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![]() << Return to previous page | Parliamentary Joint Committee on Electoral Matters Navigation: Previous Page | Contents | Next Page Chapter 7 Formality issues7.1 The Constitution[1] provides for Australia’s representatives to be directly chosen by the Australian people. Consequently, ensuring that the valid votes cast by eligible electors count towards the election of their representatives is fundamental to Australia’s democratic electoral system. Opposition members of the Committee note that the Constitution provides for Australia‘s representatives to be directly chosen by the Australian people, and, consequently, votes of individual electors should never be decided by a third party nor directed to a party the elector never had any intention of voting for. Opposition members believe the South Australian ticket system is not constitutionally sound. 7.2 At every election, it has been the case that some ballot papers do not meet formality requirements and so cannot be included in the vote count. This may be the result of a deliberate choice or a genuine mistake by the elector. The effect is that these electors are not having a say in who will be their representatives in Parliament. 7.3 For this reason, it is important after each election to tackle vote formality issues. It is vital to closely examine informal ballot papers and attempt to understand the intention of the voter, to explore the underlying contributing factors to informality, and to act to ameliorate the problem. 7.4 The 2010 federal election saw informal votes for the House of Representatives at 5.55 per cent (729 304 votes), an increase of 1.6 per cent on the 2007 federal election.[2] Senate informality was 3.75 per cent (495 160 votes), an increase of 1.2 per cent on the previous election.[3] 7.5 In its examination of the level of informal voting at the 2010 federal election, the Australian Electoral Commission (AEC) observed that: In every election, it is likely that a small proportion of the votes cast will not meet the specified voting requirements and will therefore be deemed informal. Levels of informal voting can provide an indication of people’s engagement with (and understanding of) the electoral process and, together with enrolment participation rates and measures of turnout, are therefore a key indicator of democratic health.[4] 7.6 In recognition of the importance of the informal voting issue, the AEC now routinely undertakes an analysis of informal voting in the House of Representatives following federal elections. 7.7 In practical terms, the rising level of informality means that more and more people (hundreds of thousands) are turning up at designated polling places (or voting by post) and lodging ballot papers that then do not count towards the election of their representatives. 7.8 Not all informality is unintentional. The AEC analysis of House of Representatives informality revealed that 51.4 per cent of informal votes were assumed to be unintentional, with the remaining 48.6 per cent assumed to be deliberately informal.[5] Opposition members contend the actual intentional informal figure is likely to be far higher than 48.6 per cent, with many electors who vote only ‘1’ or place a tick or a cross deliberately choosing not to number every box. It is important that those who intend to vote informally do not have their vote counted against their wishes for a candidate they did not wish to vote for. 7.9 The level of informality for voters genuinely trying to cast a formal vote is of concern. This means that upwards of 370 000 voters are attempting to vote, but for various reasons are failing. Committee view7.10 The Committee believes that as part of a system that seeks to maximise participation in the democratic process to elect Australia’s representatives, reasonable measures should be taken to help ensure that votes are not wasted. In particular, in cases where it is clear that an eligible voter has attempted to cast a formal vote, but it is informal perhaps due to confusion over what is required to make their vote count. Requirements for a formal vote7.11 Ballot papers must satisfy certain requirements before being accepted into the vote count. Each ballot paper must first undergo authenticity checks to ascertain that:
7.12 Each ballot paper is then checked to ensure that the vote cast is ‘formal’ (in keeping with requirements set out in the Commonwealth Electoral Act 1918). 7.13 A House of Representatives vote will be formal if:
7.14 The Senate voting system provides voters with two options for casting a vote: above-the-line (group ticket voting) and below-the-line (indicating all preferences). A voter can vote above-the-line by indicating one, and only one, first preference against one of the group voting squares, and their preferences for all the other candidates will be taken to be in accordance with the group voting ticket (or tickets) lodged with the AEC by that political party or Senate group. Voters may number more than one preference above-the-line, but preferences will still be determined as per the voting ticket of their first preference candidate. 7.15 When voting below-the-line for the Senate the vote will be formal if:
7.16 In keeping with the principle of erring in favour of enfranchisement, some deviations in numbering are acceptable, and may allow a ballot paper to remain in the count. However, a repetition of a first preference is not acceptable in Senate or House of Representatives voting. Table 7.1 outlines some of the main deviations that may occur and compares how they will affect ballot papers in the House of Representatives and the Senate. Table 7.1 Comparison of acceptable numbering on ballots papers
(a) The Commonwealth Electoral Act (CEA) prescribes the ballot paper formality requirements for federal elections. (b) The Senate’s two forms of voting are above-the-line (ATL) and below-the-line (BTL). Source Australian Electoral Commission, Scrutineers Handbook: Federal election 2010, Version 3. 7.17 On Senate ballot papers provision is also made for when a voter has attempted to vote both above and below-the-line. If both votes would have been formal if recorded on their own then the below-the-line is given precedence and used for the count, with the ticket vote treated as if it had not been attempted, as it is assumed that marking all preferences is a better indication of the voter’s intent. 7.18 If the votes attempted both above and below-the-line would have been informal if recorded on their own then the ballot is rejected. However, if the voter made an error when marking their ballot paper that made either, but not both, their ticket or full preferential vote informal, then the vote may still be formal in the following cases:
