Title Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting and the Robson Rotation) Bill 2021
Database Explanatory Memoranda
Date 13-12-2021 04:57 PM
Source Senate
System Id legislation/ems/s1329_ems_268ff81c-0531-49e6-89f3-da13aa11a528


Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting and the Robson Rotation) Bill 2021

 

 

 

 

2019-2021

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

COMMONWEALTH ELECTORAL AMENDMENT (ENSURING VOTER CHOICE THROUGH OPTIONAL PREFERENTIAL VOTING AND THE ROBSON ROTATION) BILL 2021

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator McGrath)

 


COMMONWEALTH ELECTORAL AMENDMENT (ENSURING VOTER CHOICE THROUGH OPTIONAL PREFERENTIAL VOTING AND THE ROBSON ROTATION) BILL 2021

 

GENERAL OUTLINE

The Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting and the Robson Rotation) Bill 2021 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) to improve the House of Representatives voting system, to enhance voter choice while reducing the impact of advantageous ballot positions.

 

The Bill proposes to:

 

·         reduce the complexity in the democratic process and enhance voter choice in House of Representatives elections, by introducing optional preferential voting and removing the requirement for compulsory preferential voting;

·         promote voter choice to allocate any preferences of their choosing and removing the requirement for voters to preference candidates they do not wish to vote for;

·         uphold voter intention by introducing vote saving provisions that capture voter intent and reduce the risk of increased vote informality;

·         introduce the Robson Rotation, whereby the position of candidates listed on House of Representatives ballot papers are re-ordered between ballot papers, to remove the effect of advantageous or favoured ballot positions; and

·         increase transparency of elections by removing any real or perceived advantage of ballot paper position by distributing and/or limiting the effect of ‘down the ballot paper’, ‘linear’ or ‘donkey’ votes.

 

The Bill responds to key elements of the final report of the Joint Standing Committee on Electoral Matters (JSCEM) inquiry into the conduct of the 2019 Federal election and matters related thereto, tabled on 10 December 2020.

 

The JSCEM identified a rise in informal votes in the 2019 election, with New South Wales having the highest rate of informal votes. The JSCEM noted confusion of voters in New South Wales, which utilises an optional preferential voting system. The JSCEM concluded that due to the close proximity of the 2019 New South Wales election and the 2019 federal election, that was held within seven months, New South Wales voters likely mistakenly thought that providing only one preference was a valid method of voting in the 2019 federal election.

 

To provide confidence to voters in federal elections, while upholding voter choice, the Bill will introduce optional preferential voting that will enable a higher rate of voter participation, where voters can cast their vote for their preferred candidate, and preference any other candidates if they wish. Removing the requirement of full preferencing enhances voter intention as it enables voters to choose when their vote should exhaust if their preferred candidate or candidates are excluded in the counting process. The choice to not vote for a candidate that you do not know, or support, furthers the democratic process.

 

The Bill further enhances voter intention by providing for a less complex voting system and provides vote saving provisions for voters who do not preference each and every candidate, which will reduce the number of informal votes. Together, these amendments will improve transparency and simplify the voting system, thereby enhancing the number of formal votes, and supporting the democratic process.

 

To increase fairness in the electoral process, the JSCEM recommended implementing the Robson Rotation, in which the order of candidates’ names on the ballot papers is randomised from one ballot paper to the other. The Bill introduces this change, broadly reflecting the methodology currently used in Tasmanian elections, along with provisions for the determination of the order of candidate names on the ballot paper, and the printing and distribution of ballot papers.

 

The Bill proposes a method where equal batches of ballot papers are distributed, which as far as practicable equally list each candidate in favourable positions. This randomisation of the order that candidate names appear on the ballot papers ensures fairness in the democratic process, as it removes advantages associated with candidates being positioned in more favourable positions.

 

The randomisation of candidate names on ballot papers will minimise the effect of any real or perceived effect of candidates being randomly drawn in more favourable positions on the ballot paper. To increase confidence in the voting process, by creating a number of versions of the ballot papers, the Bill will allow for ‘down the line’, ‘linear’ or ‘donkey’ votes to be more evenly distributed between all candidates.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in the Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the statement of compatibility with human rights is at Attachment A.

