Optional preferential voting in the Northern Territory

The Giles Country Liberal NT government managed to ram through legislation this week which not only implements optional preferential voting for Territory elections but also prohibits handing out of “how to vote” and other candidate materials to voters on polling day within 100 metres of a polling place.  The ABC’s Antony Green has an excellent discussion of the issues.

However I’m not at all sure these reforms will be as big a winner for the beleaguered CLP government as they and some others seem to think.

It can’t seriously be argued that electoral advantage, rather than principled democratic electoral reform, is what Giles is seeking.  He claimed that optional preferential voting would help to reduce informal voting.  But that isn’t really a problem in Territory elections anyway, despite low levels of literacy in Aboriginal communities.  The overall informal vote at the last NT election in 2012 was just 3.2%, compared with 5.9% nationally at the last federal election in 2013.

As Antony Green notes, moving to optional preferential voting has been advantageous for conservative parties in some southern states, reducing the flow of preferences from the Greens to the ALP.  No doubt the CLP will be hoping it has a similar effect here in the Territory.  However, maybe they’re leaving out of calculation the possible effect of the new 1Territory Party on the forthcoming election.  As far as we can tell, and despite somewhat bizarre secretiveness as to the makeup of its Executive, it appears that 1Territory consists largely of disaffected former core CLP members and supporters.

Despite their disaffection, and however the Party itself chooses to allocate preferences on its How to Vote cards, many potential voters for 1Territory will themselves be Country Liberal voters registering a protest vote due to the almost unbelievable level of chaos and incompetence of the CLP government over the last 4 years.  Many would then still choose to preference CLP over ALP if forced to fill in every square on the ballot paper, as was required by the compulsory exhaustive preferential voting system that has applied until now.  I can’t help thinking that, like Greens voters in southern states with optional preferential voting, many of those protest voters will choose to record a vote for 1Territory and then not allocate any other preference.  It is conceivable that, in a global sense, CLP lost preferences from 1Territory may cancel out ALP lost preferences from the Greens.

Antony Green also suggests that optional preferential voting may favour the CLP in the seat of Karama, where there is a “no love lost” contest between disendorsed Independent and former ALP Leader Delia Lawrie and new ALP candidate Ngaree Ah Kit.  If a significant number of voters cast their ballot for one of the two Labor-leaning candidates and fail to record any preference for the other, it is possible that the CLP candidate might sneak through the gap and win.  But the same in reverse potentially applies in the seat of Arnhem, where Labor’s Selena Uibo could conceivably sneak through for a win if conservative votes are similarly split between the CLP candidate Ian Gumbula and incumbent MLA, the CLP-defector/fellow traveller Larissa Lee.

Banning the “gauntlet”

The other factor in the upcoming election will be the effect of banning distribution of  “how to vote” and other candidate materials to voters on polling day within 100 metres of a polling place.  The original proposal was for a ban within 500 metres of a polling place, which would certainly have been tantamount to a complete prohibition in every practical sense.

In my view there would have been a respectable constitutional argument that such a drastic restriction would breach the implied constitutional freedom of political communication that has applied in Australia since 1992, particularly on the European “structured proportionality” approach to assessing restrictions on political speech that now applies as a result of a recent High Court decision.  I won’t explain the arguments here.

Such a challenge could still be launched even with the less drastic 100 metre restriction on handing out materials that was ultimately enacted, but it would have a somewhat lower chance of success.  Given the risk of an adverse costs order in the event of failure, I doubt that any candidate is likely to launch a challenge to the new legislation on that ground.

In a more practical sense is there really a “gauntlet” at all (Giles’ excuse for the ban)?  It’s certainly true historically that Territory political parties have tended to be more aggressive than “down south” in the extent to which they surround polling booths with  prominent and usually very negative advertising banners and posters.  But, at least in my experience, the party volunteers who actually hand out “how to vote” cards are quite friendly and no more aggressive, insistent or numerous than their counterparts interstate.  Indeed if anything the reverse is true.  I have generally found walking into polling booths to be quite a relaxed, amiable experience where you get to say g’day and exchange good-natured banter with volunteers from all parties, and possibly score a free sausage sandwich to boot.  I think Giles has simply invented a non-existent “gauntlet” phenomenon to provide a plausible but spurious pretext for a blatantly self-interested “reform”.

