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19 March 2022

At 6 pm on election day, the polls close, and the processing of counting the votes can begin. For some seats, this is a simple process where the result is often considered to be a foregone conclusion. In other seats, unexpected results leave pundits surprised. And elsewhere, votes are tallied and re-tallied, taking care to assign preferences correctly, in nail-biting races that can determine who forms government. In the previous article, I explored how to cast a vote in Australian elections, where the preferential voting system is used. If you haven’t read that, I recommend reading it first.

At first, the vote tallying process for the House of Representatives is similar to the first-past-the-post system used in other countries. If any candidate gets more than half of the first preference votes, they are automatically declared the winner. However, if no candidate is the immediate victor, votes must be distributed until a winner emerges. If there is no winner after the first count, the candidate with the least votes is eliminated. The second preference on the ballot paper where the eliminated candidate was ranked as number 1 is then distributed to the other candidates. If there are four candidates for a seat, and Candidate A received 28 votes, Candidate B received 27 votes, Candidate C received 24 votes, and Candidate D received 21 votes, Candidate D is eliminated. If 15 of the people who voted ‘1’ for Candidate D ranked Candidate C as ‘2,’ 2 people ranked Candidate A as ‘2,’ and 4 ranked Candidate C as ‘2,’ those votes get added to the original votes. So after the second vote, Candidate A has 30 votes, Candidate B has 42 votes, and Candidate C has 28 votes. Candidate C is eliminated. Their voters’ preferences are distributed not based on who they ranked as second place, because some of those people may have ranked Candidate D, who has been eliminated, as second place. Therefore, the preferences are distributed based on whether the voters ranked Candidate A or Candidate B higher. If 12 of those voters ranked Candidate B higher, and 16 ranked Candidate A higher, the final tally after the third count is 46 votes for Candidate A, and 54 votes for Candidate B. So even though Candidate A had more first preference votes, Candidate B ended up winning. If there are three candidates, there are only two rounds of counting, and if there are more than five candidates, there are more rounds of counting.

The Senate ranking system is much for complex, because voters can either cast their vote ‘above the line,’ meaning that they vote for a party, or cast it ‘below the line,’ meaning they vote for individual candidates. Votes cast below the line are similar to votes cast in the House of Representatives. When votes are cast above the line, the votes go to the party instead. The threshold is much lower for State Senate seats. In a regular election, where there are 6 seats up for grabs, the Senate quota is 14.3%, or 7.7% in double dissolution elections, where all 12 seats are available. This is different from the House of Representatives’ 50.01% threshold. When votes are cast for parties, they are distributed based on that party’s ‘order of preferences.’ For example, if a party fields three candidates in a regular election, and they get 40% of the vote, after all of the preferences are distributed, their first two candidates are elected, but to have all 3 elected, they would need to have received42.9% of the vote, or three times the quota. This is complicated further by votes cast below the line, which may not follow the party’s ballot order. For example, a person might vote for candidates 1 and 3 from a party, but not for candidate 2, and might rank candidate 3 above candidate 1. To simplify it, an independent candidate must reach the necessary quota of votes, after all of the preferences are transferred, to be elected. If a party fields multiple candidates, the number of candidates that are elected depends on how high above the quota their percentage of the vote is. The Northern Territory and Australian Capital Territory only have two Senators, and they have the same three-year term as MPs. The quota in the two Territories is 33.3%

For a party to form government after an election, they need control of a majority of seats in the House of Representatives. This was inherited from the British Westminster system, where the Prime Minister would be the leader of the party with the most seats in the House of Representatives. This is because spending can only be introduced in the lower house. The spending power is also referred to as supply, and allows Parliament to appropriate funds from the Treasury, which the Executive can then spend, according to Sections 53,54, 81, and 83 of the Constitution. This is essential for the operation of the government. Therefore, it is beneficial for the Crown if the party with the most seats forms the government, as this ensures that the government can spend money. The biggest party not in government forms the Opposition.

Once the votes are tallied after an election, there will be either a majority government or a hung parliament. A majority government means that one party has control of half of the seats, plus one. As there are currently 151 seats, a majority is 76 seats. 151 divided by two is 75.5, which is rounded up to 76. The 76th seat is the Speaker of the House of Representatives. If the government has a bare majority, they would have 76 seats. This means that if all MPs from the party in government vote in favour of a bill, and all the MPs not in government vote against it, it ties at 75-75. The Speaker then passes the tie-breaking vote, but only if there is a tie. This is covered by Section 40 of the Constitution.

