NSW State Election Contests: The Legislative Council

The outcome of the upcoming NSW State Election seems to be done and dusted. You might think that for a politics-watcher and self-confessed election geek there might be nothing in it for me. But you'd be wrong. There's a number of contests that will shape the course of politics in the state, some for the next 4 years and others further down the track. Over the next 10 days I'll be previewing three important contests:

• The Legislative Council
• The side contests - Greens and Independents in the Legislative Assembly
• The swing - how big and who to

This week I'll be looking at the Legislative Council (LC) - otherwise known as the NSW Senate. Before I get into the election preview I'll examine the role of the LC and how it gets elected.

The Role of the Legislative Council

NSW has had a bicameral (two houses) parliament since 1856 with the upper house originally intended as a house of review - with all members apointed by the Governor. The LC has undergone many reforms, including several attempts to abolish it, and became directly elected in 1978.

It still has a strong review role with a series of committees which scrutinise Government Ministers and business, conducts inquiries and forces the Government to produce state papers. It also plays a strong role in amending legislation, through it rarely defeats bills.

Electing the Legislative Council

The LC has 42 members who have 8 year terms, half (21) being elected at each State election. The council is elected by proportional representation with the whole state being treated as a single electorate.

To be elected to the LC a candidate needs to achieve 4.55% of the vote or roughly 180,000 votes. Anything less than a full quota will be redistributed through preferences. Voting for the LC is similar to the Federal Senate with large ballot papers featuring a series of 'groups' above the line and each individual candidate below the line.

However this is where the similarity ends - for the Senate ballot paper a voter can determine the preferences for all candidates by numbering all the squares below the line or by voting above the line and letting the party they vote for determine the flow of preferences. For the Senate all formal votes count and will be used to determine preference flow. Voting in NSW uses optional preferential voting. The ballot paper looks similar but there are more options to vote formally.

You can vote above the line by placing a number one and then (if you wish) numbering as many other candidates in order of preference as you like.

Or you can vote below the line by numbering at least 15 candidates in order of your preference.

This system has a couple of advantages; it makes it easier to vote formally, particularly if you vote below the line; political parties don't determine preference flow to other parties if you vote above the line; and you don't have to vote for a candidate you don't like.

But there is one drawback. About 80% of people just vote 1 above the line, and don't number any others. This may be because they're lazy, or because they think its like voting in a federal election for the senate. Either way a large number of votes exhaust, which means that a relatively small group of voters determines who will pick up the scraps in a LC contest. According to the ABC's election guru Antony Green any candidate picking up 2.5% of the vote has strong chance. The Shooters won with 2.1% in 2003 or about 76,000 first preference votes. Incidentally this seat is one of the ones up for election.

So if you want to be one of those voters make sure you fill in the blanks.

The 2011 Election

Now onto the 2011 election. Of the 21 continuing MLCs there are:
Labor/Country Labor - 9
Liberal/Nationals - 8
The Greens - 2
Christian Democrats (Fred Nile Group) - 1
Shooters and Fishers - 1

It is the continuing members that make the upper house a more interesting contest. On the left side of politics you have 11 continuing members and on the right side 10. The effect of any swing is thus diminished by the existing membership of the LC. In order to secure a full majority in the upper house the LNP would need to secure about 60% of the vote - a swing of 27%, something you won't see outside of a by-election.

No, one of two things will happen in the LC. The balance of power will be held by either the Greens or the conservative minor parties and independents. This will direct the power-plays in NSW politics over the next 4 and 8 years.

Under either circumstance the LNP may be forced to work with Labor to pass legislation, when Greens or conservatives are playing hardball. Although there's plenty of bipartisan legislation, the contentious stuff will end up being decided by either a group of conservative parties and independents or the Greens. The conservatives could extract amendments (or other concessions) dragging a piece of legislation towards the right, whilst the Greens could drag it back towards the centre.

Current polling suggests that the LNP will pick up 11 seats giving it a total of 19. Labor will pick up at least 5, the Greens at least 2 with another seat swinging between them. Based on past voting patterns it is reasonable to suspect that the Shooters and Fishers will pick up 1 and Family First (the candidate a former Christian Democrat) and the Christian Democrats are fighting over a further 1 seat.

There are two maverick independents: Pauline Hanson and John Hatton, both of whom have an outside chance of picking up enough votes for a quota.

Let's deal with Ms Hanson first. The last time she had a tilt at the LC in NSW was in 2003 when she managed to pick up 1.9% of the vote on her own, with One Nation (their candidate then is now #2 on her ticket) getting 1.5%. That's a total of 3.4% of the vote that could well go to Hanson potentially delivering her a seat.

On the other hand in the last election the most similar party was Australians Against Further Immigration, who are not running in 2011. They only picked up 1.64% of the vote, with a swing of 0.74%. Even if that swing were to continue that's only about 2.4% of the vote, and probably not enough for seat. On the other hand Hanson could split the vote that is otherwise going to the CDP and Family First, muddying that contest considerably.

Now onto John Hatton the anti-corruption advocate who was one of the forces behind the establishment of the Wood Royal Commission into police corruption. He was also the local member for South Coast between 1973 and 1995. He's campaigning on an anti-corruption and anti-part3A platform. In the current political climate and with enough publicity this could resonate with enough voters to get him enough votes for a quota. Given his platform and the role of the LC its a pretty damn good fit. Unfortunately there's not much in the way of good data to judge his chances. There is some alignment with the Save our State party (aka Save our Suburbs) who picked up 0.3% of the vote at the last election, suggesting his chances aren't great.

Now here's where things get interesting. Using Antony Green's example Labor could wind up with about 5.5 quotas and The Greens 3.3. Labor has a chance of picking up another seat, but only if Greens voters preference them. If most of the Greens votes exhaust, then this seat that the Greens could have given Labor will likely be lost a party on the right (most likely the LNP).

If, like me, you believe that a 'hostile' senate is good for democracy then you should make sure you preference above the line, back through to the major party on the side of politics you think will be in opposition. In the example above, if you vote Green you should then preference Labor, to ensure that your vote gets counted in the fight over partial quotas. Otherwise your vote exhausts and you could help a candidate on the right win.

So number more than 1 - vote for as many preferences as you feel necessary.

Next time - the side contests.