On Elections

How people elect parliaments

Legal ruling means original voter ballots will determine new Senator

The new Senator to replace Bob Day, who left the Australian Senate late last year, will be determined by a recount of the ballots from the July 2016 election, after the High Court today ruled on legal nature of Day’s departure.

The Court held that due to a prohibited financial interest in an agreement with a Commonwealth government agency, Day was ineligible to be elected.

image - Australian High Court.jpg

The Australian High Court has ruled on former Senator Day’s had an “indirect pecuniary interest” in an agreement with a Commonwealth agency that invalidated his eligibility to be elected

But the Court also held, following past precedents, that the ballot paper column of Day’s socially conservative Family First party has survived the removal of Day as a candidate.

The voter preferences in question will now almost certainly flow in an official vote recount to elect the second candidate in the party’s column, Lucy Gichuhi, as the replacement Senator for the state of South Australia.

Day and the Family First party leadership had apparently hoped that his departure would be classified as a resignation, allowing the party to nominate a replacement of their own choosing.

Day’s lawyers nonetheless supported using the recount method if he was found to have been an ineligible candidate, since that process should at least keep the seat within the party.

The special recount to be conducted will almost certainly not disturb the places of any of the eleven other Senators for South Australia, because Day was elected in the 12th and last position in the original vote count in July 2016. Such a displacement remains hypothetically possible, but is extremely unlikely.

An instance of displacement of another elected candidate occurred only last month in the recount of elected places on the Melbourne City Council, conducted on slightly different election rules.

But analysis of the public election result data appears to indicate that the other eleven South Australian senators are safe in this case, and also that Lucy Gichuhi will indeed be the new 12th senator.

The Labor Party’s Anne McEwen, beaten into 13th place in the original vote count, had argued to the Court that the Family First ballot group should have been completely invalidated.

McEwen had hoped that by preventing around 24,000 votes of Family First supporters from flowing to Gichuhi, instead becoming scattered among many other unsuccessful candidates, she might have captured the 12th seat herself. The Court rejected this submission.


The Angry Goats website posts simulations of four possible recounts for the South Australian Senate count. The two simulations including the above-the-line Family First votes both result in Lucy Gichuhi winning the vacant seat.

The site also indicates that if Family First’s above-the-line votes are not included, then Labor’s Anne McEwen will win the 12th seat. That would appear also to be the result if Lucy Gichuhi is for any reason herself ineligible.

Some media reports are noting that Gichuhi was born in Kenya, and suggest that she to may be ineligible for election as a dual citizen. Gichuhi migrated to Australia and it is not disputed that she has taken out Australian citizenship [update: she did so in 2001; see comments below].

If a candidate for election to the Australian Parliament has dual citizenship, past Court precedents demand that the foreign citizenship should have been terminated for a person to be eligible to be elected. But some overseas national legal systems do not provide for citizenship to be terminated, or do not do so automatically, and in such cases Australian law requires that candidates have made reasonable efforts to renounce any foreign citizenship before running for election to the Parliament.

However, the Kenyan Constitution apparently voids the Kenyan citizenship of anyone who takes out citizenship in another country. If that is the case, then Gichuhi is no longer technically a dual citizen. [Update: see comments below]

The Commonwealth Government has indicated (5 April) that the recount will take place over the next few days.


Who gets to choose – voters or party officials? (April 4)

So … Who did put Family First? (April 3)

UPDATE (12:10pm)

How the vacancy should be filled – analysis of the written Court judgments

The finding that Bob Day was never eligible to be elected has led the High Court to direct, as it has in previous cases, that the provision of the Electoral Act dealing with deceased candidates should be applied by analogy.

The result is a ‘special count’ of all the votes cast in the election, with candidate Bob Day disregarded and all voter preference numbers marked on the ballots that came after Day being shifted up one place.

The remaining issue in dispute was what to do about the party column for the Family First party, which now has only one remaining valid candidate.

Of the parties to the litigation, the Commonwealth Attorney-General and Bob Day both accepted that if Day was found to be an ineligible candidate, the previous findings in favour of using the recount procedure should apply.

But the candidate who ran 13th in the original poll – Labor’s Anne McEwen (a former Senator, who had narrowly lost her seat at the election) challenged that approach, and sought to have nearly 24,000 above-the-line votes for Family First disregarded.

