Democracy and the Senate

The radio business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free and good men die like dogs.

- Hunter S. Thompson

Having seen the process by which a major party chooses its Senators, I don't share others' sympathy for the idea that minor parties are a blight on our democracy. The Liberal Party isn't quite like the Thompson quote above but its processes and standing ought not be taken at face value, as the government and the press gallery would have you do.

The government has moved far too swiftly from identifying a problem (that people get elected to the Senate with a relatively small first-preference vote) to coming up with a solution. This swiftness is definitely indicative of inept politics and bad government, and may indicate that the fix is in and being hurriedly disguised.

The government can have no confidence that it has come up with the best solution - or even the one that will work best to suit its own purposes. Nobody will laugh harder than me if when a carefully set up arrangement comes back to bite the Coalition, very hard and not at a moment of its choosing.

A laboratory of democracy

South Australia was one of the first jurisdictions to extend the vote to (non-Indigenous) women, and to abolish the property qualification for voting. If we are going to talk about democracy, let's start there.

Before he got into state parliament, Nick Xenophon worked hard at building a political base and this continued while he was in that state's upper house. When you go back through media files trying to work out why he was so popular, all you can find is a) stunts and b) criticism of stunts, which leads to c) journalists not reflecting on their own gullibility, but attributing Xenophon's popularity to stunts.

The issues journalists mention in passing - poker machines and Xenophon's opposition to them, for example - seem to have no connection to people voting for him. No, it must be all about the stunts. The stunts from which experienced journalists from the popular and vital traditional media simply cannot turn away.

By contrast, Cory Bernardi's views are supported by a much smaller proportion of South Australians than Xenophon's. The difference is that Bernardi has worked out how to make the Liberal Party act as a host organism for his views and his career. When complicated, thorny matters come before the Senate, Xenophon cuts deals while Bernardi simply blurts out "here I stand!". The deals have the greater impact on policy outcomes, but press gallery journalists can't cover those. They can, however, cover Bernardi's blurts and Xenophon's stunts.

Set aside Senate voting rules for a moment. Nobody in parliament has done more to get large Defence procurement contracts built in Adelaide than SA Liberal Senator Sean Edwards. At the coming election the SA Liberals have chosen not to make Edwards their lead candidate. The government may not have made a decision on building Defence projects in Adelaide, or it may have and is waiting for an opportune moment to announce it; Labor is in the same position (whatever that may be).

Imagine being a South Australian voter who wants large Defence procurement contracts built in Adelaide:

• You could vote for Edwards, but he's just a backbencher who gets overruled regularly, and the Liberals may not come through with building Defence projects in Adelaide regardless of any announcement; or
• You could vote for someone else who has less demonstrated commitment to having large Defence procurement contracts built in Adelaide, but who'd be happy to claim any credit that may more properly belong with Edwards.

Go ahead, talk to me about the people's will being expressed through the ballot box, and why that only applies to the major parties and not the minors.

You could argue that Bernardi's party better reflects the views and aspirations of South Australians than Xenophon's, and that any conflict between them must be resolved in favour of Bernardi's party. Indeed, this is what the government is arguing. Their proposals for the Senate would make the limitations of the Liberal Party (bad policy, wrong people, "here I stand!" inflexibility) the limitations of our democracy as a whole.

The whispering and the silence

I see your concerns about Ricky Muir, in the Senate having won fewer first-preference votes than many municipal councillors. He's in the Senate because there was an outpouring of preferences that gushed forth in ways that even the smart operators could not predict, and have not legislated for effectively after the fact.

As backroom political operators go, Glenn Druery or Peter Breen are just as clever and ruthless and devious as Graham Richardson or Clive Palmer or Sir Lynton Crosby. They are certainly not less principled, nor more of a danger to our democracy. All of them could scarcely be less interested in the policy outcomes of their shenanigans than the press gallery. The major party operators whose web of preference deals ended up with Muir are to blame, if that's the right word, for him being elected.

