomever those bastards may be'. The Senate has been established under our Constitution to guard against abuses of executive power. I believe it exists to ensure that taxpayer funds are not wasted and are, in fact, spent wisely, and to safeguard individuals and sections of the community in this great country of ours who may be particularly vulnerable.

We saw what happened when the coalition had a majority in the Senate from 2004 to 2007: they not only exceeded their mandate they failed Australians who put their trust in them by going too far—by bringing in unfair and unjustified industrial relations laws. In that Howard government era from 2004 to 2007, they used their numbers to fetter the Senate's role as a genuine house of review—a house of review that has an obligation to keep governments to account, not only to their promises but also the promises those in opposition and the crossbench make to those who supported them.

Sometimes the Senate has an obligation to save a government from itself—from its hubris, from blind ideology and from ill-considered ideas that could damage the lives of millions of Australians. The radical higher education reforms ambushed on Australians in the 2014 budget are but one of many examples of this in recent times, as was the cruel and destructive plan to force young people to wait six months for unemployment benefits. This would have had the consequence of many young people becoming homeless and destitute, spiralling into a cycle of poverty and despair that would have been very difficult for them to get out of.

The rejection of those measures are just two of many examples of the Senate doing its job. That is why, as heated as this debate has been and, no doubt, will be in the coming days, I welcome it, because it puts a focus on the Senate as a safeguard for our democracy—a safeguard against abuses of power. That is why I hope and urge Australians—should they vote for the Liberals, or the Nationals, or the LNP or the ALP in the lower house—to vote differently in the Senate; to consider a microparty, a minor party or an Independent. In a sense, the voting reform that has been proposed here requires those two-thirds or more of voters who vote for major parties in the lower house to consider an alternative in the six choices they are required to make above the line in the Senate. And I should correct that: it is about two thirds—about 75 per cent—who vote for the major parties in the lower house and somewhat less in the upper house.

What this bill does is to require voters to consider an alternative—six choices. There is an additional safeguard in that in a half-Senate election a minimum of 12 choices below the line will have that effect as well and also, for that matter, in a double dissolution, because having 12 choices—rather than having to number all the boxes below the line—would have meant numbering over 100 at the last Senate election for voters in New South Wales. I expect that the closest precedent of voting systems in Australia to what is being proposed here is the ACT voting system, where voters have a choice of at least five above the line or below-the-line voting. Most voters—over 75 per cent—go above the line and comply with the instructions.

This bill is a substantial improvement on the bill recommended by the Joint Standing Committee on Electoral Matters after the 2013 election. Rather than the original recommendations of having voters just mark at least one above the line, it requires at least six choices above the line. It will mean diversity in this place, but diversity arising out of the will of the voters—not the machinations of backroom deals, party operatives and preference whisperers. And I believe that the sound and fury surrounding these reforms is unambiguously a good thing in highlighting the importance of the Senate in keeping the government of the day to account. It is the importance of keeping the government of the day from not even going close to controlling the Senate. Given that the election is likely to be tighter than many thought it would be six months ago, the best way to ensure that is to vote for a minor party, a microparty or an Independent in the Senate.

I think it is worth reflecting on the history of Senate voting reform and the history of Senate voting systems. From 1949 until 1983 the Senate ballot paper required voters to fill in consecutive numbers for every box next to every candidate. That way, at each Senate election, five—and, from 1984, six—senators were elected from every state under a proportional representation system. The quota for a Senate seat in a half Senate election is 14.3 per cent and can comprise primary votes and preference flows. The proportional representation system avoided the tyranny of the majority, which had a winner-take-almost-all effect. For instance, Mr Acting Deputy President, you are probably well aware that from 1946 to 1949 there were only three opposition senators—the leader, the deputy leader and a whip—facing 33 government senators. With apologies to Paul Keating, that set-up was truly 'an unrepresentative swill'.

While the candidates representing a political party identified as such, optional preferential voting for a limited number of candidates is not allowed. With more and more parties and candidates standing for the Senate, the informal vote crept up to 9.9 per cent in the 1983 election. In fact, it was an 11.1 per cent informal vote in New South Wales—that is almost the equivalent of a full Senate quota. The newly-elected Hawke government tackled Senate voting reform and implemented the system we have today. I note that it was controversial at the time, but the opposition came on board and accepted that it was right at the time.