7.19 The Senate voting system currently allows more opportunities for saving informal votes than the House of Representatives arrangements. Informal voting in the 2010 federal election7.20 In the 2010 federal election, the rate of informal votes for the House of Representatives was 5.5 per cent. Other than the 1984 election, this was the highest informal vote since the introduction of compulsory voting for federal elections in 1924. In 1984, informality in the House of Representatives ballooned as a result of confusion from the introduction of above-the-line Senate voting. However, the Committee accepts that optional preferential voting in New South Wales and Queensland, and the prevalence of ‘just vote 1’ campaigns in these jurisdictions, has, along with other factors, also contributed to increased levels of informality in the last few years. 7.21 The total House of Representatives informal vote in 2010 (729 304 informal votes) was equivalent to 7.8 average electoral divisions at the 2010 federal election. The rise in informality since the 2007 federal election is equivalent to 2.3 electoral divisions. These equivalents were calculated based on the national average for enrolment at 31 July 2010, which was 93 804 electors. 7.22 The 2010 federal election saw a substantial increase in assumed intentional informal voting in the House of Representatives, most readily identified by ballot papers that are left blank or have slogans or other messages written on them. This means that some electors see it as their right to submit an informal vote and Opposition members believe it is thus important that their votes are not given to bureaucrats to fill out the rest of the form for them. For the House of Representatives, 48.6 per cent of informal votes were assumed to be deliberately informal.[8] Notably, the AEC found that 2010 was the first election since the informal ballot paper survey began that the proportion of blank ballot papers (210 587)—a key indicator of a deliberate informal vote—was higher than the proportion of number ‘1’ only ballots (202 432).[9] 7.23 The AEC analysis of House of Representatives informality revealed that 51.4 per cent of informal votes were assumed to be unintentional, with the remaining 48.6 per cent assumed to be deliberately informal.[10] Opposition members believe the actual intentional informal figure is likely to be far higher than 48.6 per cent, with many electors who use only a ‘1’, a tick or a cross deliberately choosing to not number every box. It is important that those who intend to vote informally do not have their vote counted against their wishes for a candidate they did not wish to vote for. 7.24 The AEC noted the media coverage of the call by a former Member of Parliament, prior to the 2010 federal election, for voters to submit blank ballot papers.[11] The AEC observed that:
7.25 In its analysis of House of Representatives informal voting, the AEC provided a breakdown, by state and territory, of the categories of informal votes (see Table 7.2). Table 7.2 2010 House of Representatives informality, by State and Territory
Source Provided by the Australian Electoral Commission, based on Analysis of Informal Voting: House of Representatives, 2010 Federal Election, Research Report Number 12, 29 March 2011. 7.26 It is evident that the highest numbers of informal votes were in New South Wales, Victoria and Queensland. Accordingly, most of the higher rates of informal voting by division are also predominantly in these states, in particular New South Wales (see Table 7.3). Opposition members of the Committee observe that this shows that many voters are confused by the difference between the state and federal systems, in particular in NSW and Queensland where optional preferential voting is used, this is confirmed by noting that the highest proportion of informal votes where the elector has just put a ‘1’, a tick or a cross come from these two states. 7.27 When examined by division, the ten divisions with the highest informality rates are all located in western Sydney: Blaxland, Fowler, Watson, Chifley, McMahon, Werriwa, Greenway, Barton, Reid and Parramatta.[13] Table 7.3 2010 Informal vote—Divisions with highest informality rates
Source Parliamentary Library, Exhibit 3, p. 1.[14] 7.28 In the Senate, the informality rate at the 2010 federal election was 3.75 per cent (495 160 votes). There is clearly a gap between that and the higher House of Representatives informality of 5.5 per cent. 7.29 However, this was not always the case. Prior to the introduction of group ticket voting in the Senate for the 1984 federal election, Senate informality was approaching ten per cent (see Table 7.5 later in the chapter). 7.30 Since its first use at the 1984 election, the more user friendly ticket (above-the-line) voting is now firmly established as the voting option used by the vast majority of voters for Senate elections, especially in states with high candidate numbers. This is clearly illustrated in Table 7.4. Table 7.4 Method of voting in the 2010 Senate federal election, by State and Territory
Source Australian Electoral Commission, Virtual Tally Room, Election 2010.[15] 7.31 As is evident in Table 7.1 earlier in the chapter, comparing the acceptable numbering on Senate and House of Representatives ballot papers, the voting safety net for saving potentially informal votes is much wider for the Senate. However, the above-the-line ticket voting option is what has had the biggest impact on reducing Senate informality. Historical context to Senate voting changes7.32 In 1983, the Joint Select Committee on Electoral Reform (JSCER) was formed to inquire into and report upon all aspects of the conduct of elections for the Parliament of the Commonwealth and matters related thereto. Its inquiry included an examination of federal voting systems. 7.33 The JSCER observed that there had been various experiments with aspects of voting systems since federation, and outlined key developments in its report.[16] The AEC also keeps timelines of Australia’s major electoral developments.[17] 7.34 One of the issues of concern at the time of the JSCER’s inquiry was the high level of Senate informal votes at the 1983 federal election. For example, in a parliamentary debate that year, it was observed that:
