Electoral Law

2020 Apportionment of Seats: Part 3 – Changing the Formula for States

(Update 3 July – the determination has been published confirming that Victoria will gain a seat and Western Australia and the Northern Territory lose seats. Details here.)

On 3 July, Australian Electoral Commissioner Tom Rogers will issue his determination on how many electorates will be contested and representatives elected for each state and territory at the next federal election. The determination will be based on Australian Bureau of Statistics population statistics to be released this week.

Based on population trends, it is expected that Victoria will gain a seat to 39 seats, and Western Australia will lose the 16th seat it gained in 2016. More controversially, the Northern Territory will lose the second member it has elected at every election since 2001.

This is the third of three posts on the subject of apportioning seats to states and territories under Australian constitutional and electoral law.

The first post looked at the constitutional allocation of seats to states under Section 24 of the Constitution, how the current formula works, past attempts to change the formula, and how past High Court cases have interpreted the workings of Section 24.

The second looked at the constitutional basis and history of territory representation. As I explain in the post, the allocation of seats to the territories is governed by legislation, not the constitution. The Parliament can change the territory allocation formula, and I propose that it should be changed to use what is known as Dean’s method. This would provide a fairer and more stable method of allocating seats than the current formula, though it would not guarantee the Northern Territory two seats into the future.

A private member’s bill has been introduced in the Senate to guarantee a minimum two seats for the Northern Territory. The Joint Standing Committee on Electoral Matters has launched an inquiry into the bill with submissions closing on 10 July. You can find details of the inquiry here.

In this post I will re-cap the US apportionment methods I discussed in my post on the territories and ask whether they could also be applied to the Australian states without risking the wrath of the High Court. In short my findings are that across 26 Australian apportionments since Federation, Dean’s method would have added one seat to one state at one of the 26 apportionments, one change out of 416 state allocations.

For this reason I argue that switching formula to adopt Dean’s method would meet the tests for changing the constitutional formula discussed in McKellar’s case (1977). (See me first post for details). It can be argued that Dean’s method, by minimising the difference between the average enrolment in each state and the national quota, provides a more proportional method than the variant of Webster’s method set out in Section 24 of the constitution.

Read More »2020 Apportionment of Seats: Part 3 – Changing the Formula for States

2020 Apportionment of Seats: Part 2 – Allocating to the Territories

(Update 3 July – the determination has been published confirming that Victoria will gain a seat and Western Australia and the Northern Territory lose seats. Details here.)

On 3 July, Australian Electoral Commissioner Tom Rogers will issue his determination on how many representatives (seats) each state and territory will have at the next federal election.

As the numbers stand, it is expected that Victoria will gain a seat to 39 seats, and Western Australia will lose the 16th seat it gained in 2016. Most controversially, the Northern Territory will lose the second seat it has had since 2001.

This is the second of three posts on Australian apportionment. The first post looked at the constitutional allocation of seats to states under Section 24 of the Constitution, how the current formula works, past attempts to change the formula, and how past High Court cases have interpreted the workings of Section 24.

In this post I concentrate on the constitutional basis and history of territory representation, and in what ways Territories are treated differently from the states in allocating seats.

The Labor Party is proposing a bill to save the NT’s second seat by legislating that the Northern Territory have a minimum of two seats. The NT’s Country Liberal Party has expressed some support for the idea. As was the case with a similar bill when the NT’s second seat was marked for abolition in 2003, the bill will be the catalyst for a more detailed discussion of the issue.

In my opinion, it would be better to change the formula as it applies to the territories rather than return to fixing the number of seats. In technical terms, my proposal is that the allocation of extra seats should be determined by rounding at the harmonic mean of two alternate allocations rather than the current arithmetic mean. In the case of the Northern Territory, that would involve allocating a second seat if the quota calculation is above 1.33 rather than the current 1.50. This would almost certainly save the NT’s second seat for the next election.

If you don’t have time to read through all the detail in this post, click here to go to the tables showing how the proposed change formula would have applied to the NT and ACT at apportionments since 1991.
Read More »2020 Apportionment of Seats: Part 2 – Allocating to the Territories

2020 Apportionment of Seats: Part 1 – Allocating to the States

(Update 3 July – the determination has been published confirming that Victoria will gain a seat and Western Australia and the Northern Territory lose seats. Details here.)

On 3 July, Australian Electoral Commissioner Tom Rogers will issue his determination on how many electorates will be contested and representatives elected for each state and territory at the next federal election.

As the numbers stand, it is expected that Victoria will gain a seat to 39 seats, and Western Australia will lose the 16th seat it gained in 2016. Most controversially, the Northern Territory will lose the second member it has elected since 2001.

This is the first of three posts on the subject of apportioning seats to states and territories under Australian constitutional and electoral law. This first post will look at the constitutional allocation of seats to states under Section 24 of the Constitution, how the current formula works, past attempts to change the formula, and how past High Court cases have interpreted the workings of Section 24.