But how serious an effect is this restriction likely to have?  Antony Green argues that it will have a more serious adverse effect in remote Aboriginal communities than at urban booths.  He might be right, but I’m not so sure.  Just about all Aboriginal voters in remote communities arrive on foot to vote.  As long as a party/candidate has enough volunteers, stationed 100 metres away from the mobile polling station, to intercept most voters as they approach to cast their votes, then there really shouldn’t be very much adverse effect at all.  I would expect that both major parties could muster enough volunteers to perform that task on each of the mobile polling booths, as could the First Nations Party (assuming it still exists).  Bush seats seldom have genuine Independent candidates.

By contrast, there may well be a significant adverse effect at urban polling booths.  A high proportion of urban voters arrive to vote by car, and commonly park in parking areas within the school grounds where most polling booths are located.  Where those parking areas are within 100 metres of the school building where the polling booth is operating (which will often be the case), handing out of “how to vote” material will become effectively impossible.  In those electorates, it is highly likely that the proportion of voters who will “choose” to record only a single preference on their ballot paper will be significantly higher than the experience in southern states with optional preferential voting (where I understand around 50% of voters do this).

About Ken Parish

Ken Parish is a legal academic at Charles Darwin University, with research areas in public law (constitutional and administrative law) and teaching & learning theory and practice. He has been a legal academic for almost 12 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in he early 1990s.
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9 Responses to Optional preferential voting in the Northern Territory

  1. “He claimed that optional preferential voting would help to reduce informal voting. But that isn’t really a problem in Territory elections anyway, despite low levels of literacy in Aboriginal communities. The overall informal vote at the last NT election in 2012 was just 3.2%, compared with 5.9% nationally at the last federal election in 2013.”

    Though this may be a consequence of the low number of candidates for the last NT election compared to the average federal electorate; quite a few of the remote electorates seem to have been two-party contests.

    “As Antony Green notes, moving to optional preferential voting has been advantageous for conservative parties in some southern states, reducing the flow of preferences from the Greens to the ALP. No doubt the CLP will be hoping it has a similar effect here in the Territory. However, maybe they’re leaving out of calculation the possible effect of the new 1Territory Party on the forthcoming election.”

    I would add that the Greens are far less relevant in the Northern Territory, and so their preferences will not be as missed by Labor as they were in NSW and Queensland.

  2. paul frijters says:

    Sounds like much ado about nothing, Ken! I have no reason to doubt you, so why did they bother?

  3. Alan says:

    A couple of points. Anthony Green really should not speak about ‘full preferential voting’ as if optional preferential voting were a watered down version. The reverse is actually true. Preferential voting is relatively rare outside Oceania, being restricted to Ireland, Malta and a handful of US local governments, Historically it was sued in a couple Canadian provinces for brief periods, although it is now the preferred option for the Trudeau government. However it is a non-trivial fact that compulsory preferencing exists only in Australia and even here it is used only in elections for the Commonwealth, Victoria, South Australia and Western Australia.

    While OPV has benefitted some Coalition governments it also played a major role in defeating the Newman government in Queensland. Queenslanders who had been unwilling to vote second preferences at the previous election voted them in large numbers last year.

    Lastly it is just not a useful exercise to analyse electoral reform in the slightly crude cui bono terms used in this post. It is equally useless to analyse electoral reform in terms of the motives of these who enact it. The introduction of proportional representation in the Australian senate was done for the crudest motives of electoral advantage. I do not think that means we need to ‘restore democracy’ by returning the senate to the block voting system which regularly saw governments holding every seat in the senate.

    The introduction of proportional representation in Europe has an almost equally grubby history, but that does not mean Europe needs to ‘restore democracy’ by reverting to first past the post.

    Compulsory preferential voting essentially kidnaps the electors into supporting one of the two major parties. You can vote for a minor party or independent candidate but ultimately your vote (in almost all federal electorates) is corralled to one of the two major parties and the two party preferred vote is then used to justify a purely duopolistic democracy. This is not an example of the level playing field that the two major parties are eager to impose on everyone but themselves.

    The only relevant question about an electoral reform is whether or not it increases the powers of the electors. OPV clearly meets that test.

  4. Antony Green says:

    I generally use the term full rather than compulsory preferential voting to distinguish it from partial and optional preferential voting. The issue is how many preferences are required as both partial and full preferential voting require compulsory preferences beyond the first preferences.

    Tasmanian election are conducted by partial preferential voting where a minimum number of preferences is compulsory. NSW and Victorian Legislative Council elections are conducted by partial preferential voting where a minimum number of candidate preferences is compulsory.