7.35 In the First Report, the JSCER concluded that the introduction of ‘proportional representation’ in 1948 had resulted in a more evenly balanced composition of the Senate. However, the troubling trend of rising levels of informal voting emerged in the Senate. The Australian Electoral Office Survey of informal voting at the 1977 federal election revealed nine per cent (731 555 ballot papers) informality for the Senate, as compared to 2.52 per cent (204 912 ballot papers) for the House of Representatives.[19] 7.36 Various stakeholders made submissions to the JSCER, advocating changes to address the informality issue. The Australian Labor Party advocated for optional preferential voting, as it argued that the full preferential system led to increased informal votes and forced voters to cast a preference for all candidates. It recommended that the voter only need express the number of preferences equal to the number of vacancies in the House of Representatives or the Senate. The Liberal Party and the National Party opposed optional preferential voting, as it was similar to, and came with, the disadvantages of a first-past-the-post voting system.[20] 7.37 The Australian Electoral Office proposed the introduction of a voting system in which a vote could be cast by ticking a box indicating a registered ‘list’ of party preferences. The vote would then be counted as if it has been fully completed. The Liberal Party expressed a preference for the ‘list’ system over optional preferential voting.[21] 7.38 The JSCER decided that the introduction of the ‘list’ system whilst retaining the existing system—having the option to allocate all preferences—was the most feasible solution. It recommended that:
7.39 The then Government sought to give effect to this recommendation with the introduction of the Commonwealth Electoral Legislation Amendment Bill 1983. This Bill was part of major electoral reform, and included: the establishment of an independent Australian Electoral Commission to administer the federal electoral system; changing the franchise qualification to Australian citizenship; registration of political parties; and public funding and disclosure arrangements. 7.40 In his second reading speech on the Bill, the then Special Minister of State expressed concern about the high number of informal votes in the Senate elections, stating:
7.41 In the course of debate on the 1983 Bill various concerns were raised in relation to aspects of the change to the Senate voting system: Senator Peter Baume argued that the attempt to address Senate informality would have other undesirable consequences: 7.42 Many of the JSCER’s recommendations were given effect by the Commonwealth Electoral Legislation Amendment Act 1983. The Act introduced above-the-line voting and Group Voting Tickets (GVTs). Senate candidates could choose to form groups and submit a GVT to the AEC setting out the order in which preferences should be distributed if a voter chose to vote above-the-line by just marking one box with a number ‘1’, a tick or a cross. 7.43 These changes had the desired effect of reducing Senate informality. However, in most elections since 1984 the rate of informal votes in the House of Representatives has exceeded Senate informality. 7.44 Table 7.5 shows the percentage of informal votes in House of Representatives and Senate elections since 1977. The marked difference between levels of informal votes in the Senate and House in the late 1970s and early 1980s has again emerged, but the case has reversed with the House of Representatives now recording a higher level of informal votes than the Senate. Table 7.5 Percentage of informal votes for the House of Representatives and the Senate, 1977 to 2010 elections
Source Australian
Electoral Commission, for 1977 to 2007: Informality percentage House of
Representatives and Senate, http://www.aec.gov.au/Voting/Informal_Voting/summary.htm,
viewed 22 June 2011. 7.45 The examination of the historical context of the changes to the Senate voting system to address high levels of informal votes and the higher level of informal votes in the House of Representatives currently being experienced, reveal compelling similarities between the type of mistakes made on ballot papers and the groups whose votes are affected. 7.46 When discussing the issue in 1983, South Australian Senator Graham Maguire stated:
7.47 Today, the Joint Standing Committee on Electoral Matters faces many of the same policy and practical challenges in reducing informality in the House of Representatives as faced by the Joint Select Committee on Electoral Reform when it looked at the high level of Senate informality in 1983. Factors affecting informal voting7.48 In its analysis of informal voting for the House of Representatives in the 2010 federal election, the AEC observed that:
7.49 The key factors contributing to informal voting brought to the attention of the Committee included: lack of English language proficiency, high number of candidates, socioeconomic considerations, and the differences between voting systems at both the federal and state and territory levels. However, Opposition members believe none of these factors justify authorising a bureaucrat to deem the rest of the elector’s ballot paper being cast in accordance with a registered ticket. English language proficiency7.50 In its analysis of informality in the 2010 federal election, the AEC found English language proficiency to be one of the strongest predictors of unintentional informality.[30] It stated that:
7.51 Elections analyst, Mr Antony Green, also acknowledged the links between high migrant populations and higher informal voting rates. He advised the Committee that:
7.52 The AEC strategies to assist people from culturally and linguistically diverse (CALD) backgrounds and minimise informality in the 2010 federal election included:
7.53 The AEC also undertook a pilot project in western Sydney in the lead-up to the 2010 federal election. Areas that had high informality rates in previous federal elections were targeted: Blaxland, Watson, Chifley, McMahon, Fowler, Reid, Parramatta, Werriwa, Banks and Bennelong. The AEC noted that:
7.54 The pilot project was managed by consultants working closely with the AEC. Bilingual educators, in many cases with extensive links in the relevant community, were engaged and trained by AEC staff. In conducting the workshops, the AEC noted that:
7.55 The pilot project was cut short by the announcement of the 2010 federal election. In total, 90 workshops were conducted, with 1772 participants across 13 language groups in the three week period leading up to the 2010 federal election, at a total cost of just under $210 000.[36] 7.56 While formal written feedback on the courses was limited, educators confirmed an increase in the knowledge and understanding exhibited during the course of the workshop.[37] 7.57 In the 2010 federal election, eight of these western Sydney divisions in which the workshops were conducted were ranked in the top ten highest percentages of divisions with informal votes.[38] 7.58 The AEC conducted a voter survey at seven locations in western Sydney on polling day. Forty-five of those interviewed had attended a workshop and found it useful. However, the AEC found that those interviewed were ‘...no less likely than other western Sydney respondents who speak languages other than English to vote informally, nor were they more confident about voting than those who had not attended a workshop’.[39] 7.59 In its evaluation of the project targeting voters from non-English speaking backgrounds (NESBs) in western Sydney the AEC concluded that the project had little impact on informality rates in those divisions, but was optimistic about the potential impact of a longer term project of this kind. The AEC found that:
