Voter Preferences set be Ignored at the 2022 Victorian Legislative Council Election

After three successful Senate elections where results were determined by voters controlling their own preferences, November’s Victorian Legislative Council election will return to the dark ages with upper house results determined by ‘preferences whisperers’ and backroom show-and-tell preference deals.

Even worse, hundreds of thousands of Victorian voters, maybe even millions, will have their Legislative Council preferences ignored and replaced by party tickets.

This is because Victoria is the only Australian jurisdiction that still uses Group Voting Tickets (GVTs), a form of party determined preferences.

The problem for November’s state election is that Victorian voters have used the reformed Senate electoral system at the last three Federal elections.

The reformed Senate system allows voters to determine their own between-party preferences above the line on the ballot paper.

In Victoria voters can’t.

Why this matters is clear when you look at how Victorians completed their ballot papers at May’s Senate election.

Overall 92.7% of Victorian voters completed their ballot papers by numbering preferences for parties ‘above the line’. That’s more than 3.5 million voters marking how they wanted their ballot paper preferences distributed.

If that figure were repeated at the Victorian election, that would be 92.7% of votes going by the party ticket with all other voter preferences ignored.

For Victorian Legislative Council elections, only a ‘1’ vote counts above the line. Ballot papers with further preferences will still be formal and counted, but only for their first preference. All other above-the-line numbers are ignored.

Even worse than being ignored, the ballot paper’s preferences are replaced by party preference tickets. The overwhelming majority of voters would have no knowledge of these preference tickets.

I’m loath to use the word ‘stolen’, but that’s what will happen to many ballot papers in November’s Legislative Council election when it comes to counting preferences.

Voter preferences that were valid and counted at the Federal election will be thrown away and replaced by party tickets in Victoria.

The solution is for Victorians to vote ‘below-the-line’ (BTL). Only 8.9% of ballot papers were completed as BTL votes in 2018, but the figure could rise in 2022 given it is the only way for voters to control their between-party preferences. For a formal BTL vote only five preferences need to be completed, though voters should complete more preferences to make their vote more effective.

Pity the poor Victorian Electoral Commission (VEC) polling officials trying to tell voters they can only mark one square above-the-line after voters have been able to give preferences at three Federal elections.

Do VEC staff respond by saying the voter shouldn’t number 1-6 above the line? Or you can do it but only the first preference counts? What if the voter says they want to control their own preferences? Does the polling official tell the voter to vote below-the-line?

A mess that was thoroughly predictable. Every other Australian jurisdiction has abandoned GVT’s because of the problems they cause.

None of this is the VEC’s fault. The VEC conducts elections under Victoria’s Electoral Act and that act specifies GVTs for above the line votes. It is for government and parliament to change the Electoral Act if the way votes are counted is to change.

Three years ago the Victorian Parliament’s Electoral Matters Committee said it would hold an inquiry and take evidence on the problem, but nothing happened.

And just to complicate the election, there is a strong chance that Victorians will face double decker Legislative Council ballot papers in November.

Interstate Experience and Why GVTs were Abolished

GVTs were abolished for NSW upper house elections in 2000, South Australia’s in 2017, for the Senate in 2016 and most recently in 2021 for future Western Australian Legislative Council elections. The abolitions were by Labor governments in the three states and by the Coalition in Federal parliament.

GVTs were abolished because they led to giant ballot papers, labyrinthine preferences deals that were opaque to voters, and the election of candidates representing parties that polled only a tiny percentage of the vote.

Upper houses are supposed to be elected by proportional representation, but GVTs massively distort proportionality.

The most spectacular distortion occurred in WA at last year’s state election when a candidate of the Daylight Saving Party was elected despite having received only 98 votes, just 0.18% of the total vote. The quota for election was 14.3%. (You can read how it happened in this post)

Victorians may remember a similar case with the election of Ricky Muir to the Senate on behalf of the Australian Motoring Enthusiasts Party in 2013. His party polled just 0.5% of the vote, but GVTs allowed him to leapfrog a dozen higher polling parties to achieve a seat in the Senate. GVTs were abolished for the next Senate election in 2016.

So preference deal games are back for the Victorian Legislative Council. There has been movement in the micro-parties as word has passed around that Victoria is holding an election with GVTs. This has led to a surge in applications to register parties and could produce double decker upper house ballot papers in November.

Yes, double decked upper house ballot papers. Again, this was entirely predictable and has happened before interstate.

The double deck ballot papers

There are currently 18 parties registered to contest the Victorian election. Another 11 parties have applications being processed and could achieve registration before the election writs are issued on 1 November.

GVT elections attract so many parties because the preference deals turn the contest to fill the final seat into a lottery. Micro-parties agree to ignore their ideological differences and swap preferences with each other ahead of the larger parties in a tactic that has become known as ‘preference harvesting’. The tactic gives one of the participating micro-parties a chance to get lucky and be elected to the Legislative Council for four years with a key vote in the balance of power.

