How Fraser Anning became a senator and how to stop anything like that ever happening again

Posted on March 18, 2019

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By SB Tang

In the last Australian federal election in 2016, Fraser Anning received a grand total of 19 first preference votes — no, that’s not a typo — yet, he currently sits in the Australian parliament as a senator for Queensland.

How did this happen?

Broadly, two structural features of our democracy permitted this profoundly undemocratic result to happen.

Firstly, section 7 of the Australian Constitution stipulates that each state shall have an equal number of senators. Therefore, Queensland, which had 3,074,422 enrolled voters in the 2016 Australian federal election, gets the same number of senators — 12 — as New South Wales, which had 5,084,274 enrolled voters in the same election.

Secondly, we use a system of proportional representation voting to elect the Senate. That system only requires each candidate to obtain a relatively small required quota of votes (either before or after the distribution of preferences) to win a seat. In a typical half-Senate election in which six senators are elected in each state, the quota required to win a Senate seat is 14.3 per cent of formal votes cast. In a double dissolution election — such as our last federal election in 2016 — in which 12 senators are elected in each state, the quota required to win a Senate seat is 7.7 per cent of formal votes cast.

Generally, like in most well-established modern democracies, Australian voters vote for political parties, rather than individual candidates. Accordingly, our Senate ballot papers allow each voter to choose to vote “above the line” or “below the line”. A voter who votes above the line just numbers boxes to indicate their preference for the listed political parties with a box next to their name.

A voter who votes below the line must number numerous boxes — there are often over 100 on a Senate ballot paper — indicating their preference for every single individual candidate running for the Senate in that state. The candidates below the line are grouped by party affiliation in first-to-last order of their internal party ranking. Each political party decides the ranking of its Senate candidates. The candidate ranked first by a party is the human being who actually sits in the Senate if that party receives the required quota of votes for one Senate seat. If that party receives the required quota of votes for two Senate seats, then their second ranked candidate occupies the second seat and so on and so forth.

Unsurprisingly, the vast majority of Australian voters choose to vote above the line on their Senate ballot paper. They vote for parties, not individual candidates.

In the 2016 federal election, Anning was the third ranked candidate for Pauline Hanson’s One Nation party in Queensland. One Nation’s first ranked candidate on the Senate ballot paper for Queensland was Pauline Hanson. Their second ranked candidate was Malcolm Roberts. Their fourth ranked candidate was Judy Smith.

One Nation received a grand total of 250,126 first preference Senate votes in Queensland in the 2016 federal election, which equates to just 8.14 per cent of the Queensland electorate. Of those 250,126 first preference votes:

  • 229,056 were cast above the line for the One Nation party;
  • 20,927 were cast below the line for the individual One Nation candidate Pauline Hanson;
  • 77 were cast below the line for the individual One Nation candidate Malcolm Roberts;
  • 19 were cast below the line for the individual One Nation candidate Fraser Anning; and
  • 47 were cast below the line for the individual One Nation candidate Judy Smith.

After preferences were distributed at the 2016 federal election, One Nation obtained the required quota for two of Queensland’s 12 Senate seats. The Australian Electoral Commission ranks each state’s Senators in order of votes obtained. One Nation’s first Senator, Pauline Hanson, was ranked third of Queensland’s 12 Senators. However, One Nation’s second Senator, Malcolm Roberts, was ranked 12th of 12 Senators in Queensland. In other words, he scraped over the line to grab the last of Queensland’s Senate seats.

When, on 27 October 2017, the High Court of Australia ruled that Malcolm Roberts’ election was void — because he was “a subject or a citizen … of a foreign power”, that is, the United Kingdom of Great Britain and Northern Ireland, at the time of his nomination for the 2016 federal election and therefore incapable of being chosen or of sitting as a senator by reason of section 44(i) of the Constitution — Fraser Anning, as One Nation’s third ranked candidate on the Senate ballot paper for Queensland at the 2016 federal election, took over Roberts’ Senate seat.

On the very morning that he was sworn in as an Australian Senator, Anning quit One Nation.

How to stop anything like this ever happening again

In terms of votes obtained, Anning sits in the 12th of Queensland’s 12 Senate seats. One Nation, with a first preference vote representing just 8.14 per cent of the Queensland electorate, scraped over the line to win that seat, their second in Queensland.

If Queensland had a number of Senate seats — seven — that actually reflected its population, then One Nation wouldn’t even have come close to winning a second Senate seat in that state and Fraser Anning would not be a senator. (New South Wales, Australia’s most populous state, had 5,084,274 enrolled voters in the 2016 Australian federal election and 12 Senate seats; therefore, Queensland, which had 3,074,422 enrolled voters in the same election — an electorate 60.47 per cent the size of NSW’s — should only have had seven Senate seats.)

A cursory glance at Australian political history reveals that, insofar as the extreme fringe of both ends of the political spectrum exists in the federal parliament, it is found primarily in the lower-to-lowest votes obtained Senate seats in the less populous states. Remember, One Nation’s first preference Senate vote in Queensland in the 2016 federal election represented just 8.14 per cent of the Queensland electorate and 1.596 per cent of the total Australian electorate, but they won two of Queensland’s 12 Senate seats.

Thus, the first and most fundamental reform which should be considered is changing the composition of the Senate so that it accurately reflects the population of each state and territory. In effect, this would mean reducing the number of Senate seats held by the less populous states. From a practical point of view, this would be a difficult reform to achieve — because it would require a referendum to amend the Constitution. In order to succeed, a referendum requires: (1) a national majority of electors from all states and territories to vote “yes” to the proposed change; and (2) a majority of people in a majority of states to vote “yes” to the proposed change, that is, at least four of the six states must vote “yes”. That double majority requirement is a high-threshold — since Federation, only eight out of 44 referenda have been successful.

In this instance, it is highly likely that a majority of people in the two most populous states — New South Wales and Victoria — which are currently under-represented in the Senate (vis-à-vis the four less populous states) would vote “yes”. The challenge would be persuading a majority of people in at least two of the four less populous states to vote “yes” to a constitutional amendment which would dilute their disproportionately high representation in the Senate.

The data shows that the vast majority of Australian voters vote for political parties, rather than the individual candidates of those parties. In the 2016 federal election, of the 250,126 first preference Senate votes won by One Nation in Queensland, 91.58 per cent of them were cast above the line for the One Nation party as a whole.

Thus, in a very real democratic sense, Senate seats belong to parties, not individual candidates. The 12th Senate seat in Queensland belongs not to Malcolm Roberts (winner of a grand total of 77 below the line first preference votes) or Fraser Anning (winner of a grand total of 19 below the line first preference votes), but the political party One Nation. When Anning quit One Nation on the very morning that he was sworn in to take that seat, he effectively stole it. And One Nation could do nothing to take back the seat that they — not Anning — had won in the 2016 federal election.

That has to change. In the Senate, where election data clearly tells us that the vast majority of Australians vote above the line for a political party rather than an individual candidate, sitting senators who resign from their political party should not be permitted to keep their seat. The political party which won that seat should be given the right to select a replacement to occupy that seat for the remainder of its term.

If One Nation had that right, then Fraser Anning would not be a senator. I’m no fan of One Nation, but they — not Anning — won the 12th Senate seat in Queensland fair and square, therefore, they ought to be allowed to fill that seat with an actual party member.

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