The answer to the Senate's electoral malaise doesn't lie in punishing minor parties, but rather in handing the power over preferences back to the voters, writes Antony Green.

The debate over micro-parties and their impact on the 2013 Senate election result has a terrible sense of déjà vu for me.

Yesterday I dug through my scrapbooks to find past articles by me going back nearly two decades warning about how the loose rules on the registration of political parties, as well as the use of 'above the line' group preference ticket voting, would lead to giant ballot papers and distorted election outcomes.

I first wrote on the subject for the Sydney Morning Herald on February 16, 1995, warning that the then record number of 24 registered parties could produce a ballot paper one metre long for the 1995 NSW Legislative Council election.

The election resulted in the first example of preference 'harvesting' with the election of Alan Corbett from a party called A Better Future for Our Children. Collecting preferences from all the other micro-parties on the ballot paper, he was elected despite polling just 1.28 per cent of the vote and spending only $1,589 on his campaign.

It was an example noticed by others, especially a certain Glenn Druery, who has come to prominence in recent times, advising micro-parties as the so-called 'preference whisperer'.

In 1997, I returned to the issue of preference harvesting for the NSW Legislative Council. In the Sydney Morning Herald on June 10, 1997, I wrote:

Under current electoral laws, the 1999 election for the NSW Legislative Council could be reduced to political farce. Instead of 21 members elected reflecting the will of the people, the result could be distorted by electoral rorting and voter confusion.

I went on to warn about the dangers of larger ballot papers and smaller print size, and prophetically wrote:

The result of the election could be determined by voters incapable of reading the ballot paper, unable to manipulate a ballot paper one metre square, or simple bewildered and unable to find the party they want to vote for.

I also noted that:

The current growth in registered parties is clearly about manipulating this process with a string of stalking horse parties with attractive names running to attract votes that can be delivered as preferences to other related minor parties or perhaps to one of the major parties.

A surge of minor-party registrations in the run-up to the 1999 NSW Legislative Council election saw me return to the topic and warn that:

Voters will be faced with a farcical ballot paper stacked with stalking-horse parties, the final result owing more to shady backroom deals and the random chance of the draw for ballot positions. The state's political balance of power may well fall to a bunch of ragtag political fringe dwellers. (Sydney Morning Herald, January 27, 1999)

I then warned that voters would be forced to manipulate a ballot paper the size of a small tablecloth, a prediction that came true when 264 candidates in 81 groups nominated, the parties and candidates triple decked across a ballot paper one metre wide by 700mm deep.

On March 11, 1999, as nominations were about to close, I warned that the:

... 60 or so micro-parties that have mushroomed since the start of the year are organising a complex swap of preferences. To take part, political fringe-dwellers from across the political spectrum have been prepared to ignore ideological differences for their chance at the Holy Grail of election to the Legislative Council. It is like a giant Lotto syndicate, with one or two of the number winning election to a prize job that in eight years delivers more than a million dollars in salary and allowances and gives influence over all government legislation.

My suggested solution:

... abolish ticket preferencing, forcing parties to campaign for votes rather than lobby for the preferences of other parties.

After the close of nominations, I returned to the subject on March 17, 1999, and wrote:

The man who understands how to use the system best is Glenn Druery of an until now unknown party called People First. His direct flow of preferences, and the secondary flow as intermediary parties are excluded, means his election is almost certain.

In the end I was wrong about Druery's election. One of his front parties, the Marijuana Smokers Rights Party, had a favourable ballot draw and polled too well, knocking Druery out and instead electing Malcolm Jones of the Outdoor Recreation Party, who received just 0.2 per cent of the vote.

Jones's victory came about thanks to preferences from 22 other parties, including Marijuana Smokers Rights, the Three Day Weekend Party, the Gay and Lesbian Party (which apparently had no gay and lesbian members), Animal Liberation, the Four Wheel Drive Party, the Marine Environment Conservation Party, the Women's Party/Save the Forests and so on. How complex the preference arrangements were is shown by the fact that eight of the 22 parties that helped elect Jones in fact polled more votes than him.

After the election I undertook research on how voters reacted to the tablecloth ballot paper by comparing the preferences of below the line voters with the registered above the line preference tickets.

It was clear that several of the party names were designed to deceive voters, tricking them into voting for a party and then harvesting the preferences and sending them elsewhere.

The Marijuana Smokers Rights Party directed preferences to Glenn Druery and Malcolm Jones, but of those who voted below the line for the party, 41 per cent gave preferences to the Greens and 12 per cent to the Australian Democrats.

The Marijuana Smokers Rights Party directed preferences to Glenn Druery and Malcolm Jones, but of those who voted below the line for the party, 41 per cent gave preferences to the Greens and 12 per cent to the Australian Democrats. The Gay and Lesbian Party directed its preference ticket to Druery and Jones, but below the line voters directed 33 per cent of preferences to the Greens, 29 per cent to the Australian Democrats and 12 per cent to Labor.

The Gay and Lesbian Party directed its preference ticket to Druery and Jones, but below the line voters directed 33 per cent of preferences to the Greens, 29 per cent to the Australian Democrats and 12 per cent to Labor. The Animal Liberation Party directed its ticket preferences to Malcolm Jones, but 44 per cent of below the line votes flowed to the Greens as preferences.

The Animal Liberation Party directed its ticket preferences to Malcolm Jones, but 44 per cent of below the line votes flowed to the Greens as preferences. The Marine Environment Conservation Party had ticket preferences to Malcolm Jones but below the line votes flowed 59 per cent to the Greens.

The Marine Environment Conservation Party had ticket preferences to Malcolm Jones but below the line votes flowed 59 per cent to the Greens. The Wilderness Party had ticket preferences for Druery and Jones, but 51 per cent of below the line preferences went to the Greens.

