On Elections

How people elect parliaments

Court to decide fate of Senate voting law

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.

4 comments on “Court to decide fate of Senate voting law

  1. cvsanders
    May 11, 2016

    Above-the-line voting is as direct as voting below the line, because either way you are indicating that you wish to number the candidates so marked in the order in which they have been marked.

    In any case, there doesn’t seem to be any quarrel with Schedule 1, Section 168, the continuing existence of which would simply cause voters to take more time in filling out ballot papers if they still wished to number the candidates in the order in which they have would have been marked were there no faster way to indicate their preferences.

    In addition, given that even in Canberra, where only 80% of voters cast above-the-line votes in 2013’s federal election, removing the option to vote above the line would certainly cause a great many voters to choose to not cast formal votes in the Senate, disenfranchising many, many more than Mr Day’s potential 3 million.

    • Malcolm Baalman
      May 12, 2016

      Certainly, one of the things to look for in the coming High Court decision is some guidance on what ‘direct’ means legally. At one end there would be no intermediaries – i.e.: only specific selection of individual candidates by voters is allowed. At the other end, voting for parties clearly seems to be ‘indirect’ (although many European and other countries of course accept it.) The above-the-line Australian innovations are hybrids; as you say cvsanders, the underlying counting is still in reality about votes between individuals, but the voter behaviour that is invited (and encouraged) looks more like voting for parties. Is there a difference between degrees of this hybrid-ness, so that the past and present above-the-line methods have a different legal impact? We may be about to find out. The decision on Day’s case is expected on the morning of Friday 13th (!), although detailed reasons may come weeks later.
      I don’t think ACT voters (I was one for years) – or any others – will now choose to vote informal any more than in the past, and anyway if they were choosing to do so, it’s not really disenfranchisement. To be ‘disenfranchisement’, I’d argue that a voting rule would need to be so hard to follow, or so obnoxious to what voters wish to do, that genuine attempts to vote were being blocked. I think the old below-the-line rule could partially be described that way, but the new optional voting rules much less so.

      • cvsanders
        May 12, 2016

        Agreed. It’s certainly interesting. Given that there’s nothing in the Constitution about parties, they remain legally vague. Is voting above the line encouraging voters to vote for a party, or is it giving voters information about which candidates belong to which set of stated policies? In Lower House ballots, party names (if any) are printed next to the names of the candidates. Is that also encouraging voters to vote for a party rather than a particular candidate?

        I don’t know. But I’m keenly interested, whatever the outcome. In the end, I’m in favour of enfranchising voters, regardless of their preferences. What constitutes enfranchisement more – group voting tickets or optional ATL? Perhaps the former, as it ensures that a vote won’t exhaust without electing someone. But does it represent an individual voter’s true preference order? How many people read the preference allocation information at the polling place? I never have (although that’s because I’ve already examined them in great detail on the AEC website, of course). Until the 2013 election, a great many people thought that their votes exhausted at the bottom of the column they had numbered. I know highly educated, informed people who have been voting ATL for decades not realising that their preferences were being distributed past the group they’d chosen. I was actually kind of surprised at how many people didn’t know about ATL preference flow BTL. I just kind of assumed people knew. I think that’s part of why so many people are in favour of the abolition of Group Voting Tickets (or just ‘Senate reform’ in general) – because they thought they’d been voting one way for a long time and the results of the 2013 election brought to light the fact that they were labouring under a misapprehension. By casting a vote for their chosen party, they had no idea that their vote would end up electing someone completely different. So is that ‘direct’? Is ATL ‘direct’ at all, with or without the Amendments? Certainly there is a difference in the *instruction* printed on the ballot paper for ATL and BTL voting… but do they not have the same *effect*? And is it the instruction or the effect which takes precedence?

        I personally advised full optional preferential voting both ATL and BTL. My reasons were mainly based on the idea of making voting as easy as possible for those people who are so often most disenfranchised – the blackfellas, first generation immigrants, people with a low level of formal education. The elderly are also hugely disenfranchised during the counting process but that’s to do with the formality rules regarding what constitutes a 1. That’s a whole other story. Another time, perhaps! But the ease of comprehension of clerk instructions in places like indig reservations, for example, or in highly multicultural areas, is paramount to the enfranchisement of the voter. If someone is confused by instructions, they are more likely to fail in an attempt to cast a valid vote. A simple ‘number as many boxes as you like EITHER above OR below the line’ is something which would be much easier to understand than the Amendments to the ACT, and also to the ACT before the Amendments. But would a voter casting a single 1 below the line really enfranchise that voter? Technically, yes. But effectively, possibly not. Depending on their choice, their vote might exhaust before electing anyone. Preferential voting is designed to reduce that possibility. So. Another question for which I don’t know if there is a definitive answer.

        In general, I support the Bill and the Amendments therein (although there is some wording in there which I would tighten up if I was drafting it, just because I think there are some loopholes now which… well, which could be troublesome….). I don’t think someone should take a Senate seat with less than 1% of the vote. These Amendments effectively stop that from happening. Could there have been a better way to achieve that goal? I don’t know. It’s awfully complicated and I didn’t even finish high school, so I’m not really equipped to come up with The Perfect Solution. There’s no doubt that the Hare-Clark method is at least one of the best systems anyone has devised so far. Condorcet? Very hard to explain to voters. Very hard to explain to pretty much anyone, really. And like any other method, not 100% perfect.

        What’s really great about the 2013 results and the subsequent debate over the Amendments is that more people seem to be educating themselves about our electoral system, which I think is wonderful, whatever their opinion. I have always maintained that ‘how voting works’ should be taught from Prep to Year 12, compulsorily. So few people understand the system and its processes. If it achieves nothing else, this whole debate over Senate reforms has engaged more people in trying to understand how it all works, and maybe to ponder how they think it *should* work. What are the fundamental principles of our democracy, and how do we ensure they are given precedence over other principles? And whose principles are the right ones?

        I don’t know.

        But isn’t it fun figuring it out?

  2. cvsanders
    May 12, 2016

    One thing I *do* know: counting and scrutineering this election is going to be total chaos, and the Government in all its wisdom has left the Commission with a whole 38 days from the night of the election to return the Writs on a Double Dissolution where the voting rules have changed and formality is in dispute. I feel for the AEC. I really, really do. Those poor buggers. Perhaps we should send them some care packages or something. 38 days. Ridiculous. Stupid Turnbull. He obviously has no concept of what is involved in the counting process. And shouldn’t a PM be informed of such things?

    Silly man.

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