Those people, backroom operators who shun and often disdain the spotlight that comes with holding elected office, underestimate the effect their negotiations have on policy outcomes. The Victorian ALP in 2004 thought they were terribly clever in preferencing Family First, but preferences in that election saw a sitting ALP Senator (Jacinta Collins) unelected and an essentially conservative Family First Senator elected in her place. In 2013 SA Labor elected Family First's Bob Day. I don't know what Labor gets from doing all those favours for FF but I hope it's good.

There are other examples: no polling, no appeals to party principle or good government have any sway with such people.

Consider that Senators Santo Santoro and Bob Carr had each:

• been selected by their respective parties (the Queensland LNPP and the NSW ALPP) to fill casual vacancies;
• been appointed to ministerial office (Cabinet in Carr's case); and
• resigned from the Senate, without having faced voters (in Carr's case, he had been elected in 2013 but chose not to sit as a Senator from 1 July 2014).

They were government ministers without having been elected to parliament. Executive government works like that in the US, Germany and Iran, but not in Australia. Never mind the efficacy of those ministers (notice I was being bipartisan! Journalism doesn't get any better than that), consider their participation in our government from a democratic point of view.

Consider also that Eric Abetz had been appointed to the Senate and elected from a major-party ticket without having been eligible under citizenship rules. Such rorts upon our democracy are not addressed by the government's current reforms. Lucky Ricky's big break isn't quite irrelevant, but it is less outrageous that it might seem.

As with Carr or Santoro, post-election justifications/criticisms of Senator Muir do not address the question of whether he should have been elected in the first place. Consider what might happen if Senator Muir had to be replaced. It is hard enough for the machinery of major parties to whirr into action, but the processes of the Australian Motoring Enthusiasts Political Party (Victoria Division) is more opaque than the Victorian Liberals' processes to select a candidate for Goldstein - and that party has rules against commenting to the media.

Nonetheless, I'd argue that Senator Muir is fulfilling his mandate better than the Prime Minister who was elected to government in 2013 fulfilled his, even allowing for the paucity of legislation, regulation and expenditure on issues directly affecting the motoring enthusiast. He might be a good example of New Democracy Foundation proposals that would make government deliberations similar to the way we assemble juries today.

Context is everything

Our friends in the press gallery insist that we can't discuss political issues among ourselves, because politics is all about the context and that you have to be in Parliament, with a press pass, before you can possibly understand The Context (leaving aside the fact that they frequently miss issues that might elucidate The Context in different ways, or in ways that don't flatter their secret sources, or that they are easily distracted to the point where dull subtleties elude them even when well explained, etc.).

Not being press gallery journalists, we can wonder whether picking a fight with cross-bench Senators before a make-or-break Budget is wise, given that said Senators have stymied all but the basic supply elements of the last two Budgets, leaving people wondering what this government is about and what it might be capable of.

Not being press gallery journalists, we can wonder whether this government has the standing and the political/campaign skills to not only secure a majority in the House of Representatives, but to also secure a majority in the Senate; and should it fail to secure a Senate majority, what its fallback position might be in terms of getting legislation passed.

 Not being Phil Hudson, this blog is not gibbering on about the prospect of an early election. Not being David Crowe, one does not begin panting when Malcolm Turnbull rises to speak.

If we were press gallery journalists diarists we'd think it was terribly significant that (say) Wyatt Roy and Ed Husic appeared to be wearing similar ties. We'd chew up a lot of time and space on that, and elsewhere public servants up to no good would sigh from sheer relief that their work can continue unhindered - rather than suffer the social media pile-ons that beset our hard-working and experienced friends in the gallery.

Not being press gallery, we don't have to all focus on one perspective of one story at any given time. We can note that the government is not only messing about with Senate voting rules, it is also changing the way the beleaguered traditional media is regulated. Organisations that employ most of the press gallery - including the radio business - are in dire financial trouble, not entirely but partly because they employ such dills and tend to run the wrong stories.

Even with a favourable regulatory environment they are far from guaranteed to survive until 30 June 2020: the day Senator Muir's term is due to end, the day the term to which Bob Carr had been elected is due to end.