7.60 SydWest Multicultural Services provides support services in the south western Sydney area to refugees and humanitarian entrants, including many from NESBs. It recognises that a lack of functional English is a significant challenge for people from NESBs carrying out a range of necessary activities, including casting a valid vote. Mr Agwa stated:
7.61 The problem is not only restricted to new arrivals, as some Indigenous voters face the challenge of low functional English language skills. The Hon Warren Snowdon MP, the Member for Lingiari in the Northern Territory, raised this as a matter of concern in relation to Indigenous voters. He commented that:
Number of candidates7.62 Generally, there has been a steady rise in the number of candidates contesting House of Representatives and Senate elections over the last few elections. In addition to cost implications, increasing numbers of candidates have resulted in a more complicated—and at times unwieldy—ballot paper that represents a logistical challenge to the AEC and a practical challenge to voters trying to cast a formal vote. 7.63 The AEC expanded on how this has evolved since federation, and observed that:
7.64 The impact of the increasing number of candidates in Senate and House of Representatives election is discussed in more detail in Chapter 9. Differences between voting systems7.65 Having differences between the voting systems for the Senate and the House of Representatives at the federal level itself, and with states and territories, can be confusing and pose a problem for voters trying to cast a formal vote. 7.66 Mr Antony Green observed in his analysis of previous elections that occurrences of a first preference only being marked on House of Representatives papers was higher in both New South Wales and Queensland, where optional preferential voting is used for state elections.[44] 7.67 This is supported by AEC statistics that show a substantially higher informal vote (with only number ‘1’, ticks or crosses) for New South Wales (133 871 votes) and Queensland (57 873 votes).[45] 7.68 When considering the differences at the federal level itself, Mr Green commented that:
7.69 When the Commonwealth Electoral Legislation Amendment Bill 1983 (which introduced group voting tickets in the Senate) was considered, the potential for confusion was foreshadowed in debate, with Senator Baume stating:
Committee view7.70 The Committee agrees that greater harmonisation of voting systems is desirable. It would be much easier for a voter to be able to look at a ballot paper for the election of representatives to the Senate, House of Representatives or their state or territory Parliament, and have confidence that the same thing is expected of them to make their vote count. 7.71 While the Committee acknowledges that at present national harmonisation of voting systems is unlikely, it believes that the Government must take the necessary steps to mitigate the impact that confusion over—or indeed ignorance of—different voting systems may have on levels of informal voting. Socioeconomic considerations7.72 In evidence to the Committee, the Victorian Electoral Commissioner, Mr Steve Tully, noted the correlation between socioeconomic disadvantage and levels of informal voting. He observed that:
7.73 A comparison of socioeconomic indexes for electoral divisions[49] with the electoral divisions ranked by levels of high informal voting[50], reveal some correlations. For example, of the top 15 electoral divisions ranked by index of relative socioeconomic disadvantage and ranked by highest levels of informal voting in 2010, there were four divisions present on both lists (Lingiari, Fowler, Watson and Chifley).[51] Addressing informality through education7.74 The AEC delivers various education services, including school and community visits, sessions at their electoral education centre, and professional development workshops for educators. 7.75 Information is available on the AEC’s website regarding the conduct of elections. In the lead up to the 2010 federal election the Official Guide to the 2010 federal election went directly to households, and was available in a range of languages, Braille and a sound recording to make it accessible to a wide range of electors. 7.76 The AEC also conducts targeted programs to help specific groups more effectively exercise their voting franchise. Over many years these activities have included:
7.77 As discussed earlier in the chapter, the AEC pilot project in western Sydney sought to address the high levels of informal voting in those electoral divisions. 7.78 The Indigenous Electoral Participation Program (IEPP) provides targeted assistance to Indigenous electors and potential electors. The IEPP commenced in 2010 and is funded for four years as part of the Government’s Closing the Gap initiatives. It is a national program that aims to:
7.79 Ms Bright, the AEC State Manager for Queensland, outlined the work of the IEPP in Queensland, stating that:
7.80 The AEC Manager for the Northern Territory, Mr Pugsley, advised the Committee that IEPP staff were also in the field in the Northern Territory in the weeks leading up to the 2010 federal election.[54] 7.81 At the 2010 federal election, there was a decrease in voter turnout in the Northern Territory to 82.7 per cent.[55] Statistics for various mobile polling stations in the Northern Territory also revealed high levels of vote informality in some remote areas.[56] 7.82 However, Mr Pugsley was optimistic about the future impact of the IEPP program. He noted that the IEPP program had only been operating for a few weeks prior to the 2010 federal election being called.[57] Committee conclusion7.83 The Committee acknowledges the role that education must play in helping to address informality. Targeted programs conducted by the AEC such as the Indigenous Electoral Participation Program assisting Indigenous people, and the pilot project in western Sydney to assist voters from non-English speaking backgrounds, are valuable and should continue. 