Testing the thesis (continued)
Strictly speaking, and barring some rare, isolated cases, there is no electoral fraud in Australia if by that one means ‘illegal interference with an election process’. None of the defining instances of ‘electoral fraud’ is present in Australia – not intimidation, vote buying, misinformation, misleading or confusing ballot papers, ballot stuffing, mis-recording of votes, misuse of proxy votes or destruction or wrongful invalidation of ballots. It is ‘the electoral process’ itself which is fraudulent.
Nevertheless, to the extent that the term is sometimes used to describe acts which although legal are considered to be morally unacceptable, outside the spirit of electoral laws or in violation of the principles of democracy, there is fraud.
Show elections, in which only one candidate can win, could sometimes be considered to be electoral fraud although they may comply with the law.
In national elections, successful electoral fraud can have the effect of a coup d’état or corruption of democracy. In a narrow election a small amount of fraud may be enough to change the result. If the result is not affected, fraud can still have a damaging effect if not punished, as it can reduce voters’ confidence in democracy or, through the voters’ general indifference to politics and the process, can traduce the very substance of democracy.
Electoral fraud is not limited to political polls and can occur in any election where the potential gain is worth the risk for the cheater/s – in elections for corporate directorships or Labor union officials, student councils, sports judging, and the awarding of merit to books, films, music or television programmes. Harsh penalties aimed at deterring electoral fraud make it likely that individuals who perpetrate fraud do so with the expectation that it either will not be discovered or will be excused.
There has been for long time – in the State of Queensland in particular, but not exclusively – serious ‘Gerrymandering’. This is the practice of political corruption which attempts to establish an electoral advantage for a particular party – in the case the Country Party (Agrarian Socialists), by manipulating geographical boundaries to set up partisan, incumbent-protected, and neutral districts. It takes its name from Elbridge Gerry, a Massachusetts governor who tried it for the first time 200 years ago.
During the 2010 Australian federal election there was an attempt at disenfranchising a large number of electors who had not enrolled in the lists before the election was called. After the ousting of Prime Minister Rudd, to justify the manoeuvre, the newly chosen Prime Minister Gillard saw fit to call a snap election, under pressure of media and corporate interests. Australian federal parliaments have three-year terms. The exact timing of national elections is in the hands of the prime minister, and an announcement on 17 July 2010 for a snap poll on 21 August meant that the campaign would last only five weeks and, more importantly, that given that an estimated 1.4 million unregistered voters – a third of them aged 18-24 – had just one day to apply for enrolment, under amendments to the Electoral Act 2006 put forward by the Howard Government, a large number of persons would be unable to vote. The minimum legally permissible time for enrolment and campaigning marked a further sharp erosion of a truly democratic process. On 6 August 2010 GetUp!, a political advocacy group, won its High Court challenge to the constitutional validity of the changes to the Electoral Act 2006. This led to up to 100,000 more Australians being added to the roll for the election.
After much experimentation and change over the past 150 years, Australia has settled for electoral arrangements which are portrayed by federal government of either hue as “accepted by Australia’s people, political parties, and parliamentarians.” This is far from the truth. Nevertheless, the system is used in the federal and many state parliaments of Australia and in municipal, major political party, trade union, church, company boards, voluntary bodies and sports clubs elections!
Practically the Australian electorate has been voting under three types of voting systems: first past the post, preferential voting and proportional representation – with single transferable vote. Voting is compulsory and secret.
First past the post – a plurality system whereby the winner is the candidate with the most number of votes, though not necessarily an absolute majority of votes – was used for the first parliamentary elections held in 1843 for the New South Wales Legislative Council and for most colonial elections during the second half of the nineteenth century. Since then there have been alterations to the various electoral systems in use around the country.
Presently, two variants of preferential voting and two variants of proportional representation are used for all Australian parliamentary elections. Preferential voting is a majority system which attempts to ensure that a candidate secures an absolute majority of votes. Proportional representation systems are designed to allocate parliamentary seats to parties in proportion to their overall vote.
