Fair Crack of the Whip

Professor John Williams (Adelaide Law School) and Professor Clement MacIntyre (School of History and Politics) consider the wisdom of the ‘fairness’ provision in the South Australian electoral system.

On 9 February 1991 nearly 77 percent of the South Australian electors voted in favour of an amendment to constitutionalise a ‘fairness’ provision in the electoral system. The result of last Saturday’s election might prompt some to question the wisdom of the proposal that the Parliament put to them 23 years ago.

Electoral systems, like beauty, are often in the eyes of the beholder. There are an array of models and processes that range from the simple to the excruciatingly complex that only the most ardent psephologist shut-in would contemplate or enjoy. The challenge for any model is to translate diversity in the community to parliament and to do so within our current system of responsible government. Historically the design and renewal of the electoral system has been left to the political parties. However, in 1991 South Australia embarked on a bold reform that attempted to bring independence into the system.

Malapportionment and gerrymanders are closely associated with the political history of many Australian States including South Australia. The so called ‘Play-mander’ helped long time Liberal Premier Tom Playford hold power for nearly 30 years. He benefited from a system in which the number of rural voters needed to elect a member was considerable smaller than the number of voters in urban seats. Through the 1950s, Labor’s primary vote hovered at about 50% while the Liberals were returned to office with about 37% of the primary vote.

To their credit, in the 1960s the Liberals went some way to reforming this, and eventually it was the ALP that began to benefit from the distorted outcomes. In 1989, the Bannon government was returned (albeit supported by two Independent Labor MPs) with 48% of the two party preferred vote. At the urging of the Liberal Opposition the Bannon government passed an amendment to the constitution that was designed to ensure ‘fair’ electoral outcomes.

The 1991 constitutional amendment established Electoral Districts Boundaries Commission headed by a Supreme Court justice. The Commission is required to redraw the boundaries after each election to achieve fairness. In particular it must ‘as far as practicable’, so that ‘ if candidates of a particular group attract more than 50 per cent of the popular vote (determined by aggregating votes cast throughout the State and allocating preferences to the necessary extent), they will be elected in sufficient numbers to enable a government to be formed.’

The impossible challenge for the Commission is that the boundaries that are being redrawn to accommodate the results of the most recent election will be used at a different time in the political cycle. Moreover, even though independents have regularly been elected to the South Australian Parliament, the methodology of the Commission reflects the intention of the Parliament in 1991 and not the complex reality of 2014. So for instance, the Commission is required to calculate the two party-preferred votes by essentially excluding independents and minor parties.

Perhaps of more significance is that the Commission cannot predict the action of the groups or parties contesting the election. The Commission must assume that all parties select equally electable candidates and expend equal resources and energy in all electorate. Yet the modern media elections are punctuated by gaffes, ‘marginal seat campaigns’, brilliant strategies or toe curling disasters. None of which the Commission can predict two to three years out from the election as it attempts to draw the boundaries in accordance with the constitutional requirements.

So what happened in this election? There is no question that the Liberals ran a better campaign than last time. Even so, there were still some tactics that played into the hands of Labor. Decisions to spend significant sums on battles in seats that couldn’t be won may have forced some senior Labor Ministers to stay at home defending their own seats. But it also meant that less was available to spend on the absolutely critical marginal seats where the election would be won or lost. Similarly, the Liberals targeting of the independents who may now hold the balance of power may make negotiations with them a bit harder. Labor, for its part, cut spending everywhere except a small number of make or break local campaigns.

There are many things to commend the ‘fairness’ provision. The fact that the Commission is the required to  maintain the ‘permissible tolerance’ of ten percent between the size of each electorate, that communities should be kept together as much as possible. Yet for all its worthy ambition the section does not provide the Commission with a constitutional crystal ball. Since its establishment successive Commissions have impartially and rigorously applied the relevant provisions. What is evident is that the fairness envisage by the Parliamentarians in 1991 may not be what it is cracked up to be. Having said that, it is worth noting that on the current figures it looks like the ALP has won just under 50% of the seats with a bit under 50% of the vote and the Liberals, together with the conservative inclined independent seats will make up a bit more than 50% of the new Parliament with about 52% of the vote. The Liberals’ disappointment and frustration is understandable, but perhaps they should be looking at why two safe Liberals seats are in the hands of independents rather than focusing on the now constitutionally entrenched fairness provisions.

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