7.84 The Committee notes the range of education-based and other activities that the AEC has undertaken in recent years to try to decrease the levels of unintentional informality, especially in areas where there are high levels of persons from non-English speaking backgrounds. It is clear, however, that despite these efforts informality continues to rise. 7.85 The Committee believes that unintentional informal voting is a growing and complex problem that requires action beyond the improvements that education programs have been able to deliver. Opposition members of the Committee point out that there has been no extensive research as to what proportion of informal voting is deliberate and what is accidental. At the moment, the AEC merely assumes that all ballots that are numbered ‘1’ only are accidentally informal and those that are blank are deliberately informal. Clearly there needs to be more extensive research done. The Opposition members believe education programs do deliver better outcomes, particularly in states with optional preferential voting and believes that people are entitled to vote informally if they wish. 7.86 The Committee notes the 1983 amendments for reducing informality in the Senate. However, the increasing amounts of informal votes in House of Representatives elections means action is required to reduce these numbers before the House of Representatives is faced with the alarmingly high levels of the Senate prior to 1983. The Opposition members note that this is a false comparison as no House of Representatives ballot paper would ever resemble a Senate paper in terms of numbers of candidates nominating. It is also necessary to point out that Senate electors are still able to fill out every square if they wish. Saving informal votes in the House of Representatives7.87 The Committee notes the Australian Labor Party’s observation about addressing informality:
7.88 There are various options that could be explored to reduce the amount of informal votes. Mr Antony Green proposed that the Committee consider optional preferential voting, a system of progressive informality and the South Australian ticket voting system, as options for lowering the informal vote in the House of Representatives.[59] Optional preferential voting7.89 Some have suggested optional preferential voting as a way to reduce informality in the House of Representatives, as it provides voters with the flexibility to indicate as few or as many preferences as suits.[60] Groups such as the Electoral Reform Society of South Australia support optional preferential voting on the basis that it would make it easier for voters and fairer for ungrouped candidates, in the case of the Senate.[61] 7.90 Others object to an optional preferential voting system.[62] Not only opposing its introduction at the federal level, The Nationals advocated for greater harmonisation of voting systems, calling for full preferential voting to be standard at the federal and state and territory levels.[63] 7.91 In terms of addressing informality, Mr Andy Becker, a former South Australian Electoral Commissioner, noted that:
Committee conclusion7.92 The Committee has repeatedly considered the optional preferential voting system when proposed in the course of its various post-election reviews and other inquiries, but continues to support a system of full preferential voting at the federal level. Progressive informality voting system7.93 Elections analyst, Mr Antony Green, proposed a new voting system of ‘progressive informality’ that retains compulsory preferential voting, but relaxes the formality criteria.Under his proposed system ballot papers with valid first preferences would be admitted to the count and the ballot papers with incomplete preferences would only be excluded at the point that preferences were required to be counted.[65] 7.94 Mr Green outlined his counting procedure as follows:
7.95 Under this model an elector’s vote is counted if their first preference candidate secures a majority of first preference votes. However, if further preferences are required, and the ballot paper has no other preferences marked, the vote will be deemed informal at that point. 7.96 In a situation where a candidate secures an absolute majority on first preferences, those incomplete ballot papers will count toward the result. The candidate will win the election; however, during the full distribution of preferences, those ballot papers (if any) that were deemed formal at the first preference count for the remainder of the candidates would be informal at the point where the candidate was excluded, if no further preferences were indicated. 7.97 Under that situation, ballot papers for the winning candidate may be treated differently to ballot papers for the other candidates. 7.98 Another relevant factor is that the number of ballot papers deemed formal at the first count, may be different to the number of ballot papers deemed formal at the end of the full distribution. It is likely, therefore, that the number of ballot papers counted toward the final result would be different to the number of ballot papers that counted toward the candidate being elected. Opposition members are in strong disagreement with this assessment, the idea that a vote which exhausts under an optional preferential system because the elector deliberately chooses not to preference certain candidates does not make their vote informal. Opposition members feel that pointing out that some votes may exhaust is a very poor argument against ‘progressive informality’ or optional preferential voting, and that saying that these votes are informal is very deceptive. 7.99 Similarly, the result achieved in a division in which a candidate achieves an absolute majority of first preference votes, would treat incomplete ballot papers in a different way than in a division where a full distribution of preferences is required to determine the result. 7.100 Mr Green acknowledged that while progressive informality gives effect to the intent of more voters than the current rules, there are disadvantages in that: it does disadvantage minor parties and independents as the ballot papers given their first preference are more likely to have to be excluded and thus become informal if full preferences are not indicated; and election night counts would be less reliable, as ballot papers with first preferences counted on election night may later need to be excluded.[67] 7.101 In evidence to the Committee, Mr Green argued that his progressive informality model struck the right balance between saving votes and respecting compulsory voting. He asserted that:
7.102 At the Committee’s request, the AEC considered Mr Green’s progressive informality model and what effect it could have had on House of Representatives informality in the 2010 federal election. The AEC concluded that of the 729 304 informal votes, 273 035 could possibly have been saved at the first preference count, with a further 85 724 potentially saved if ticks and crosses were also accepted, and potentially another 4 816 if other symbols such as alphabetic characters were accepted. However, a number of ballot papers may then be rendered informal if a distribution of preferences was required.[69] 7.103 The Committee also notes the following AEC observations about the progressive informality model:
