Introduction

INTRODUCTION “The people are not there to be served, nor are they there to be helped. The people are there to be manipulated.” Though they would never admit it, such is the mantra upon which Australia’s party machine apparatchiks operate. I suppose it is the same the world over – in democracies at least. It is certainly a far better “principle” than that which operates under dictatorships. For at least ten years now (and probably for much longer) the Australian federal parliament has been run by the big party machines, operating under that concept. The politicians put there by the machines no doubt claim to espouse “democratic principles” when they agree to (or resist) a “reform.” More often than not, however, those principles are concocted by the parties to suit their own short term electoral interests. We know American politicians think like that with their infamous gerrymandering which one of their Founding Fathers invented. Our politicians play the same kind of tricks when they introduce upper house systems of proportional representation that they have continually been changing to include ever more substantial stage-management of the process.

For over sixty years I have been participating in public debates about electoral system questions. In The Sydney Morning Herald for 30 August 1957 there was a letter from me on the filling of Senate casual vacancies. Ever since that time I have been having published books, academic articles, scholarly papers and newspaper and magazine articles on this subject – and I have learnt some tricks of the trade. Since politicians actually enact electoral laws they must be influenced. How does one go about doing it?

This book is a simple example of me doing my job. Knowing that the federal politicians will not listen to me any more, I have decided in this book to “go nuclear”. In the past that has not been necessary – but it is now. In the past I have been remarkably successful and at times I wonder why. The explanation, I am sorry to say, is that my reform proposals were either trivial in nature or else they amounted to me supporting a reform proposed by a powerful political party. Generally speaking that was the Labor Party federally and in the two most populous states. It was the Liberal Party in respect of the four least populous states.

There was, however, one exceptional case. By a miracle the Hare-Clark system was installed in the Australian Capital Territory where I have lived for over fifty years. Hare-Clark is a variant of what political scientists call PR-STV which is short for “proportional representation by means of the single transferable vote”. Prior to our success in having Hare-Clark installed in the ACT it was thought to be a peculiarly Tasmanian system – it having operated there continuously since 1909. Yet it never should have been thought of as just Tasmanian, because such a system has operated for national lower house elections in Ireland and Malta for very nearly as long. It is a one hundred years old system in those countries.

This book is an interruption for me. I am working on a magnum opus which aims to collect together all my writings over the past sixty years. It is half written and, among other things, has a chapter on each Australian state and territory. That book is intended to be called It’s Not the Voting that’s Democracy which would be a take-off from the remark made in Tom Stoppard’s 1972 play Jumpers. The remark in question is: “It’s not the voting that’s democracy, it’s the counting.” In other words the will of the people is determined by the electoral system operating in the democracy. That system greatly influences how people vote.

I plan to call the ACT chapter Miracle at Canberra, so let me explain why. Back in the days when I was a teaching academic I would lecture the future army, navy and air force officers of Australia and New Zealand about the Politics of the United States of America. I would begin with the Constitution. That marvellous document came out of the Philadelphia Convention in 1787. One of the books I used was called Miracle at Philadelphia. It was by Catherine Drinker Bowen and was published in Boston in 1966.

It was indeed a miracle that such a magnificent document as the US Constitution should be produced

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in those circumstances. But is it not cheeky of me to suggest a title for the ACT Legislative Assembly voting system as Miracle at Canberra? Is that not a comparison between the sublime and the ridiculous?

I do not think so. It was not a miracle that Tasmania should adopt the Hare-Clark system in 1909 because Australian politicians were good democrats in the 1890s and 1900s. However, today’s politicians claim to be good democrats when really they are stasiocrats. So now I find I have used a new, and unfamiliar, word which is stasiocracy. When I was a teaching academic I explained it this way.

In political science literature there are different types of systems of government. Oligarchy means government by the few, monarchy means government by one person, plutocracy means government by the rich, bureaucracy means government by public servants etc. And theocracy means government by clerics. Democracy is generally thought to be “government of the people, by the people and for the people.”

So this is where stasiocracy comes in. It is government by the machines of big political parties. Virtually all our parliaments are stasiocratic in character – but those of Tasmania and the ACT are not.

Furthermore, when our politicians enact laws relating to electoral system questions they behave as stasiocrats. They take orders from the apparatchiks of their parties who work according to the maxim that is the first two sentences of this Introduction. It deserves repeating: “The people are not there to be served, nor are they there to be helped. The people are there to be manipulated.” Given how stasiocratic our politicians actually are these days it truly was a miracle that the federal parliament would actually let the people of the ACT choose so democratic a system as Hare-Clark.

When I have It’s Not the Voting that’s Democracy published I shall tell the full story. For the time being I describe my personal strategy in the affair. Knowing that politicians, if left to their own devices, will always want a stasiocratic system I decided to encourage them to mess it up. Then the system the federal politicians foisted upon the people would become discredited. Finally the discrediting would become so great that the politicians would come to their senses and do something democratic (and sensible) by way of a change.

That is exactly what happened. The ACT had an unusual “home made” form of above-the-line voting for the first two elections under self-government. They were held in March 1989 and February 1992. It was a proportional representation (PR) system of an unusual kind the details of which do not need to be explained here. In the bargaining between the House of Representatives and the Senate it was messed up enough by the federal politicians that a referendum (actually an advisory poll) was held in which the people chose between the conventional system of single member electorates (with preferential voting) and Hare-Clark which won the referendum by a two-to-one majority of the votes.

The next seven elections (February 1995 and 1998, and October of 2001, 2004, 2008, 2012 and 2016) were conducted under Hare-Clark which is now the permanent and respected democratic system. The federal politicians became so sick of dealing with this federal territory they decided to transfer the electoral system to the control of the ACT Legislative Assembly where it now resides. The advisory poll was held on 15 February 1992, in conjunction with a general election held under the old system of above-the-line voting. The votes were 101,936 (65.3 per cent) for Hare-Clark and 54,165 (34.7 per cent) for single-member electorates.