Two suggestions for democratic Senate reform

I agree that the current method for electing Senators (and the similar one for electing NSW MLCs, for that matter) needs work. It is not broken; broken politics is where armed mobs storm parliamentary chambers, kill their members, and set them on fire. The challenge for reform is not to demonstrate breakage, nor cause it, but to put in place preventative maintenance.

Voting for the Senate still needs work to make it more democratic than it is. The first reform would be to change the way we cast votes. The second would be to change the way we count them.

You either have a preferential system or you don't. If you only have one preference for who you'd like to represent you in parliament, mark that candidate as [1] and put your ballot paper in the box. If it "exhausts", so what? A vote is not a wager. If you place a candidate last, and that candidate wins, you haven't been robbed of democratic legitimacy.

I say this as a below-the-line voter myself. Since the NSW Liberals put Bronwyn Bishop atop their ticket in 1990 I have numbered every square. My heart sinks at the hundred or so squares on the ballot in NSW, but as I've said at each election I:

• put the christianists, racists, goons, and various flavours of marxist equal last; then
• put the dozen or so genuinely preferred candidates 1-n; then
• rank the rest, usually giving up so that my ballot exhausts at about preference 65 or whatever; then
• go back and rank particularly noxious candidates last, second last etc., until I realise I've spent far too long in the booth as it is; then
• cast the damn ballot and go home.

The fact that I have to number 90% of squares is bullshit, as is the phrase "optional preferential".

In terms of counting votes, we should start from the top down and put more emphasis on higher-preference (that is, lower-numbered) votes.

As more than one party can run as a ticket (e.g. the Liberals and Nationals), and as individuals can aggregate their places on the ballot paper to form tickets, let's refer to parties on the ballot as Tickets. Let's consider the extraordinary possibility that an individual outside a party might be able to command a quota (or close to it) through below-the-line votes: let's designate such a phenomenon as a Ticket in themselves, for the purposes of this. A typical result for a half-Senate election in a state might look like this, with vote tallies expressed as Senate quotas:

Ticket A: 2.4
Ticket B: 1.9
Ticket C: 0.8
Ticket D: 0.6
Tickets E-Z: 0.0001 - 0.5

The way it happens now, Ticket A would have its first two candidates elected, and the top one for Ticket B. Remaining votes would then be counted, then the candidate with the fewest votes eliminated and their preferences distributed, until the remaining three quotas were filled.

I'd continue the practice of awarding candidates with whole quotas, but with what I think is a democratic difference. I'd award the remaining quotas to the candidates who had most first-preference votes, and the fewest highest-preference votes to make up a quota.

Let's apply this to the numbers above. Take out the three quotas claimed by Tickets A and B and the numbers look like this:

Ticket B: 0.9
Ticket C: 0.8
Ticket D: 0.6
Ticket E: 0.5
Ticket A: 0.4
Tickets F-Z: 0.0001 - 0.5

The onus then would be on remaining Tickets to get as many second preference votes, then third preferences, then fourth, etc., until all the quotas were filled. Tickets B, C and D would obviously have the advantage in this scenario but it would be possible for A, E, or other lower-ranked Tickets to get (extraordinary? unlikely?) levels of second-preference votes to take a quota.

The focus would be on first preferences over second preferences, second preferences over third, and respecting voters' expressed wishes over all other considerations: even the convenience of party officials and journalists.

This would obviate the problem of setting up an arbitrary threshold (5%? 10%? 3%? Should parties be deregistered if they fall below that level?) for minimum admission.

It would mean that smaller parties aggregating votes would not be able to spread their bets - and nor would major parties playing silly-buggers with their own preferences.

If, say, the Labor Political Party chose for its second preferences to go to the Family First Political Party, then they should say so and be accountable to their members. If the Greens Political Party preferenced the Liberal Political Party ahead of the Labor Political Party, then that too should be a matter of public record. Political parties lack mechanisms for calling to account the strategic allocation of votes to other parties, and for evaluating such allocations over time.

The major parties have a number of people with an obsessive focus on obscure areas of electoral law, but whose judgment in those areas is poor. They are regarded as sages by default. Major parties should not use changes to electoral law to substitute for their shortcomings.