7.104 Dr Brent of the Democratic Audit of Australia also commented on the similarity between optional preferential voting and progressive informality, suggesting that progressive informality was ‘really OPV with a bit of a semantic change’.[71] Committee conclusion7.105 The Committee supports a system of full preferential voting. It notes the similarities between progressive informality and optional preferential voting. 7.106 The Committee does not consider the progressive informality voting system proposed by Antony Green to be a viable option. In particular, the Committee is concerned about ballot papers being treated differently from one electoral division to another. It is not equitable to say that in the event an elector has voted with a single ‘1’, that if the elector’s first preference happens to be for a candidate that received an absolute majority then it can be treated as formal, but if their first preferences is for another candidate and additional preferences are required then the ballot paper will be deemed informal. 7.107 The Committee believes that the progressive informality system could potentially be more confusing, for voters and election officials administering the count, than the current system that the Committee is seeking to improve. 7.108 The Committee also believes that, wherever possible, ballot papers deemed to be formal should be treated consistently, both within and across electoral divisions. Progressive informality, unlike the South Australian savings provision dealt with below, does not treat ballot papers deemed formal in an equal and consistent manner. South Australian ticket voting7.109 The South Australian voting system is full preferential, but has a savings provision (SA ticket voting) for the House of Assembly which permits candidates to lodge one or two preferences ticket, and provides that some ballot papers may be rendered formal if a voter has only indicated some preferences on their ballot paper where the preferences indicated are consistent with the ticket or tickets lodged. 7.110 In the 2010 South Australian state election, 32 638 House of Assembly votes were saved by South Australia’s ticket voting system. In the two previous elections in 2006 and 2002, 43 553 and 37 897 votes were saved.[72] 7.111 The Committee received evidence that at the 2010 state election the informal vote in South Australia, which was 3.3 per cent under ticket voting provisions, would have been 6.5 per cent had federal rules applied.[73] 7.112 In the South Australian House of Assembly, provided a ballot paper is not marked in a way that identifies the voter, it is formal if:
7.113 South Australian House of Assembly ballot papers are informal if:
7.114 Uniquely, a savings provision in section 93 of the Electoral Act 1985 (SA), allows some votes to be saved in certain circumstances. Under the South Australian ticket voting system, candidates are entitled to lodge one or two voting tickets.[76] An incomplete ballot paper may then be saved when:
7.115 If these requirements are met, then the vote can be saved and preferences will be allocated according to the voting ticket(s) with which it is consistent. In cases where there is only a first preference indicated and two tickets are lodged, subsection 93(3) provides that:
7.116 In cases where a first preference and some further preferences are indicated, subsection 93(5) provides that:
7.117 This means that if the preferences indicated on an otherwise informal ticket deviates from the preference on the ticket(s) lodged by the candidate for whom first preference is marked it will not be saved by the ticket voting provision. 7.118 On polling night, the votes that may potentially be saved are still counted as informal at the polling place, with the savings provision subsequently applied by Returning Officers once they are satisfied that the necessary requirements have been met, specifically, that the candidate has lodged one or two tickets and that the preference(s) indicated are consistent with one or both of those tickets.[79] 7.119 The South Australian Electoral Commissioner acknowledged that the ticket voting requirements do represent an additional administrative challenge for election workers. Ms Mousley noted that:
7.120 The likelihood of ballot papers with some preferences being saved by tickets reduces as more preferences are indicated. The Electoral Commission of South Australia (ECSA) confirmed that:
7.121 Mr David Gulley of the ECSA, advised the Committee that the majority of South Australian House of Assembly votes saved by their ticket voting system are first preferences only (marked with a ‘1’, tick or a cross). He observed that:
7.122 A vote cannot be saved unless a candidate has lodged at least one preference ticket with the ECSA. Candidates can choose not to lodge tickets. 7.123 The AEC advised that in the 2010 South Australian election, there were 40 candidates who did not lodge a voting ticket (28 Greens, 9 Fair Land Tax – Tax Party, and three independent candidates).[83] As Table 7.6 illustrates, the number of candidates in 2010 choosing not to lodge tickets was unusually high compared with previous years. Table 7.6 Number of candidates who lodged no, one or two tickets for the 2010 South Australian election
Source Australian Electoral Commission, Submission 87.4, Attachment B, p. 12. 7.124 Despite this unprecedented rise in candidates not lodging tickets in 2010, discussions during the inquiry revealed that, generally, having first preference votes for them saved is a good incentive for parties and candidates to lodge tickets.[84] 7.125 Concerns about this model of ticket voting being seen as a move away from full preferential voting are addressed in section 126 of the South Australian Electoral Act 1985, which prohibits advocating forms of voting other than full preferential voting. 7.126 The provision prohibiting advocating methods of voting other than full preferential helps protect against problems encountered in the past.[85] 7.127 It is pertinent for the Committee to consider the issues associated with Langer-style voting, as they highlight how individuals or groups, for a variety of reasons, may seek to subvert a savings provision aimed at reducing informality. 7.128 The background to this is that as part of the major electoral reforms of 1983, a safety net was introduced for ballot papers where full preferences had been indicated, but a sequencing error had occurred. It provided that on ballot papers on which all squares were numbered, if there was a mistake in the sequence and numbers were repeated, for example 1,2,3,4,5,5,6,7,8, then the ballot paper would be formal, and the preferences would remain valid until the point at which the error occurred. 7.129 In the lead up to the 1996 federal election a political activist, Mr Albert Langer, encouraged electors to deliberately make sequencing errors on their House of Representatives ballot papers, so as to deny major parties preferences, but still have the elector’s desired preferences counted. Mr Langer’s activities included an advertisement in The Australian with instructions on how to cast their vote in this way. This style of voting became known as Langer voting. 