There Must be NO “Savings” Provisions in Commonwealth Law The most recent occasion upon which I had a submission published on the website of the federal Joint Standing Committee on Electoral Matters was Friday 17 February 2017. After much to-ing and fro-ing between me and the JSCEM (the details of which are given in my chapter Extreme Vetting) it was published as submission 139. Given its importance I now wish to incorporate here the full section headed “There Must be NO ‘savings’ Provisions in Commonwealth Law”. It reads:

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The federal electoral system must be entirely ridden of so-called “savings” provisions.

Fortunately the 38th Parliament got rid of the last remnant of House of Representatives savings provisions when it eliminated the so-called “Langer” vote. The 46th Parliament should do the same for the Senate system.

Some people argue that savings provisions are justified because they save votes from becoming informal. That is sometimes true as is illustrated by the ACT version of the HareClark system, the circumstances of which are described below. Therefore, these propagandists argue, the politicians who do that are trying to help the voter. Such an argument cannot be mounted in defence of this outlandish Senate system. The politicians and their media cheer squad wanted to preserve the Senate system as a party machine appointment system where voters are told their duty is merely to distribute numbers of party machine appointments between parties on a PR formula. The problem those politicians had was always simple to describe: they wanted these words on the ballot paper they designed: “Above the line: By numbering at least 6 of these boxes in the order of your choice (with number 1 as your first choice)”. Instead of producing a marginal increase in the informal vote (something they did achieve) they would have produced a massive increase in the informal vote which would have been an embarrassment to them. They avoided that humiliation by their savings provisions.

All of this illustrates my main contention. To help the voter was not part of the intention of the Commonwealth Electoral Amendment Act 2016. Its intention was purely to make life more convenient for the machines of the collaborating parties. The parties in question were Liberal Party, Greens and Senator Nick Xenophon. At the very end of the process the Nationals came on board when offered concessions to enable them to contest Senate elections in Western Australia. To put some lipstick on the pig the politicians DID insert some provisions to enable them to CLAIM that they were in the business of helping the voter. Their claiming never cut any ice with me.

On 15 February 1992 a solid majority of ACT electors at a referendum supported the installation of the Hare-Clark system for future elections for the Legislative Assembly. I supported the Hare-Clark campaign strongly when the alternative was a system of single member electorates. When I joined the Hare-Clark campaign I assumed the Assembly would, as nearly as practicable, copy Tasmanian Hare-Clark which I have long described as the original and the best electoral system in Australia. However, that was not to be. At the urging of the ACT branch of the Proportional Representation Society of Australia the Assembly inserted savings provisions whereby a single first preference vote would count as a formal vote. I never supported that and I still do not support that. However, I do admit that the PRSAACT was well-meaning in its view which was supported by the New South Wales branch of the PRSA. Thus the great contrast between the Senate and ACT systems is indicated. For the former the savings provisions were inserted to get parliamentary support for the new system. It was a case of politicians helping each other. For the latter the system had already been chosen by the people and the savings provisions were added when they were never mentioned during the referendum campaign. Consequently I tolerate the savings provisions of the ACT Hare-Clark system while condemning the savings provisions of the Senate system in the strongest possible terms. They are a disgrace.

Burning Down the House There is a golden rule in politics and it is this: “People will only repair the house once it is burnt down.”

Consequently my strategy for the ACT was to encourage everything to be done to the former abovethe-line PR system to make it disreputable. The federal politicians helped considerably. They did not

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merely mess it up. They constructed a house so jerry-built it was very likely to burn down. Then a decent house could be designed and built. That came about and the ACT Hare-Clark system became one of my achievements. In saying that, however, I must pay tribute to the PRSA whose members were magnificent. Hare-Clark was much more a victory for the PRSA than it was for me.

The main hero in the event was the late Bogey Musidlak who, for many years, was the voice of the PRSA in Canberra. He was born in Adelaide on 11 September 1953 and came from a Polish father and a Ukrainian mother who met in a forced labour camp in Germany during the Second World War. Bogey’s full name was Boguslaw Czeslaw Musidlak. While I was writing this book he was very helpful to me. At one point, however, he apologised for not giving quite the attention to that chapter (on Section 282 of the Commonwealth Electoral Act) as he had given to others. His confessed inattention was on account of his “preparations for a week’s visit to Adelaide.” The last e-mail I had from him was at 5:57pm on Wednesday 23 August 2017. The next I heard of him was reading of his sudden death on Sunday 27 August, which came as a shock to me – and various others in the psephological community. My reading of that came as a result of an ordinary death notice on Saturday 2 September. I wrote an obituary for him in which I described him as “the Father of Hare-Clark in the ACT”. I have dedicated this book to him and my Appendix is that obituary. As readers can see, my dedication goes: “For Bogey Musidlak (1953-2017) who taught me so much about proportional representation.”

Above-the-line voting for the Senate cannot be defended. It is clearly a device to circumvent the requirements of Section 7 of the Australian Constitution, the details of which are given at the opening of Chapter 5 of this book. The commandment it clearly violates is that senators shall de “directly chosen by the people”. The indefensible nature of Senate above-the-line voting is obvious to me but, regrettably, it is not obvious to everyone, not even to a substantial majority of observers. However, if (as I believe to be the case) the federal politicians have messed it up enough they may bring it down of its own accord. I have helped them to do that as I show in this book. But have they messed it up enough?

That is the big question to which I do not yet know the answer.

The latest federal iteration of this appalling concept was legislated by the Commonwealth Electoral Amendment Act 2016. It foisted upon the Australian people a new system designed to confuse, deceive and manipulate voters – all for the benefit of the machines of big political parties. However, I ask myself this question: is it bad enough to lead to its abandonment? Would politicians actually care whether a voting system has a good reputation?

In the meantime my attitude towards this enactment is summed up by the following words taken (moreor-less) from Sir Joseph Porter in HMS Pinafore: I will hear of no defence, Attempt none if you’re sensible, That scheme of evil sense Is wholly idefensible Towards the end of my published submission 139 I ask myself another question: “Have I been wasting my time?” I regret to say that the answer is probably in the affirmative. I know what our federal politicians are like – especially in the 21st century. Their predecessors were good democrats in the 19th century and, I suppose, reasonable enough in the 20th. However, in the 21st century they have become so cynical, so dishonest and so stasiocratic they will probably dismiss me with a contempt I do not deserve.