The Wilderness Party had ticket preferences for Druery and Jones, but 51 per cent of below the line preferences went to the Greens. The Women's Party/Save the Forests had ticket preferences to Druery and Jones, but 48 per cent of below the line preferences flowed to the Greens.

This is clear evidence that people who voted for the party below the line considered them to be environment parties and gave preferences accordingly. However, anyone thinking that way and voting above the line found their preferences effectively stolen and delivered to Glenn Druery and Malcolm Jones.

Writing in the Sydney Morning Herald on September 11, 1999, I used the experience of the NSW tablecloth ballot paper to warn that exactly the same thing could occur at Senate elections.

At the time Liberal Senator Helen Coonan was proposing a very high threshold quota to help keep minor parties out of the Senate. This was attracting outright opposition from both Labor and the Australian Democrats, but I warned that defending the existing system also risked political fringe dwellers getting hold of the balance of power.

I wrote that:

Ticket voting has led to the profusion of micro-parties. Like-minded parties unable to resolve personal and ideological differences are able to stand multiple candidates and swap preferences. Instead of micro parties being forced to stand behind a single platform with agreed candidates, ticket voting allows internal differences to go unresolved, with the lottery of the electoral system determining who gets elected

At the time I supported some form of threshold quota as a solution, a proposal that has re-surfaced again in the light of the current Senate result. I wrote:

Minimum quotas reward minor parties that build support by agreeing on common platforms and candidates, and campaign for votes instead of preferences. Such activities are the training ground in which future Senators will learn the skills to carry out their important role in the house of review.

I no longer support threshold quotas because it has become more evident that above the line ticket voting is the real cause of parties being elected from low votes. A better solution is to deal with the cause of the problem, not impose an arbitrary threshold.

If ticket preferencing under the control of parties were retained while imposing a threshold quota, the system would still be rorted. The current system advantages micro-parties set up as fronts for each other. Ticket voting with threshold quotas would advantage micro-parties set up as fronts for the major parties.

The best way to reform the Senate's electoral system is to deliver the power over preferences back into the hands of voters, the reform that was introduced in NSW after the farce of the 1999 Legislative Council election.

I would propose the following measures.

Tighten the regulation of parties

Federal law requires only 500 members to register a party, where applying the same standards as NSW would require more than 2,000. NSW also requires that parties be registered 12 months before an election, a provision very much driven by the Labor Party's shock at the sudden emergence of the No Aircraft Noise Party ahead of the 1995 election.

A surge of newly registered parties was a feature of the 1999 NSW election and was repeated ahead of the 2013 federal election, helped by micro-parties having some idea of when the election was due to be held. Some delay in party registrations becoming effective will help in weeding out less serious parties.

Stopping over-lapping party membership is also important. David Leyonhjelm, set to be elected as the Liberal Democrat Senator for NSW, is the registered office of both the Liberal Democrats and the Outdoor Recreation Party (Stop the Greens). Members of his party also seem to be closely associated with the Smokers Rights Party.

Political parties should be more heavily regulated as registration brings with it significant advantages. Parties are able to have their names printed on the ballot paper, and have the major advantage of being able to nominate candidates for any contest in the country without the need for local nominators. The Liberal Democrats took advantage of this provision to nominate NSW-based candidates for the Tasmanian Senate election.

Keep 'above the line' voting but abolish between-party preferences

The NSW reforms changed the meaning of a single '1' above the line. Instead of adopting a ticket of preferences, such a vote became a single vote for the selected parties. No further preferences beyond the party were implied.

Voters were given a new voting option to number groups above the line. So you could vote '1' Family First and '2' Liberal, and your vote would go to Family First, and if required later, would go to the Liberal Party. Parties can try to influence voters to fill in squares above the line, but they cannot control them.

The NSW above the line voting system advantages parties that actively campaign, as by distributing how-to-votes with preference recommendations, parties can influence preference flows. Parties that don't campaign for first preferences lose power to control how their preferences flow.

This system is appropriate for the NSW Legislative Council where 21 members are elected, but may need some tweaking for the Senate where only six members are elected. In NSW, only 20 per cent of voters have been using the above the line preference option, though the rate has varied by party. Its use would probably increase if introduced for federal elections.

NSW has had three elections using the new system, but only once have preferences changed the order candidates were elected - that was in 2011 when just enough voters filled in preferences to deprive Pauline Hanson of election to the final seat.

Deposit laws

Another increase in deposits may be required. An additional deposit could be introduced for groups wanting to have an above the line voting box.

Optional below the line preferences

Even if nothing else changed, a simpler method for below the line voting must be introduced. At the NSW Senate election, voters had two choices: select a single ticket above the line, or give 110 preferences below the line. In the Victorian Legislative Council only five preferences are required for a valid below the line vote, and some similar option must be adopted for the Senate.

Changes to formulas

The new above the line voting option is a form of optional preferential voting and will therefore increase the number of exhausted preferences, as will optional preferential voting below the line.

The formulas for dealing with surplus to quota preferences of elected candidates will need to be changed so that exhausted preferences stay with an elected candidate, while ballot papers with preferences are given greater chance of continuing in the count. There are also other technical aspects of how surplus to quota preferences are dealt with that would need to change.

No doubt the natural reflex of the larger parties will be to clamp down on the new entrants to politics. You can expect tough party registration laws, big increases in deposits and relatively high threshold quotas to be the first response.

Punishing minor parties is the wrong approach as it addresses only the symptom of the Senate's electoral malaise, not its cause. That cause is group ticket voting preferences and the tight control on preferences by political parties both major and minor.

The real solution is one that hands the power over preferences back to the voters. The Senate should be elected to reflect the will of the electorate, not the arranged deals of a few backroom operators.

Antony Green is the ABC's election analyst. View his full profile here.