The Senate race in the Australian Capital Territory often promises to get interesting, but never really does. The quota for election in the ACT is just over one third of the total formal vote, and the two seats have been split evenly between Labor and Liberal at every election since the ACT gained seats in the Senate. This is despite Labor consistently outpolling the Liberal Party (and outpolling them by quite a lot when you factor in preferences from other parties).
The Greens have often targeted the Liberal seat, and have driven the Liberal vote down, but have not quite pushed them far enough to win the seat. In 2019 there was a spirited Greens challenge, but also a challenge from an independent group led by Anthony Pesec.
Pesec aimed to fill a similar space to centrist independents in Liberal seats like Kerryn Phelps in Wentworth and Zali Steggall in Warringah, aiming to pull away Liberal voters alienated by Liberal senator Zed Seselja’s position on the right wing of his party.
Pesec ended up falling a long way short of winning the Senate seat, polling 4.7%, compared to 32.4% for the Liberal ticket and 17.7% for the Greens. But the result was marred by voter confusion over the lack of any group name above the line for Pesec’s group. In addition to reports about voter confusion, there’s evidence in the election results to suggest the electoral rules hurt Pesec’s vote, and should make us consider what we can do to improve ballot paper design so it doesn’t happen again.
If you run for the Senate for a group nominated by a registered political party, you get to include your party’s name above the line.
If you are an independent, you don’t get anything identifying you above the line, beyond the letter that represents your group (in Pesec’s case, they were Group C).
There are multiple cases in the past where independent groups were hurt by this policy. It appears that Pauline Hanson missed out on a seat in the NSW upper house in 2011 thanks to her running as an independent: quite a few voters attempted to vote for her below the line, but their vote did not count as formal.
It appears that the problem was worsened in Pesec’s case as there were seven groups running above the line, and the official ballot instructions tell you to “number at least 1 to 6”. Since every other group had a party name, it was easy for voters to assume that Pesec had either withdrawn or was not a group that could validly receive an above-the-line vote. At least one case of this confusion was reported by Riot Act.
This confusion can be clearly seen in the breakdown of above- and below-the-line votes for each group.
| Group | ATL votes | BTL votes | BTL % |
| G (Labor) | 84,274 | 22,056 | 20.74 |
| A (Liberal) | 76,827 | 10,665 | 12.19 |
| B (Greens) | 34,389 | 13,466 | 28.14 |
| C (Pesec) | 4,224 | 8,380 | 66.49 |
| E (UAP) | 5,403 | 727 | 11.86 |
| F (Sustainable) | 3,269 | 1,194 | 26.75 |
| D (Anning) | 1,818 | 643 | 26.13 |
| Ungrouped | 2,896 |
- Below-the-line votes made up less than 30% of the vote for any other group, but made up almost two thirds of Pesec’s total vote. Pesec polled 2% of the above-the-line vote, and 14% of the below-the-line vote.
- The ACT has a relatively high
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- overall: it was second only to Tasmania in 2016 and 2019, and had the highest rate in the country from 2004 to 2013. This can be partly explained by the relatively small ballot paper, but also because of the Hare-Clark voting system which is used for the local assembly, and requires voters to mark the boxes of individual candidates.
- It’s possible that Pesec voters were discouraged from voting for him entirely when they did not find his name above the line. It’s also possible that those voters found his name below the line and chose to vote that way. I reckon it’s a mix of the two. I don’t think Pesec would have polled 14% across the board if the ballot was less confusing, but I reckon he would have polled better than the 4.7% he actually received.
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- There’s also interesting evidence that voters were confused when you look at flows of preferences from other parties.
Kevin Bonham calculated the preference flows to Pesec from other parties. Pesec positioned himself as a centrist candidate so you’d expect him to gain preferences from Labor and Greens voters ahead of the Liberal Party, yet that didn’t happen. Over 60% of above-the-line preferences from both Labor and the Greens placed Liberal ahead of Pesec, yet below-the-line voters for Labor’s Katy Gallagher and the Greens’ Penny Kyburz preferred Pesec 75-23 and 86-13 respectively.
- Similar evidence can be seen in the cases of independents Craig Garland in Tasmania and Hetty Johnston in Queensland, although not as severe as in the case of Pesec.
So what’s the answer?
Firstly, we should acknowledge that this problem creates a strong incentive for independents to form political parties rather than running as an independent. It’s really easy to form a political party in this country: you just need 500 members to sign up. You don’t even need those signatures if you are a sitting federal MP. Once you have registered a party you don’t need any local nominators, or even a local candidate, to run candidates – you just need money for the nomination fee. So an independent can register a party and run candidates all over the place.
Meanwhile you need 200 nominators to run two candidates for the Senate (which you need to get a box above the line).
So we could consider reforms that simultaneously make it harder for parties to nominate large slates of candidates en masse while making the playing field more even for independents running in the Senate to discourage the creation of fake parties that are really just fronts for an independent.
