Forming the Government: The House of Representatives electoral system unpacked

By Darcy Bee-Hickman

In recent years, the Senate electoral system has received a great deal of public attention and scrutiny, in no small part due to the colourful characters who have tended to be elected. However, the House of Representatives electoral system, arguably, warrants even more consideration. Governments in our parliamentary system are formed by the party (or parties) that command the support of a majority of the Members of the House of Representatives. Hence, the House electoral system determines which party controls the levers of power and, indirectly, who sits in Cabinet and serves as Prime Minister. Thus, I believe the key to making an informed decision about the future of our country is to understand the elementary features of the system itself. To gain a basic understanding of the House electoral system, you have to understand two critical features: The use of single-member electorates, and preferential voting.

Cathy Wilcox, The Sydney Morning Herald, 1 September 2013.

Single-member electorates are used to elect each of the 150 Members of the House of Representatives (formally called MHRs, but usually just referred to as MPs). The Commonwealth Electoral Act 1918 ensures that the vast majority of electoral divisions contain roughly the same number of voters, currently around one hundred thousand. This principle – known as ‘one vote, one value’ – ensures that votes in different divisions count in approximately equal measure when electing an MP. Historically, rural divisions were allowed to have fewer voters than urban ones. However,  increasing urbanisation and changing societal and political expectations led to this practice being abolished by the 1970s. Electoral divisions also need to be contiguous, take into account geographical features and, where possible, group similar communities together. Redistributions (the term used for the redrawing of electoral boundaries) occur on a state-by-state basis at least once every seven years to ensure that the divisions are kept in line with these criteria.

This single-member, ‘winner-takes-all’ system is deliberately majoritarian. To be elected to Parliament, you need more than half the votes of a particular division, and consequently the major parties are often at a distinct advantage. The major parties are able to win most of the House seats, which often leads to an ‘exaggerated majority’ effect. This effect allows a major party to win a narrow majority of the national two-party preferred vote, but a much larger majority of the seats in the House. For instance, under Tony Abbott in 2013, the Coalition won nearly 53.5% of the two-party preferred vote across Australia, but won 90 seats (60% of the House). This is a deliberate feature of the system designed to provide stability by ensuring that the party preference of the majority of voters is usually translated into a government with a working majority in the House. This means that the government should be able to pass supply bills and be reasonably confident that it will retain the support of the House in all but the most extraordinary circumstances. This contrasts with the proportional systems used in the parliaments of many European countries, and the mixed-member proportional (MMP) system used in New Zealand, both of which commonly see governments formed from broad coalitions of parties and regularly held hostage to diverse niche interests.

The Australian House of Representatives

This single-member system also means it is much easier for smaller parties and candidates to be elected to the House if their support is concentrated, rather than thinly spread across the nation. The most salient example of this is how the National Party, with its support concentrated in rural and regional areas, is able to win more seats than the Greens, whose support is much more scattered. In the 2016 election, for instance, the Nationals won 10 seats with only 4.61% of the country-wide primary vote, while the Greens polled 10.23% and won just one seat. This is reinforced by the fact that the Nationals ran in only a handful of divisions, whereas the Greens ran candidates in every division. The Nationals use their limited resources very effectively to maximise the number of House seats they win. The Greens too, have run campaigns that are much more locally-focused in recent years, and while so far have failed to win a second House seat, have won several seats in the state parliaments of Victoria, New South Wales, and Queensland. While some argue that this is inherently unfair, it is a necessary feature of a majoritarian electoral system, and enshrines the importance of local representation in a way that proportional and MMP systems cannot match.

The major parties thus focus most of their attention on a handful of marginal divisions at the expense of divisions that are comfortably held by the opposition (so-called ‘safe’ seats). While many argue that this is unfair because it results in electoral geography distorting the provision of government services, it is important to remember that in proportional systems select voters are still targeted and privileged, though based on other factors like economics and ideology. Furthermore, voters can collectively transform a safe seat into a marginal one simply by voting for another party.

