Explainer: what changes to the Senate voting system are being proposed?

Labor has announced it will oppose the government’s proposed changes to the way Australians elect their senators. Labor’s opposition is almost certainly moot, however, as the government has the support of the Greens and independent senator Nick Xenophon to pass its legislation in the upper house.

Introducing the proposal on Monday, Prime Minister Malcolm Turnbull referred to the Joint Standing Committee on Electoral Matters’ unanimous recommendations on changes to the Senate voting system. This made it seem like the government was adopting all of them.

However, one of the committee’s most important recommendations – for optional preferential voting below the line – was ignored. So, the government’s proposed changes do not match Turnbull’s statement that:

… the outcomes will reflect faithfully what each and every voter intends as they exercise their democratic choice.

So, what are the changes? And how will they affect us as voters?

What are the changes?

For the nearly half a million Australians who vote below the line – ranking candidates as well as parties – there is just a tiny token improvement: increasing allowable mistakes from three to five, but only “as long as 90% of the ballot paper below the line is filled in correctly”.

In other words, voters will still have to mark all the numbers and hope they don’t make too many mistakes.

There is significant change for those voting above the line. Currently, when you vote “1” in your chosen party’s box, you are voting for its candidates in the order that the party decided, and then your preferences go to all the other candidates as the party has decided. This system used “group voting tickets”, which list a preference order for all candidates.

Under the government’s proposed changes, if you vote “1” above the line, your vote will only go to that party’s candidates. No preferences will be transferred to other candidates.

Voters will be told to preference at least six blocks of candidates (party groups), numbering at least 1 to 6 above the line. This means voters – rather than the parties – will now choose which parties they wish to preference.

But the government realised that far too many voters would just vote “1” – as most have for decades. So, it has proposed a “savings provision”, which will make your ballot formal – meaning it can be counted – even if you just vote “1” above the line. If you do this, your vote will be transferred only to candidates of the party you have voted “1” for.

If that party has insufficient votes, your vote will become “exhausted” and cannot be transferred further.

Do the changes benefit voters?

The 2013 federal election results raised concerns over just how “microparty” candidates were elected with very few first preference votes. They did gain enough support for election, but that was by preferences. Those preferences were mostly via the group voting tickets.

It was argued that many of those voters for candidates of small parties – for example the Animal Justice Party in Victoria – might not have wanted their preferences to proceed to elect the Motoring Enthusiasts’ Ricky Muir, but they nevertheless did. That would have been proper if the voters themselves had preferenced the Motoring Enthusiasts candidates, but it was the party lodging the group voting ticket that actually made the decision.

The proposed removal of group voting tickets is an improvement, but it could have been so much more.

The fairest way of overcoming this perceived problem is to trust the voters:

1. to decide who gets their first preference and all their subsequent preferences; and

2. to let them decide how many further preferences they give.

But the government’s changes don’t do that, and still perpetuate a very discriminatory difference between below-the-line and above-the-line voters.

Below-the-line voters have to mark virtually all the boxes, sometimes as many as 115 or even more, expressing preferences for virtually all candidates. Above-the-line voters are asked only to mark six boxes, and their vote will count even if they mark only one.

That doesn’t meet a standard for an electoral system voters can be confident in. How genuine is a reform declaring a particular numbering as formal if expressed above the line, but informal if written out below the line?

Australia’s Constitution requires federal MPs be “directly chosen by the people”. This was intended to mean that voters must choose the individuals that will represent them. For the Senate, the only way for all voters to do that is to vote below the line.

Under the new rules voters are still significantly discriminated against if they want to “directly” choose the candidates. These voters still have a much higher formality requirement than those voting above the line, choosing party groups. A candidate might again ask the High Court – more probingly than it was asked in 1984 – to decide whether that still meets the constitutional requirement.