On mooted High Court challenges to Senate voting reforms

Some interesting constitutional questions seem to have arisen in the wake of Thursday/Friday’s marathon Senate sitting which passed voting reforms for that House.  Both Independent Senator Bob Day and veteran psephologist Malcolm Mackerras are threatening to launch High Court challenges arguing that the Senate voting reforms are constitutionally invalid.  Neither has yet spelled out their arguments in any great detail, but here are my preliminary thoughts.

The starting point is succinctly spelled out by Brennan CJ in Langer v Commonwealth (1996) 186 CLR 302:

“The method of choosing members of the House of Representatives is governed by the Act. The Parliament is empowered to prescribe that method by ss 31 and 51(xxxvi) of the Constitution, just as it is empowered by s 9 to prescribe the method of choosing senators.”

The only real constraint on Parliament in prescribing that method was outlined by the Court in Roach v Electoral Commissioner [2007] HCA 43. Gleeson CJ explained the reason why these questions are largely matters for the Parliament, saying that it:

“reflects a high level of acceptance of what Barwick CJ called “the notion of the sovereignty of Parliament in the scheme of government”. Nowhere is this more plainly illustrated than in the extent to which the Constitution left it to Parliament to prescribe the form of our system of representative democracy.

Important features of our system of representative democracy, such as compulsory voting, election of members of the House of Representatives by preferential voting, and proportional representation in the Senate, are the consequence of legislation, not constitutional provision. One striking example concerns a matter which the framers deliberately left to be dealt with by Parliament: female suffrage. The Constitution, in s 128, refers to States “in which adult suffrage prevails.” In 1901, adult suffrage meant the franchise for women as well as men. Quick and Garran, referring to the Convention Debates, noted “the difficulty as to women’s suffrage” which was taken into account in the wording of s 128[5]. Another example is voting by Aboriginal people, which remained an issue not fully resolved until the second half of the twentieth century.”

However in Roach the Court identified a constraint on Parliament’s power to enact electoral laws imposed by implications derived from sections 7 and 24 of the Constitution. An electoral law (and indeed any law) must be “reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government.” That system requires both Houses of Parliament to be “directly chosen by the people of the Commonwealth”.  In Roach the Court struck down electoral amendments by the Howard government which sought to disqualify from voting people who were in prison for however short a time for whatever reason.  The Court concluded that this was not compatible with the  constitutionally prescribed system of representative government.

Bearing all that in mind, it seems unlikely that the mooted challenges by Senator Day and Malcolm Mackerras will succeed.  The Senate voting system just enacted gives voters a complete choice whether they vote for between one and 6 (12 in a double dissolution election) individual candidates “below the line” or for one or more party tickets “above the line” (with instruction/guidance on the ballot paper that you should indicate preferences for at least six).  It is difficult to see how this could plausibly be argued to breach the requirement that the system must meet the description of one providing for MPs to be “directly chosen by the people”.  Certainly there has never been a High Court determination of the constitutionality of above the line “ticket” voting, even though it has existed since 1984. Ticket voting seems to be the focus of Mackerras’s constitutional argument. The only judicial observation about the constitutionality of ticket voting is by Gibbs CJ in an injunction application in late 1984 in McKenzie v Commonwealth:

“it is right to say that the electors voting at a Senate election must vote for the individual candidates whom they wish to choose as senators but it is not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket. Members of Parliament were organized into political parties long before the Constitution was adopted and there is no reason to imply an inhibition on the use of a method of voting which recognizes political realities provided that the Constitution itself does not contain any indication that such a method is forbidden. No such indication, relevant to the present case, appears in the Constitution.”

McKenzie chose not to proceed to trial on the question, and no-one has litigated it since then. Mackerras is threatening to do so now. In view of Gibbs CJ’s remarks he seems unlikely to succeed.  The new system, like the one introduced in 1984, gives voters a choice.  They are not compelled to vote for a party ticket above the line, they can choose to vote for individual candidates below the line.  Obviously we can’t be certain without seeing the detail of Mackerras’s arguments, but I can’t see a plausible argument that this is not a system for direct choice of candidates by the people.

Senator Bob Day’s argument seems slightly different (although we can’t be sure). He seems to be arguing that the new “above the line” rules will result in many voters choosing a party group which gets eliminated early in the count. Thus their vote will be “exhausted” and not count in the final outcome, hence they are (effectively) disenfranchised and this isn’t direct choice by the people. However, that outcome is logically inherent in ANY optional preferential system (or for that matter to some extent a first past the post non-preferential system). Day’s argument seems to rest on the proposition that only an exhaustive preferential system could comply with the requirements of Constitution sections 7 and 24. Perhaps there is more to his argument than that, but it strikes me as an extremely weak one and also unlikely to succeed. It should be noted that federal elections in the House of Representatives were conducted on a “first past the post” basis from Federation until 1919.  It changed at the initiative of the Coalition, which had been losing seats through the conservative vote being split in “three cornered” contests where both the Liberal and Country Party stood candidates.

