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imageParties who gained a very small first preference vote look set to be elected to Victoria's upper house.AAP/Luis Enrique Ascui

The final count for Victoria’s Legislative Council is still some days away, but it appears members elected from micro-parties will hold the balance of power in the upper house. This will be a challenge for the new Andrews government, but is it undemocratic?

Counting is continuing, but as of December 1, the prediction of the result on the ABC website, based on above-the-line votes counted so far was as follows:

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The percentages of votes for the parties, compared with the number of seats predicted, were as follows:

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This result appears to be entirely fair, representing the breadth of opinion in the community at approximately the level that those opinions are held. As just under 18% of people voted for non-major parties (including the Greens and the Nationals as “major parties”), in a rather similar result to the Senate in September 2013, it looks like the voters of Victoria have chosen to have a Legislative Council operating in a similar fashion to the Senate.

There is concern that parties with a very small first preference vote can be elected. This does not necessarily indicate the voting system is undemocratic. In an extreme case, the candidate may be the second preference of all voters.

The problem with the upper house voting system in Victoria is that candidates can be elected by “preferences” that are not the deliberate choice of voters. The preferences are being decided by parties and are not known to most of the voters.

These preferences, the Group Voting Tickets, were available online before the election, and some voters may have looked at them. But most people voted above the line and by doing so handed control of their preferences to whichever party they voted for.

Consider the Western Victoria Region. James Purcell, of the Vote 1 Local Jobs Party, received 1.3% of the primary vote and yet he may be elected as one of five members in that region. The quota – the percentage of the vote needed to be elected – is 16.67% (just over one-sixth of the vote). So Purcell has received most of his support from second, third, fourth and subsequent preferences.

That is also true for the ALP ticket’s number two candidate in the Western Victoria Region, Gayle Tierney, who will be elected. Her first preference support was much lower than Purcell’s. She is picking up a higher proportion of her quota from preferences than he is – most of them from ballots for the ALP’s number one candidate, Jaala Pulford.

Both candidates received a small first preference vote and both get elected as a result of other than first preferences. On the face of it, it seems to be equal. The difference, however, is that whereas we can expect most of the people who voted “1” for Labor above the line were aware that their preference would go to the next Labor candidate, most of Purcell’s preferences come from other parties.

Did the voters for Rise Up Australia, No Smart Meters and Australian Christians – all of whose preferences were first delivered to the Democratic Labour Party (DLP) and only later to Purcell – really expect Purcell to be the beneficiary of their vote?

Purcell’s election – if it happens – will be entirely in accord with the current law. And it would be entirely proper and democratic if the people who preferenced him had themselves explicitly decided those preferences. So, let’s reform the upper house so that voters do control their own preferences.

This has already been examined for the Senate by the Federal Joint Standing Committee on Electoral Matters. In its interim report, the committee recommended the retention of above-the-line voting but the abolition of Group Voting Tickets.

That means that if you voted just “1” above the line, your vote would go only to the candidates of the party whose box you had numbered. If you wanted to express more preferences above the line, you would have to number from “2”, “3”, “4” – as few or as many as you like – party by party. Voters would explicitly decide the preferences among the parties.

The micro-parties could still recommend to their supporters a certain order of preferences, but they would have to communicate that message by handing out how-to-vote cards or by some other means. And if you didn’t like the order your party was recommending – if for example you were a Greens voter in South-East Metropolitan Region who didn’t agree with putting Palmer United Party ahead of Labor – then you would change the order to match your view.

Those who want to order individual candidates would continue to do so below the line – where currently you only have to number one to five.

These reforms, already suggested for the federal Senate by a cross-party committee, would end the backroom deals and preference harvesting and gaming. The only party preferences that would count would be those expressed explicitly by individual voters. And that’s democracy.

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Stephen Morey is affiliated with the Proportional Representation Society of Australia (Victoria-Tasmania) Branch Inc. He is an Australian Research Council Future Fellow, at La Trobe University, in the field of Linguistics.

Read more http://theconversation.com/how-to-make-australias-upper-houses-truly-democratic-34864