Her argument would not have needed to fully invalidate those thousands of votes – and it’s a little ambiguous that that was what she was actually calling for – but even by removing them from Family First and scattering them among a wide range of other candidates who came next on the voter preferences, that change may well have caused McEwen to be able to overtake the second Family First candidate (Lucy Gichuhi) and claim the seat.

The Electoral Act states that a ballot group (i.e.: party) position above-the-line* requires a minimum of two candidates to be listed. The problem arising here, as it did in the Wood (No. 2) (1988), Hill (1999) and Culleton (2017) cases, is what is to be done where one party candidate (inevitably the candidate listed first, since it is their disputed election which always gives rise to these cases) is found to be ineligible to be elected.

(*For non-Australian readers, Australian Senate ballot papers are divided into two sections by a horizontal line. Voters only use one or the other of the two options. Above-the-line votes allow voters to select an order of parties, and (post 2016) this is counted as if the voter had marked sequences of preferences automatically running down party lists of candidates. Below-the-line votes allow voters to mark numbered preferences for every single candidate from all parties and independents, in any order they wish.

In the successive Wood, Hill and Culleton decisions the Court gave a clear answer. The analogy with a deceased candidate was to be followed, meaning that the ballot group was to legally survive, and the preferences resulting from ballot papers marked above-the-line for that group could flow on, obviously going entirely to the second-listed candidate in that column.

In all three cases, the second-listed party candidate did indeed become the replacement senator – a result accepted by all observers as being appropriate.

In the Court hearings in February this year McEwen’s barrister needed to convince the Court to find some distinction from the Wood, Hill and Culleton precedents (he did not mention the Culleton decision, handed down by the Court only a week earlier, but it is a continuation of the earlier precedents). He pushed three arguments.

First, McEwen’s barrister suggested that the Day situation might have involved a deliberate act of illegality during the nomination process in May 2016, in which Day was fully aware of his ineligibility and yet lodged his party’s application for an above-the-line group voting box (a separate process from individual candidate nomination) regardless.

The argument contrasts this with the fact (apparently undisputed) that the lodgment of the relevant group voting tickets by the parties in Wood, Hill and Culleton (the Nuclear Disarmament Party in 1987 and One Nation in 1998 and 2016) were not impugned by any consciousness that any candidate’s nomination and the group ticket lodgment had any defect.

This is of course a factual claim, the strength of which may not have been fully tested in the litigation, so whether the Court could have based a decision on this assertion is not clear.

In addition, as a matter of fact it was not Bob Day personally whose state of knowledge prior to the lodging of the group voting ticket matters, because technically the ticket is lodged by the responsible official of the registered party, not by the candidates.

In any case, at the Court certainly did not find in favour of this assertion today.

Secondly, McEwen’s barrister argued that the situation differs from Wood, Hill and Culleton because Bob Day, unlike candidates Wood and Hill, was a high-profile figure in the election campaign, being already a sitting senator. The argument ran that this made a material difference when interpreting the intent of the voters, and therefore in deciding what form of recount to order.

The claim was that unlike in the cases of Wood and Hill (and presumably also Culleton), the transfer of votes to candidate number 2 in the ballot group would cause an actual distortion of the voters intent, so much so that the Court should specifically refrain from assuming that the voters would have been comfortable with their preferences transferring to the second candidate on the list if the first-listed candidate is removed.

This is a major stretch of reasoning. Apart from assuming – only for this case – that voters actually don’t wish to vote down the party column (even though by marking the column above the line that is precisely what such a ballot seems to indicate), the argument essentially holds that the flow of preferences – used in every other circumstance in the counting of elections – should not be taken as a sincere statement of voter intent.

It amounts to a rejection of the whole logic of preferential voting as recorded by marks on ballot papers, but only for this specific circumstance.

As an attempt to discard the expressed intention of voters, such a claim can hardly be be justified without the strongest indications that voters really would have done something different had they known. This is not a conclusion that appears anywhere in the Wood, Hill and Culleton decisions.

Finally, McEwen’s counsel attempted a third and potentially stronger argument, relating to the legislative changes made in 2016. The suggesting was made that there is a material difference between the legislation applying when Wood and Hill (but not Culleton) were decided – which was the strict group voting ticket (GVT) technique, where only a single “1” was marked on the ballot – as opposed to the optional preferential version of above-the-line (without GVTs) which was made the law in early 2016.