To some extent they have already done that as I explain in my chapter Extreme Vetting. Furthermore they will have available to them the support of so-called “respected expert independent commentators”, of whom the most influential – and offensive – is ABC elections analyst Antony Green AO, who will defend the work of the politicians. Such commentators will be only too happy to tell the tale of the noble politician who deceives the voter for the voter’s own good. Consequently the politicians will go their own

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merry way – always thinking in terms of the short-term interests of their party machines, but concocting new “democratic principles” to justify themselves.

A good example of the notions I have in mind came in Antony Green’s blog of 22 June 2015. Let me now give the first of two quotations: Some have proposed to abolish the division of the ballot paper and return to making voters express preferences for candidates. The problem that advocates of this approach must face is that for two decades 98 per cent of voters have chosen to vote above the line. It would be an enormous education task to return voters to voting for candidates.

How ridiculous! Surely he must know how absurd that statement is. As one of the many “some people” to whom Green was referring I see no problem at all. On the contrary, when his system was implemented in 2016 the informal vote increased, notwithstanding that his “savings” provisions were supposed to reduce the informal vote. It is true that the 98 per cent figure (from 2013) fell marginally in 2016 because Green and his party machine mates made it slightly easier to vote below the line. That was very cunning thinking on their part. The parliamentary parties who collaborated with Green to implement his new system did that purely so they could pretend to have voter interests in mind. I have changed my own Senate vote from formal to informal as my protest against Green’s system. I suspect there are more voters like me than he would admit. Such voters may not be able to write a 300-page book denouncing the new system but their instinct tells them it is a crook system designed to help the party machines by confusing and deceiving the voter.

The problem I truly have is not that at all. The problem I must face is the power of all the “respected” people ranged against me. There are the big party machines, High Court judges and Green whose “soft power” is given to him by his employer’s airwaves. I have a smidgin of soft power but nothing more than that. For my take on the power of High Court judges readers are invited to read my chapter Judges Exercise their Power.

Later in the same 22 June 2015 post Green described the reform wanted by him and his party machine mates in this way: “Under the proposed system, the only preferences that would count are those filled in by voters themselves, the same as for House elections.” My reader can see immediately what is wrong with that. There have never been any party boxes for elections to the House of Representatives – because the big party machines have never needed them! They continue for the Senate because the last thing the party machine bosses want is for them to face the need to contemplate the idea that senators should be directly chosen by the people. By contrast with Green’s system mine would make the method of voting the same for the Senate as for the House of Representatives. The only difference would be that, whereas the numbering of every square is reasonable for the election of a single member it is not, and never has been, reasonable for the Senate’s multi-seat system. The Liberal Party understood that in 1948 while the Labor Party understood it in 1974, 1975 and 1983. When will they ever learn?

The Qualifications of Different Analysts At this point it is worth my noting that each of the three main protagonists in this field has the letters AO after his name. Mine was given in 2006 and the citation refers, among other things, to my “commitment to reform and improvement of the electoral system.” George Williams was given his in 2011 and its citation is: “For distinguished service to the law in the fields of anti-terrorism, human rights and constitutional law as an academic, author, adviser and public commentator.” Green was given his in 2017 and its citation is: “For distinguished service to the broadcast media as an analyst and commentator for state and federal elections, and to the community as a key interpreter of Australian democracy.” Neither of the latter two citations refers to any commitment to reform or improvement of

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the electoral system. Yet both men make frequent submissions in that area. In respect of Green’s interpretations of Australian democracy I rarely disagree. Where I profoundly disagree with him is when he pushes his propaganda in comparing and contrasting different forms of proportional representation.

All of Green, Williams and Bonham are stasiocrats – but for further mention of Bonham see below. This is where they differ from my view and that of the Proportional Representation Society of Australia. We claim to be democrats. We believe that senators should all be directly chosen by the people. They do believe (as do we) that members of the House of Representatives should be directly chosen by the people. How very convenient that is for the big party machines - for there is zero possibility that members of a party would compete with each other in a system of single member electoral districts!

However Green, Williams and Bonham do not appear to believe that senators should all be directly chosen by the people. That is why they defend this present system which is – in practice - a party machine appointment system that technically has a direct election option, but one that most parties actively, and with great success, discourage voters from using. Fortunately, or perhaps, unfortunately, the High Court has been forced to show its hand. It has, in the form of a single judge sitting alone in 1984, ignored the system’s blatant sidelining of the direct election imperative in Section 7 of the Constitution and ruled, on the basis that the unnecessarily onerous below-the-line option still exists, that the system does not breach the Constitution. That is the essential reason why the Green-WilliamsBonham view prevails over the PRSA-Mackerras view. They tell the politicians what the politicians want to hear. For more detail on this see my chapter Extreme Vetting.

Throughout this book I discuss two maxims that date back to Sir Winston Churchill. One is: “Logic is a poor guide compared with custom.” I call that “the Churchill mantra”. For a discussion of its relevance readers are invited to turn to the very last part of my chapter Extreme Vetting. His other maxim is much more famous. It was: “The Americans can always be relied upon to do the right thing – but only after they have exhausted every alternative.” I call that “the Churchill quip”. That is the way I thought about our federal politicians in relation to the electoral system they gave to the ACT when they gave us selfgovernment and, eventually, an excellent system. Some day I hope to be able to say that in relation to Senate voting. I do not expect to live to see it but I shall certainly work for it. The present Senate voting system is just so bad surely it cannot last long! I wish I could be sure but I cannot be. Powerful vested interests support it and I describe those vested interests below.

The truly irritating thing is that there exist these men I once called “the alternative psephologists” but now call “the stasiocrats”. Their ring leader is Green but they have a deputy ring leader, Tasmanian academic Dr Kevin Bonham. I know Green quite well but I have never met Bonham. My knowledge of him comes only from reading his blog, which is very useful to psephologists like me. It is especially helpful in the aftermath of a Tasmanian election (of any kind) when he gives detailed up-to-date descriptions of the counting. Green’s blog used to be better than Bonham’s but, in my opinion, the reverse is now the case. Until I actually have a conversation with Bonham I must reserve judgment on him. As of now I call Green “a pragmatist and a propagandist who panders to the greed of the powerful.”

