Little known electoral law changes could affect composition of NSW Legislative Council.
Written by Professor David Flint AM   
Friday, 16 March 2007

One of the issues in the background in the NSW election is the return of the Governor to Government House, which has Australia wide implications.  There have been calls in other states to move their Governor out of Government House.  In addition, there are politicians - in all parliaments – who are determined to remove or at least to hide the symbols of, and any allegiance to the Crown, despite the clear message from the people in 1999.  I still find that some republicans refuse to face the fact that the people overwhelmingly rejected the model which the republican establishment wanted.  Instead they hide behind some or other quite childish invention about how John Howard “nobbled” the referendum, or how he put the “wrong”question.  If any one has a right to complain, it is the constitutional monarchists.  Not only did the media overwhelmingly campaign on their news pages and bulletins for a Yes vote, the referendum question did not refer to the unprecedented provision for the instant dismissal of the president at the option of the prime minister.  No other republican constitution has, or has ever had such an outrageous provision.  The republicans should stop their endless and tiresome wingeing and move on. 

 While the election for the Legislative Assembly has attracted the most interest in NSW, few voters are aware of the changes to the method of voting for the Legislative Council.  The NSW Parliament changed the law in relation to the 2003 and future Legislative Council elections.  Preferences are now determined by the voters, not the parties.  This change has not been widely publicized.  Voters may vote for individual candidates by voting “below the line”, or the can vote for the parties by voting “above the line.”  To vote above the line until this election, you only put “1” in the box marked, say, “Labor.” This change has been effected by extending optional preferential voting to voting above the line.  You can put “1” in your preferred party’s box, and “2” in the next.  If you want to, you can fill in your third, fourth and other preferences. 

 

 

This means the benefit of surplus votes, that is votes above the quota but insufficient to fill a second or further quota, are allocated, in a complicated way, to the voter’s next preference.  So if the quota is , say, 300,000, and the Christian Democrats/Fred Nile Group gets 500,000 votes, the benefit of the surplus of 200,000 goes according to the voters’ wishes – if they have expressed them.  The other parties - the Liberals/Nationals, or Labor, or the Greens, or the Democrats are all likely to have surplus votes, too.  It is important then that those voting above the line consider giving a second preference.  If they don’t, they will not only reduce the value of the surplus votes of their preferred party, they may skew the result towards their opponents if they are more successful in persuading their voters to record a second preference.  We passed this information on to Mr. Jim Ball in his high rating 2GB radio programme on 16 March, and this has been posted to his website. 

In addition, the effect of another change is that if a Legislative Council candidate does not get a large number of first preferences he or she may not be elected at all, even if he or she received a large number of preferences.  If a voter wishes a small party to be represented, he or she should give them a first preference with a second preference to a major party. As an example, a voter could give his or her first preference to, say, Group K, the Christian Democrat-Fred Nile Group and his or her second preference to Group E , the Liberal/Nationals Group.  Alternatively, the voter could give a first preference to Group I, the Greens and their second preference to Group O, Labor.  ( A list of the groups can be found on the NSW Electoral Commission site )   Voters who wish to give their first preference to a major party, should also allocate a second preference to another group if they wish to pass on the benefit of surplus votes. 

The explanation of this may be found on page 28 of the electoral commission handbook which is a PDF on the NSW Electoral Commission site.  The description of how to vote above the line may be found in section 103 of the Parliamentary Electorates and Elections Act, 1912.  Sub-section (4) provides that “If the ballot paper in a periodic Council election contains one or more group voting squares, the voter may record a vote by placing the number “1” in any one of those squares instead of recording a vote in accordance with subsection (3) and may, if he or she wishes, vote for additional groups of candidates by placing consecutive numbers beginning with the number “2” in the group voting squares above the names of those additional groups of candidates in the order of his or her preferences for them.”

The method of allocating the preferences is set out in Schedule 6 of the Constitution Act, 1902, much of which can be changed without a referendum, unlike the Federal Constitution.