The second essential feature, preferential voting, is known overseas as instant-runoff or alternative voting. When voters cast their local division votes, they must rank every candidate on the ballot in order from most to least preferred. This is called compulsory preferential voting and to be elected a candidate must garner the support of more than 50% of voters in their division. If they can do this on first preference (primary) votes, they will be elected without the need to consider the other preferences at all. In 2016, this occurred in 48 of the 150 divisions. In the remaining 102 divisions, the candidate with the lowest primary vote was eliminated and their votes redistributed, at full value, to other candidates as per the voters’ second preferences. This process continues until one candidate has the support of an absolute majority of electors. As was demonstrated in 2016, preferences are often crucial in determining the overall outcome of the election.

Voters during the 2016 election.

Preferential voting gives a greater voice to minority opinions within a majoritarian system and allows similar parties and candidates to run without fear of splitting the same pool of votes. It allows voters to vote for smaller parties without worrying about inadvertently electing a major party they don’t like, eliminating the need for the ‘tactical voting’ typical to US and UK elections. Left wing voters, for example, can vote for the Greens and preference the Labor Party, without fear of drawing crucial votes away from Labor and inadvertently aiding the Liberal Party. In fact, this was the original intention of the system, which is peculiarly Australian. It was introduced in 1919 to allow the conservative Country and Nationalist parties to run candidates against each other without helping Labor win more seats. In the century since, both major parties have benefited from the preferences of various smaller parties, including the Democratic Labor Party, One Nation, and the aforementioned Greens.

The House of Representatives electoral system usually provides stability for the government of the day (in least in an inter-party sense), while ensuring that minor party and independent candidates are able to run for election without compromising the chances of one of the major parties. While by no means perfect, it has functioned well for over a century. The current political fracas owes itself to internal party dynamics and is not a poor reflection on the mechanics of the House.

Significantly, the House electoral system works in tandem with the proportional system used by the Senate. Such a system makes it much easier for minor parties to get elected to the Senate, while major parties very rarely win majority control. While this is frustrating for governments, it allows the Senate to act as an important check on government power. It should therefore be remembered that we cannot mount an argument as to the efficacy (or otherwise) of the House of Representatives’ electoral system in isolation.

As outlined at the beginning of the article, the centrality of the House of Representatives to our political system warrants a solid understanding of the way its electoral system works. Hopefully, this article provides a start.

The intricacies of the Senate electoral system will be explored soon… watch this space.

 

An unpopular opinion: moving to Mars is a horrible idea

By Naveena Movva

Look alive people, the end is nigh!

Okay, perhaps that’s a slight exaggeration, but in case you’ve been living under a rock, planet Earth is slightly under the weather. Among the Earth’s rapidly lengthening list of ailments are global warming, rapid overpopulation, and the unrestrained, unsustainable use of depleting natural resources. And while we may like to pretend otherwise, we are all aware of these facts.

Our views of what a future on Earth will be like are changing, moulding themselves to reflect these inconvenient truths. Evidence of our increasingly bleak outlook can be drawn from that most reliable of sources, pop culture.

Until about 2010, we had a predominately hopeful view of future Earthling society: Back to the Future, Futurama, Meet the Robinsons, and even The Jonas Brothers’ iconic cover of Year 3000, all present depictions of a technologically advanced and thriving society.

The most frightening part of Futurama’s future world is the lawyering…

Fast forward ten years, and we have gone from imagining a future filled with floating vehicles and teleportation devices to predictions of a post-apocalyptic wasteland. One may confidently predict that the year 2050 will see us forced to fight to the death over a crusty scrap of Coles-brand garlic bread – potentially in a heavily marketed and widely televised death match (hello Hunger Games). And although I’d never say no to some garlic bread, I’m left asking myself where it all went wrong.

