2023 NSW Election – the Race for the Final Legislative Council Vacancy

Final result: Final votes by group, the names of elected candidates and final composition of the new Legislative Council can be found on the Legislative Council Page at the ABC website.

I had intended to write something more detailed here about the final result but other pressing work intruded so just a few points at this stage.

Liberal Rachel Merton won the 21st seat defeating Animal Justice’s Alison Waters by 10,628 votes. Preferences did not change the order of election and the 21 elected candidates were the ones that could have been predicted based on first preferences at Count 1. Merton led Waters by 0.07 quotas on first preferences, a lead that was narrowed to only 0.05 quotas after preferences.

On exclusions from the point where the second Green was elected, 72.1% of preferences exhausting. 7.5% of preferences flowed to Animal Justice, 6.4% to the Coalition, 5.7% to Legalise Cannabis, 4.3% Liberal Democrats and 4.1% Shooters, Fishers and Farmers. Merton’s lead fell to under 4,000 votes before increasing to the final margin after receiving 10.2% of One Nation preferences on the exclusion of Tania Mihailuk.

At several exclusions, preferences that might have flowed to Animal Justice instead flowed to Legalise Cannabis. Animal Justice received a boost with a reasonable flow of preferences from Christian conservative Lyle Shelton, almost certainly due to donkey votes where voters preferenced left to right from Shelton in Column A to Animal Justice in Column C.

Original post inside.
The check count for the NSW Legislative Council election was finalised on 18 April. I’ve published the total votes, percentages and quotas by group on the ABC website.

It is clear Labor has won eight seats, the Coalition six, Greens two and one each for One Nation, Legalise Cannabis, Liberal Democrats and the Shooters, Fishers and Farmers Party. The 21st and final seat is a contest between the seventh Liberal Coalition candidate Rachel Merton, and the lead candidate for Animal Justice Alison Waters. See the same page on the ABC site for details on elected and defeated candidates.

The Coalition leads Animal Justice by just 0.069 quotas or around 14,500 votes, a small enough gap to be closed on preferences. Animal Justice have come from behind to win on preferences at the last two elections. The distribution of preferences to determine the final seat, as well as formally fill the other 20 seats, will take place at 10am on Thursday 19 April.

In this post I’m publishing some information on preference flows at past elections as a guide to the 2023 count. I will update this post with 2023 data when it becomes available.

The current Legislative Council electoral system was first used at the 2003 election. Group voting tickets had been abolished after the farcical 1999 “tablecloth” ballot paper election. The new system allowed voters to direct preferences between parties above-the-line (ATL) on the ballot paper. Only a single ‘1’ ATL vote is required for a formal vote under the NSW system, and until the 2019 election, 1-only ATL votes made up more than 80% of all votes. A minimum 15 candidate preferences are required for a formal below-the-line (BTL) vote.

Drawing on the NSW experience, in 2016 the Senate’s electoral system was altered to abolish group voting tickets. The Senate ballot paper instructions were different though in stating that a minimum six ATL preferences should be marked. A strong savings provision allowed any vote with at least a valid ATL first preference to remain formal. At three elections since, more than 90% of NSW Senate ballot papers have had six or more ATL preferences.

As I will explain in the post, experience with the new Senate system in 2016 resulted in many more voters completing ATL votes with preferences at the 2019 Legislative Council election. After two further Senate elections under the new system, it has been reported that the proportion of votes with ATL preferences has increased again for the 2023 Legislative Council election.

Votes by Type

The chart below breaks down ballot papers at elections from 2011 to 2019 into three broad categories, 1-only ATL votes, ATL votes with preferences, and BTL votes. (26 April – data for 2023 has been added, separate post on details coming.)

The percentage of ATL votes with preferences almost doubled at the 2019 elections, almost certainly due to voter experience with the new Senate system. This lowered the rate of exhausted preferences in the later stages of the count. But as the next chart shows, the percentage of ballot papers with ATL preferences varied by party.

The table below shows the overall flows of preferences in the final stages of the 2019 count from excluded parties to the five parties competing for the final four seats. These flows favoured Labor and Animal Justice over their three conservative opponents. Animal Justice attracted three times as many preferences as the Christian Democrats and twice as many as One Nation.

Animal Justice trailed the Christian Democrats by 0.073 initial quotas but caught and passed the Christian Democrats on preferences. (The party needs to repeat that performance in 2023.) Animal Justice also passed the Liberal Democrats and the second One Nation candidate.

Table from "2019 NSW Legislative Council Election", Antony Green, NSW Parliamentary Research Service Background Paper 04/2022.

The total rate of exhausted preferences at these final stages was 72.2%. It had been above 80% at every previous Legislative Council election since the system was first used in 2003, another sign of more voters completing above the line preferences in 2019.

