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2013
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
COMMONWEALTH ELECTORAL AMENDMENT (ABOVE THE LINE VOTING)
BILL 2013
EXPLANATORY MEMORANDUM
(Circulated by the Authority of Senator N Xenophon)
COMMONWEALTH ELECTORAL AMENDMENT (ABOVE THE LINE
VOTING) BILL 2013
Background
The purpose of this Bill is to reform the current system for electing Senators to the
Australian Parliament. The 2013 election revealed the current system's vulnerability to
`gaming' through preference deals, with some candidates elected with very small
percentages of the primary vote; in two cases, representatives were elected with less than
one per cent of the primary vote.
The aim of this Bill is to reform the system to make it easier for voters to determine their
own preferences, rather than through the current system of group and independent voting
tickets, and to increase transparency in the voting process. By introducing an optional
preferential system above and below the line, these reforms prevent parties and groups
from assigning preferences and instead make it easier and clearer for voters to know
`where their vote is going'.
The system proposed in this Bill is similar to that which already operates in New South
Wales for the Legislative Council in state elections. Instead of lodging group voting
tickets with the Australian Electoral Commission, groups standing at a Senate election
will only be able to nominate the order of their candidates and therefore the preference
flow within their group. Groups will not be able to allocate preferences to candidates
outside their group.
Voters will have the option of numbering at least one group voting square above the line
(and as many subsequent group voting squares as they wish) or at least as many candidate
voting squares below the line as there are candidates to be elected (six for a half Senate
election, twelve in the case of a full Senate election, or two in the case of Territory
elections) and as many subsequent squares as they wish. Voters have the option of
numbering no other squares beyond the minimum when voting either above or below the
line. Under these provisions, a voter does not have to number all the squares below the
line, which will reduce the number of informal votes where there are a significant number
of candidates.
Candidates are then elected according to the current quota requirements. If not all
vacancies are able to be filled under the quota requirements (for instance, if not enough
candidates achieve a quota), then the remaining candidates with the largest number of
votes will be elected.
This method will simplify the process of casting a vote and, by removing the use of group
voting tickets and therefore preventing the manipulation of preferences, will more
accurately represent the will of voters.
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1. Short title
This clause is a formal provision and specifies that the short title of the Bill, once enacted,
may be cited as the Commonwealth Electoral Amendment (Above the Line Voting) Act
2013.
2. Commencement
This clause provides for the commencement of the Act on the day after the Act receives
Royal Assent.
3. Schedules
This clause states that each Act specified within a Schedule to this Bill is amended or
repealed as set out by the provisions of the Bill.
4. Schedule 1
This Schedule amends the following provisions of the Commonwealth Electoral Act
1918:
Item 1 inserts new definitions into Subsection 4(1) of the Act.
A candidate group relates to a Senate election, and refers to candidates that have a made
a joint request under section 168 to have their names grouped together on the ballot paper,
or a candidate that is a Senator (or in the case of a double dissolution, was a Senator
immediately before the dissolution) who is not part of a request under section 168. This
has the effect of allowing groups or sitting Senators (either Independents or those who are
standing alone) to have a group voting square above the line on the ballot paper. This is
consistent with the current law regarding candidates who can appear above the line.
A candidate voting square refers to the square printed opposite the name of an individual
candidate below the line on the Senate ballot paper, in accordance with paragraph
210(1)(b).
A group voting square refers to the square for a candidate group printed above the line on
the ballot paper, in accordance with paragraph 210(2)(b).
Item 2 repeals the existing subsection 169(4), and inserts a new subsection which allows
a candidate group to request that a name be printed adjacent to the group voting square
for the group above the line. This name may be either that of the registered political party
that endorsed the group, or a composite name formed from the names of the registered
political parties that endorsed the candidates. The new subsection removes the current
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requirement for this to occur only where the group has lodged a group voting ticket,
which no longer exists under this bill.
Item 3 repeals the existing section 210, and inserts a new section relating to the printing
of Senate ballot papers. The new section removes the requirement for groups to lodge a
group voting ticket, but otherwise does not change the existing way the papers are
printed.
Item 4 removes the reference to subsection 211(5) in subsection 210A(5) in accordance
with the repeal of section 211 in item 25 of this bill. This removes the requirement for a
group to lodge group voting tickets in order to have a square printed on the ballot paper
above the line.