 

 


 

NOTES ON CLAUSES

Clause 1: Short Title

1.           Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.           Clause 2 sets out when the Bill’s provisions will commence. The table specifies that the whole Bill will commence by a day to be fixed by Proclamation. However, if the provisions do not commence within 6 months beginning on the day the Bill received Royal Assent, the provisions will commence on the day after the end of that period.

Clause 3 – Schedules

3.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms. There is one Schedule to the Bill, which provides for amendments to the Commonwealth Electoral Act 1918.


 

Schedule 1—Amendments

4.                  All amendments in Schedule 1 are to the Commonwealth Electoral Act 1918 (the Electoral Act).

Part 1 – Amendments relating to optional preferential voting

Commonwealth Electoral Act 1918

Item 1 – Paragraph 240(1)(b)

5.                  This item repeals and substitutes paragraph 240(1)(b), which concerns the marking of votes in House of Representatives elections. New paragraph 240(1)(b) provides that a person may allocate preferences if the person wishes, thereby making preferential voting in House of Representatives elections optional. The person may vote for additional candidates by writing numbers beginning with the number 2 in the squares opposite their preferred candidates on the ballot paper.

Item 2 – At the end of section 240

6.                  This item amends section 240 to add subsections (3) and (4), that provide for the saving of votes with repeated or missing numbers, respectively. These provisions are designed to minimise voter informality and maximise the realisation of voter choice up until the point where the voter’s intention is no longer clear.

·         Subsection (3) relates to repeated numbers in preference votes, where a voter records the same preference for more than one candidate. The voter has not expressed a clear choice for the preference that is repeated, and the voter’s preference cannot be safely assumed. Therefore, the preferences are to be treated as formal up until the repeated preference occurs, with the preferences in error and any subsequent preference(s) to be disregarded.

For example – if the voter records preferences as 1, 2, 3, 4, 4, 5, the first, second and third preference will be formal, with preferences 4, 4 & 5 being disregarded.

·         Subsection (4) relates to missing numbers in preference votes, where a voter records a sequence of preferences with a break in the order of preferences. The voter has not expressed a clear choice for the preference where the break occurs, and the voter’s preference cannot be safely assumed. Therefore, the vote preferences are to be treated as formal up until the break of preference occurs, with the preference in error and any subsequent preferences to be disregarded.

For example – if the voter records preferences as 1, 2, 3, 5, 6, the first, second and third preference will be formal, with preferences 5 & 6 being disregarded.

Item 3 – Paragraph 268(1)(c)

7.                  This item repeals and substitutes paragraph 268(1)(c), which deals with informal ballot papers. New paragraph 268(1)(c) provides that a ballot paper will be informal if no vote is indicated on it or does not indicate the voter’s first preference. This amendment removes the requirement for voters to number every box, and minimises informality in optional preferential voting, as a vote will only be informal under new paragraph 268(1)(c) if the voter fails to clearly mark their first preference vote.

Item 4 – Subparagraph 274(7)(d)(i)

8.                  This item repeals and substitutes subparagraph 274(7)(d)(i) and adds subparagraphs 274(7)(d)(ia) and 274(7)(d)(ib). These measures amend the scrutiny of votes in House of Representatives elections under section 274 to accommodate optional preferential voting. Upon excluding a candidate with the fewest first preference votes, the Divisional Returning Officer is required to either distribute preferences according to the individual ballot papers or cast aside and exhaust the ballot papers that do not list a subsequent preference. Specifically:

·         New subparagraph 274(7)(d)(i) requires the Divisional Returning Officer to exclude the candidate who receives the fewest first preference of votes from the count.

·         New subparagraph 274(7)(d)(ia) provides that each ballot paper, counted to a candidate excluded from the count under subparagraph 274(7)(d)(i), and that does not express preferences for another candidate, is to be set aside and exhausted.

·         New subparagraph 274(7)(d)(ib) provides that each ballot paper, counted to a candidate excluded under subparagraph 274(7)(d)(i), and that is not exhausted under subparagraph 274(7)(d)(ia), shall be counted in accordance with the voter’s preference.

