How people elect parliaments
The legal challenge to the constitutional validity of recent changes to the method of electing Australia’s senators has been heard by the High Court.
A decision is expected by the middle of next week, with the Court under pressure to decide the matter before the looming federal election gets underway.
The new law, enacted by Parliament in March, allows voters to exercise ‘optional preferential voting’ in electing Senators. It also repeals a mechanism which allowed parties to lodge pre-determined voting tickets which voters could select, allowing their ranking of all the candidates to be determined by the parties.
Constitutional experts have low expectations for the success of the challenge. Senator Bob Day of the conservative Family First party, who brought the challenge, is nonetheless optimistically predicting success.
The legislation is being defended by the Commonwealth Government.
Senator Day’s barrister argued several grounds for the possibility of the law being invalid. His main argument was that the optional preferencing form of preferential voting is constitutionally inadmissible, particularly in combination with compulsory voting. His presentation was met with probing doubts by several of the judges.
Counsel also argued that the Constitution’s reference to senators being “directly” elected meant that votes could not be cast for parties. The voting system in use is actually the candidate-based single transferable vote method.
The argument will turn on whether the voter-convenient ballot facility used to generate rankings of candidates by taking parties a block at a time will be interpreted to be an ‘indirect’ form of voting. Such a judgement would rule out the future use of European-style party list systems for Australia.
Comments during the hearing from Chief Justice Robert French suggests that there may well be a constitutional rule against party-based voting. Whether the current legislation breaches such a rule, however, is far from clear.
Senator Day has also been arguing that the optional preferencing mode of voting causes some voters – up to three million, he claims – to be ‘disenfranchised’. His argument, which needs to overcome the reality that votes have the effect the voters themselves choose to give them, did not appear to find support from the bench.
Papers relating to the case, including the written submissions by the parties and transcripts of the Court hearings, are the Court’s website: Day v AEC.