Under ‘full’ preferential voting each candidate must be given a preference by the voter. First, all the number ‘1’ votes are counted for each candidate. If a candidate receives more than 50 per cent – an absolute majority, 50 per cent plus one – of the formal first preference votes, the candidate is immediately elected. If no candidate has an absolute majority, the candidate with the fewest votes is excluded. These votes are then transferred to the other candidates according to the second preferences shown by voters on the ballot papers. If still no candidate has an absolute majority, again the remaining candidate with the fewest votes is excluded and these votes are transferred. This process will continue until one candidate has more than half the total votes cast and is declared elected. Full preferential voting has been used in federal elections since 1918. Under this system, voters rank candidates in order of preference on ballot papers. With ‘optional’ preferential voting the voter may allocate preferences to as few as one candidate. This system can produce similar outcomes to ‘full’ preferential voting but can also produce results where the winning candidate wins with less than half of the votes. It also clearly lessens the importance of preferences in many seats.
Australia has a federal system of government with a national parliament and legislative assemblies and councils – parliaments – in each state and territory, although there is no Legislative Council in Queensland, the Northern Territory, and the Australian Capital Territory. This leads to a variety of systems, with a variety of frequency of election calls, and an unequal assignment of seats regardless of the population. How that could be satisfactory, and above all democratic, is beyond belief. But self-willed ignorant people could be made to believe anything, if sufficiently and frequently lied to.
A variety of electoral systems is used for these parliaments.
The federal House of Representatives is composed of 150 members, elected in designated electoral divisions for 3 years with the preferential voting system and full allocation of preferences. The Senate is elected for 6 years, with staggered re-election every three, with the proportional representation system, suitably amended.
The Legislative Assembly of New South Wales is composed of 93 members, elected for 4 years with the preferential voting system and optional allocation of preferences. The Legislative Assembly of South Australia is composed of 47 members, Victoria (88), Western Australia (59) and the Northern Territory (25), all elected for 4 years with the preferential voting system and fully allocation of preferences. The Legislative Assembly of the Australian Capital Territory is composed of 17 members, elected for 4 years and the House of Assembly of Tasmania is composed of 25 members, elected for 4 years with the proportional representation system of the Hare-Clark model. The Legislative Council of New South Wales is composed of 42 members, elected for 8 years with the proportional representation system. The Legislative Council of South Australia is composed of 22 members, Victoria (40), Western Australia (36) elected for 4 years with the proportional representation system used for the federal Senate. The Legislative Council of Tasmania is composed of 15 members, elected for 6 years with the preferential voting system and the optional (partial) allocation of preferences.
Only a person paid for her/his biased opinion could state that systems such as these do not leave Australians unequal by result, weight of their representation, at the same time in different administration of the state and territories of the country.
The results of the 7 September 2013 federal election for the House of Representatives led to a staggering comparison: the Australian Labor Party, with 4,311,365 votes and 33.38 percentage of the votes obtained 55 seats. The ‘Coalition’ (Liberal Party of Australia, 4,134,865 votes, Liberal National Party of Queensland, 1,152,217 votes, National Party of Australia, 554,268 votes, Country Liberal Party of the Northern Territory, 41,468 votes) with 5,882,818 votes and 45.55 percentage obtained 90 seats. The Australian Greens, with 1,116,918 obtained 1 seat. The Palmer United Party received 709,035 votes and obtained 1 seat; the Katter’s Australian Party received 134,226 votes and obtained 1 seat; there were two Independents with 177,217 votes, and obtained 2 seats; 583,348 for other groups gained no seat.
After distribution of the forced ‘preferences’ the results for the two parties of the system were: the Australian Labor Party, with 6,006,217 of the votes and 46.51 percentage, obtained 55 seats; the ‘Coalition’, with 6,908,710 votes and 53.49 percentage, obtained 90 seats. It deserves repeating: the Australian Greens, with 1,116,918 votes and 8.65 percentage, obtained one seat.
Tomorrow: Testing the thesis . . . Fraudulent elections (continued)
* In memory of my friends, Professor Bertram Gross and Justice Lionel Murphy.
Dr. Venturino Giorgio Venturini devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975 he left a law chair in Chicago to join the Trade Practices Commission in Canberra. He may be reached at George.Venturini@bigpond.com.au.