In the new 2016 version of the ballot design, voters were urged to mark above-the-line at least numbers “1” through “6”, and more numbers for more parties if they wished.

This is a material difference in the ballot design. Had the Court invalidated the ballot group votes in Wood and Hill, the effect would have been to invalidate the whole of all the votes in question, effectively disenfranchising all of the relevant voters, and of course altering the election result in terms of partisan outcome.

In the 2016 version of the law, a ballot in which one above-the-line ballot group is invalidated may still show other preferences to be made use of. Such a vote is not fully invalidated, and the voters are therefore not fully disenfranchised (although there is slightly higher prospect of their ballot exhausting by running out of preferences, but that depends on the voters’ own actions.)

But even this result is far from satisfactory, because one important option for the voters is denied to them (and one opportunity for a candidate to be elected is effectively removed), which is the option of having their preference counted for the second listed candidate in the ballot group. And of course this is precisely the candidate who is by definition the next most favoured by voters who have marked a preference for that ballot group above the line. It therefore seems entirely unreasonable that this is the one voting option which should be eliminated.

Obviously incompatible with this argument, the very recent Culleton decision indicates that the Court continues to find the same result in similar cases even after the legislative amendment of 2016.

Taking into account the reasoning in Wood and Hill, none of these arguments really provide a reason why the election prospects of party candidate number 2, or the intentions of the voters in securing the representation they next prefer, should be thwarted because of the unforeseen removal of candidate number 1 from being available for election. They were in reality calls to overturn the Wood and Hill precedents altogether.

In any case, the Court has clearly rejected all the arguments presented by former Senator McEwen, with the Chief Justice’s judgment (joined by Justices Bell and Edelman) finding that:

Contrary to [McEwen’s] submission, a special count which deprived the above the line Family First voters of their vote would distort voter intentions. …

The result of such an argument would be that no effect would be given to the votes given to the other candidate.”

Their guiding principle, quoting earlier cases, was that:

“A vote is valid “except to the extent that the want of qualification makes the particular indication of preference a nullity.””

Justice Keane wrote separately that:

Ms McEwen has not demonstrated that the special count … would result in a distortion of the voters’ real intentions rather than provide a reflection of the true legal intent of the voters so far as it is consistent with the Constitution and the Electoral Act. Indeed, Ms McEwen’s contention that the votes cast for Family First should be disregarded would, if accepted, constitute a most serious distortion of the real intentions of many thousands of voters, by depriving those votes of all effect.

Ms McEwen’s suggestion, that voters who cast above the line votes for Family First may not have intended that their votes should flow to the next individual nominee of the Family First group in the event that Mr Day was incapable of being elected, rests upon the assumption that those voters did not understand the effect of casting their vote above the line for Family First. That assumption proceeds upon a view of the intelligence of one’s fellow citizens which is inconsistent with the assumption as to the intelligence of the electorate that underpins the provisions of the Electoral Act, and, indeed, the very idea of democracy.”

Justices Nettle and Gordon observed that:

“…there is no substantive difference between a vote above the line and a vote below the line for the purposes of the Electoral Act. Votes above the line are deemed to have been marked below the line … There is then no reason to treat those votes any differently.”

In regard to the issue of which procedure would distort voter preferences, the two judges also wrote:

“Contrary to Ms McEwen’s submissions, it is not possible, and it would not be right, to take account of only so much of the electors’ expressions of preference as would lead to the result that all preferences cast for the group of candidates endorsed by Family First are to be ignored. Only the election of Mr Day miscarried, so only a primary or preferential vote for him must be disregarded.

… [t]he votes cast in favour of Family First, of which Mr Day was an endorsed candidate, should be counted in favour of the next candidate in the group … There is nothing to suggest that the votes cast above the line in favour of Family First were not intended to flow to the next individual nominee of that party in the event that Mr Day was not capable of being elected.”

Quoting the judgment in Cullerton a few weeks ago, they concluded:

“[t]here is no reason to suppose that a special count would ‘result in a distortion of the voters’ real intentions’, rather than a reflection of ‘the true legal intent of the voters.”

Justices Nettle and Gordon also specifically addressed the argument that the legislative amendments of 2016 altered the position, and found that they did not.