Since 1984 voters can simply place a 1 above the line for a political party or group representative or, alternatively, undertake the onerous task of numbering every box below the line. With 85.7 per cent of voters choosing the above-the-line option, the 1984 election saw the percentage of Senate informal votes plummet to 4.3 per cent. In 2013 the informal vote was down to three per cent, with 96.5 per cent voting above the line. But this drop in the informal vote has come at a price, arguably, to the democratic will of voters. Political parties were given the power to lodge group-voting tickets which direct voter preferences at their whim. Despite the fact that such group-voting tickets need to be displayed at polling booths and published online, I suggest that almost all voters have no idea where their above-the-line vote could end up.

With due respect to Senator Day, I really believe that very few voters know where their votes end up in terms of the preference flows and the way that they can cascade depending on who gets what in terms of those initial primary votes. That is something that the backroom operators of political parties, and the so-called preference whisperers, have been banking on for years, and more so in recent elections. Many pollies like referring to voters as 'punters', which I find objectionable, and the Senate voting system has shown what a lottery it has become. Most Greens voters would be bemused that the party of coalminer Clive Palmer helped get the Greens in South Australia elected in 2013. It is not a criticism; it is an observation, and I made the observation about Senator Day. Again to Senator Day, this is not a criticism of him but a reflection on the system.

At this stage, I want to reflect on the former Special Minister of State and Labor Party statesman Gary Gray, the member for Brand, who had this to say in his speech to the House of Representatives on 24 February 2016. I will quote, I think fairly, from parts of his speech. He says:

in New South Wales these ballot papers have become so big, so complex and so cluttered that in fact we need a magnifying lens to see and to read the names of candidates put forward for election. It is self-evidently the case that our parliament needs to act on electoral reform.

Mr Gray goes on to say:

This bill amends the current Electoral Act, which was first introduced over 30 years ago to reduce informal voting. Unfortunately, that system of ticket voting is now being manipulated and has begun to create unintended outcomes. The report of the Joint Standing Committee on Electoral Matters makes this clear.

He goes on to say:

In the last few years, at both state and federal level, pop-up parties designed to attract small numbers of primary votes have manipulated the system through preference harvesting and vote transfers to produce end results that do not reflect the wishes of voters.

I emphasise that: that do not reflect the wishes of voters. Mr Gray goes on to say:

This is not to cast aspersions on the integrity or capacity of the current independent and minor party senators. While I may not always agree with their positions, it is clear that they are each engaging diligently in the process of policy, discussion and debate, and each of them has been properly elected under the current rules.

But Mr Gray says, and I wholeheartedly agree with him:

My view is that the current rules do need to be changed …

He acknowledges that he lost the debate within the Labor Party, which takes its current position. He does refer to this:

If the 2013 Western Australian Senate result had been upheld, the Sports Party, on 2,974 votes, would have defeated Labor Senator Louise Pratt on 160,141 votes. Fortunately, there is a clear—and the joint standing committee's view was unanimous—way out of the current dysfunctional mess.

He refers to the voting reforms of the optional preferential system above and below the line. Mr Gray makes this point about the misinformation about this bill—misinformation that his own party and others have been propagating. He says this:

There have been many pieces of misinformation spread about the bill that is currently being debated. Some have said that this bill will deliver the coalition a 38- or 39-member controlling majority in the Senate. I will also table another document, which is modelling carried out by the Parliamentary Library on this bill. It conclusively demonstrates the result under this bill.

And that is not what the misinformation that has been put out there says. It has been debunked. He also said in relation to that modelling:

None of us can predict the outcome of future elections, but this modelling is based on the current bill and was carried out by the Parliamentary Library. We have been told that this bill will increase informality. Informality is a scourge and the better the lower threshold for formality that is in fact enshrined in this bill is a good measure. It allows in the below-the-line voting a better savings provision; and above the line, it also allows a better savings provision.

We have actually seen that improve since that time, Mr Acting Deputy President Bernardi—it is good to see that you are in the chair.

