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  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. 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.