Item 5 – Subparagraph 274(7)(d)(ii)

9.                  This item amends subparagraph 274(7)(d)(ii), which concerns the process by which the Divisional Returning Officer continues to exclude the candidate(s) with the fewest votes until only two candidates remain. This amendment provides for the setting aside of ballot papers where preferences have been exhausted, and the remaining ballot papers to be counted in accordance with the voter’s preference. 

Item 6 – Paragraph 274(7AA)(c)

10.              This item repeals and substitutes paragraph 274(7AA)(c) to accommodate the flow of preferences of excluded candidates when no candidate has an absolute majority of votes.

11.              Subsection 274(7AA) concerns the process by which the Divisional Returning Officer distributes preference votes if no candidate has an absolute majority of votes. The Divisional Returning Officer must rank the candidates in order of the highest number of first preference votes under subsection 274(7AB).

12.              Under subparagraph 274(7AA)(b)(i), the Divisional Returning Officer must determine if the total number of first preferences of all candidates other than the first and second ranked candidates, is equal to or more than the number of first preference votes counted for the second candidate. If so, the Divisional Returning Officer must proceed with the scrutiny of votes in paragraph 274(7)(d) by excluding candidates with the fewest first preference votes.

13.              If the number of first preferences counted to all candidates other than the first or second ranked candidates is less than the number of first preferences counted for the second candidate, subparagraph 274(7AA)(b)(ii) requires the Divisional Returning Officer to exclude all candidates other than first and second ranked candidates.

14.              The new paragraph 274(7AA)(c) provides for when the Divisional Returning Officer must exclude all candidates other than first and second ranked candidates under subparagraph 274(7AA)(b)(ii). The new subparagraph 274(7AA)(c)(i) requires the Divisional Returning Officer to set aside exhausted ballot papers of excluded candidates that do not express a preference for either the first of second ranked candidate, and the new subparagraph 274(7AA)(c)(ii) provides for all remaining ballot papers of an excluded candidate to be allocated to one of the first or second ranked candidates in accordance with the voter’s intention.

Item 7 – Subsection 274(10)

15.              This item amends subsection 274(10) to include the words “and exhausted” after the word informal. This subsection defines an ‘absolute majority of votes’ for the purpose of counting House of Representatives votes. This amendment provides for the exclusion of any exhausted votes when determining an absolute majority.

Item 8 – Schedule 1 (Form F)

16.              This item repeals and substitutes Form F in Schedule 1. The new form is amended to provide instructions on how to vote in a system of optional preferential voting. Specifically, the instructions are amended to state:

“Write the number 1 in the box next to the candidate of your choice. You can show more choices, if you want to, by writing numbers in the other boxes, starting with the number 2.”

17.              This amendment informs the voter on how to vote and clearly states that the voter allocates their first preference by writing the number ‘1’ in the box next to their preferred candidate. The form further informs the voter the option to allocate additional preferences, if the voter wants to, by writing numbers in other boxes, starting with number 2.


 

Part 2 – Amendments relating to ballot papers

Commonwealth Electoral Act 1918

Item 9 – Subsection 4(1)

18.              This item inserts the definition of ‘favoured position’ into section 4 of the Act.

19.              The definition of ‘favoured position’ relates to certain positions in the order that candidate names are listed on the ballot paper for House of Representatives elections.

20.              The definition enables the operation of the Robson Rotation, by stipulating what positions on the ballot paper are favourable depending on the total number of candidates. It sets out what the favoured positions are for ballot papers that have 2 to 9 candidates and prescribes what favoured positions are if there are 10 or more candidates contesting a division. For example, when:

·         only two candidates are contesting a division, the first position on the ballot paper is a favoured position;

·         five candidates are contesting a division, the first, third and fifth positions on the ballot paper are considered favoured; and

·         nine candidates are contesting a division, the first, second, eighth and ninth positions on the ballot paper are considered favoured.

21.              A ‘down the ballot paper’ or ‘donkey’ vote is where the voter numbers the boxes in sequential order from the top to the bottom of the ballot paper. This likely results in candidates who are successful in drawing the first position on the ballot paper receiving a majority of these vote types, often giving them a disproportional advantage over the other candidates. The first few positions on the ballot paper are therefore considered favourable positions. The same concept applies for voters who list their voter preferences in reverse order, from bottom to top, which is why the bottom positions are also considered favourable.