The publication of ballot paper data has allowed finer detail of preference flows by party to be extracted. The table below shows the 2019 preference flows from the final 14 parties to the five parties competing for the final four seats. Note the exclusion of BTL preferences from the table means the overall totals are slightly different from those shown in the above table.

Table from "2019 NSW Legislative Council Election", Antony Green, NSW Parliamentary Research Service Background Paper 04/2022.

The key point from the above table is that more than 80% of Small Business Party, Liberal Democrat and SFF preferences exhausted on final exclusion. Of the parties excluded, the Christian Democrats received more than 5% of preferences from only the Australian Conservatives, while Animal Justice received more than 5% from five different parties. As the above table shows clearly, voters for leftish parties were more likely to show preferences and generate preference flows to Labor and Animal Justice, while voters for most right-of-centre parties gave fewer preferences, and the high rate of exhausted right-of-centre preferences allowed Animal Justice to pass the Christian Democrats in the race for one of the final seats.

So are there any lessons for the 2023 count?

The Final Contest in 2023

The first 17 MLCs will be elected with filled quotas - eight Labor, six Coalition, two Greens and one One Nation. The final four seats will need preferences to be distributed before being filled.

The five trailing parties and candidates competing for the final four seats are -

• 0.8076 - Legalise Cannabis - Jeremy Buckingham
• 0.7755 - Liberal Democrats - John Ruddick
• 0.6864 - Shooters, Fishers and Farmers - Robert Borsak
• 0.5514 - Liberal - Rachel Merton
• 0.4821 - Animal Justice - Alison Waters

It is unlikely any of these candidates will reach quota. The final four seats are likely to be declared for the four remaining candidates with the highest total votes after preferences.

The first three parties listed above look certain of election. The race is for the 21st position which will be determined by whether Animal Justice can gain more preferences and pass the seventh Liberal candidate. There are 1.6986 quotas are available for distribution as preferences.

The partial quotas to be distributed are -

• 0.3032 - One Nation (surplus)
• 0.2914 - Elizabeth Farrelly Independents
• 0.2781 - Lyle Shelton
• 0.2044 - Sustainable Australia
• 0.1710 - Riccardo Bosi
• 0.1645 - Public Education Party
• 0.1018 - Informed Medical Options
• 0.0813 - Socialist Alliance
• 0.0552 - Labor (surplus)
• 0.0476 - other groups with no ATL votes

Note that with the Greens on almost exactly two quotas there will be no Green preferences available, and Labor surplus preferences beyond an eighth quota will also be small.

Preferences from One Nation, Shelton, Bosi and the sundry groups will favour Liberal Democrats, the SFF and Liberals. Most of the others will favour Legalise Cannabis and Animal Justice.

On the right will the continuing presence of Liberal Democrat and SFF candidates weaken possible flows of preferences to the Liberal Party? On the left will the continuing presence of Legalise Cannabis cut off preferences that might otherwise reach Animal Justice?

Simply by leading before the distribution of preferences, the Liberal Party have an advantage over Animal Justice. But will we see the same pattern as in 2019 where voters for leftish parties were more likely to complete preferences than rightish parties?

The table below has been derived from the 2019 ballot papers. I have calculated preference flows from relevant parties to four of the five final parties competing in 2023. There was no Legalise Cannabis grouping in 2019.

% Preference Flows to Final 2023 Parties based on 2019 Ballot Papers

Party	AJP	L/NP	SFF	LDP	Exhausted
Socialist Alliance	19.7	2.5	5.8	1.6	70.4
Sustainable Australia	12.6	5.9	4.5	1.6	75.9
Labor	13.2	3.5	1.9	0.7	80.7
Australian Conservative	1.4	15.4	4.6	5.2	73.5
Christian Democrats	1.2	20.0	2.5	3.4	72.8
One Nation	1.6	5.3	1.6	1.8	86.5

If preferences from Elizabeth Farrelly Independents and from the Public Education Party favour Animal Justice as the Socialist Alliance, Sustainable Australia and Labor preferences did in 2019 then this boosts Animal Justice Party.

Of the other three parties in the above table, the Christian Democrats and Australian Conservatives were more orthodox conservative parties and their preferences favoured the Coalition. There was a very high rate of exhausted preferences from voters for the more populist One Nation.

In 2023 One Nation advocated 'just vote 1' on how-to-vote material, so a very high rate of exhaustion will offer little help to the Coalition. The Bosi group is also likely to see a high rate of exhaustion.

The Liberal Party may gain some benefit from the Lyle Shelton-led unidentified Family First group. But the party has by far the highest rate of below the line voting of any group on the ballot paper, and from Column A sees a slight 'donkey vote' drift to Animal Justice.

Who will win the final seat will be revealed on Wednesday morning.