Mr Gray, in his speech to the parliament, says:

We are told that three million-plus voters will be disenfranchised by this bill. We are told that their votes will be wasted or voided. I do not agree with that any more than I would think that a person who voted Liberal in the seat of Brand had wasted their vote. I wish they had voted Labor but, because they voted Liberal and voted for a losing candidate, they did not waste their vote. Their vote was not voided; their vote was not wasted.

Mr Gray reflects quite sadly that he lost the argument in his party room on Senate reform and that the ALP would be opposing them. I think we should heed the sensible, measured and fair remarks of Mr Gray.

I want to deal with the issue of the exhaustion of preferences, and it is referred to in the joint standing committee's Advisory report on the Commonwealth Electoral Amendment Bill 2016. I refer to paragraph 3.66 of that report, which I want to put in the Hansard. It refers to Adjunct Professor Antony Green. The report says:

Professor Green noted in his submission, and in verbal evidence to the Committee, that in New South Wales Legislative Council elections, more than 80 per cent of ballot papers consist of only a single '1' which creates a very high rate of exhausted preferences. While the voting system advises voters to only vote '1' above the line, he highlighted the fact that:

With a low quota (4.55 per cent) and 21 members to elect, the high exhaustion rates has not significantly distorted the NSW system. Even with the final few seats filled by candidates below the quota, the seats won by party have generally been proportional to the percentage votes by party.

Applied to the higher Senate quota, some contests would occasionally be decided by electing a candidate well short of the set quota.

The requirement to number at least six preferences above the line should mean the exhaustion rate at Federal elections will be lower than for NSW Legislative Council elections.

Professor Green said this in his submission to the committee, which brings me to an issue which I think Senator Day has been quite exercised of, including in a letter to the Mount Barker Courier—a great publication which anyone who lives in the Adelaide Hills and beyond should subscribe to and should read.

Senator Day has accused me of hypocrisy in the way that I was not voted into the South Australian Legislative Council back in 1997. It seems like yesterday back in 1997 when I ran on a No Pokies ticket and it will be on my tombstone that that is still the core issue in my heart: if a government gets it wrong on poker machines, what else is it getting wrong for the people who have been damaged by predatory gambling?

When I was first elected to the South Australian Legislative Council I did so with just on 2.9 per cent of the statewide vote. A full quota for the legislative council in South Australia is 8.33 per cent. I therefore achieved just over a third of the quota—more than any other independent or microparty running at that election. I was actually 10th out of the 11 candidates elected. Carmel Zollo, a very fine person, was the No. 11 person elected for the Australian Labor Party. I obtained preferences not by preference whispering or backroom deals but largely because no-one who preferenced me actually thought I would get in. I am sure that some of the major, minor and microparties felt sorry for me that I was running.

It is important to note that the proposed system that I am suggesting here today, of 1 to 6 above the line, would have meant that I would almost certainly have got elected back in that election, because of the primary vote that I had. That is the difference and that is where I take issue respectfully with Senator Day in respect of this. If I had not got elected back in 1997, guess what? I would have accepted the decision, dusted myself off and kept campaigning on No Pokies issues and other community issues. I would have sought the support of the people at the next election working harder, getting my message across and building up more grassroots community support. After all, isn't that what true democracy is about?

If we can go to some of the provisions of this particular bill, there are savings provisions. The optional preferential voting below the line is important, and I commend the Greens and the government for working on this to ensure that we had that safeguard. That is a much fairer system.

Ultimately—and I go back to where I began—this bill at its very core is that the principle of democratic will, of fairness, of genuinely giving power back to the people as to how senators are elected is reformed. This is what this bill will do. The current system is broken. We need to reform it and we will now have an opportunity with an extensive non-gagged committee stage to exhaustively discuss all these issues, should this bill pass through the second reading stage.

I welcome the committee stages of this bill. I welcome a debate on the amendments and the substance of this bill and I hope we do not have to discuss who is on the cover of Gentlemen's Quarterly or not—I do not think that is very relevant with all respect to Senator Dastyari. I want diversity in the Senate, but that diversity should occur through the will of the people, not through the backroom operators and preference whisperers.