7.130 The AEC took legal actions against Mr Langer, as his activities were in breach of the Commonwealth Electoral Act. At the time, section 240 of the Act provided that a voter must indicate their first preference with a ‘1’ and then number all the remaining squares, and section 329A made it an offence (with a maximum penalty of six months imprisonment) to encourage voters to vote other than in accordance with section 240. 7.131 This matter and associated issues were heard in the Victorian, Federal and High Courts. The outcome was that Mr Langer served three weeks of a ten week sentence, and the constitutional validity of section 329A was upheld.[86] 7.132 In 1998, following consideration of this issue in the inquiry into the 1998 federal election, section 240 of the Commonwealth Electoral Act was subsequently amended to explicitly provide that numbers could not be repeated, and the savings provision allowing the repetition of numbers was removed. 7.133 The Langer experience is a useful cautionary tale that savings provisions must be carefully designed to strike a balance between seeking to better give effect to voters’ intentions and upholding the system of full preferential voting. 7.134 During its hearings, the Committee considered the possible effect of Langer voting on a system based on SA ticket voting. The ECSA confirmed that under the SA savings provision a Langer voter would be informal.[87] 7.135 While the South Australian Electoral Act 1985, section 126, prohibits the advertising of the ticket voting provision, the reality is that a campaigner would not benefit from conducting a Langer-style campaign. 7.136 Unlike the sequencing savings provision that was in place at the 1998 federal election, which Langer sought to exploit, the ticket voting system is still a full-preferential voting system. If an elector only indicates one or two preferences and their ballot paper is saved, their vote will still be full-preferential in keeping with the ticket lodged by their first preference candidate. It cannot be manipulated to become a de-facto optional preferential system. 7.137 Former South Australian Electoral Commissioner, Mr Tully, acknowledged that while administering a provision that is not widely known was ‘tricky’, the amount of votes saved made it worthwhile. He observed that:
7.138 However, the fact that the operation of the SA ticket system in the House of Assembly is not widely publicised, and by extension, not widely known, could give rise to concerns about the extent to which voters are aware that their ballot papers are being deemed formal and preferences distributed as per their first preference candidate’s voting ticket. 7.139 While having acknowledged that the SA ticket system does have some positive input into the democratic process by saving unintentional informal votes of voters confused by the different voting systems,[89] Emeritus Professor Dean Jaensch argues that ticket voting makes too many assumptions and turns the informal ballot into a formal one, without asking the permission of the voter concerned.[90] 7.140 In its analysis, the AEC similarly made the distinction between the Senate group ticket system—which allows the voter to make the choice to vote above-the-line and have their preferences distributed as per the group ticket or to vote below-the-line and indicate their own preferences—and the South Australian system that does not explicitly provide voters with a choice.[91] 7.141 The AEC observed that the effect of potentially allocating preferences that were not intended by the voter is to some degree mitigated by the fact that further preferences will not necessarily need to be drawn on. The AEC commented that:
7.142 Elections analyst, Mr Antony Green, advised that:
7.143 In the context of the 2010 South Australian election, Mr Green found that:
7.144 Mr Andy Becker, a former South Australian Electoral Commissioner, was involved in the development and implementation of the SA ticket voting system. Mr Becker has a long professional history in the administration of elections in South Australia and nationally. 7.145 He informed the Committee that the rationale for the savings provision was that:
7.146 The SA ticket voting savings provisions that emerged were administrator-driven rather than government or politically driven. Mr Becker recalled that in 1985 the drafting instructions provided by the SA Government at the time were ‘fairly loose’ and he, as Electoral Commissioner, working in conjunction with the Parliamentary Counsel, had considerable latitude in developing South Australia’s new Electoral Act.[96] 7.147 Mr Becker outlined for the Committee the emergence of ticket voting as the preferred savings option. He recollected that:
7.148 In evidence to the Committee, Mr Becker advised that twenty-six years later the provisions had served South Australia well for seven elections, and that he was not aware of any objection to, nor any attempt to amend, the legislation covering voting tickets.[98] 7.149 That has also been the experience of South Australian Electoral Commissioner, Ms Mousley, who advised that:
7.150 The South Australian Deputy Electoral Commissioner, Mr David Gulley, also shared that view, telling the Committee that:
7.151 Senator Nick Xenophon, a Senator for South Australia, similarly found that:
7.152 Table 7.7 is a comparison of acceptable number on ballot papers in the Senate, House of Representatives and the South Australian House of Assembly. Table 7.7 Comparison of acceptable numbering on ballots papers in the Senate, House of Representatives and the South Australian House of Assembly
(a) The Commonwealth Electoral Act (CEA) prescribes the ballot paper formality requirements for federal elections. (b) The Senate’s two forms of voting are above-the-line (ATL) and below-the-line (BTL). Source Australian Electoral Commission, Scrutineers Handbook: Federal election 2010, Version 3; and the Electoral Commission of South Australia, Scrutineers Handbook, R018, 2010. 7.153 At the Committee’s request, the AEC undertook an analysis of the House of Representatives informality under the current system, and the potential impact on informality under the proposed options of progressive informality and the SA ticket voting provision.[102] Accordingly, the AEC made certain assumptions, including that: all candidates lodge tickets; ballot papers do not identify voters; ballot papers match tickets; and it relates to the first count only.[103] 7.154
From this analysis, it appears that the South Australian ticket voting
system, if applied to House of Representatives ballot papers, could save a
significant portion of informal votes. For the 2010 federal election, this
could have been as much as 42.12 per cent (307 156 votes), assuming that all
the relevant candidates had lodged tickets.
