The Battle for the Legislative Council

Who forms the next NSW government, and whether it is a majority or minority government, will be the main focus for coverage of the New South Wales state election on 23 March.

Yet it is the battle for control of the state's upper house, the Legislative Council, that could have greater impact on the course of government for the next four years.

Even if the Coalition is re-elected with a lower house majority, it will lose upper house seats and be in a weakened position compared to the last four years.

That's because 11 of the 21 members facing re-election this year are Coalition MLCs, a legacy of the Coalition's landslide victory in 2011.

Between 2011 and 2015 the Coalition needed the support of both the Christian Democrats and Shooters, Fishers and farmers to pass legislation. Since 2015 the Coalition has needed only one minor party to pass legislation, usually the Christian Democrats. If re-elected, the Berejiklian government will be back to needing the support of two and maybe even three parties to pass legislaton through the Council.

The Berejiklian government is certain to lose two and probably three seats. Labor is certain to improve on the five MLCs it elected in 2011, and the Greens look likely to lose one of the three seats won by the party in 2011. The other two seats facing re-election are held by the Christian Democrats and the Shooters, Fishers and Farmers Party.

Interest in the Council election is heightened this year by several new right-of-centre parties hoping to win seats on the red chamber's crossbench.

For the first time since 1999, Pauline Hanson's One Nation will contest a NSW election. The party's campaign has been boosted by the recruitment of former Federal Labor Leader Mark Latham to head its ticket. Latham is certain of election, the more significant question being whether he brings a second One Nation member in on his coat tails.

Two new entrants in 2019 are the Liberal Democrats and Australian Conservatives. The Liberal Democrats have a high profile recruit of their own in Senator David Leyonhjelm. He will resign from the Senate to contest the Legislative Council. election, the lower 4.55% quota for the Council a better prospect than the 14.3% needed for re-election to the Senate in May.

Until One Nation entered the race, the Shooters, Fishers and Farmers Party (SFF) would have hoped to increase its vote and perhaps elect two members. Retaining its current seat looks certain given the party's success at lower house by-elections over the past four years. A second seat for either the SFF or One Nation could depend on whether the two parties can encourage supporters to fill in preferences on their ballot papers.

The Christian Democrats have elected an MLC at every election since 1981, but the party's vote has slipped at recent elections. Sitting MLC Paul Green will be hoping his party's well established communications network can keep him competative in the race for one of the final seats.

The Greens face a challenge as the party deals with recent internal splits and the rebound in Labor's vote since 2011. The Greens also face competition from the Animal Justice Party, which is running its biggest lower house campaign and hoping to repeat its 2015 upper house success.

Current Party Representation The Current Composition of the Legislative Council Party Continuing

Elected 2015 Facing Election

Elected 2011 Current

Council Liberal/National Coalition 6/3 7/4 13/7 Labor Party 7 5 12 The Greens 2 3 5 Christian Democratic Party 1 1 2 Shooters Fishers and Farmers 1 1 2 Animal Justice Party 1 .. 1 Total 21 21 42 Note: The above tables do not take account of Jeremy Buckingham's resignation from the Greens. Buckingham was elected as a Green in 2011 and his position faces election this year.

Some Basics on the Legislative Council and How it is Elected The Council consists of 42 members serving staggered eight-year terms, with 21 members facing election every four years. MLCs are elected from a single state-wide electorate by proportional representation. The electoral system is similar to the new Senate system introduced in 2016. Both systems, and the Hare-Clark system used in Tasmania and the ACT, are variants of Proportional Representation by Single Transferable Vote (PR-STV). While the technical features the Council's electoral system are similar to the Senate's, the lower quota for election and the higher rate of exhausted preferences means that it is much easier for minor parties to be elected. Electing 21 MLCs compared to six Senators guarantees the election outcome will be more proportional. The Legislative Council's ballot paper is also similar to the Senate's in being divided horizontally by a thick line. Voters can choose to give preferences for parties above the line, or choose to preference individual candidates below the line. The main difference in appearance is that the Council's ballot paper is much deeper as parties are required to list more candidates than for Senate elections. (See sample ballot paper below) Popular election for the Legislative Council was only introduced in 1978. In the four decades since there have been changes to both the number of members elected and the structure of the ballot paper. If you want to know more about the history of the Legislative Council and how its electoral system has evolved, you can read more at this link. The Legislative Council is an institution that has been inherited rather than invented, and its electoral system is a product of evolution rather than design. When Council elections were introduced there were fewer parties and no ticket voting. Ticket voting has been introduced, the number of parties contesting has tripled and the number of members elected has increased, but the counting system remains unchanged. The growth in the size of the ballot paper has created serious challenges for the Electoral Commission, forced to deal with millions of sheets of paper, four fifths of which are marked with only a single preference. The basic structure of the Council's ballot paper and how it should be filled in are - 21 members are elected at large from a single state wide electorate.

Candidates appear grouped together on the ballot paper in columns, the left to right ordering of groups determined by a random draw.

Candidates are listed in each column in an order determined by the party/group. Ungrouped candidates appear in the right hand column, positions within the column determined by random draw.

Most columns on the ballot appear represent political parties, and the party name/names appear at the top of the column. Non-party candidates are also allowed to group in a single column, but they do not have a name at the top of the column.

A group/party must nominate at least 15 candidates to have a group voting square printed above the line. There cannot be more than 21 candidates in a group. The ungrouped column and groups with fewer than 15 candidates do not have a group voting square.

Electors can vote above the line by numbering preferences in the group voting squares, or vote below the line to express preferences for candidates.

An above the line vote must have a first preference but all further preferences are optional.

A below the line vote must have 15 preferences but all further preferences are optional.

The quota for election is 4.55% or just over 200,000 votes. The high rate of exhausted preferences means that the final seats can be won by parties with less than 4.55%.

At the 2015 election, 83% of all formal ballot papers were single ones above the line. 15% were above the line votes with preferences, and only 2% of ballot papers were below the line votes. The main differences from the Senate system are - Senate instructions say to number 6 squares above the line or 12 preferences below. A savings provision means that any ballot paper with at least a single first preference above the line is formal.

The quota for election is 14.3% versus 4.55% for the Legislative council.

Where 83% of Legislative Council ballot papers were a single ones in 2015, in NSW at the 2016 Senate election, only 4.3% of ballot papers were single ones and 81.3% had six preferences, 4.1% had 2-5 preferences, 4.9% had more than six preferences, and 5.4% were below the line votes.

How You Should Vote The most important point to make about voting for the Legislative Council is that there are no group voting tickets. These were abolished in NSW before the 2003 election, as they were abolished for the Senate before the 2016 election. You can vote above the line for a party safe in the knowledge that your vote cannot be sent to another party. If you just vote '1' above the line, your vote only counts for the candidates of your chosen group/party. Once the last candidate in that column is excluded or elected, your vote exhausts with no further preferences. If you vote '1', then '2' and so on above the line, your vote first counts for all candidates in your first chosen group, and when that group's last candidate is excluded or elected, it is distributed to your second choice group if it still has candidates, and so on until your preferences exhaust. If you are happy with the order candidates are listed for each party, it is fine to vote above the line. There is no risk of your vote being captured and sent to another party. You only need to vote below the line if you want to re-arrange the order parties/groups have listed their candidates, or you want to pick and choose candidates from different groups. If you vote below the line, you must number at least 15 squares. Under optional preferential voting, the more preferences you give, the longer your ballot paper is likely to stay live in the count. The best way to vote is to list groups or candidates in the order you would like to see them elected. If you are determined to put a particular group or candidate last, then you will have to number every square. The instructions are to choose between voting above and below the line. If you fill in both, your below the line vote will be the first examined for formality, and if informal, they then examine the above the line vote. Your sequence of preferences MUST NOT cross between above and below the line.

How Seats Are Allocated How the count takes and place and members are declared elected works by the following steps. (1) - Tally all first preference votes by candidate. Above the line votes are allocated to the lead candidate of each group. Determine the quota in votes. (Formal votes divided by 22 plus 1) Go to step (2).

- Tally all first preference votes by candidate. Above the line votes are allocated to the lead candidate of each group. Determine the quota in votes. (Formal votes divided by 22 plus 1) Go to step (2). (2) - Declare any candidate with more than a quota of votes elected. Go to Step (3).

- Declare any candidate with more than a quota of votes elected. Go to Step (3). (3) - Set aside a quota of votes for each elected candidate, and distribute all surplus to quota votes as preferences. Do this for each over quota candidate. Go to Step (4).

- Set aside a quota of votes for each elected candidate, and distribute all surplus to quota votes as preferences. Do this for each over quota candidate. Go to Step (4). (4) - Is there any candidate with more than a quota of votes? If so go back to step (2), otherwise go to step (5).

- Is there any candidate with more than a quota of votes? If so go back to step (2), otherwise go to step (5). (5) - Select the lowest polling candidate and exclude them from the count. If there are more candidates remaining than vacancies left to be filled, go to step (6), otherwise go to step (7).

- Select the lowest polling candidate and exclude them from the count. If there are more candidates remaining than vacancies left to be filled, go to step (6), otherwise go to step (7). (6) - Examine the ballot papers of the excluded candidate and distribute them to candidates remaining in the count according to the preferences on the ballot paper. If there are no further preferences the ballot paper is moved to the 'exhsusted' tally and plays no further part in the count. If a candidate reaches a quota at this point go to step (2), otherwise repeat step (6).

- Examine the ballot papers of the excluded candidate and distribute them to candidates remaining in the count according to the preferences on the ballot paper. If there are no further preferences the ballot paper is moved to the 'exhsusted' tally and plays no further part in the count. If a candidate reaches a quota at this point go to step (2), otherwise repeat step (6). (7) - If the number of candidates remaining equals the number of vacancies left to be filled, declare the remaining candidates elected even if they fall short of the quota. If you are wondering which votes are set aside as a quota, in NSW it is done by random sample. If a candidate has a million votes and the quota is 200,000, then 200,000 are sampled and set aside, while 800,000 are distributed to other candidates according to the preferences on each ballot paper. As all ballot papers are counted using a computer, the sampling is done electronically. Ballot papers are no longer physically moved around in this process. NSW is the only jurisdiction that still uses random sampling. The method was abandoned for the Senate in 1984. Sampling is entrenched in the state's constitution and can only be changed by referendum. All other Australian jurisdictions use fractional transfers where all ballot are transferred but at a fractional value. Another oddity of NSW is that it uses the Gregory or 'last bundle' method to determine preferences. If a candidate achieves a quota, only the bundle of votes that put the candidate over quota is examined to determine preferences. So if you have voted for a candidate who later reaches a quota by receiving preferences, then your ballot paper stays with the elected candidate and cannot be transferred as a preference.

The Champagne Fountain - Election by the Trickle-Down Effect Thanks to above the line voting, more than 99% of ballot papers are completed with a first preference for a lead candidate in one of the columns. For all parties with more than a quota of votes, those votes trickle down the candidate list filling quotas one by one. This means that at the early stages of the count, parties with more than a quota of votes will elect a number of MLC equal to their total votes expressed as quotas. The table below shows how many seats each party will elect for a given percentage vote. Because all the vote is concentrated at the top of the ticket, a party with 36.36% of the vote will elect eight members. A party with 40.91% will elect nine. A party with 38.6% will have 8.5 quotas, which means it will elect eight MLCs and have half a quota of votes left with the next candidate on the ticket competing with other remaining candidates in the race to fill one of the final vacancies. The best way to visualise the system is to think of the ballot paper as a series of stacked champagne glasses. (That's the flat sort of champagne glasses, not the tall narrow flutes.) Each stack corresponds to a column on the ballot paper. Electing candidates from a group is like pouring champagne into the top glass in a stack. Each glass corresponds to a quota, and as the top glass fills, the excess cascades over the edge and into glasses below, the number of glasses filled being equal to the champagne 'quotas' poured in at the top. The surplus to quota champagne ends up with the glass/candidate after the last filled glass. Once all the champagne has been poured into the stacks of glasses, the filled glasses are removed and set aside, in the same way that candidates are declared elected early in the count and their votes set aside. The rest of the count deals with partly filled glasses. The glasses with the least champagne are successively excluded, and some of their contents poured into other glasses, in the same way that preferences flow from excluded candidates. If a glass fills on 'preferences', it is put aside as being electeed. If at some point the number of glasses left equals the number of vacancies to be filled, all remaining glasses/candidates are declared elected even if they have not been filled/reached a quota. The analogy may sound strange, but with all the vote concentrated at the top of each party ticket, Legislative Council elections behave exactly like the trickle-down effect of a champagne fountain.