If this is the future we have to look forward to, how exactly would moving to Mars fix anything? It’s a band-aid solution at best. Realistically, how will a Mars colonisation be a practical long-term solution? For one, Mars is roughly half the size of Earth, and it unlikely that the Earth’s rapidly expanding population will fit on the smaller planet (sometimes size does matter). A Martian colonisation could lead to a dangerously Elysium-esque situation where the richest of Earth’s inhabitants are able to move to the newly colonised planet, leaving the rest of us to rot and decay in a disease-infested death pit. Do I want to live in a death pit? No! That’s why I’m not at Johns! But if we go down, then we all better be going down together!

The point I’m trying to make is that the establishment of a Martian colony would represent a lack of understanding of the issues we face, and very little possibility of change and growth. If we were to invest time, money and resources into a Mars colonisation, I want to know that it would be worth it: Without dealing with the root causes of the problems we’ve caused on Earth, any colony would be afflicted by the same limitations of Earth.

While the argument can be made that moving to Mars might be an opportunity to make good some of our mistakes on Earth, I struggle to see what is preventing us from making those changes now. David Attenborough didn’t go to all the trouble of filming Blue Planet II so that we could squander what can still be salvaged from our planet.

Blue Planet II shows the natural beauty of Earth, a planet Naveena Movva says we shouldn’t abandon just yet.

Let’s face it; we really haven’t thought this through. “But Naveena!”, you cry, “What is the alternative? We can’t just stay on a dying planet!” Yes. Yes we can, and we absolutely should. A few centuries from now we might have destroyed the planet beyond recognition and to the point of no return but let’s go out with some dignity, damn it! We created this mess, and we should deal with the consequences of our actions – it’s the adult thing to do.

When the law moves at a snail’s pace…

By Bella Dimattina

On a summer afternoon in August 1928, at Wellmeadow Cafe in Paisley, a woman bought some ice cream and a bottle of locally manufactured ginger beer for her friend, Mrs Donoghue. A thirsty snail had become trapped and then slowly decomposed in the ginger beer bottle, revealing itself to Mrs Donoghue only as she poured the last half of the opaque bottle’s contents over her ice cream. Three weeks later, she was in hospital for emergency treatment.

Due to the generosity of her friend, there was no contract between the manufacturer, David Stevenson, and Donoghue, as Donoghue had not bought the drink herself. Under the law as it stood at the time, the manufacturer could not be held liable for Donoghue’s eventual illness.

 

A landmark case

Lord Moncrieff – who heard the case at first instance – found that the manufacturer should be held liable under negligence in relation to food preparation. However, the manufacturer appealed, and Moncrieff’s initial decision was overturned in the Court of Sessions. The case was thus brought to the House of Lords, where Lord Atkins provided the ratio we know today. The parties waited five months after the hearing to receive the judgement, which was split 3-2.

Prior cases relating to the duty of care of manufacturers were confined to their facts by Lord Atkin’s leading judgement, and said to have a more tenuous connection between victim and respondent than that present in Donoghue’s circumstances. Lord Atkin found a general law of duty of care to exist, which would protect those vulnerable to the non-contractual actions of others. This ‘general’ law comprises what is now known as the tort of negligence: there must be a duty of care between the parties between whom there was a proximate relationship, and a reasonably foreseeable risk of harm. In such cases, reasonable steps must be taken to minimise such risks.

These ideas were encapsulated in a now commonly quoted judgement from Lord Atkin, etched into the minds of all those who are so negligent as to venture into law school:

‘The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.

These words served to establish the ‘neighbour principle’, the bane of many a freshman’s life, but the cornerstone of the modern tort of negligence.

 

Social justice warriors: then and now

The case is etched into the minds of law students, due not only to its legal significance, but also because of the justice Lord Atkin meted out to a negligent manufacturer. The facts also appeal to the idealistic goals of social justice and aiding the downtrodden that first year students bring with them to law school.