The Chief Justice summed up the overriding principle as being that:

The true intention of voters should be given effect so long as it is consistent with the Constitution and the Electoral Act.”

One final observation worth making is that had a significant number of the ballots counted in the original count been declared wholly invalid, the recount would then take place using a reduced quota – indeed, a quota around 2,000 votes lower than that used in the original count July 2016.

Given the sensitivity of the process of sequential elimination used in counting the votes to very close vote margins as each successive candidate is eliminated, using such a reduced quota would have substantially increased the probability of a change in the election of one of the eleven other successful candidates at the original count.

Court decisions:

In Re Wood (No. 2) (1988) 167 CLR 145; Sue v Hill (1999) 199 CLR 462; Re Culleton (No. 2) (2017) 91 ALJR 311


UPDATE 2: Analysis of the reasons Day was ineligible to be elected.

Scholars have been picking apart the significance of the Day ruling.

Constitutional law Professsor Tony Blackshield has a thorough analysis of the ineligibility debate at AusPubLaw. He highlights that the Day ruling has unanimously found that the ineligibility clause in the Australian constitution has a wide purpose in ensuring that those sitting in parliament must not have any temptations to prefer their own financial interests over the public interests they should be serving as legislators.

This finding clearly overrules a 1975 decision by former Chief Justice (and earlier, conservative member of parliament) Garfield Barwick – one judge sitting alone, as is unfortunately all to common with urgent election-related cases – which saw the rule as being limited only to cases where the Commonwealth Government exercised some actual dominance over a member of parliament.

On the other hand, political scientist Professor Graeme Orr writes in Inside Story that the wide interpretation of the ineligibility clause has a chilling effect on who Australians are able to elect as their representatives.

Orr argues that other ineligibility provisions relating to dual citizenship, the commission of relatively minor criminal offences, and candidates holding public sector jobs prevents (or at least severely burdens) large categories of Australians from being available as candidates. This in turn limits the choices that voters might wee able to make in selecting their representatives.

Just ensure that the relevant facts are made public, Orr argues, and then let the voters decide.

5 comments on “Legal ruling means original voter ballots will determine new Senator

  1. Reg Jones
    April 5, 2017

    Interesting story with eligibility of Lucy Gichuhi.

    Old 1963 Constitution of Kenya had provision that you lose your Kenyan Citizenship automatically upon acquiring citizenship of a new country.

    New 2010 Constitution of Kenya says the opposite.

    Much like Australia’s Citizenship Act before it was amended in 20-oughts (by memory).

    Anyway, so long as Lucy Gichuhi acquired Australian citizenship before 2010, she should be safe.

    That voluntary act should have terminated her Kenyan citizenship.

    • Malcolm Baalman
      April 5, 2017

      Great research Reg.
      On that basis, I saw a media report tonight that indicated that Lucy Gichuhi’s Australian citizenship dates from 2001. That may decide the issue.
      Media comments late today indicate that Gichuhi is confident in her eligibility.
      But this situation just keeps twisting and turning, so who knows.

  2. Andrew of West Essendon
    April 5, 2017

    Good article! Only change needed is *Culleton. No ‘r’.

  3. Michael Maley
    April 5, 2017

    I did see a comment in an exchange somewhere on the web on this, I can’t remember where, to the effect that the problem for Ms Gichuhi, if there is one, may arise not from her having Kenyan citizenship but from (in terms of s.44(i)) her being somehow “entitled to the rights or privileges of a subject or a citizen of a foreign power”. Obviously this would depend on the facts of the case and the subtleties of Kenyan law, into which I have no particular insights. (There’s also the question of whether there would be enough information on the public record to enable anyone to mount a successful challenge. I addressed that problem in my JSCEM submissions last year.)

    Another interesting issue relates to Mr Day’s situation. The High Court having ruled that he has been ineligible to sit since February 2016, he presumably signed an objectively false declaration in his nomination form for the 2016 election that he was in fact eligible to be elected. According to the AEC’s “Electoral Backgrounder: Constitutional disqualifications and intending candidates”, “Division 137 of the Criminal Code Act 1995 (Cth) (the Criminal Code) makes it an offence to provide false or misleading information or documents in purported compliance with a law of the Commonwealth, with a maximum penalty of 12 months imprisonment.”. (Of course, issues of whether or not such information was provided knowingly would probably come into play.)

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