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Likely arguments in Day v Regina

By James Moylan

Even given that there are generally only two or three flavours of opinion available in the Australian media regarding any given topic, anyone who has not been following this case closely might be forgiven for thinking that Senator Day has simply lost his mind and is currently occupying the time of the High Court in some vainglorious attempt to restage the Man of La Mancha.

Without going into any great detail (like ‘legal arguments’) all of the journalists across all our papers have uniformly dismissed the case as being one with zero legal, moral, political, and/or spiritual merit. Each and every ‘Special legal affairs commentator’ working for a paper anywhere in our land, was first utterly taken aback that this case would even get a hearing, then positive that all the sensible Herald Sun and SMH reading justices of the High Court would immediately see through what was (most likely) a chimera of ideologically driven protestation. Probably even before lunch. Nothing to see here: move on.

Now I know that I am unlikely to ever get a job as significant and powerful as ‘Special legal affairs commentator’ working for a big paper. I am just an obscure legal academic and cultural commentator. But I think they are all wrong. I think that Senator Day has a 50/50 chance of winning a declaration from the High Court that some aspects of the proposed legislation are unconstitutional.

To succeed, Senator Day has to demonstrate that one or more provisions of the new rules are directly or indirectly inconsistent with provisions of our Constitution. The arguments that will be tendered fall under three general headings.

The argument least likely to be provided extended consideration is that the proposed alterations disturb the existing proportional voting system in a manner that will disenfranchise voters of their existing rights because some votes in the senate will now be ‘exhausted’ (i.e. will not be considered in assessing each voting round until only one candidate and one runner up are identified, or, in a manner in which the sum total of the votes assessed in considering the final outcome is not equal to the sum of the total votes cast).

But all voting that is not proportional will, of necessity, lead to votes being ‘exhausted’. Moreover this argument simply does not sit well in a constitutional framework which was written well before a proportional voting system had been implemented anywhere in the world. And while there are arguments relating to equity which are used in administrative law that suggest that no action of government should negligently or maliciously curtail an exiting ‘right’. In this instance it is difficult to propose that a particular identifiable constitutional ‘right’ was granted in an immutable and unalterable fashion simply by the action of a statute adopted in 1984. This argument is the weakest of the three.

The court will also consider if the stipulation in the Constitution that voting be ‘candidate based’ has been usurped. In section seven our Constitution directs that: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.

Yet the new rules direct that a vote for a Senator will now only be counted if their party affiliation is popular enough to warrant that a vote for one of the individual candidates belonging to that party should be counted. Note that the legislation pays heed first to the party affiliation of a candidate rather than to the particularities of the candidate. Therefore, under the proposed alterations to the law, the voter will no longer directly choose their candidate. The only candidates that will now be considered for office are those that belong to the most popular political parties.

Surely this is unconstitutional? The Constitution does not say that ‘The Senate shall be composed of senators for each State, chosen from amongst the most popular political parties, by the people. It says directly chosen by the people. Nothing more. Surely if the framers of our Constitution had envisioned that some other more significant criteria needed to be interposed between ‘directly choosing’ and ‘their candidates’ then these particular significant criteria would have been spelled out in detail and inserted into the document.

The framers of the Constitution at no stage indicate in the document or in any of their commentaries that they thought that the gross popularity of a political party should be prioritised above the ‘direct choice’ of a voter. However this direct contradiction is not only apparent in the proposed legislative change, it is insurmountable. Because the new legislation attempts to fundamentally undermine the priority of the direct choice of the voter and substitute instead the popularity of a grouping of candidates as being the first and thereby most critical determinant in the counting of votes, then it is impossible to strike out particular discrete sections of the bill so as to render the remainder constitutionally valid. For this reason I believe that if the High Court finds that the legislation is incompatible with elements of section seven then it will likely strike down the whole bill.

The third argument that the legislation is unconstitutional is founded on section nine which directs that: The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States.

This most sophisticated of the three arguments will also likely be the most difficult one for the Justices of the High Court to dismiss. This argument hinges on the obvious reality that the new provisions will cause the method that will be employed in counting the votes in each state to differ from state to state. Remember earlier on in this document I pointed out that the new system now breaks all the votes cast for the senators across Australia into two different piles, one containing votes cast for a popular political party and another with votes cast for unpopular parties. However the nature of these two piles will be different in each state because exactly who are the most popular political parties will certainly vary from state to state. So someone who belongs to the Koala Party might have their votes counted in one state whereas in another they will not be counted. In other words ‘the method’ of sorting the votes will no longer be uniform across all of the states. And since it is impossible to simply strike out any particular offending provisions and thus render the bill inoffensive (at law) then if the High Court finds that these provisions are incompatible with section nine then they will likely strike out the entire raft of legislative changes.

Note that the ideas that attend each of the three types of argument that will likely be advanced can be described in fairly simple and comprehensible terms. Also note that when considered in these terms then the arguments are not only comprehensible but are also substantial and largely meritorious. But if you read only the mainstream news then you would likely remain as ignorant and misguided as your average ‘Special legal affairs commentator’.

I would also wager that if these arguments are successful and the High Court does direct the parliament to reconsider this legislation then every ‘Special legal affairs commentator’ in the country will at once express utter amazement that such a thing could possibly have ever occurred. I mean; who could have possibly foreseen that the legislation may have been faulty? To do so would have required reading the Constitution, and the proposed legislation, and then comparing them! Perhaps even asking someone who is more interested in constitutional law than in partisan politics? I mean: who has the resources or wit to do something that complicated?

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25 comments

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  1. Kate M

    I couldn’t agree more. Have been thinking exactly the same thing. There are some really valid issues here around the dominance of political parties in our democracy when they aren’t even referenced in the constitution. I personally hope the High Court upholds his position as I think it holds significant merit.

    Great article.

  2. Miriam English

    It would be strange to strike down the new rules for voting for the Senate and to simply re-instate the old rules, because the old rules are even less constitutional than the new ones. The best thing would be to get rid of any system where we vote for parties, and instead vote for candidates. My memory may be flawed, but isn’t that how below-the-line voting is laid out? If that’s the case just getting rid of above-the-line voting would do the trick. If I’m right then all the small parties and independents will want that, but the two big parties would hate that idea.

  3. Michael

    Would not “allowing” (whatever that means) an elected member a “free” vote or exerting pressure (intimidation, dire consequences, etc) on an elected member by others (fellow members, party apparatchiks, etc) come into this?

  4. Gilly

    I also have concerns that above the line would constitute a vote for a group and not a directly chosen senator S7

  5. Ben Aveling

    “Yet the new rules direct that a vote for a Senator will now only be counted if their party affiliation is popular enough to warrant that a vote for one of the individual candidates belonging to that party should be counted.”

    Not sure what you mean by this?

    The legislation as passed is here: http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fbills%2Fr5626_aspassed%2F0001%22;rec=0

    There’s nothing in there (that I can see) about votes only being counted if there is a party affiliation. Am I missing something?

    Also, is it fair to say that all of Bob Day’s arguments would also apply to the old system of voting above the line – perhaps even more strongly than they do to the new system?

  6. Stove-pipe

    Thank you for posting this. I knew it didn’t smell right but I’m not a lawyer. I’m very glad it is being challenged; anyone with half a mind towards distrust of political parties can see they only vote for things in their interests.

  7. lawrencewinder

    What a beaut article … clarity at last.

  8. RosemaryJ36

    Ben Aveling – all amendments to legislation must be read in conjunction with the legislation being amended – otherwise you miss out on appreciating which paragraphs are being deleted.

  9. randalstella

    Which sections of the legislation is the writer referring to?
    Should I have to ask that question?

  10. Terry2

    It is absolutely critical that the High Court scrutinise any electoral changes that could infringe on the constitutional guarantee of ‘directly chosen by the people’.

    Those who framed our Constitution anticipated that politicians would fiddle with electoral legislation – frequently for their own benefit – and this was explained by former Chief Justice Murray Gleeson when he noted his view that ‘it was for Parliament to devise and alter the method by which people of the a State vote for Senators – however this should be subject to the constraints as embodied within the expression “directly chosen by the people”.’

    In 2007 the High Court overturned electoral legislation which would have limited the right of certain categories of prisoners to vote so it is not without precedent for the High Court to step in when politicians get carried away.

  11. Rob101

    … If there is only below the line voting, then the candidate ranked number one on a party ticket would be less likely voted in, which would include Abetz from Tas and Patterson from Vic.

  12. Marian Smedley

    ” Not going into details like legal arguments” LOL that is all the High Court will be looking at – legal arguments. Their job is to interpret the Constitution and the law, that is all.

  13. Ben Aveling

    Hi RosemaryJ36. I’ve done a side by side diff of the latest and previous versions of the legislation. I’m still not seeing anything that would mean that people can’t vote for individual candidates, rather than parties.

  14. Ben Raue

    I’m sorry but this is not factually true: “Yet the new rules direct that a vote for a Senator will now only be counted if their party affiliation is popular enough to warrant that a vote for one of the individual candidates belonging to that party should be counted. Note that the legislation pays heed first to the party affiliation of a candidate rather than to the particularities of the candidate.”

    What you’re describing is a threshold system such as that which Anthony Albanese has been advocating. That is more likely to be unconstitutional, in part because it explicitly discriminates against small parties on their primary votes.

    This system does mean most votes will be cast for a party and then passed on to candidates within that party group, but all votes will be counted.

    I actually think Day’s argument on the “directly chosen” is just about the fact that this system sees votes cast for parties not for candidates. This has been Mackerras’ argument for why the above-the-line voting system has been unconstitutional since 1984.

    I think the argument you are making about “voting methods” is ridiculous. A method doesn’t change based on who gets more votes. Does the method of electing the House of Representatives change because the Nationals can get elected in one seat and have no chance in another? No.

    However I don’t think that’s the argument that Day is advancing. It’s hard to say for sure because none of the submissions or affidavits are available online, so I’m relying on the transcript of the first day’s hearing and the media reports.

    The Solicitor-General in the hearing described Day’s argument as this: “The first of them says this is not a uniform method of electing the Senate because voters are given the choice to do it above the line or below the line, a uniform choice across the country.”

    So their objection is to the fact that voters have two ways of voting – apparently under the new legislation they are described as “methods” whereas they weren’t previously.

    The Solicitor-General argues that a number of Day’s arguments (including the method argument and the “directly chosen by the people” argument), if they were true, would invalidate all elections since 1984.

    Day’s lawyer disputes that, and argues that “this is the first occasion since Federation that the Commonwealth Electoral Act has provided two separate and distinct methods of voting for the Senate and the question is does this contravene section 9 of the Constitution.” It’s hard to understand how you can say that without getting into semantics about the use of the word “method”, but that’s what they do.

    He doesn’t get a chance to fully explain why they think the above-the-line voting is unconstitutional now but wasn’t before the current legislation was passed, but the lawyer did say “There has not been since Federation any provision of the Commonwealth Electoral Act that has required electors for the Senate to vote for parties, not individuals”.

    I can’t see how you can say the legislation “requires” voters to vote for parties when the below-the-line option exists, and indeed is much easier than it was before this legislation. If you think the current system requires voters to vote for parties, surely that also applied since 1984?

    Overall I think their case is very weak. There may be some merit in some issues but all of those issues applied just as strongly, or more strongly to the group voting ticket system.

  15. townsvilleblog

    Miriam English, as usual I agree with your diagnosis Senator Day is a member of the Australian arm of the USA Cult, the assembly of god. I know their membership consists of otherwise some very intelligent people, including politicians, but hopefully they have no influence in the High Court, and the legal decision is based entirely on the constitution. That would provide the last straw into the appearance of shambolic leadership with the federal LNP and would almost certainly cost the LNP the next election if the verdict arrives before the 2nd of July.

  16. townsvilleblog

    Ben Raue, I like most Australians won’t be arguing about the ins or outs of a duck’s arse, I will be voting below the line 1-12 with the Qld Independents Lazarus and Walters in the first two spots, followed by Labor, and then Green and place the LNP at 11 and 12, then go about filling my ballot paper according to preference for the remaining four positions.

  17. randalstella

    Ben,
    Thanks for your post.
    I think the article above might be a kinda postmodern thing.

    townsvilleblog,
    Have a think.
    You have some liking for the Libs?
    If not, why are you determined to waste preferences on them?
    What about the rest of the candidates? You would be registering your preference for the Libs over them.
    It is Optional Preferential Voting. Minimum preferences BTL, as instructed on the ballot paper, will be 12.

  18. Miriam English

    townsvilleblog, please don’t vote for LNP at all. I’d suggest leaving them off the list entirely. That way they get absolutely no vote from you.

  19. Ben Aveling

    In no particular order:

    > I will be voting below the line 1-12

    There’s no reason to stop at 12. You can put as many as you like.

    > “the new rules direct that a vote for a Senator will now only be counted if their party affiliation is popular enough to warrant that a vote for one of the individual candidates belonging to that party should be counted.”

    I’m still trying to understand why James believes this. If it were true, then it would pose a real threat to micros and independents. But unless it’s really well hidden in the legislation, I don’t think it’s true. I’ve looked, and I don’t see anything that would have this effect.

