Constitutional law expert George Williams says the Turnbull government’s proposal to overhaul the Senate voting system is a major improvement on the status quo – but he says the changes are still skewed towards the interests of the major parties rather than enabling the true preferences of Australian voters.



Williams, who is professor of law at the University of New South Wales and the foundation director of the Gilbert + Tobin Centre of Public Law, has told the parliamentary committee on electoral matters the introduction of a new system of above-line voting “necessarily has implications for below-the-line voting”.

“In particular, introducing optional preferential above-the-line voting, while retaining full preferential voting for below the line, creates an obvious and unfortunate disparity,” Williams says in his submission to the inquiry.

“The result will be a system in which below-the-line voting is significantly more onerous, thereby privileging the party-selected voting tickets applied in the case of an above-the-line vote.”

The government’s Senate voting legislation, brought forward last week, abolishes group voting tickets, the party-submitted mechanism determining how preferences flow when people vote “above the line” rather than filling in all the candidate squares “below the line”.

The package would also enshrine an optional preferential system above the line. Instead of just voting 1, people would be advised to fill in at least six boxes in their order of preference. The ballots would still be valid if people just voted 1: if their preferred choice did not win, the ballot would “exhaust” and not be reallocated to others.

The government is pursuing the reform with the backing of the Greens and the Senate independent Nick Xenophon.

Labor remains bitterly divided on the proposal, but the shadow cabinet has resolved to oppose the package at the urging of the party’s Senate leadership, who argue the current proposal is flawed.

Last week, the shadow special minister of state, Gary Gray, publicly disagreed with his Senate ALP colleagues, telling parliament: “I lost the argument in my party room on Senate reform, so Labor will oppose the substantive reforms that are enshrined in this bill.”

“I think that’s sad but it is the reality, and my party has moved that it will be opposing this bill and therefore I oppose this bill,” he said.

Senate crossbenchers apart from Xenophon are furious about the proposal, arguing the changes will wipe out the micro-parties. Some have flagged a potential legal challenge, but experts, including Williams, discount the prospect of success.

Williams says government’s proposal is an advance on the current system, which he characterises as a “perversion of Australian democracy.”

But he says the government’s proposal has been based on the logic that voter preferences should determine the composition of the Senate, not back room deals by the major parties – yet the bill in its current form “gives rise to a similar problem to that evident in the current system”.

“The system as amended would unduly favour the ordering of candidates suggested by parties, rather than enabling voters an accessible and straightforward means of themselves selecting the order of preference for party candidates,” Williams says in his submission.

“If the logic behind the proposed reforms is followed through (that voter preferences should determine outcomes), this problem must be fixed. Without this, the system will still be loaded towards enabling parties to affect the result in a way that is not a true reflection of voter preferences.”

“Disturbingly, it would do this in a way that would create the impression that this bill is designed to harm the electoral chances of minor parties while retaining the capacity of major parties to manipulate the preferences of voters through the ordering of candidates,” he says.

Williams says his preference would be to have full preferential voting above and below the line, “along with generous savings provisions”.

“In the event that this does not occur, and the current proposal for optional preferential voting above the line is maintained, a like system should be introduced for below-the-line voting,” he says.

Both the Liberal and National parties have made one-page submissions to the inquiry urging swift passage of the reforms. The electoral matters committee must report back to parliament on 2 March, and the legislation is expected to go to the Senate this coming parliamentary week.

Meanwhile, Clive Palmer has failed in a bid to woo two of the Senate crossbenchers critical of the Senate voting reform package, according to Senator David Leyonhjelm.

The Liberal Democratic party’s Leyonhjelm said Palmer had asked the two – Family First’s Bob Day and Leyonhjelm himself – to join forces with his party at the next federal election, under the banner of the United Australia Party.

Palmer issued a statement on Sunday claiming he had now “rejected approaches” made by the two senators in question.

Leyonhjelm subsequently described Palmer’s statement as “Clive having a brain fart”.