The motivations of each of the parties to the amendments enacted a couple of days ago are obviously just as self-interested as those of the Tory parties in 1919. Nevertheless in my view they represent a significant improvement on our existing electoral system.  Laws are a bit like sausages in at least one respect: those with a delicate stomach are well advised to avoid watching them being made.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Antony Green
Antony Green
5 years ago

Exactly. Australia is one of the few countries in the world to use preferential voting and the only one that has insisted on full preferential voting. How could full preferential voting then be the only method compatible with democratic and responsible government?

A voter in possession of a ballot paper can vote above the line under the new system and at all times see the names of the candidate their vote will be imputed to preference. Under the existing system, in possession of only a ballot paper, a voter would have no idea where their preferences are going.

Any success by Day will be Pyrrhic as if the proposed system of ticket voting is unconstitutional, then so surely must be the existing one they defend.

Stuart Johnson
Stuart Johnson
5 years ago

Just a correction to your characterisation of the new rules, my understanding is that a formal vote means numbering either at least 6 parties above the line or at least 12 individuals below the line, but the savings provisions mean that votes with at least 1 above or at least 6 below will still count. Much reporting on the matter has talked about numbering “up to 6” but I believe this to be incorrect. There is no limit on how many preferences you can allocate though, a voter is free to even give a full set of preferences involving every candidate if they choose.

Nicholas Gruen
Admin
Nicholas Gruen(@nicholas-gruen)
5 years ago

Thanks Ken,

Agreed.

And reminds me that choosing the Senate by sortition or at random (subject to some safeguards of representative proportions of women, men, ages, regions etc) probably falls foul of the requirement that the Senate be “chosen” directly by the people.

Pity – it’s the only way to choose directly from the people.

I wonder if they’d known that their words probably put paid to such things that the founding fellows would have preferred not to. It would have been a pretty left-field thought at the time (and still is – though less so I fancy).

Alan
Alan
5 years ago
Reply to  Nicholas Gruen

Ken

How would the court react to a Random square that meant ‘I vote for a senator elected randomly from the electoral roll?’.

Jim Rose
Jim Rose
5 years ago
Reply to  Ken Parish

I thought the Senate was already selected by sortition.

How else could you explain Ricky Muir and a few other delights of the crossbenchers and the way in which they came into office through preference whispering.

The case against sortition is Ricky Muir and PUP senators.

Marks
Marks
5 years ago
Reply to  Ken Parish

Jim,

If you look at the numbers of first preferences received by Liberal/Labor Senators who were third on their parties’ tickets, you will find that they were equally elected by “preference whispering”.

Go right to the bottom of this link, and see how Arthur Sinodinos got his quota. It is mind boggling. In fact, it is so dependent on micro-party preferences, I seriously wonder if the Coalition has really thought this through.

In Sinodinos’ case, the preferences he received from micro-parties put him ahead of the Greens.

I am sure it’s the same in other States.

http://www.abc.net.au/news/federal-election-2013/results/senate/nsw/

Luke Beck
5 years ago

It is important to keep in mind that the relevant question is not simply whether the method of choosing Senators falls within the description “directly chosen by the people”. That is only the first part of the relevant analysis.

As French CJ explained in Rowe v Electoral Commissioner at [25], the High Court will compare the new method with the previous method:

But the logic of the constitutional scheme for a representative democracy requires that the validity of such a law be tested by reference to the constitutional mandate of direct choice by “the people”. Where, as in the present case, the law removes a legally sanctioned opportunity for enrolment, it is the change effected by the law that must be considered. It is not necessary first to determine some baseline of validity. Within the normative framework of a representative democracy based on direct choice by the people, a law effecting such a change causes a detriment. Its justification must be that it is nevertheless, on balance, beneficial because it contributes to the fulfilment of the mandate. If the detriment, in legal effect or practical operation, is disproportionate to that benefit, then the law will be invalid as inconsistent with that mandate, for its net effect will be antagonistic to it. Applying the terminology adopted in Roach, such a law would lack a substantial reason for the detriment it inflicts upon the exercise of the franchise. It is therefore not sufficient for the validity of such a law that an election conducted under its provisions nevertheless results in members of Parliament being “directly chosen by the people”.