Figure 7.1 Indicative analysis of ‘1’ only votes by division Source Provided by Opposition members of the Committee. 7.155 As can be seen in Figure 7.1, the highest concentration of ‘1’ only votes were cast in New South Wales and Queensland, where optional preferential voting is permitted in state elections. 7.156 To properly appreciate the scale of the informal voting problem, it is important to also consider it at the level of electoral divisions. A breakdown of House of Representatives informality by division revealed a number of divisions with high levels of ballot papers marked with a ‘1’ only, a tick or a cross. Table 7.8 depicts the ten divisions with the highest numbers of informal votes of that type. A full list of all divisions, by state, is in Appendix C. Table 7.8 Top ten divisions with informal votes that were number ‘1’ only, ticks or crosses
Source Relevant rows extracted from Appendix C, Table C.2. 7.157 There were nine divisions,[104] all in New South Wales, which had between 4 000-6 500 informal votes of this type. Six divisions[105] with more than 3000 votes of this kind and 31 divisions with more than 2000 votes of this type.[106] A savings provision along the lines of the SA ticket voting system would mean that if a candidate has lodged a ticket these votes would be saved. 7.158 When the Committee sought the Australian Labor Party’s view on the SA ticket voting system, the ALP noted that:
7.159 However, the SA ticket voting system has its opponents. The Nationals did not support the adoption of the South Australian model at the federal level, and stated that:
7.160 The Liberal Party of Australia strongly opposed the SA ticket voting system. Federal Director, Mr Brian Loughnane, was adamant that:
7.161 The AEC cautioned that if seeking to apply the South Australian ticket model at the federal level, a careful examination to ensure that the model complies with section 24 of the Constitution—that members of the House of Representatives be directly chosen by the people—is required. The AEC noted the challenge on constitutional grounds that arose with the introduction of group ticket voting in the Senate in 1984.[110] 7.162 In the High Court case McKenzie v Commonwealth [1984] HCA 75 (McKenzie), a Senate candidate for Queensland claimed that Form E in the schedule to the Commonwealth Electoral Act setting out the ballot paper format for above and below-the-line voting was beyond the power of the Parliament. Mr McKenzie sought an injunction to stop the new style of ballot papers being distributed, which would have prevented the election from being held as planned on 1 December 1984. 7.163 Effectively, McKenzie v Commonwealth was a challenge to the use of ticket voting in the Senate. The challenged provisions were upheld by the High Court. There are clear parallels between this case and the arguments that could emerge if the SA ticket savings provision was adopted at the federal level. Opposition members believe the key difference in this case is that while voters for the Senate are told that if they just vote ‘1’, use a tick or a cross their preferences will be distributed elsewhere, in the proposed SA ticket system, it will be illegal to advise people to just vote ‘1’, use a tick or a cross and most electors will remain uninformed about how their vote will be counted. 7.164 In his judgement in McKenzie v Commonwealth, Chief Justice Gibbs discussed the new method of Senate voting, stating that: The voter may mark his vote either by placing numbers in the squares opposite the names of the candidates below the line or simply by placing the figure "1" or a tick or a cross in one only of the squares above the line: s. 239. Where the paper has been marked in a square above the line, it is deemed to have been marked in accordance with the group voting ticket or tickets lodged by the candidates in the relevant group: s. 272.[111] 7.165 Gibbs CJ ruled that the ticket voting was not inconsistent with the Constitutional requirement that Senators be directly elected. He found that: ...it is right to say that the electors voting at a Senate election must vote for the individual candidates whom they wish to choose as senators but it is not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket. Members of Parliament were organized in political parties long before the Constitution was adopted and there is no reason to imply an inhibition on the use of a method of voting which recognizes political realities provided that the Constitution itself does not contain any indication that such a method is forbidden. No such indication, relevant to the present case, appears in the Constitution.[112] 7.166 Arguably, it could be inferred that what was found to be valid for Senate voting is likely to be applicable to House of Representatives voting. 7.167 In its comparison of the progressive informality and South Australian ticket voting systems, the AEC found that broadly, ‘progressive informality would be simpler to implement’.[113] It also indicated that with either system, it anticipated practical implementation issues, including revisions of handbooks, changes to computer systems for vote tabulation, and whether, if required, the display of all voting cards would be practicable at a federal election.[114] 7.168 Optional preferential and progressive informality were generally regarded by submitters as ‘practically equivalent’.[115] Opposition members contend that as such it should be noted that a correct comparison between optional preferential and the South Australian ticket system shows that optional preferential voting saves more votes than the SA system. 7.169 When considering the SA ticket voting model and optional preferential voting as options for the House of Representatives, Mr Andy Becker concluded that:
7.170 Opposition members of the Committee strongly oppose any measures that allow the counting of votes and preferences in absence of such being expressed by the voter on the ballot paper. Unlike the Senate ticket voting system, used for elections for multiple positions, the House of Representatives ballot paper is far less complex and for a single election only. Opposition members believe any attempt to compare the SA ticket model with the Senate model is an attempt to mislead voters about important differences between the two. 7.171 Opposition members believe that the institution of such a measure constitutes a nothing less than a fraudulent means of counting votes. To be clear, votes will be counted and assigned to candidates where no expression of preference for that candidate is marked on the ballot paper. These and other concerns of Opposition members are detailed further in the Dissenting Report. Committee conclusion7.172 The Committee continues to support the full preferential voting system at the federal level. However, the high level of informal ballot papers for the House of Representatives requires that action be taken to address the hundreds of thousands of votes being unintentionally wasted. 7.173 The Committee notes the similarities between Antony Green’s system of progressive informality and optional preferential voting, and that, based on the AEC’s analysis, more votes would potentially be saved under the South Australian system of ticket voting. It also notes that Opposition members of the Committee vehemently oppose this proposition as being both constitutionally unsound and saving less informal votes than optional preferential. 7.174 When the Committee last considered the South Australian savings provision following the 2007 federal election, it noted that had the SA ticket voting system been in place federally, 154 000 House of Representatives votes could potentially have been saved at that election. 7.175 However, at the time the previous Committee did not recommend the adoption of the SA savings provision as it had reservations that the practical effect of the model may be to encourage optional preferential voting.[117] 7.176 During the course of the inquiry into the conduct of the 2010 federal election, the Committee had the opportunity to delve further into the background to, and practical operation of, the SA ticket voting system. 7.177 The Committee is now satisfied that SA ticket voting is consistent with the full-preferential voting system. Campaigners would derive no benefit articulating this savings provision or from a Langer-style campaign, because even when a ballot paper with few preferences is saved, the vote will still be a full preference vote in line with the relevant candidate’s ticket. 7.178 The Committee also notes concerns expressed that the constitutional validity of applying the SA ticket voting system to the House of Representatives could be challenged. 7.179 However, the Committee believes that the issue of using ticket voting at federal elections has been substantively dealt with by the High Court in McKenzie v Commonwealth [1984] HCA 75. The legality of group ticket voting in the Senate was upheld and the principle has not been subject to challenge since. 7.180 The Committee supports the introduction of a savings provision, along the same lines as the SA ticket voting system, as part of the solution to addressing the challenge of growing informality in the House of Representatives.
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