I do admit that during the 44th Parliament he outlined four “principles” that govern his thinking. I accept two of them quite readily. The other two consist of one designed for the convenience of the big party machines while the other is designed to suit the convenience of the Australian Electoral Commission (AEC). I shall return to this subject in later chapters.

Vested Interests of Big-Party Machines I want to tell readers about the vested interests mentioned above. It is simple to explain. The opening sentence of Section 7 of the Australian Constitution commands that: “The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.” (For the full section see the opening of Chapter 5). Unfortunately Australia’s federal politicians, supported by their appointees that have sat upon the High Court bench,

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have read that quite differently, as though it reads: “The Senate shall be composed of senators for each State. Until the Parliament otherwise provides senators shall be directly chosen by the people of the State voting as one electorate.” The Parliament has not otherwise provided in respect of the “voting as one electorate” part of the requirement. However, it has provided, without authorisation by Section 7, very effectively to sideline “directly chosen by the people” through the mechanism of above-the-line voting. It gives the voter the easy option which the party machines thus encourage the voter to adopt.

Thus the Constitution commands that the Senate electoral system shall be candidate-based. Beginning at the half-Senate election of December 1984, however, the system has been party-based. Senators are not directly chosen by the people. They are party machine appointees. The Australian people meanwhile have been “educated” to understand their duty when they vote. Their duty is to rank parties above the line in order of preference between parties and thus distribute numbers of party machine appointments between parties according to a proportional representation formula.

The dishonest, voter-unfriendly Senate ballot paper handed to voters presently has four contrivances none of which can be justified by any democratic principle. In effect the four contrivances are just dirty tricks played on voters by the machines of big political parties. The pretence is made that the “reform” of 2016 was intended to help voters. That is not a case that can be argued seriously. The “reform” of 2016 was, quite simply, a case of politicians helping themselves by helping their party machines. While the present ballot paper is voter-unfriendly it is very conspicuously party-machine-friendly. That is what our federal politicians are like.

The above is an entirely reasonable description of our Senate voting system. What about the House of Representatives? Here the situation is described by the opening words of Section 24: “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators.”

The important point to notice is the use of these identical words to command the electoral system for ALL members of the House of Representatives and for nearly every senator. (In that case there is an exception for senators filling casual vacancies who are covered by section 15.) The identical words are “directly chosen by the people”. Those words require that the electoral system for both houses be candidate-based. (For the full Section 24 see the second page of Chapter 5.)

It is interesting to note that every member of the House of Representatives has been directly chosen by the people. The big party machines have never tried to change that. What, therefore, is the difference between the two electoral systems that causes the big party machines to want to evade the requirements of Section 7 while conforming to those requirements in the case of Section 24? The answer surely lies in the single-member district nature of the election of members of the House of Representatives. Not only does it typically give the big parties inflated numbers of seats but, more importantly, there can never be any possibility of members of the same party competing with each other.

The situation is otherwise for the Senate due to its multi-seat system with the states being the constituencies. The machines must prevent candidates of the same party competing with each other in the public vote. Consequently they will always want to be able to appoint senators. Under the High Court’s 1984 interpretation of Section 7 the big party machines cannot install an actual party list system.

So they have, instead, installed a de facto party machine appointment system by rigging the election massively in favour of the party’s rank order of candidates. They can then argue that the system is still a Single Transferable Vote method because the counting of votes is done that way. Technically this system could be called “semi STV” or “semi party list”. I prefer to cut to the chase and call it a party machine appointment system in which the voters are manipulated by a dishonest system under-pinned by deceitful instructions on the ballot paper. Consequently, whereas the framers of our Constitution, and the late 19th Century voters who put it into effect, wanted senators to be “directly chosen by the people” that is the last thing our modern party machines want. With the acquiescence of just one High

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Court judge, sitting alone in 1984, and later judges worshipping at the shrine of “precedent”, they have installed a thoroughly un-democratic, highly stasiocratic system whereby voters are “educated” to understand their duty. That duty is to rank parties above the line from 1 to at least 6 so that the votes of the people distribute numbers of party machine appointments between parties according to a PR formula. That formula is the Single Transferable Vote which is the only vote-counting mechanism that can comply with Section 7.

Liberal Party Gaming its own System As readers wade through the details of this book they will understand why I think of the Liberal Party as being the villain of the piece. However, the Liberal Party could never have accomplished this trick alone.

For that reason the collaborating parties are also villains, accomplices if you like. The collaborating parties in 2016 were the Greens, then Senator Nick Xenophon and, very much last on board, the Nationals. However, even Labor is villainous to a degree. It should be strongly commended for opposing the Commonwealth Electoral Amendment Bill in parliamentary debates and votes in the autumn of 2016. Yet when the Senate general election came along in July 2016 Labor did pretty well out of the system that had been foisted upon it. So it folded its tents and went along thereafter with the cartel arrangement. The truth is that Labor no more wants senators to be directly chosen by the people than the Liberals, Greens or Nationals do – or Xenophon did when he was a politician.

So the power of the vested interests, combined with their determination to discourage the people from choosing their senators, leads me to be pessimistic about the chances of the democratic reform I seek.

So often when I explain my reform I am greeted by the listener saying to me that “I like your arguments but I do not like your chances.” Yet people accept my proposition that the Liberal Party is the principal owner of the present system, legislated in 2016. I could call it “Antony Green’s system” or “Nick Xenophon’s system” but I most regularly call it “the Liberal Party’s system”.

I have this message for the Liberal Party. You insult your own voters by this system. You are saying to your voters that they cannot be trusted with a democratic system of the kind I propose. They might start to vary the order of the Liberal Party’s Senate ticket. It is possible that they might elect a senator the party has placed into an unwinnable position. You, the machine of the Liberal Party, think your own voters cannot be trusted to do the right thing by the machine of the party! Consequently you have rigged the vote of your supporters to guarantee they will do their duty by the machine. The Labor Party, meanwhile, does not yet fully own the system. However, if enough elections go by with no Labor complaint then the Labor Party also owns the system. It then would join the Liberal Party in the insulting messages both big parties would send to their own voters.

So how did we get this system? Following the September 2013 half-Senate election the Liberal Party squealed the loudest. With only the flimsiest of a case, the Liberal Party (supported by Antony Green’s propaganda) cried “We wuz robbed”. Eventually, after much bargaining, it got its way. The Liberal Party’s system became reality and then Prime Minister Malcolm Turnbull put into effect his double dissolution of the Commonwealth Parliament, the date for the proclamation of which was Monday 9 May 2016. That double dissolution caused to be held Australia’s 8th Senate general election and 45th general election for the House of Representatives for which polling day was Saturday 2 July 2016. It did not surprise me in the least that the Liberal Party was the first out of the blocks to game its very own system. I now describe how that came about.

At the date of the double dissolution there were five Labor senators for Tasmania. They were, in alphabetical order, Catryna Bilyk, Carol Brown, Helen Polley, Lisa Singh and Anne Urquhart. Then there were four Liberals, Eric Abetz, David Bushby, Richard Colbeck and Stephen Parry. There were also

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two Greens, Nick McKim and Peter Whish-Wilson. Finally there was Jacquie Lambie, elected in September 2013 under the banner of the Palmer United Party, but an independent at the date of the double dissolution.

Returned as Tasmanian senators at the 8th Senate general election there were five Labor senators: Catryna Bilyk, Carol Brown, Helen Polley, Lisa Singh and Anne Urquhart. Then there were four Liberals elected, Eric Abetz, David Bushby, Jonathon Duniam and Stephen Parry. The two Greens were reelected, Nick McKim and Peter Whish-Wilson. Finally Jacquie Lambie was re-elected as an independent with a quota in her own right on the first count.

Now notice the details of the lists above. All eleven senators not placed in italics were re-elected. Notice now that the name Richard Colbeck appears in the first list but not in the second while Jonathon Duniam appears in the second list but not the first. Had there been no double dissolution Colbeck would still be a senator with a term expiring on 30 June 2020. However, Turnbull wanted a double dissolution to clean out the pesky cross-bench senators. To get that double dissolution he needed his “Senate reform” in place. As a loyal minister Colbeck voted for it – enabling the conservative Tasmanian machine of the Liberal Party to game the party’s own system, at the expense of both Colbeck and, to a lesser extent, Turnbull.

Any one believing the propaganda supporting this outlandish new system would say that Tasmanian voters for Labor and the Greens re-elected their incumbent senators but Liberal voters chose to replace Colbeck by Duniam. To make such an assessment under the Hare-Clark system would be quite reasonable. To make such a statement in this case, however, would be a schoolboy howler of the first magnitude. So let me tell readers what really happened.

Just as the Victorian division of the Liberal Party wanted revenge against Ricky Muir so did the Tasmanian division of the Liberal Party want revenge against Colbeck. The crimes of the two men were different, however. Muir “stole” the Senate seat to which the Liberal Party understandably thought Helen Kroger was entitled. The Liberals succeeded in their forgivable act of revenge by having Jane Hume of the Liberal Party take back Muir’s seat. So what was Colbeck’s crime? The following answer is true but shocking. Though he vehemently denied it he was suspected of having voted for Malcolm Turnbull in the party room secret ballot in September 2015 when Turnbull replaced Tony Abbott as Prime Minister.

He then compounded that offence with a “public crime”. He accepted the position of Minister for Tourism in the Turnbull Government. The Tasmanian division of the Liberal Party determined that the appropriate punishment for Colbeck was that he be defeated. Meanwhile Colbeck has always loudly said of that vote: “the ballot was secret and I am under no duty to say for whom I voted.”

Had Colbeck been the member for Braddon in the House of Representatives (the electoral division in which he resides) the Tasmanian machine of his party would never have confiscated his pre-selection from him. They would simply have watched in glee as a Labor candidate defeated him fair and square.

Had the Hare-Clark system operated for Senate elections they would not have tried to defeat him. Under the Hare-Clark system he would easily have thwarted their machinations. Had there been a decent Senate reform of the kind I want they would not have demoted him to an unwinnable position. He would have won his seat again by dint of his popularity and the machine would have been left with egg on its face for trying, and failing, to defeat him. The point is that this is not a decent system. The machine could – and did – defeat Colbeck by giving to the Senate yet another party machine appointee, Jonathon Duniam.

By a pure fluke it turned out that on Monday 30 October 2017 the President of the Senate, Stephen Parry, announced that, due to his holding of a dual citizenship he would resign as a senator rather than be disqualified by the High Court. The consequence was a recount of the votes as though Parry had not been on the ballot paper and his preferences were distributed accordingly. Thus on Monday 12

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February 2018 Colbeck returned to the Senate with a term expiring on 30 June 2019. It should be noted such a return does not invalidate my comments above. That Colbeck returned was a fluke and universally recognised as such at the time. It should not have needed a fluke. Under any half-decent voting system he would have been re-elected in 2016.

It is true that Colbeck was re-elected at the 2019 half-Senate election. The reason for that is Turnbull’s displacement. Colbeck became a minister again under Scott Morrison, was the only short-term Liberal senator for Tasmania so was placed top of the Tasmanian Liberal ticket. Here was the chance of politics if ever there was such a case. The fluke of Parry’s misfortune told us the truth of the old saying that “it’s an ill wind that blows no one any good.” However, let me return to Colbeck’s 2016 defeat.

The mechanics of the system are best understood by considering the instructions on Senate ballot papers and then considering a vote for Family First in Tasmania. Above and below the ballot dividing line are instructions as shown on Page 12. Those are deceitful instructions. They are designed to convey to the voter the notion that any failure to mark 1, 2, 3, 4, 5 and 6 above the line would render the vote informal. Alternatively one could be deceived into believing that any failure to mark 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 below the line would render the vote informal if the part above the line were not marked. The key words in the deceit are “at least 6” and “at least 12”.

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Now I consider my Family First supporter. A well-informed voter would know that he or she could cast an entirely formal vote for Peter Madden by placing the number 1 in the Family First box which is the first one would notice as it lies in the extreme upper left hand side on the ballot paper. Then that vote would count for Peter Madden until he were excluded at a late stage of the count at which point it would become exhausted.

