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The rule of law and radical electoral reform

By Rachael Patterson and Andrew Wear - posted Tuesday, 7 December 2004

The rule of law is a beautiful thing.

Central to the “rule of law” is the principle that rulers ought to be subject to the law. In other words, those in power should not consider themselves as being “above the law”. When rulers change the way things are done in order to maintain their positions, it is possible they will act in a way that is contrary to this principle. Whether this is the case is often simply a matter of degree.

With unprecedented control of both houses of Federal parliament, the Federal Coalition will be able to implement a number of reforms previously blocked by the Opposition and minor parties. A matter that has received little attention to date is the long held desire of some senior Coalition MPs to bring about significant electoral reform.


The Australian Constitution provides very little guidance on how the Australian democracy should operate. Matters such as “Cabinet” exist merely as conventions and are not dealt with by the constitutional text. In fact, the Consitution does not even guarantee a general right to vote.

A majority in both houses will allow the Coalition, if it so chooses, to amend our electoral system and significantly reshape Australian democracy. A move to abolish compulsory voting, for example, is a real possibility.

Senator Nick Minchin, the Minister for Finance and Administration, has long been an advocate of voluntary voting and in 1984 the Liberals unsuccessfully tried to abolish the “compulsory vote” in South Australia. Voluntary voting is the norm in a majority of western democracies. In many European countries, voter turnout is upwards of 80 per cent. In the United States, however, voter turnout is usually only about 50 per cent.

The introduction of voluntary voting would have a significant effect on Australian politics. Parties would be forced to put significant effort into simply getting people to vote. And it is possible that those least likely to do so, the young and the poor, would become disenfranchised and inadequately represented.

A more probable - though equally as radical - proposal involves the introduction of an electoral threshold in the senate. This proposal, advocated by Tony Abbott, Helen Cooney and Wilson Tuckey, and endorsed by the Liberal Party Federal Council in 1999, would make it much more difficult for the minor parties to be elected to the senate - and therefore less likely that a government agenda would be thwarted in the senate.

An electoral threshold would require a party to receive a certain percentage of the primary vote in order be elected. A threshold set at 50 per cent of a senate quota would mean that a party would have to receive 7.14 per cent of the primary vote to be in the running. An 80 per cent threshold would require 11.4 per cent. In practice, a threshold would affect the last senate spot in each state. The most likely outcome in a half-senate election is three senators each from the major parties or five major party senators and one minor party senator.


Had a quota been in place at the 2004 election, the Family First Party would not have won any seats.

A more sensible reform for the electoral system would be to amend the way senators are elected. Voters are currently prevented from filling in their own preferences above the line on a party basis. This system lacks transparency and advantages parties able to successfully trade in preferences.

Electoral reform is something to watch out for over the next term of the Howard Government. It’s quite possible that elections in 2007 will be substantially different to those we have just experienced.

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First published in The Canberra Times on November 10, 2004

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About the Authors

Rachael Patterson is a Lecturer in Law at Deakin University in Melbourne. Her areas of expertise include ethics and legal philosophy.

Andrew Wear is a senior public servant with the Victorian Department of Planning and Community Development, where he is currently working on new approaches to plan and deliver community infrastructure in Melbourne's outer suburban growth areas.
Andrew has degrees in politics, law, economics and public policy, and has published extensively on a range of policy themes including innovation, regional governance and community development.

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