Item 5 repeals sections 211 and 211A, which relate to the lodgement of group and
individual voting tickets. The repeal of these sections will mean that group and individual
voting tickets can no longer be lodged.
Item 6 inserts the word `candidate' before the first occurrence of the word `group' in
subsection 213(1) to clarify that this subsection refers to candidate groups.
Item 7 repeals existing section 214. The proposed new section includes the same
requirements as the existing section, but removes the provisions relating to voting tickets
and takes into account the new terminology of `candidate voting squares' and `group
voting squares' for the Senate.
The proposed section 214 also requires, in the case of the Senate ballot papers, that the
name of the relevant registered political party or the word `Independent' be printed next
to the names of candidates who are not grouped in accordance with the new definition of
`candidate group' under section 4.
Item 8 repeals section 216, which relates to the display of group voting tickets.
Item 9 repeals subsection 226(3), which relates to the requirement that a presiding officer
display all group voting tickets when visiting a patient at a hospital that is a polling place.
Item 10 amends subparagraph 227(8)(a)(i) to remove the reference to group voting
tickets in mobile voting booths.
Item 11 amends paragraph 239(1)(a) to clarify that the subsection refers to the marking of
a candidate voting square with a voter's first preference.
Item 12 repeals existing paragraph 239(2) and inserts a new paragraph to provide that a
person may number as many subsequent candidate voting squares as they wish. This is
subject to the minimum set out in 239(1A).
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Item 13 inserts a note at the end of subsection 239(1) drawing attention to the provisions
relating to non-consecutive numbers in section 270.
Item 14 repeals existing subsection 239(2) and inserts a new subsection (1A), which
requires a person to indicate at least as many preferences below the line as there are
candidates to be elected (six for a half Senate election, twelve for a full Senate election, or
two in the case of Territory elections).
It also inserts a new subsection 239(2) to allow voters to number at least one group voting
square, and as many subsequent group voting square as they wish (including no further
squares) when voting above the line.
Item 15 amends subsection 239(3) to remove the reference to group and individual voting
tickets. This amendment does not change the intention of the subsection, which is to
consider a vote valid where a person has marked a single group voting square above the
line with a tick or cross, and that mark be considered a person's first preference.
Item 16 amends paragraph 239(4)(a) to add the word `or' at the end of the paragraph,
consistent with modern drafting practice. This amendment does not change the intent or
application of the paragraph.
Item 17 amends paragraphs 239(4)(b) and (c) to use the new terminology of `candidate
voting square'.
Item 18 amends paragraph 268(1)(a) to add the word `or' at the end of the paragraph,
consistent with modern drafting practice. This amendment does not change the intent or
application of the paragraph.
Item 19 amends 268(1)(b) repeals the subparagraph and inserts a new subparagraph to
clarify that a Senate ballot paper is considered informal if it has no vote indicated on it, or
a voter has not indicated his or her preferences for as many candidates as are to be
elected.
Item 20 amends paragraph 268(1)(c) to add the word `or' at the end of the paragraph,
consistent with modern drafting practice. This amendment does not change the intent or
application of the paragraph.
Item 21 amends paragraph 269(2)(b) to omit the reference to `paragraph 239(1)(a)' and
insert a reference to `subsections 239(1) and (1A)' in line with other amendments to those
subsections under this bill.
Item 22 repeals subsections 269(3) and (4) as they reference other subsections repealed
under this bill.
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Item 23 repeals section 270 and inserts a new section to deal with non-consecutive
numbers in Senate ballot papers. The proposed section states that any number in a
candidate voting square or a group voting square that is not part of as sequence of
numbers commencing with the number 1 must be disregarded. Any number that is
repeated is disregarded, along with any following numbers as they are no longer part of a
consecutive sequence. For the purposes of this part, the number 1 used alone is
considered to be a consecutive sequence.
Item 24 repeals section 272 and inserts a new section that provides for Senate ballot
papers to be treated as having been marked according to above the line preferences. This
new section takes into account the repeal of the use of group and individual voting tickets
and the amendments to subsection 239(2), which allow voters to number more than one
group voting square above the line.
This section states that, where a voter has marked a group voting square with the number
1, the voter has assigned their first preference to the first candidate in that group, and their
subsequent preferences to the other candidates in that group in the order they appear on
the ballot paper.
