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?
Also by James Moylan: