By Gerry Harant
In 1948 federal parliament introduced quota-proportional representation in Senate elections, the previous majority-preferential method introduced in 1928 having proved unacceptable all round.
Labour's 1948 proposal, which included compulsory marking of preferences for all candidates, was passed against attempts to amend it to permit optional preferential voting. In moving the amendment, the Liberal opposition claimed that compulsory preferences would create a massive informal vote, as "anything up to 50 candidates" might front in any one state, making the filling-in of Senate ballot papers a nightmare.
In the event, this turned out to be an underestimate. In NSW, 73 candidates contested the 1974 double dissolution. Some of these were undoubtedly plants financed by the Liberals, who knew that bamboozling voters into voting informally tended to favour Liberals.
In that election, the informal vote was 12.31%. Had it been only slightly less, Labour might well have won an extra Senate seat and Australian history might have been (marginally?) different, given that this one seat created the Senate deficiency which allowed the 1975 coup.
As a result of this massive informal vote, in 1975 the Whitlam government reversed Labour's 1948 stand and tried to introduce optional preferential voting for both houses of federal parliament. The coup put an end to that; the bill lapsed, as did the "maintain the rage" rhetoric. The informal voting continued; in general, it was equal to about one quota, enough to elect a senator.
In 1984, parliament finally legislated a way out. As long as the number one preference is clearly indicated, duplication or a break in the sequence no longer invalidates the ballot paper. Indeed, you are even allowed to leave some squares blank.
However, given the previous debate about optional preferential voting, the parties' numbers people were well aware of the trap they had created for themselves. Optional preferences had been introduced by the back door. Henceforth, astute voters would be able to vote first-past-the-post by voting "1" for the candidate of their choice, and either break the sequence or give equal numbers to candidates whose guts they hated. Australian democracy could never encompass such a threat to political
stability. A tacit conspiracy was created which kept the knowledge of the new law from the voters.
It started with the electoral law itself. Tweedledum and Tweedledee in parliament, mindful of the need to keep each other in power at all costs, had added a rider which made it illegal to advertise these new possibilities as an election strategy. In effect, you go for a burton for publicising the existence of a clause in a law. This seemed so odd that the few people who knew about the rule felt it merely meant that the Electoral Office would not approve a how-to-vote card unless it showed consecutive numbers in all squares.
Our mass media, ever in support of the two-party circus, also chose not to inform people. The Democrats, who could have benefited from alternative voting strategies, were more interested in playing ducks and drakes with their preferences. Writers of books discussing the electoral system also obligingly omitted all references to the amendment; the notable exception was Malcolm Mackerras, whose reference alerted some small parties and groups to the change.
Those of us who took the "no publication" clause lightly should have known better. We already knew that ASIO's main party political concern, in line with that of its CIA bosses, was not to disadvantage Labor, as paranoid ALP members believed, but to maintain the two-party system against the "terror" of left non-conformism. It was therefore not surprising when, in 1987, the Commonwealth chief electoral officer of Victoria came down like a ton of bricks on Bill Hartley and Harry Van Moorst for having published a pamphlet advising people "Don't Vote" or else to vote against both major parties.
Even before tha case came to court, I had an inkling of the pressures that had been brought to bear on the Electoral Office: when I rang to get information about the relevant clauses, I was subjected to the third degree as to how I had come by the information in the first place. That's what decided me to attend the Supreme Court proceedings.
The case presented by the chief electoral officer was absurd and was delivered with great, if transparently phoney, heat. His contention was that it was actually illegal to vote informally and other than fully preferentially, except in error.
Mr Justice Vincent was quite scathing about that. Given the secrecy of the ballot, once you held the ballot paper in your hand, you could obviously mark it any way you like, he said: "If I wish to say, in effect, a plague on both your houses, that's my business." And, in an aside, he remarked (unfortunately incorrectly) that if it's legal to do that, then
obviously it can't be illegal to advocate it. He dismissed the cases.
This verdict left an ambiguity, which led the electoral offices, both state and federal, to surround the clauses with further extreme secrecy. In the run-up to 1992 Victorian state election, for which the same law operates, I could get hold of a scrutineers' handbook, which explains the "exhausted preference" situation, only after I had pledged my word that I would not divulge where I got it from. The same booklet was refused to the electoral secretary of a sitting upper house MP.
The matter didn't end there. In the Handbook for Candidates Contesting Federal Elections, drawn up by the Australian Electoral Commission and published by the Australian Government Printing Service, Canberra, January 1993, page 23 we read:
"No one shall, during the election period, print, publish, distribute, permit or authorise anything with the intention of encouraging persons voting at the election to fill in a ballot paper otherwise than fully preferentially, in accordance with s.240 of the CEA. This includes 'publishing' by radio and television. PENALTY: Imprisonment for 6 months. [CEA,s.329A]" (This is a new offence.)
If you get yourself a pencil and the traditional back of an envelope, you will easily figure out that anarchy — let alone democracy — would not break out if a handful of people spurned the "two party preferred" vote while major parties continued to dominate elections. This is proved in NSW, where optional preferential voting has operated for some time.
However, in future, with rising political disillusionment and resistance to the Liberal and Labor branches of the Business Party (to use Chomsky's term), in some electorates people might develop strategies in which independents combine to oust "major party" candidates. Perhaps the paranoia of the enforcers of "stability" is justified.
So, mind you get your numbers consecutive when you discuss the coming election, if you don't fancy six months' jail. However, reading the fine print, you may still advocate not filling in the ballot paper at all — it seems that possibility has escaped the imagination of the legislators. And go for your life after the "election period". [Note: None of the above historical note shall be construed to advocate filling in a ballot paper other than preferentially. With the thrilling chance of picking the best of the two worst leaders in the world, why would you?]