Where the voter has marked any further group voting squares using a sequence of
consecutive numbers after the number 1, it is taken that the voter has assigned their
preferences to the candidates of those groups in the order they appear on the ballot paper.
For example, where a voter has numbered three group voting squares in consecutive
order, beginning with the number 1, their preferences will be assigned as follows:
Firstly, to the first candidate listed on the ballot paper for the group voting square
the voter has numbered 1;
Secondly, to any other candidates listed under in the group voting square the voter
has numbered 1, in the order those candidates appear on the ballot paper;
Thirdly, to the first candidate listed on the ballot paper for the group voting square
the voter has numbered 2;
Fourthly, to any other candidates listed under in the group voting square the voter
has numbered 2, in the order those candidates appear on the ballot paper;
Fifthly, to the first candidate listed on the ballot paper for the group voting square
the voter has numbered 3;
Lastly, to any other candidates listed under in the group voting square the voter
has numbered 3, in the order those candidates appear on the ballot paper.
This process will continue until the vote exhausts. This section also contains a provision
stating that any repeated number in a consecutive sequence must be disregarded. This also
has the effect of disregarding any numbers following those that are repeated, as they are no
longer part of a consecutive sequence.
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Item 25 inserts `and' at the end of paragraphs 273(5)(a), (b), (c) and (d) in accordance with
modern drafting practice. This amendment does not change the intent or application of these
paragraphs.
Item 26 removes the phrase `marked otherwise than in accordance with subsection 239(2)'
from paragraph 273(5)(f) to ensure that all unrejected ballot papers, not just those marked
below the line, are sent to the Australian Electoral Officer. This reflects the more detailed
scrutiny ballot papers will need following the exclusion of group and individual voting
tickets.
Item 27 inserts a note at the end of subsection 273(7). This clarifies that, because of the
exhaustion of ballots under subsection (26), not all candidates will be elected with a full
quota even once surplus votes have been transferred. In these circumstances, the last
continuing candidates will be elected, as provided for in subsections (17) and (18). The
practical effect of this is that when no further quotas can be achieved, the remaining
vacancies will be filled by the candidates with the highest number of votes.
Item 28 amends subsection 273(18) to insert the words `notwithstanding that the number of
votes for each of these candidates is below the quota' at the end of the subsection. This
clarifies that, in a situation where the number of vacancies remaining equals the number of
continuing candidates, those candidates will be elected even if they have not achieved the
quota.
Item 29 amends subparagraph 351(1)(b)(i) to omit the words `square opposite the name of'
and substitute the words `candidate voting square'. This amendment is in line with the new
terminology of `candidate voting square' introduced by the bill.
Item 30 amends the instructions for above the line voting set out on Form E in Schedule 1 of
the Act (the Senate ballot paper) to reflect the new voting system as established by the bill, in
which voters may number more than one square above the line.
Item 31 amends Form E in Schedule 1 of the Act to omit the word `or' next to the squares
above the line to reflect the new voting system as established by the bill, in which voters may
number more than one square above the line.
Item 32 amends the instructions for below the line voting set out on Form E in Schedule 1 of
the Act to reflect the new voting system as established by the bill, in which voters must
number at least as many squares below the line as there are candidates to be elected.
Item 33 amends the instructions for below the line voting set out on Form E in Schedule 1 of
the Act (the Senate ballot paper) to reflect the new voting system as established by the bill,
which allows sitting Independents who are Senators (or, in the case of a double dissolution,
who were Senators immediately before the dissolution) to have a group voting square above
the line.
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Item 34 amends the instructions for below the line voting set out on Form E in Schedule 1 of
the Act to reflect the new voting system as established by the bill, in which voters are no
longer required to number every square below the line.
Item 35 clarifies that the amendments made under Schedule 1 of the bill apply only to
elections for which the writs are issued on or after the commencement of the Schedule (the
day after the Act receives Royal Assent).
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013
This 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/Legislative Instrument
The Bill amends the Commonwealth Electoral Act to implement an optional preferential
voting system above and below the line for Senate elections.
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 (ICCPR).
The Bill enforces this right by amending the current Senate voting system to give voters
greater control over their vote. By removing the use of group and individual voting tickets,
the bill allows voters to assign their own preferences and prevents any abuse of the system
through preference deals between candidates and parties.
Conclusion
The Bill is compatible with human rights as it seeks to enforce the right to take part in public
affairs and elections by improving the current Senate voting system.
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