    > “the legislation pays heed first to the party affiliation of a candidate rather than to the particularities of the candidate”

    IMHO: This much is sort of true. But I don’t think it’s enough to hang a court case on. A vote above the line, for a party, is still a direct vote for the candidates that make up that party. It’s just a shorthand way of filling all the boxes in that column. It’s not enough to turn the election into an indirect election. [An indirect election for a position is where the electorate elects a body, and that body elects someone to the position. For example, popularly elected councillors electing the Mayor, as opposed to having a directly elected Mayor.]

    I think it’s probably useful to have the High Court have a look at the legislation. I expect they’ll endorse the new system. If they don’t, it’s hard to say what happens next. As various people have observed, if the new rules are unconstitutional, then the old rules are also unconstitutional.

  20. James Moylan

    Oops – notes to assist readers.

    First of all I was trying to make sense of the likely arguments that might be tendered in court (not agreeing or disagreeing with them personally) and I was doing so on the basis that everyone likely understood why the proposed legislative changes represent such a change in the way in which we count votes. Apparently I was wrong.

    I apologise. I am a wonk and so I expect that everybody else on the globe also has an unhealthy obsession with the dark arts of electoral mathematics. The new system changes everything because it shifts the criteria for judgement (the methodology) from one which is exclusively focussed on the differential ratings provided to candidates to one where the six most popular groups of candidates are privileged above all the rest. Below I provide a few clarifying notes.

    According to Anthony Green: ‘The proposed changes in the legislation abolish group vote tickets while retaining above the line voting. Electors will now be instructed to number at least six squares as preferences for parties. Preferences for candidates will be imputed to be in the order of the candidates for each party as listed on the ballot paper.’

    Note that under the new system however many candidates that one of the six most popular parties wish to list below the line will be able to be voted for with all preferences flowing down to the next in the list in that party. However these ‘imputed’ preferences will now be available only to candidates of the six most popular parties.

    Under the old system, even if you voted 1 above the line then all of the preferences would still be distributed (it would be done for you by the party). Now that all the group voting tickets are being eliminated then the voter is being asked to choose between preferencing individual candidates below the line or political parties above the line. This is entirely novel,

    It is because the choice of preferencing has moved from below the line (for individual candidates) to above and below the line then the dynamics have been entirely altered. This is because now the above the line preferences are restricted to only the candidates of the six most popular parties. So the candidates who are in any of the parties who are not in the top six are disadvantaged. But our system is not a party based system. It is supposed to be candidate based.

    Regarding the section nine uniformity argument. I avoided going into close detail as it is entirely technical but you asked for it (in truth I am culpable of the same lazy journalism that I so often decry).

    Imagine that there are no parties and everyone simply votes below the line and numbers every box. That is the legal myth regarding the way we vote now. When we vote above the line it is just a shorthand way of voting for every candidate below the line. The party rather than the voter distributes the preferences but still every voter votes for every candidate. Think about this as the baseline from which we are departing.

    So if I vote A B C D E F Parties above the line in Tasmania but party A does not exist in Western Australia then am I am voting in a way in Tasmania that is not available to someone in Western Australia? The constitution says the method of counting the votes has to be uniform but then the constitution doesn’t even consider that we might vote for a political party rather than candidates.

    So while the reason we need to count the votes in Tassie differently to the way in which we count the votes in Western Australia (using a different set of six favourite parties to define the preference flows) is simply because the popularity of the parties is self evidently different in each state. And while many are saying that this is stupid it is also apparent and self evident – and it is not in accord with the stipulation that all votes in all states be treated in a uniform manner. At the last election every senate vote in Australia was provided consideration using exactly the same electoral mathematical formula. Now the formula used will alter in each state. In what way is this not a move away from treating each vote uniformly across all of the states?

  21. paul walter

    I liked it for the reasons others have given, as to clarity.

    Like many others I also have had a gutful of media and press trying to “mediate” for conservatism. I fell off my chair with laughter at this “chimera of ideological protestation” bizzo and harked back to the corruption everyone missed as to Heydon’s IR kangaroo court itself.

    And what is the meaning of the word “Sinodinos”, btw?

  22. jim

    Great post my question is how much do we trust the Liberal party infused High Court.?

  23. jim

    Recently some said to me anyone that votes for the LNP is either selfish or ignorant I totally agree.Please leave the LNP squares blank this 2016 election thanks.

  24. Jexpat

    The second argument makes no logical sense unless the current method of complicated preference flow, -infuenced by “preference whisperers” on group voting tickets (that few voters other than arcane cognoscenti even have knowledge of, much less understand beforehand) is also unconstitutional.

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