22.              The introduction of the Robson Rotation under item 11 requires all candidates to be, as far as practicable, evenly listed in these favourable positions, which in effect randomises the order candidates appear on the ballot paper and removes any real or perceived ballot paper advantage by evenly distributing the advantage between all candidates.

Item 10 – Paragraph 209(7)(c)

23.              This item inserts the words ‘as far as practicable’ into paragraph 209(7)(c), which requires an officer to write the full names of all candidates in the same order as it would be required if the ballot were being printed, if names of candidates are not on the ballot paper.

24.              The introduction of the Robson Rotation under item 11 will result in numerous ballot papers being issued within a Division, where the names of candidates will be printed in various orders, making it impracticable for officers to accurately replicate by handwriting a ballot paper. This amendment allows for officers to comply with this requirement “as far as practicable”.

Item 11 – Section 212

25.              This item repeals and substitutes section 212, which sets out printing requirements for ballot papers to be used in House of Representatives elections. The amendment introduces a new section 212 that provides for the Robson Rotation of ballot papers to be implemented and specifies the process of ordering candidates, and printing of ballot papers in House of Representatives elections.

26.              The amendment requires ballot papers to be printed in equal batches, where the order of candidate is randomised between each batch of ballot papers, based on each candidate appearing in the favoured positions introduced in item 9.

27.              This amendment allows for a practicable method of reordering candidates’ positions between ballot papers, while ensuring a high degree of randomisation. The amendments ensure that candidates’ names are evenly distributed across batches of ballot papers, but further requires, as far as practicable, for names to appear in favourable ballot paper positions equally.

28.              The randomisation of the order that candidate names appear on the ballot papers ensures fairness in the democratic process, as it removes advantages associated with candidates being positioned in more favourable positions.

29.              Specifically, subsection 212(1) provides that the section applies to House of Representatives elections.

Candidate names and squares – subsections 212(2)-(3)

30.              Subsections 212(2)-(3) prescribe that ballot papers must distinguish candidate names and contain squares opposite each candidate name.

·         Subsection 212(2) enables names of candidates that bear similarities to be distinguished in order to reduce confusion between various ballot papers.

·         Subsection 212(3) requires that a square be printed opposition the name of each candidate.

Printing and order of ballot papers – subsections 212(4)-(10)

31.              Subsection 212(4) requires that ballot papers are to be printed in batches with the ballot papers within each batch having the same order of candidate names.

32.              Subsection 212(5) prescribes that there must be two sets of batches, both of which will contain the same number of ballots, giving effect to the random re-ordering of candidate names on the ballot papers.

First set of batches – subsections 212(6), (8) & (9)

33.              Subsection 212(6) requires that the first set of batches of ballot papers is printed in accordance with subsections 212(8) and (9). The number of batches within the two sets is determined by the number of favoured positions introduced under item 9, and therefore determined by the number of candidates.

34.              Paragraph 212(8)(a) determines the number of batches within the first set, which requires a new batch of ballot papers whereby each candidate appears in each of the favoured positions. Therefore, there must be a new batch for a candidate to appear in each favoured position. Paragraph 212(8)(b) requires that the number of ballot papers within each batch, and therefore the number of ballots a candidate appears in a particular favoured position is, as far as practicable, equal to the number of ballots on which other candidates appear in that specific favoured position.

35.              Subsection 212(9) requires the order of the first batch of ballot papers in the first set to be determined by the Divisional Returning Officer in accordance with section 213, where the order of candidates is drawn at random in a ballot draw.

Second set of batches – subsection 212(7)

36.              Subsection 212(7) outlines how order of names in the second set of batches is determined. Paragraph 212(7)(a) requires that there is a corresponding batch in the second set for every batch in the first set of batches. Paragraph 212(7)(b) requires that each corresponding batch in the second set of batches has the name of the same candidate in the first position, but the subsequent order of candidates is reversed.

37.              This is demonstrated by the example provided in subsection 212(7), which states “[i]f the order of names on a batch in the first set of batches is ABCDE, the order of names on the corresponding batch in the second set of batches is AEDCB”.

