In the 76-seat Senate, the Liberals and Nationals cannot block legislation despite holding more seats than Labor. There are 31 of them, but achieving a majority of 39 requires either the support of the Greens (with 11 seats) or the entire crossbench of 8. Since the Greens and half the crossbench are the Coalition’s mortal enemies, that is next to impossible. 

By contrast the Labor government, with 26 seats, can generally count on achieving a majority and having its legislation passed. It requires the support of the Greens plus just two of the crossbench, which is pretty much guaranteed. The government’s controversial industrial relations legislation passed because of this. 

Even worse for the Liberals and Nationals, there is no prospect of achieving a majority in the Senate at either the next election or in 2028. Even if they win a majority in the House of Representatives and form government, they will not have sufficient support from crossbench senators to achieve a majority in the Senate. Indeed, unless they change their approach, they face a hostile Senate indefinitely. 

This is not a result of lost votes or swings in the political pendulum though; it is all their own doing. The primary vote of the Coalition parties in the Senate in 2022, at 34 per cent, was actually above that of Labor (30 per cent). 

The primary cause is the changed method of electing the Senate, introduced at the behest of Prime Minister Malcolm Turnbull in 2016 prior to the double dissolution election. 

Between 1984 and 2016, senators were elected under a system in which the political parties directed the preferences of voters who voted above the line on the ballot paper. These ‘Group Voting Tickets’ allowed voters to simply put a 1 above-the-line and delegate to their party of choice the distribution of preferences. Those who voted below the line had control over where their preferences went, but few did that. Preferences continued to be counted until a candidate was elected. 

In 2013 a number of minor parties came to arrangements with each other to combine their votes to get ahead of the Greens. As a result, seven broadly centre-right crossbenchers were elected, giving the government the numbers it needed (33 + 7) to repeal the Gillard government’s carbon tax. 

Following this, former Family First Senator Bob Day and I met with then Prime Minister Tony Abbott and tried to convince him that the best way to get more of the Coalition’s policies through the Parliament was to have more senators like us.

With Abbott’s demise and Turnbull becoming Prime Minister, the exact opposite of our suggestion occurred. With the support of the Greens, the Coalition changed the Senate voting method so that, in essence, the allocation of preferences was left to voters and became optional. Even voting for a single candidate, with no preferences at all, became a valid vote. 

To this day I don’t know what Turnbull was smoking. He was certainly frustrated at the Senate not passing the bill to restore the ABCC and used this as the trigger for the double dissolution. Turnbull blamed the crossbench rather than Labor or the Greens for the impasse. In a discussion with me and Bob, he indicated he was especially keen to ensure senators Lambie and Lazarus were not returned. While I could fully understand his assessment of them, it seemed he was woefully ignorant of how the Senate was elected. 

It was always obvious the change to Senate voting would be of no benefit to the Coalition, would be bad for minor parties and independents other than the Greens, and would tie Labor’s fortunes to the Greens (which is why Labor hated it). 

Even former Liberal Prime Minister John Howard warned the Liberals at the time that their deal with the Greens could backfire on them. ‘The principal beneficiary of these changes will be the Australian Greens,’ he said.

One of the consequences of optional preferential voting is that votes can exhaust before electing anyone, even the recommended votes for six parties above the line. Exhausted votes have no influence on the outcome. 

With the primary vote of the major parties in slow decline that makes preferences more important than ever, particularly those that do not exhaust. For the major parties, it makes sense to capture as many as possible. 

Labor tends to understand that and, notwithstanding differences in ideology and policy, talks to many of the minor parties. The party’s campaign managers are (in my experience) amiable and professional, negotiating exchanges of preferences on how-to-vote cards. Labor’s current support in the Senate is evidence of the success of that approach. 

It is a different story with the Liberals (and Nationals where present). Their campaign people tend to be unapproachable and avoid links with minor parties. With rare exceptions, such as the (now defunct) Christian Democrats in NSW, they do no Senate preference deals. Their how-to-vote cards are often little more than wishful thinking. 

An obvious example of this is seen in their attitude toward One Nation, which they have often shunned because of criticism by people who would never vote for them. The United Australia Party fares little better and even my party, the Liberal Democrats (now the Libertarian Party), is avoided despite having policies more in keeping with the Liberal Party’s principles than the party itself. 

Rather than acknowledge that if they can’t win a seat themselves it is better to help elect a potential ally, the Liberals see such parties as competitors stealing their votes. In the case of the Liberal Democrats they even took legal action and introduced legislation to force a change of name. If its name had been Labour Democrats, the Labor Party would have locked in its preferences. 

The Senate is often described as a house of review, like the House of Lords in the UK, but that does not mean only one side of politics should be able to get its legislation passed. It leads to an elected government being essentially blocked from implementing the policies on which it was elected. It is a distortion of democracy. 

And yet, it’s what the Liberals have done to themselves. 

David Leyonhjelm was a senator from 2014 to 2019

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