A second post will look at how seats are allocated to territories and the different constitutional origins of territory representation.

The final post, for those who already know the background, will be devoted to possible changes to the apportionment formula, drawing on the extensive history of apportionment in the United States.
Read More »2020 Apportionment of Seats: Part 1 – Allocating to the States

Should How-To-Votes be Banned at Australian Elections?

Australian is unusual among western democracies in permitting active campaigning outside polling places on election day.

Despite sharing much electoral heritage with Australia, New Zealand sits at the opposite end of the election day campaigning spectrum. Not only are all forms of election day campaigning banned, but all signs erected in the campaign must be removed before election day.

On regulating election day campaigning, most countries sit nearer New Zealand than Australia. Election day is viewed as a time for considered contemplation by voters, not as an opportunity for boisterous last day campaigning.

Australia also has some of the world’s most complex methods for completing ballot papers. Almost all countries use a single cross to vote, some a second cross, and some have a limited form of preferential voting. Some countries, notably the USA, complicate simplicity by holding multiple elections on the same day.

Only Australia requires voters to complete a sequence of numbers for every square on the ballot paper under rules with no allowance for error.

And no other country compels voters to engage with such a complex voting system on pain of being fined.

Thanks to compulsory voting, polling places are the last chance candidates have to engage with undecided and disinterested voters who in other countries probably wouldn’t turn up to vote.

And thanks to full preferential voting, candidates and parties that have attracted a primary vote have enormous interest in ensuring that voters correctly number all other squares to complete a formal vote.Read More »Should How-To-Votes be Banned at Australian Elections?

Local Seats for Local People – Who Should be Allowed to Contest Elections

Whether candidates live in the electorate they contest is a question that induces rage with some voters.

Who are these blow-in candidates they’ve never heard of contesting the local seat?

It is a matter that raises particular attention in country seats, where being an outsider is a major disadvantage for a candidate.

But for political parties, trying to find candidates for your opponent’s safest seats is always difficult. It is an obvious truth of politics that the quality of a party’s candidates dips as the chances of the party winning a seat declines. It is a truth that becomes even more evident at elections where a party looks certain of defeat.

Serious political parties contest every seat, even if only to attract a few extra dollars from public election funding. But trying to find candidates that are qualified to stand, (think dual citizenship issues at Federal elections), doesn’t have an embarrassing social media history, and won’t start spouting loopy ideas that attract mainstream media attention, can be something of a challenge.Read More »Local Seats for Local People – Who Should be Allowed to Contest Elections

Should we Count Pre-poll votes before 6pm on Election Day?

The last decade has seen a dramatic surge in pre-poll voting at both state and federal elections. At the 2007 Federal election, just 8.3% of votes were cast as pre-polls. Twelve years later that figure had quadrupled to 32.3%.

In 2007 80.0% of votes were ordinary polling day votes, in 2019 just 54.5%. Without the efforts of a horde of additional staff brought in to count pre-polls late into the evening, few recent elections would have produced a clear winner on election night.

The growth of pre-poll voting has altered the flow of results on election night. By 9pm most polling places have reported their results, but count completion for some of the country’s largest pre-poll centres can take several hours longer. It was pre-poll votes as much as the closeness of result that pushed coverage of the last two Federal elections into the early hours of Sunday morning.

This has led to calls for pre-poll counting to commence before 6pm on election day, something that is currently illegal. The call has come from several electoral authorities, including the Australian Electoral Commission (AEC). It has also been suggested by some state political parties.

Is this a good idea? In my view the answer is unambiguously yes, as long as the results of pre-poll vote counts remain secret until after the close of polling at 6pm.

Read More »Should we Count Pre-poll votes before 6pm on Election Day?

The Growing Weight of Country and Remote Votes in the WA Legislative Council

In my last post I published an analysis of the new state electoral boundaries for Western Australia. The boundaries were drawn on one-vote one-value principles, a signature reform introduced by the Gallop government in 2005, and one that helped deliver Labor a record majority at the 2017 election. (see this post)

The unfinished business of the 2005 reforms was the Legislative Council. One-vote one-value only applied to the Legislative Assembly, the state’s lower house. It undid a two-to-oneĀ  weighting against Perth that had applied since 1989, but left in place a three-to-one weighting in the Legislative Council, the state’s upper house.

In 2005, Labor and the Greens could not agree on a reform model for the Legislative Council. As part of the deal for lower house reform, the Greens wanted the existing six regions retained, but with six member per region instead of the existing five and seven member regions. This left in place the three-to-one weight against Perth, but added a new bias to the system by increasing the weight of votes in Agricultural Region and Mining and Pastoral Region at the expense of South West Region. At the 2017 election, a vote in Mining and Pastoral Region carried seven times the weight of a vote in Perth, a weighting that can only increase at future elections.

Read More »The Growing Weight of Country and Remote Votes in the WA Legislative Council