38.              This amendment requires corresponding batches that are ordered in reverse subject to the first name, to ensure that each candidate appears in the favoured positions on a consistent basis. This further ensures that each batch within the second set of batches has, as far as practicable, an equal number of ballot papers as those within both the batches in the first and second set - as prescribed in paragraph 212(7)(c).

Order of subsequent batches – subsection 212(10)

39.              The order for all subsequent batches, after the first and second set of batches, is determined by Schedule 2A. This is introduced under item 12 and prescribed by subsection 212(10). This limits the number of batches of ballot papers that need to be printed, while still allowing candidates’ names to appear in different positions on ballot papers, to ensure that the printing, collation and distribution of ballot papers will be feasible.

Collation of ballot papers – subsection 212(11)

40.              Subsection 212(11) requires the Commissioner to, as far as practicable, ensure that each issue of ballot papers is collated prior to distribution in a way that prevents ballot papers from the same batch appearing consecutively. This amendment upholds the intention for randomisation in relation to ballot papers and therefore will limit, to a high degree, consecutive voters receiving ballot papers from the same batch. Furthermore, collating all the batches together prior to distribution will ensure that individual polling places receive an entire sample of ballot papers from all batches, and prevent any allocation being skewed to contain more ballot papers from a particular batch.

Issuing of ballot papers – subsection 212(12)

41.              Subsection 212(12) requires a presiding officer or polling official to, as far as practicable, issue a voter with a ballot paper that is different from the ballot paper previously issued by the officer or official. This amendment upholds the policy intention to ensure that consecutive electors receive different ballot papers, thus ensuring a random distribution of ballot papers.

Item 12 – Schedule 2A

42.              This item inserts Schedule 2A after Schedule 2. The schedule inserted provides the printing order for subsequent ballots for the purpose of subsection 212(10) as introduced in item 11. Paragraphs 1(a)-(k) provide the printing order for subsequent batches where there are 2 to 12 candidates, respectively. Paragraph 1(l) provides for when there are more than 12 candidates and requires the subsequent order to be determined by the Divisional Returning Officer in accordance with section 213.

43.               If more than 12 candidates are contesting a Division, the order of subsequent order of batches is to be determined by ballot draw, while, as far as practicable, complying with subsections 212(4)-(8).


 

Attachment A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting And The Robson Rotation) Bill 2021.

The Commonwealth Electoral Amendment (Ensuring Voter Choice Through Optional Preferential Voting And The Robson Rotation) Bill 2021 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Bill

The Bill amends the Commonwealth Electoral Act 1918 (the Electoral Act) to increase voter choice, reduce complexity and improve the current electoral system, by providing voters with greater choice and supporting the democratic process. The Bill amends the Electoral Act by:

·         implementing an optional preferential voting system for House of Representatives elections;

·         introducing vote saving provisions to capture voter intent and reduce the risk of increased vote informality; and

·         introducing the Robson Rotation whereby the position of candidates listed on House of Representatives ballot papers are re-ordered between ballot papers, to remove the effect of advantageous or favoured ballot positions.

 

Human rights implications

This Bill engages the right to take part in public affairs and elections, as contained in article 25 of the International Covenant on Civil and Political Rights.

The Bill enforces this right by amending the current House of Representatives voting system to give voters greater control and choice over their vote. By introducing optional preferential voting, the Bill allows voters to determine whether they wish to assign preferences and prevents abuse of the system through preference deals between candidates and parties. The Bill further provides vote saving provisions to uphold voter intention and reduce vote informality.

In addition, the Bill introduces a methodology to randomise the order candidates are listed on the ballot paper to reduce the effect of candidates receiving a disproportionate advantage from favourable ballot paper positions. By evenly placing candidates in all positions of the ballot paper, the amendment enhances the democratic process by randomly distributing ‘donkey’ or ‘down the ballot’ votes to all candidates.

The amendment maintains existing measures for the Divisional Returning Officer to take adequate steps to distinguish candidate names that bear similarities, which reduces the risk of confusion to voters where parties have similar names.

These measures cement voters as the primary determinant of the electoral outcome.

 

Conclusion

This Bill is compatible with human rights as it does not raise any negative human rights issues.

 

Senator McGrath