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But supposing that this Family First voter actually believed the deceitful instructions (and the associated “education” campaign by the Australian Electoral Commission) then he or she might have cast a donkey vote by just numbering 1, 2, 3, 4, 5 and 6 across the ballot paper from left to right. In that case the vote went to Labor when Madden was excluded. But supposing this Family First supporter copied out the “how to vote” leaflet for Family First then that voter’s number 2 would have gone into the box for the Liberal Party which was Group F in this case. As a consequence of not understanding the dishonesty of the system that voter helped the machine of the Liberal Party to defeat Colbeck who was replaced

by Duniam. That voter helped to deprive Tasmania of its only minister in the federal government, creating a situation without precedent. There was no Tasmanian minister in the federal government until Colbeck was restored to the ministry in August 2018 by Prime Minister Morrison.

The Bonhams and Greens of this world will try to “prove” that this system is an improvement on the one it replaced – a proposition I refute. As part of their argument they will point to the re-election of Lisa Singh, the nature of which can be seen by looking at Page12. Does that re-election prove this system to be less stasiocratic (and, therefore, more democratic) than the old? I deny the proposition totally.

Back in 1983 there was a worthy motive for the old system – to bring about a big reduction in the informal vote. In 2016 there was no worthy motive for this system – just the greed of the collaborating parties and the Liberal Party’s desire for revenge against Muir.

Furthermore, the re-election of Singh could only ever happen in Tasmania, it could only ever happen at a Senate general election and it could only ever happen in respect of the biggest party – which is Labor in Tasmania, at the federal level. The defeat of Colbeck is of far more significance than the re-election of Singh. An important part of the reason for the difference is that Singh came from the populous part of Tasmania. She was born and educated in Hobart and she had been a minister in the Tasmanian Labor-Greens government as well as being one of the House of Assembly members elected for Hobartbased Denison. Colbeck, by contrast, was born and educated in Victoria and his ability to get himself well-known did not extend beyond Devonport. Colbeck faced a machine determined to defeat him, a disadvantage not suffered by Singh.

On pages 9, 10 and 11 of this Introduction the name of Colbeck is mentioned several times. I now record that, at the dissolution of the 45th Parliament the names on the roll of senators was 15 different from what it had been when the first meeting occurred in August 2016. That was primarily the consequence of the High Court having confiscated eleven seats from senators who were declared elected in July 2016 or at a subsequent recount. In my chapter The Senate as Unrepresentative Swill the Second Appendix records the names of senators at the dissolution of the 45th Parliament compared with those at the first day of sitting. It can be see that the number there is 15. (Note that this is as at October 2018. The displaced names are those of Back, Brandis, Conroy, Culleton, Dastayari, Day, Gallagher, Kakoschke-Moore, Lambie, Ludlam, Nash, Parry, Rhiannon, Roberts and Xenophon. Italics are used for those not disqualified.)

During the same 45th Parliament the roll of names of members of the House of Representatives was only three different from what it had been in August 2016. The differences occurred in Batman (Victoria), Perth (WA) and Wentworth (NSW). The Labor member for Batman elected at the general elections of September 2013 and July 2016 was David Feeney who resigned his seat early in 2018. Gerardine Kearney (usually known as Ged) won the seat for Labor again at the by-election held on Saturday 17 March 2018 – thus becoming the last member for Batman. For Perth the Labor member elected in 2016, Tim Hammond, resigned and Patrick Gorman (Labor) succeeded him. It was the “odd case out” of Super Saturday, the only seat not contested by an incumbent member. Malcolm Turnbull, meanwhile, lost the office of Prime Minister in the afternoon of Friday 24 August 2018 and resigned his seat of Wentworth exactly one week later in the afternoon of Friday 31 August. His seven days remaining in the House of Representatives was a record short period for a Prime Minister not rejected by the people

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nor becoming deceased. Julia Gillard’s number of days was 39. At the other extremity Billy Hughes remained a member of the House of Representatives for 10,854 days after losing the office of Prime Minister.

Liberal Party Loses Wentworth and Defeats Jim Molan The Wentworth by-election was held on Saturday 20 October 2018. It was the only by-election during the 45th Parliament not to return a member of the same party. It was won by Independent candidate Dr Kerryn Phelps whose final vote was 38,757 (51.18 per cent) compared with 36,974 for Liberal candidate Dave Sharma (48.82 per cent). Turnbull had won the seat with a two-party preferred vote of 67.75 per cent against Labor. Consequently the by-election swing was 18.93 per cent against the Liberal Party.

Most of the Senate differences simply tell us what we all know to be the case. The Senate is unrepresentative swill. However, two different names need to be mentioned as special cases, one being Colbeck. He was sworn back into his former Senate seat on Monday 12 February 2018. No one would ever accuse him of being an accidental senator. The other case is Retired Major General Jim Molan AO DSC AM. He polled 10,182 votes in 2016 compared with 13,474 for Colbeck. Bearing in mind that there are 15 electors in New South Wales for every one Tasmanian no one would contest my view that, under any half-decent Senate voting system, Colbeck would have been re-elected in July 2016 and continued to be the Minister for Tourism. Molan would have polled at least double his actual vote but come nowhere near being elected.

Anyway, on the first day of sitting in 2018, Monday 5 February, Molan was sworn in and almost immediately became a figure of controversy. He created a mini-scandal by having, late in 2017, posted an anti-Muslim video from a British far-right website. What was interesting to me was my watching The Drum program on ABC television late on the afternoon of Tuesday 6 February. On the panel was Mr Ali Khadri (check name and spelling), a man of Indian appearance from the Islamic Council of Queensland.

He railed against Molan and accused him of racism. He also said some other very sensible things. The reaction of the three white Australian journalist/commentator personalities was fascinating. They leapt to Molan’s defence and said he represented a fair slice of Australian public opinion. Fair enough. Then came their assertion that Molan should be forgiven because he was an “accidental senator” who was “wet behind the ears”.

