My most recent article for Switzer Daily 'Poor system gives Albo unexpected Senate control' has provoked more controversy than I expected, from certain readers. I’ll begin with a commenter who wrote: “OK Malcolm if this is incorrect and needs to be fixed and they have lied, when we get the FED ICAC can we then get a submission to it, and have it dealt with or what other methods are there to get this corrected?”
The answer I give is that I have no intention to raise this with any federal ICAC for the simple reason that I have never accused the Electoral Commissioner, Tom Rogers, of corruption. I have merely accused him of telling lies. I did that first in a letter I wrote to him in October 2020 to which he gave me a courteous response that did not deny this assertion made by me: "First, we had the lies you told on page 3 of 'Your official guide to the 2019 federal election: Saturday 18 May 2019'”.
In that letter, I begged him not to tell the same lies in May 2022 as he had told in May 2019. There was a time subsequently when I thought he was willing to listen to me. My thinking expressed itself in my Switzer Daily article posted on November 3 last year titled 'Telling the truth about Senate voting'. I am struck by the naievety of that article. I cannot imagine now why I ever thought the AEC would tell the truth when the politicians obviously wanted it to tell lies.
Another commenter wrote: "The distinction between 'the voting rules' and 'the counting rules' is in the actual legislation. The AEC has to follow the legislation and tell people to number at least 1-6. To do otherwise would be illegal unless the legislation is changed."
I have studied 'Part XVI -The Polling' and 'Part XVIII – The Scrutiny' of the Commonwealth Electoral Act 1918 and can find no support for Egan’s assertion. My challenge to them, therefore, is to cite the chapter and verse to prove me wrong. Until they can do that, I say both the AEC and Egan have placed their interpretation on sections 239, 268A and 269 of the Act. Their interpretation is that the sections create a distinction between “the voting rules” and “the counting rules”. Until they can meet my challenge, I say there are counting rules but no voting rules. What the AEC calls “the voting rules” I call “the deceitful and manipulative instructions on the ballot paper”.
At all of the July 2016, May 2019 and May 2022 federal elections the AEC has hired polling officials who deal with voters. Those polling officials were instructed to say this to each elector collecting his or her ballot papers: “For the House of Representatives ballot paper, you need to number every square. For the Senate above-the-line vote you need to number at least six squares. For the Senate below-the-line vote you need to number at least 12 squares.”
Most polling officials would see nothing wrong with that because they do not know the law. Their supervisors would know the law but would do as instructed by the AEC. The fact, however, is that in complying with the duties given to them those polling officials were telling one truth and two lies. The truth is related to the House of Representatives vote. It is not counted as a formal vote unless every square is numbered consecutively. The lies they were telling related to the two Senate options. Above the line, the expression of a single first preference counts as a formal vote for the candidates of that party. Below the line, a vote 1, 2, 3, 4, 5 and 6 counts as a formal vote. So, the voter does not need to do what the AEC claims the voter needs to do. Those who doubt me are invited to read the sections of the Act cited above.
If I had been the Electoral Commissioner, I would have instructed polling officials to ask each voter the questions required by section 229 to be asked. Rogers did that. However, unlike Rogers, I would also have instructed polling officials not to advise voters on how to vote. I would have instructed them that, if any question was asked by a voter, it be answered truthfully. I challenge any reader to find for me the section of the Act making my behaviour illegal.
I noted above how naïve I was when last October I was sent that AEC video titled 'Senate voting: Making the most out of your vote'. It featured Kath, AEC Assistant Commissioner, telling the voter why he/she should follow the instructions on the ballot paper. Because it included a truth not previously acknowledged by the AEC I clicked “like”, as did 21 other viewers. The truth was/is that the AEC is required by law to count as a formal vote the expression of a single first preference for a party above the line.
I now realise I should have clicked “dislike”, but that is too weak a word. The video is spin. The lady wants you to believe that the Senate ballot paper was designed by principled democrats intent on empowering you, the voter. A fairy tale. The Senate ballot paper was concocted by the machines of big political parties to help them manipulate your vote through deceit.
Suppose the latter commenter is correct and can demonstrate that the law has required the AEC to behave as it has done - that would merely strengthen my resolve to do what I can to get this system reformed. Not a pretend “reform” but a principled democratic reform, as I now describe.
This system is unfair to voters in the ways described above. The first reform, therefore, must be to scrap the deceitful and manipulative ballot paper and replace it with an honest ballot paper in which it is made quite clear that vote which is counted as formal and that which is rejected as informal.
This system is unfair between parties because the number elected from states is six and from the territories two. They are even numbers when odd numbers should be elected. The system should be made fair between parties by increasing the six to seven and the two to three. The size of the Senate, therefore, would rise from 76 to 90.
The best illustration of my point is the ACT. The normal distribution of the vote is 65 left and 35 right which gives the Labor and Liberal parties one senator each, 50% representing 65% and 50% representing 35%. The vote in 2022, however, was 70-30 in favour of the left, leaving the Liberal Party with no federal representation of any kind from the ACT.
I have written to the new Special Minister of State, Senator Don Farrell, presenting my democratic demands. My letter includes two model ballot papers acceptable to me headed “Election of 7 Senators”. I plan also to write to other politicians. In addition, I am working hard on my submission to the new Joint Standing Committee on Electoral Matters which, presumably, will be formed during the 47th Parliament.