The reformed Senate system has ended such tactics and results. Senators no longer get elected by clever deals and pot luck. Parties have to campaign for votes rather than trade deals on preferences. The three Senate elections conducted with the new rules have elected representatives proportional to votes received without the distortions created by GVTs.

We saw a number of such distortion at the last Victorian Legislative Council election in 2018.

In South East Metropolitan Region, Liberal Democrat David Limbrick polled 0.8% but defeated Liberal Inga Peulich who began the count with 12.3%, 14 times as many votes. In East Metropolitan Region, Rod Barton of the Transport Matters Party polled only 0.6% of the vote but defeated the Greens on a party vote of 9%, again 14 times as many votes.

Increasing the number of parties contesting is an important tactic for micro-parties at elections with GVTs. Parties contest every region and trade preferences across regions. Each region has a different designated preference destination party, and parties that benefit act as feeder parties in the other regions.

In addition, the more parties that nominate, the harder it is for voters to find the parties they do know amongst an array of unknown but possibly attractive party names. Confusion herds people into casting an ATL vote, at which point the voter’s ballot paper is captured by the maze of traded preference deals and sent on a magical mystery tour across the ballot paper.

So there are likely to be more than than 20 parties nominating in each of the state’s eight Legislative Council regions come November.

Which is where the double-decked ballot papers come in.

Under Victorian electoral law, once a ballot paper has 20 groups, it must be printed double decked. That is two rows of group voting squares above-the-line, and two rows of candidates below.

Double decked ballot papers were used in two Victorian regions in 2014 and led to higher rates of informal voting. The design also disadvantaged parties that appeared on the second row.

At Federal elections, the law states that all groups must be on a single row. As the number of groups passed 40 in 2013, the Australian Electoral Commission (AEC) was forced to reduce font sizes. That led to the ludicrous situation where the AEC issued magnifying sheets (see example) so that voters could read their ballot papers.

The worst ballot paper ever in Australia was the infamous 1999 NSW Legislative Council ballot paper, the infamous ‘tablecloth’. It had 81 columns on a triple decked ballot paper one-metre by 700mm. Here’s what it looked like.

And how some people resorted to voting.

Given the above examples, you can understand why NSW and the Commonwealth abolished GVTs.

With five MLCs per region instead of the 21 elected state-wide in NSW, the Victorian LC ballot papers will not be as deep, but you can see the problems that huge numbers of parties create.

The sample below was prepared by the SA Electoral Commission as a test for a double-decked ballot paper and designed to be used for scanning preferences. As not all groups will nominate five candidates in Victoria, there will be more blank space compared to the SA example below.

But remember, Victoria will only be going to double decked ballot papers because GVTs encourage so many parties to register and nominate. Since GVTs were abolished for the Senate, the number of parties contesting Senate elections has declined from 52 in 2013 to 37 in 2022. (Historically more parties contest federal compared to state elections.)

The Senate changes also ended the preference harvesting tactic of nominating in every state/region. Without GVTs, multiple parties just split the vote and ensure none will be elected. Small parties are now more likely to only nominate in states where they have the best chance of election. The number of Senate groups has declined from an average 34 per state in 2013 to 22 in 2022.

At the 2013 half-Senate election with GVTs, 9 of the 36 state Senators were elected from trailing positions by preference harvesting. At the two half-Senate elections since GVTs were abolished, in 2019 and 2022, no State Senator has come from behind to win on preferences.

The victory from behind in May of ACT Senator David Pocock shows that candidates can still win from behind on preferences. But they have to attract first preferences from voters, and the observation at elections under the new Senate system is that parties that attract a high first preference vote also attract strong preference flows.

Parties that attract few first preferences also attract few further preferences. And for the same reason – most voters haven’t heard of them.

So how can Voters Control their Preferences?

GVTs were introduced by the Bracks government as part of its Legislative Council reforms in 2006. The government copied the then existing Senate system with one difference that is important for the 2022 election.

The Senate system in 2006 required voters to complete almost all preferences below-the-line, an imposition that tended to herd people into casting ATL votes.

The Victorian model required only five preferences below the line. Voters could give more preferences if they wish.

So if voters want to avoid having their votes grabbed by party tickets, the answer is to vote below-the-line. All you need to do is number five preferences, but to be effective it is best to number preferences for as many candidate you know and have an opinion of.

Hopefully the Victorian Parliament will sort out this mess after the election and join the rest of the country in abolishing group voting tickets.

Further Reading

In the past I have written extensively on the problem of GVTs, mainly in the debate on Senate electoral reform after the 2013 election. The one difference between the Senate problem and Victoria’s Legislative Council is that Victoria requires only five below-the-line preferences, not the nearly full preferential BTL votes required at Senate elections.

My first suggested article is a speech I gave in the Senate Oration series titled “Is It Time for a Fundamental Review of the Senate’s Electoral System?”.

The second was an article on Senate reform for the ABC, “Hand the power of preferences back to the people”. In this article I delved back to newspaper articles I wrote in 1997 predicting the mess that was going to occur at the 1999 NSW Legislative Council election.