Yesterday, the High Court resoundingly rejected Senator Bob Day’s constitutional challenge to the recent Senate voting reforms. The Court held unanimously that none of Day’s arguments ‘has any merit and each can be dealt with briefly.’

The Senate voting reforms, passed by the Turnbull Government in March this year with the assistance of the Greens, abolish group tickets and introduce optional preferential voting below the line.

Alongside Day’s legal challenge, the reforms have been criticised on political grounds by voices from across the ideological spectrum. These political attacks are similarly flimsy, however. The Senate voting reforms are good for our democracy.

The first objection is that the new system disenfranchises people. A ballot paper exhausts when it has no further preferences for any candidate remaining in the count. If a person preferences only a micro-party, their vote is likely to exhaust, rather than live on (as in the old system) through the micro-party’s group ticket. As Liberal Democrat Senator David Leyonjhelm argues, ‘[t]he end result will be 25 per cent of voters who prefer a minor party…are basically going to be disenfranchised, those parties they vote for are not going to get a chance to win a seat.’

There are a number of problems with this argument. First, a person whose vote is exhausted is not disenfranchised. If a person voted Labor in Wentworth in the 2013 election, and preferenced the Liberals last, their vote did not help elect anyone. They expressed their view at the ballot box, but they just voted for a losing candidate. Second, a vote for a micro-party is not necessarily a vote for any micro-party. In fact, the new system arguably leads to a stronger franchise, because it ensures that preferences go only to the parties selected by voters. Under the old system, 97 percent of votes were distributed according to party lists, which few people read and fewer understood. I would prefer for my vote to exhaust rather than to contribute, by chance, to the election of a candidate from the opposite side of the political spectrum.

The second objection is that the new voting system will reduce diversity in the Senate. On Lateline, Labor Senator Sam Dastyari criticised the reforms, arguing that ‘diversity is a good thing, diversity of views is a good thing, and the Senate is a better place because of it’. Micro-parties receive only a small proportion of first preference votes, but under the old system were dragged over the line by complicated preference deals. The abolition of group tickets makes it more difficult for micro-party candidates to win election.

A related criticism focuses not on the reduction in diversity itself, but on its consequences for Australia’s two-party system. Labor Senator Penny Wong criticised the Greens for supporting a system that would ‘risk is a Coalition blocking majority in the Senate’. But electoral experts challenge this claim. On Antony Green’s estimations, the Liberals would have picked up net one seat in the 2010 election, and net one seat in the 2013 election. Labor itself would have picked up net two seats in 2013.

More importantly, this objection applies the wrong values to the electoral system. Senators Dastyari and Wong criticise the new system because of its purported results. But an election is an example of what John Rawls called pure procedural justice. It makes no sense to evaluate an election by its outcome. There is no independent criterion for the right composition of the Senate. What matters is that the allocation of Senate seats, whatever it is, was produced by the correct procedure – in this case, a free and fair democratic election. The outcome is just provided that the correct procedure has been followed. The new system is a better procedure from a democratic perspective, because it is more likely to allocate seats in proportion to a party’s vote. Labor’s appeals to the consequences of the new system cut no normative ice.

The third objection is that the changes have been rushed, rather than undergoing the scrutiny appropriate to such a significant change. This is the strongest criticism of the new system. In a little over three weeks, the reforms were announced, scrutinised by the Joint Standing Committee on Electoral Matters (JSCEM) in a process Senator Wong denounced as a ‘half-day farce’, and then passed into law.

But this critique is blunted by the fact that the new system is essentially the same as that recommended unanimously by JSCEM in 2014, based on extensive public hearings and over 200 submissions. The new system actually improves on the 2014 model: it reduces the chance of vote exhaustion by instructing voters to choose at least six parties above the line. Whatever Malcolm Turnbull’s motivations in passing these reforms now, there is no doubt that they have received detailed scrutiny and bipartisan support in the past.


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