That Molan should earn such descriptions tells us a great deal about the Senate as unrepresentative swill. Here was a senator from Australia’s governing party, from the most populous state, who is the highest ranking former military commander to be a member of any Australian parliament in the last sixty years. He could be accused of being an “accidental senator” in the same way as Donald Trump could be accused of being an “accidental American president”. Trump could also be accused of being “wet behind the ears” could he not?

In any event the faction-ridden New South Wales Division of the Liberal Party decided to get rid of Molan. Consequently, at the May 2019 half-Senate election the Coalition ticket for NSW saw a nonincumbent Liberal in first place, a non-incumbent Liberal in second place and a non-incumbent National in third place. Molan was dumped to the unwinnable fourth position so was sure to be defeated. Therein lies the beauty of a highly stasiocratic system from the point of view of the machines of big parties. A sitting senator can be dumped to an unwinnable place on the ticket and there is nothing he or she can do about it.

It is reasonable to describe the 38th, 39th, 40th and 41st Parliaments as “John Howard’s parliaments”. It is also reasonable to describe the 42nd Parliament as “Kevin Rudd’s parliament”. Likewise it is reasonable to describe the 43rd as Julia Gillard’s, the 44th as Tony Abbott’s and the 45th as Malcolm Turnbull’s parliaments. In putting together this book I have faced this choice. I want to discredit this

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woeful system as comprehensively and as quickly as I can. But should I seek to do that in the 45th Parliament or in the 46th? I now explain why I have sought to do most of the writing of this book during the 45th Parliament but to try and get it published during the 46th Parliament.

I record that I spent a considerable amount of my time during the 44th Parliament campaigning against this system, which I expected to be foisted upon the people at its end. It came to pass exactly as I expected. I wish to record this, however. I did not waste my time. I succeeded in persuading the Labor Party to oppose the Commonwealth Electoral Amendment Bill 2016 which they did – much to the annoyance of the Antony Greens and Kevin Bonhams of this world. I also succeeded in persuading the Nationals of the indecency of the Liberal Party in this matter. They extracted concessions from the Liberal Party to enable them to contest and win a Senate seat in Western Australia. In the end they did not win the seat they were promised – it went to Rodney Culleton - but the Nationals did change the nature of the “reform”. They made it worse than it need have been – which is exactly what I wanted!

This system is so much easier to discredit than the alternative scheme originally wanted by the Liberal Party and the Greens political party. It is the most dishonest voting system in the democratic world.

Senators Elected on Low Votes It is stated above that the seat promised to the Nationals “went to Rodney Culleton”. However, that statement needs to be revised. On Wednesday 11 January 2017 the High Court confiscated the seat from him on the ground that he had not been qualified to be a candidate for the seat which he won.

Consequently all the Senate general election votes for Western Australia were counted again as though he had not been a candidate and his preferences were distributed accordingly. The result was that on Monday 27 March 2017 Peter Georgiou was sworn in as a senator for Western Australia. That restored Pauline Hanson’s One Nation Party to four senators, Pauline Hanson (Queensland) with a term expiring on 30 June 2022 and Brian Burston (NSW), Malcolm Roberts (Queensland) and Peter Georgiou (WA) whose terms would expire on 30 June 2019. Burston later left the party.

Events move rapidly in this game. No sooner had I written the above paragraph than Roberts also had his seat confiscated by the High Court, due to his being a citizen of the United Kingdom. On Friday 27 October 2017 the High Court handed down a judgment, popularly known as the Citizenship case. One of the questions it asked itself was: “Whether by reason of Section 44 (i) of the Constitution there is a vacancy in the representation of Queensland in the Senate for the place for which Senator Roberts was returned?” To that question the answer was: “There is a vacancy by reason of Section 44 (i) of the Constitution in the representation of Queensland in the Senate for the place for which Senator Malcolm Roberts was returned.” So the whole procedure whereby Georgiou became a senator was followed again for Queensland and on Monday 13 November 2017 Fraser Anning was sworn in as a senator for the Sunshine State. Although elected due to his having been third on the ticket for Pauline Hanson’s One Nation Party he immediately became an independent and later joined Katter’s Australian Party – from which he was soon expelled! Polling just 19 votes in July 2016 the recount ordered by the High Court saw his vote build up to 207,193, which vote saw him elected.

The phenomenon of senators being elected with ridiculously low votes is one created by above-the-line voting. From 1901 to 1983 it never happened. Those were the “good old days” when the Senate voting system complied with the Constitution! However, this is the correct place for me to record the ridiculously low votes which elected senators under the set of above-the-line contrivances which have operated since 1984. I begin with the Labor system which operated at elections from December 1984 to April 2014, inclusive. It had three contrivances in its above-the-line ballot paper format.

In 1984 Amanda Vanstone (Liberal, South Australia) was elected with 253 first preference votes. In 1987 Noel Crichton-Browne (Liberal, Western Australia) was elected with 155. In 1993 Chris Ellison

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(Liberal, WA) was elected with 262 primary votes and Dominic Foreman (Labor, SA) was elected with 256. In 2010 Glenn Sterle (Labor, WA) was elected with 156.

I come now to the present system with its four contrivances and is surely the worst-ever Senate voting system, in addition to being the worst voting system to operate in Australia at the present time. So far it has applied only at the 2016 Senate general election, for which there has been a record number of cases of recounting votes. In South Australia the two continuing Xenophon senators, Stirling Griff and Skye Kakoschke-Moore, enjoyed the support of 103 and 129 votes, respectively. With those votes Griff has a six-year term and Kakoschke-Moore thought she had been elected to a term of three years.

However, on Wednesday 22 November 2017 Kakoschke-Moore resigned her Senate seat. She did so in expectation of High Court disqualification. She discovered that she had inherited British citizenship from her mother who had been born in Singapore in 1957 when it was still a British colony. Her successor, Tim Storer, was fourth and last on the Nick Xenophon Team’s ticket and secured 189 votes at the July 2016 Senate general election. With the aid of exclusions and transfers he built that up to 96,321 when the count was completed in February 2018. By then he had resigned from NXT so he entered the Senate as an independent.