    The key point about the Queensland election is that it disproved the argument that OPV is de-facto first past the post. If OPV was de-facto first past the post, Lawrence Springborg or another LNP member would be Premier of Queensland.

    Optional preferential voting was used briefly in WA and Victoria before WW1 but abandoned for full preferential voting. Queensland used contingent voting 1893-1942, FPTP till 1960, then full preferences before OPV was introduced in 1992.

    NSW used second ballots 1910-20, full preference STV 1920, partial preference STV 1922 and 1925, OPV 1927 then full preferences until the Wran government introduced OPV in 1980.

    So it is understandable why OPV is generally viewed as the odd system out in Australia as it is the less common domestic version. However, having lectured on preferential voting in both Canada and the UK, I well understand that full preferential voting is the odd system out. No one else would consider make full preferences a requirement.

    I sometimes talk about Federal politics having three compulsions, enrolment, voting and preferences, but the third compulsion varies at state level.

    • Alan says:

      Perhaps ‘compulsory preferencing’? I think the absence of compulsory preferencing elsewhere (not just rarity, total absence) is a nontrivial fact that needs mention in Australia.

  5. Michael says:

    The mind boggles at the CLP’s stupidity. *Any* government cruising for a bruising as big as the one they’re going to get is going to get the worst of optional preferential voting (witness the Kenneally government in New South Wales and the Bligh government in Queensland). When the knives are out for you, you should be thankful for every vote you can get – even one that comes back via preferences.

  6. Peter says:

    Tinkering with the current system will leave us with non representative government. Only proportional representation gets close to democratic ideals.
    A real democracy would be a chamber of totally independent representatives who will be kicked out if they attempt to form a political party. We do not need a government and opposition, we need every politician on the same side, working towards consensus in deciding on the best way to run the state, advised by people who are also independent and know what they’re talking about. Oppositions oppose even the best possible ideas, simply to derail the government.
    At least in Queensland with OPV we got rid of bad governments, so that’s a step…now the next… Ha! not likely when corporate money pulls the strings.

    • Ken Parish says:

      Hi Peter

      I entirely agree with you (and Alan) regarding the virtues of an electoral system based on proportional representation. I have written about it before, most recently here.

      However this post wasn’t about PR, nor indeed was I attempting an analysis of the comparative systemic virtues and vices of exhaustive compulsory versus optional preferential voting. I was instead responding to the immediate news of the NT CLP government enacting optional preferential voting, and musing in light of Antony Green’s linked article about the likely short-term electoral consequences of that change for the forthcoming NT election due in August this year.

      For what it’s worth, I don’t personally have any decisive preference for either exhaustive compulsory voting or optional preferential. Both have their vices and virtues, and neither would necessarily permanently advantage one major Party over the other (e.g. see this 2010 article by Antony Green). From my viewpoint, the real problem is that any system based on single member electorates, whether MPs are elected by compulsory or optional preferential or even a non-preferential “first past the post” system, unavoidably leads to a “winner takes all” mentality, with all the toxic political behaviour that such a mentality engenders.

      A well-designed PR system in which there are multiple MPs for each electorate (enough – say at least 5 – so that the quota for election will in most cases result in a reasonable level of diversity of representation, and therefore the necessity for constructive dialogue and compromise) is IMO a far superior alternative. Necessarily PR systems nevertheless involve voters recording their preferences for candidates, either by voting for a particular Party ticket (as in a Senate “above the line” vote) or for the individual candidates (as in a Senate “below the line” vote) – or the option of either method as with the current system for Australia’s Senate. However, the extent to which electoral laws require preferences (beyond the first) to be recorded differ from country to country, and for that matter from time to time even within Australia. For example, see this interesting article from the Proportional Representation Society of Australia.

      • Alan says:

        STV doesn’t necessarily require that every district return the same number of members. The ACT legislative assembly has 2 five-seaters and 1 seven-seater. Of course the districts have the same ratio of representatives to electors. There is probably a case for a small number of single-seat districts in remote areas. I think if you were designing a proportional representation in Australia that you’d also look closely at the Maori MP system in New Zealand.

        Lastly, we have really small parliaments by world standards and smaller ana assembly the less its chances to check the executive. The cube root rule proposes, on both empirical and mathematical grounds, that the ideal assembly size is the cube root of the population. I know that idea would produce hysteria in the Australian media, but the numbers are hard to contest. There is also considerable evidence that smaller assembly size encourages even more reductions.

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