While Rowe was about the franchise, the case turned on the meaning of “directly chosen by the people”. The Senate voting method changes also turn on the meaning of “directly chosen by the people”. Presumably, the same analytical methodology applies in this case.

So, if the challengers can show that under the new voting system the result is a Senate made up of Senators less directly chosen by the people than under the previous method, they may have a point.

It may well be, however, that the new method results in a Senate made up of Senators more directly chosen by the people.

Peter Craig
Peter Craig
5 years ago

I think that there is also an historical context. In that while the HoR and Senate were influenced by the US system that the ‘directly elected’ bit was meant to rule out an electoral college or intermediary body in the election of the members.

Tony Backhouse
Tony Backhouse
5 years ago

The incumbent Fully Preferential ATL Group Ticket Voting Meets Ch7 “Direct” voting because Group Ticket Vote list votes for ALL Candidates sequentially from #1, #2 Including Ungrouped Independents to Final Preference (Previously Pauline Hanson – Barnaby Joyce beat her for last place due to GTV Exhaustion) – to nominate Equal Last Preference is a Langer Vote.

The Proposed #ATL vote forces #ATL voters to Exhaust on Ungrouped Independents even if all boxes Above The Line – a voter might be Misled into thinking that numbering all the boxes would be Fully Preferential which unless no Independent’s stand for Election is not the case.

How Can you Directly Vote for Candidates that No longer have any Representation in the #ATL voting Option – while Party Boxes for each Independent would be an oxymoron?

This is a supposed Single Transferable Vote System where your vote can Elect 1 Senator provided that it isn’t an Independent Ungrouped Senator needing to be Elected on Preferences like everyone else – Antony Green admitted on March 10 on ABC24 that a Popular Independent like “Tony Windsor stood no chance of getting a quota of 14% (sic) to get Elected under New Senate Voting System” – https://www.facebook.com/notes/tony-backhouse/the-day-i-met-brian-and-he-shook-my-left-hand/10153503058492219

john Walker
john Walker(@johnrwalker)
5 years ago

Ken,
the news is that unless the senate passes the ABCC bill there will be a DD , soon.
How does that sit with this court action etc ?

John walker
5 years ago
Reply to  Ken Parish

Thank you

Jim Rose
Jim Rose
5 years ago

This litigation has no chance of success and I hope costs are rewarded against them.

Tim Macknay
Tim Macknay
5 years ago
Reply to  Jim Rose

I don’t quite understand why Mackerras is in such high dudgeon about the amendments. His reaction seems quite disproportionate. Day’s interest is at least obvious.

kme
kme
5 years ago
Reply to  Tim Macknay

I was wondering the same thing – did he perhaps have a hand in designing the GTV system?

Douglas Hynd
Douglas Hynd
5 years ago

Malcolm’s response is a mystery – relevance deprivation syndrome? I can’t recall him getting excited about the previous system

Edward Carson
5 years ago

Ken, Compliments to you on a very well-resourced article and I agree that the direction Day seems to be heading will lead him to failure. However, I believe he has a much better chance if he follows the disenfranchisement argument. Ie an electoral law must be “reasonably appropriate and adapted to serve an end which is consistent” with the constitution.
Despite Professor Anne Twomey’s line “The argument about disenfranchisement is plainly wrong…No one’s right to vote was being limited or taken away. Not only did everyone who already had the right to vote retain it, but the ability of voters to express and control their voting choices was enhanced.”
The ability of the voters to control their choice may be enhanced, but their ability to actually elect a micro-party has definitely been limited if not eliminated. She was being very disingenuous to claim that as you could still enter a polling booth and make your mark, and as you could also determine not one, but your first six choices, then that more than compensated for the fact that if all your choices were fringe parties, your vote would become exhausted and a null.
The argument that voters mostly don’t know where their preferences are going, true as it is, can only have merit if there is a conflict of interest between party officials and voters, to the degree that the voters are being duped. But what is the evidence of this? Officials do these “murky, behind closed doors” deals, sometimes involving supping with the devil, to aggrandize their chances of party success. And isn’t that also what the voter wants?
I believe nothing more proves the duplicity of the government and Greens in that they abolished GVTs when all they had to do to solve the alleged problem was to introduce optional preferential voting, and mistake tolerances, below the line, so as to accommodate those who didn’t trust their parties but were worried about being able to correctly fill in the full ticket.

Douglas Hynd
Douglas Hynd
5 years ago

Group voting tickets were a blight on democracy – we now have a form of optional voting which encourages people to vote below the line and makes above the line voting transparent. the argument above is special pleading

Tim Macknay
Tim Macknay
5 years ago

Bob Day’s High Court challenge has been set down for May 2.