The case promises that one can make valuable and ethical contributions to law in a commercial setting.  Indeed, Mrs Donoghue’s lawyer, David Leechman, worked pro bono on the case.  Some attribute Leechman’s willingness to work pro bono to his demonstrated desire to advance tort law in Scotland. Paisley was known as a centre of industrial era political activism, and Leechman was a radical left wing activist. Mere weeks before he took up Donoghue’s case, Leechman had acted for the Mullens children after a mouse was found in their ginger beer. Mullen v Barr and Co Ld failed at the Court of Sessions. However the judgement in this case listed some instances where duty of care could be deduced – it was using this previous judgement that Leechman reasoned a duty of care in the case of Mrs Donoghue. Presumably swayed by his liberal political views, the value that Leechman placed on the claim of a woman harmed by ginger beer appeals strongly to those who enter law school with the intent of helping clients with everyday problems.

The case is now celebrated with plaques, Paisley legal conferences and even musical performances (see Leading Cases in Song by Stephen Todd).

The neighbour principle was criticised at the time Lord Atkin handed down his judgment  as a radical legal finding with little grounding in precedent. Atkin drew on the parable of the Good Samaritan in the Gospel of Luke (through which Jesus instructs his disciples to ‘love thy neighbour as thyself’), and the principle has therefore been  seen as an attempt to align Judeo-Christian morality with the legal system. In fact, this was more likely an attempt to make the principle referable to some kind of social (Christianity being the prevailing faith in the United Kingdom at the time) precedent, lacking legal precedent as it did.

 

Continuing controversy

The neighbour principle remains controversial in its current broad form. The case of Liebeck v McDonald’s Restaurants continues to garner international  attention: the elderly Stella Liebeck was initially awarded $2.7 million in compensation for burns from her scalding hot coffee. The courts did not hesitate to find McDonalds negligent, as their coffee was sold 30 degrees above a safe temperature despite most customers drinking the coffee immediately. Stella Liebeck faced intense ridicule internationally as a pedantic and opportunistic litigant. Liebeck became the namesake for  the ‘Stella Awards’, which for five years provided recognition to ‘outrageous and frivolous’ lawsuits. The awards, run by Colorado writer Randy Cassingham, exemplify mainstream derision of a duty of care, at least in its broadest form, in which it can place onerous and overbearing duties on persons at law.

These principles, which exist not only in the common law, but which have been enshrined in  modern legislation such as the Australian Consumer Law, also face new challenges from technological advances that change the manufacturer-consumer relationship.

Professor of law Giuseppe Dari-Mattiaci from the University of Amsterdam and Italian economist Luigi Alberto Franzoni argue that technological advances alter the duty of care required of individuals and manufacturers. As technology automates common functions – through the development of products such as car safety systems and GPS – less care and attention is required of  the individual (who can ‘sit back and relax’) necessarily requiring more of the manufacturer. As we place further functions in the hands of technology, we rely more on Atkin’s principles to protect us: our neighbour is, to a degree, no longer human. However this poses questions about what level of care is required in a modern environment – can reliance on faulty technology obviate our duty of care? Or do we accept the risks technology brings when we adopted cutting edge tech? Sould manufacturers  still be held liable? Modern lawyers and everyday consumers must judge how best to balance caution and innovation, as entrepreneurs provide new technologies for living our lives.

 

Animals in bottles: the sequel

In the case of rodents in fizzy drinks, times have certainly changed. While a mouse found in a ginger beer by the Mullens children in the 1920s was beyond the reach of negligence laws as they stood, in 2012 a mouse found in a can of Mountain Dew resulted in an out-of-court settlement for the consumer. Pepsi nonetheless announced that such an occurrence would be impossible. Research provided by the company showed that any animal would have been decomposed by the corrosive chemicals in Mountain Dew.

While the products have undoubtedly changed, the principles  established by Donoghue v Stevenson have provided an invaluable foundation on which to construct modern legal frameworks to protect our neighbours. While the developing legacy of Lord Atkin remains controversial, the adaptation of the tort of negligence to the conditions of today’s world is essential to provide redress for those affected by negligent acts.    Whether it be a snail, a mouse, or a self-driving car that causes you harm, you should be confident that Lord Atkin will have your back.