If no party has a majority, there is a hung Parliament. When there is a hung parliament, parties have to negotiate with one another to form government. This means that major parties seek the support of minor parties and independents, who are not members of any political party. Once a major party has the support of enough MPs that they have a bare majority, and thus can pass supply bills, they form a minority government. Because of the importance placed on supply bills, an agreement between the major party and the crossbenchers that the crossbenchers will provide support to the major party and allow them to form government is called a ‘confidence-and-supply agreement.’ This means that the crossbenchers have confidence in that party, and will support it in passing supply bills. The crossbench consists of the minor parties and independents, who are not members of any political party, and they sit between the government and the opposition. Those crossbenchers do not have to vote with the major party in the minority government on all issues, and can even withhold supply by voting against the government on supply bills. This means that the major party has to offer concessions to the crossbenchers to ensure that they vote together. At the same time, the major party in opposition will also be competing to get enough crossbenchers on their side to outnumber the government, and pass their own bills or block government bills. Because of the bargaining power of the crossbenchers in this situation, they are regarded as having the balance of power.

Current numbers in the House of Representatives
The current House of Representatives. The crossbench consists of 3 independents and 4 minor parties. Credit: Parliamentary Education Office
Senate current numbers
Although not relevant for forming government, the Senate demonstrates how the major parties are forced to negotiate, as neither the government nor the opposition currently possesses a majority. Credit: Australian Parliamentary Office

After the 2010 Australian election, both the LNP and Labor had 72 seats, 4 short of the 76 necessary to form government. Even though the LNP had won the popular vote, and could also draw on Tony Crook, an MP from the National Party of Western Australia, who sat on the crossbench but made a supply-and-confidence agreement with Tony Abbott’s LNP, they were unable to reach an agreement with the crossbench, whereas Julia Gillard’s Labor Party made a confidence-and-supply agreement with the Green Party and 3 of the 4 independents, giving her a bare majority. Some argued that this meant that passing laws was a numbers game, as Gillard needed to ensure that all Labor MPs and the 4 crossbenchers were present whenever there was a vote, because if 1 MP was not present to cast their vote, the minority government would lose its bare majority. This is somewhat similar to the US Senate in the 117th Congress, where the Democrats have to work with Senators Bernie Sanders and Angus King, who are independents, to ensure that they control half of the 100 Senate seats, with Vice-President Kamala Harris casting a tie-breaking vote in favour of the Democrats. I highly recommend this short video from comedy duo Bryan Clark and John Dawe from 2010, which makes light of this issue. Those who are familiar with the British political system might also recall that there was confidence-and-supply agreement between Theresa May’s Conservative Party government and the Democratic Unionist Party.

A ‘division’ is when a house of Parliament divides into ‘for,’ ‘against,’ and ‘abstain’ votes on a bill or other motion

When parties work closely together to form government more formally than a confidence-and-supply agreement, they form a coalition government. The most prominent example of this in Australia is the LNP government. The LNP is a coalition between the Liberal Party, the National Party, the Country Liberal Party, and the Queensland LNP, where there has been a complete merger of the Liberals and Nationals. Although the parties remain independent, this coalition is dates back to the 1922 election, which resulted in a hung parliament. A similar arrangement existed in Britain under David Cameron’s Conservative Party, which formed a coalition with the Liberal Democrats.

The preferential voting system ensures that minor parties and independents have more representation in Parliament, giving voters more viable choices than the Liberals, Nationals, and Labor. This is especially the case in the Senate. This means that a major party may not be able to form government on its own, forcing the party to seek support from the crossbench, and making concessions to them, such as amending bills to accommodate the policies of the crossbenchers.

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Stuart Jeffery, aka LibertyDownUnder, is the founder of the Australian Liberty Network. He is also the host of the Gumtree of Liberty and Gumtree of Liberty Live podcasts, and is editor of the Liberty Review. Stuart is currently studying a Bachelor of Laws and Bachelor of Arts, majoring in international relations, at the University of Southern Queensland.

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