In Queensland at the July 2016 Senate general election Malcolm Roberts, the then deputy to Pauline Hanson, was elected with 77 first preference votes. He thought he had a three-year term but his UK citizenship prevented him from completing that term. Note this fact: it was not his ridiculously low vote that cost him his place as a senator. Nor was that the case with Kakoschke Moore. Anyway the record low vote of Malcolm Roberts was surpassed by Fraser Anning who became a senator on the recount.

With the support of 19 votes in July 2016 he has established a new record for those of us to use in our condemnation of above-the-line voting. Like Storer he entered the Senate as an independent. Just as Storer had fallen out with Nick Xenophon so Anning had fallen out with Pauline Hanson – as did Burston.

While the cases of Anning and Storer sound shocking to the ears of ordinary people the point still needs to be remembered about the pretence of the system. The pretence is that it is candidate-based. It is that pretence which has enabled the High Court to constitutionalise the patently unconstitutional. De facto this is a party-machine appointment system masquerading to produce a direct election.

The reason for my decision to seek publication of this book during the term of the 46th Parliament needs to be explained. I want to have a normal half-Senate election as the most recent Senate election. Then I can compare the September 2013 half-Senate election with that election. I believe that election will enable me to discredit this system on these grounds. First, it is patently unconstitutional. Second, it is unfair to voters. Third, it is grossly unfair between candidates. Fourth, it is dishonest. Fifth, it is unfair between parties. The reform I propose would be none of those things. Once the most recent election is for half the Senate it will be very easy to prove the superiority of my proposed reform over the current system on all five grounds.

The problem with having a Senate general election as the most recent election is that I cannot use such an election to prove unfairness between parties. That is because of the high district magnitude which applies at a Senate general election. I find myself now using a psephological term which needs to be explained. “District magnitude” simply means the number being elected. Consequently, district magnitude for the House of Representatives is one, for a half-Senate election it is six and for a Senate general election it is twelve. Solely as a consequence of the high district magnitude in 2016 the result of that election was fair between parties. However, a district magnitude of six is very unlikely to produce fairness between parties.

Politicians, Stasiocratic Commentators and High Court Judges are to Blame On pages 6 and 7 above I have referred to “their appointees that have sat upon the High Court bench”.

In a later chapter (Judges Exercise their Power) I shall elaborate on that theme. For the moment,

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however, I should name them. They were then Chief Justice Robert French and then Justices Susan Kiefel (now Chief Justice), Virginia Bell, Stephen Gageler, Patrick Keane, Geoffrey Nettle, and Michelle Gordon. They made the decision in the case then Senator Bob Day took to the Court. As I shall explain in that chapter I think they constitutionalised the patently unconstitutional.

I am not entirely sure whether my criticism is aimed at the jurisprudence of the High Court or whether it is aimed at the judges named. Perhaps both. My point is that above-the-line Senate voting is not consistent with the Constitution. By finding it is consistent the judges have helped cement firmly in place – and thus solidify – the plotting of the politicians to rig the system against the Constitution. Their system must not be tolerated any longer.

Politicians and judges have collaborated to trash the democratic values of the Constitution. That is the kind of contention which causes me to get into arguments with supporters of this system. When I get into such arguments I admit the judges were possessed of a power that I lack. However, when I get into such arguments I find that the other party to the conversation always talks in terms of power while I talk in terms of principle. I insist that in all these arguments I stand upon the moral high ground. My opponent in such a conversation is merely defending the vested interests of the machines of the big political parties.

I conclude this Introduction by making clear that which I seek to reform and that which I do not seek to reform. I do seek to reform the Senate voting system and that which applies to the Legislative Council of Western Australia. For rather different reasons I seek also to reform the system that applies to the Victorian Legislative Council. I do not seek to reform the Tasmanian Hare-Clark system (to which I give a high distinction mark), the ACT variant of Hare-Clark (distinction), the New South Wales Legislative Council system (pass given with a 58 per cent mark) or the South Australian Legislative Council system (pass with 51 per cent mark). With one trivial exception I do not seek to reform any of the systems of single member electoral districts. The trivial exception is discussed in my chapter Murder in the Cathedral.

The model ballot papers I have drawn come for the three jurisdictions where I seek reform. There are two things these jurisdictions have in common. The first is that only upper houses are affected – I have no wish to reform the lower house systems for either the House of Representatives or the Legislative Assembly of Western Australia or Victoria. The second is that the district magnitude applying in two cases is six, an even number. That is not satisfactory. In both cases the district magnitude can be made satisfactory by increasing it to seven. That is what I propose. In the meantime I notice that every other Australian politician is elected on a system which has an odd number as its district magnitude. For that reason the Victorian Legislative Council district magnitude does not need to change but the other two cases do require change.

Finally, I set out the three items I have on my reform agenda. Overwhelmingly the most important is to get rid of above-the-line voting in the jurisdictions nominated, as explained above. The second item is to increase the number of senators for each state from 12 to 14. That would produce a Senate of 88. It would also have the consequence of increasing the size of the House of Representatives from the present 151 to a number which would be roughly 175. The third item is to repeal section 44 of the Constitution. I would like to think that the probability of these reforms occurring would be in the order I state them. Both in anger and in sorrow, however, I must record that the first item is the least likely. The third item is, in practice, unlikely. The second item is very likely to occur in my lifetime – because the party machines would want it and no amendment to the Constitution is needed. The improbability of my first item being implemented is simple to explain. The machines of big political parties run this country and the last thing those machines would want is the need to contemplate the idea that senators be directly chosen by the people. Now that they have been given a High Court which has no interest in upholding the Constitution (certainly not its democratic values) they can continue a situation where party

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machine appointment of senators prevails. The High Court, meanwhile, will continue its role as an unelected independent law-making and policy-making body. It will continue to make life difficult for some insignificant senators while serving the interests of the truly powerful who know how to play the rules the High Court commands. All of that will be discussed in my chapter Judges Exercise their Power.

The way I intend to approach this subject is simply to say: “since the High Court refuses to uphold the democratic values of Australia’s Constitution it looks as though I shall need to do that which the High Court refuses to do.” It is well worth doing. I believe this is a worthy ambition for me to set for myself in the last decade of my life.

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