It would be as simple as allowing an independent group to either feature the name of their lead candidate (“Anthony Pesec”) or the surnames of their first two candidates (“Pesec/Kent”) to appear above the line.
You could go further and allow independent groups to nominate some words to represent themselves above the line, as is permitted in South Australian state elections, but that isn’t strictly necessary, and you could argue that independents should only be able to use their names, not a quasi-party name that hasn’t been properly registered.
You could then pair that reform with changes that remove the right of federal MPs to circumvent party registration requirements (hello Fraser Anning), and also change requirements for parties to register candidates. Rather than raising ever higher nomination deposits which are a barrier to some genuine parties but not to well-heeled individuals (hello Clive Palmer), we could instead require party candidates to have some sort of local nominators’ signatures to run in any electorate.
These changes would protect the rights of independents and small parties, while reducing the incentive to register unnecessary parties and making it harder for a party with no local support to run a large slate of candidates.
I endorse the local-nominations over deposits approach 100%.
I suggest the best approach would be to make the number of unique nominators required per Senate candidate to be, say, 10x the number of Reps divisions in the state/territory.
(That’s not 10 signatures *from* each division, to be clear, just signatures 10x the number of divisions (from electors in the state/territory).)
Ideally, permit the relevant form to be received and provisionally processed by the AEC up to a year before the close of nominations, to make it easier at election time.
Registration requirements can be left as-is. Got 500 members? Cool, you’re in the system.
This would raise the bar significantly for minor party ballot access, while providing a lot of good incentives towards being well-organised for a campaign, and all in a non-financial manner.
I was a polling official in an ACT booth (in a deeply suburban area in the south).
This is true: ‘It’s possible that Pesec voters were discouraged from voting for him entirely when they did not find his name above the line.’. The other isn’t so true. When it was pointed out to the discouraged voters that they could vote BTL and the effect of this for the count there was a lot of mistrust. Maybe I was crap at explaining.
It is not that difficult to get signatures on a nomination form. During 1974 election I walked down Queen St from North Quey with nomination 18 nomination forms half of which had insufficient names on the forms. I just walked up to people and asked them would they give the electors the opportunity to vote for my parties candidate. By the time I got to AEC Office in Edward Street I had collected the 20 odd additional signatures needed to get my candidates on the ballot paper.
500 members however is a different matter. Someon might support the right for electorate to have opportunity but not support the objectives of the candidate.
After getting to AEC with nomination forms and the bank cheque one of the signatures on forms was not on the roll so I had to go out into Edward Street to get another signature. ALP’s Manfred Cross MP for Brisbane who was also in AEC lodging his own nomination declined to sign the DLP nomination form good naturedly. I had a few knock backs in Queen Street but most that I approached signed at least one of my nomination forms.
Not all BYL votes are the result of no group name above the line. I have never ever followed the HTV that I have handed out completely.
Parties have to make HTV simple so that informal votes minimised. Most parties in designing HTV for Lower House preferenced (ideologically or strategically) till they reached the First Major Party and from then on took more notice of ballot draw than party to allocate after first major party preferenced.
It’s disgraceful that the Capital Territory which has a population close to 500,000 is only represented by two senators. The ACT will overtake TAS in population soon and then we’ll be in the even more ridiculous situation of having a territory with a larger population than a state but with 10 less senators.
Andrew, I didn’t say that all BTL votes are the result of a group not having a name above the line, but I am pointing to the much higher rate.
Firefox –
Consider instead the national average of electors per Senator (about 200,000). By that measure, the ACT ought to have only 1.38 Senators.
(NSW, Vic & Qld are Senatorially under-represented relative to their population, with the ACT being the least over-represented. Tasmania, of course, is a huge outlier, having 550% more Senators/elector than Australia does overall.)
The Senate was constructed to provide equal representation for the states joining the Federation and thus has a clear principle behind it. The level of representation for the Territories is ad hoc with no rational basis that I can discern. It’s not in the constitution so it can be whatever Parliament decides it should be.
Doug – that’s what I’m getting at with my “national average” comments: the two Territories should have two Senators each as a minimum base, and, should their relative populations grow, have half as many Senators as MPs, rounding up.
(Two Senators apiece effectively gives one Government Senator and one Opposition Senator, so the impact in a joint sitting situation is basically neutral.)
If Pesec was not aware of the consequences of not having a team was she really a suitable candidate for Senator.
Independents and unregistered parties are disadvantaged by ATL voting but law has been a known quantity for many years.
Candidates have to work with Electoral Act as it is. If they want the benefits of a team they need to work on team formation.
Andrew, Pesec did have a team, this post is not about ungrouped independents. It’s about grouped independents who otherwise fulfill all the requirements of getting a box above the line but then are massively disadvantaged in terms of the name. And yes it’s the law but that doesn’t mean it’s a good law. Very strange response to an argument for a law change to say “it’s the law”.
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