The big three political parties seem to have overlooked the fact that our Constitution does stipulate some parameters by which senators must be elected.
The hubris of the big political parties in Australia is remarkable. The recent debate regarding proposed alterations to our senate voting system has been engaged as if our democracy is the simple plaything of the political parties. Unfortunately for many of the propositions being advanced, ‘political parties’ are absent from our Constitution.
Yet our media seems to have simply lapped up and regurgitated the public relations output of the major parties without even considering the first principles that are at stake. Nor have they paused to consider the constitutional viability of these propositions.
The suite of propositions being advanced will alter the law to restrict the entry of new politicians to the Senate on the basis of what political party they might belong to. In other words, the new voting rules that are being proposed will thereby generate two classes of voters and votes. There will be those cast for one of the major political parties and those cast for one of the others.
However, political parties are an overlay on our political process that have been developed so as to allow blocks of like interests to coalesce together and serve the interests of particular politicians and their friends. They have no constitutional force. Rather, the rules by which our votes are cast and counted, as well as those which regulate the definition of who we are voting for, are all stipulated in our common founding legislative act. So what does the Constitution have to say?
Most significantly it dictates who shall be eligible to stand for election in our country (for both Houses we refer to Section 34) and it adds a few stipulations regarding the election of our senators (such as in Section 9). This section reads (in part): 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.
Note that the founders stipulated that the process has to be identical across all the states. It has to have a ‘uniform’ effect. It does not mention ‘political parties’. Yet as soon as any of these possible ideas for new senate voting rules is introduced then there will suddenly be two classes of votes and voters in every federal senate election (1- those that are cast for a senator and then passed on as a preference vote, and, 2- those that are not). Yet while our Constitution does seem to allow for our political class to alter the voting rules so as to enable two classes of voters and votes to exist; one of the very few firm stipulations is that any alteration must be uniform for all the States. Oops!
All the current proposals will result in a differential breakup in the votes cast in the Senate across our states. In NSW the system may provide for one set of six political parties being included and all the rest being excluded, whilst in Tasmania and Western Australia the list will be entirely different, etc.
When our Constitution was being framed the Senate was envisioned to be composed of individual members chosen with regards to regional (State based) criteria. However, under all the propositions that have been advanced then a candidate standing for the Senate in any state of Australia will be advantaged or disadvantaged relative to what political party they might belong to. In one state it may give you a leg up, in another you may not be on ‘the list’. This means that a ‘uniform method’ will not be used to differentiate votes in each state.
I will take a moment to reiterate the legal sense of the argument being presented once again. Many point to the inequity of having sitting members of parliament voting to impose restrictions on entry that didn’t apply when they were voted in as being inequitable. And so it is. But the Constitution does allow the Parliament to compose the voting rules as long as they abide by the few simple stipulations that are made. The Parliament is also allowed to split the voting ticket into two classes of votes and voters, but only if this arbitrary distinction operates in a uniform manner across all the states.
Further, this whole argument is both ill-informed and insulting. Instead of screaming about the size of an electoral ballot paper we should be celebrating it. The miracle that is the Australian ‘fair-go’ is based on the idea that we are a democracy born entirely in peace and so mainly devoted to BBQ’s and arguments in parks. However, this implies much more democracy rather than much less! Aussies carry a sausage sandwich and a big mouth. We have an opinion about everyone and everything but, apparently, we cannot possibly spend five to fifteen minutes once every three years filling out a big ballot paper. What unadulterated tosh!
But it seems that our current crop of incumbents have lost control of the democratic process so we must change the rules that applied to them to keep the ‘undesirables’ out of the House. Give me a break.
Yet in our big-media saturated fast food society we are buying it. What happened to doing your bit? What happened to pitching in and building an egalitarian paradise? Our current leaders and press seem to have decided, on behalf of me and you, that it is all too difficult for them to engage in negotiation and compromise or for us to have to read a long list and then number either one box or every one.
Who do these overpaid and entitled b*stards think they are? First and foremost this is all a whinge about their job being too difficult. My response: ‘If your party cannot get its way then you will have to negotiate with a number of other members of the Upper House. This is the way our democracy was designed to work.’
Just because the Australian population has started to vote for other people does not give our current crop of incumbent politicians the right to entrench their power and influence (and that of our political friends) at the expense of the democratic process. And thank heavens the people who framed our Constitution were pragmatic enough to foresee the tendency of our political masters to ever grab for greater power. So our Senate is different from the Lower House. Any alteration in voting rights must have exactly the same effect across the whole of the Commonwealth, so unless the legislation stipulates which six (or eight, or fifteen) parties will be allowed to run and which will not, then the effects will be differential, and thereby will be specifically precluded by action of Section 9 of our founding legislative act.
Expect any of the proposed alterations to face immediate challenge in the Federal Courts. Do not be surprised if one of the small parties makes application for an injunction precluding the implementation of these new Australian Electoral Commission guidelines on the basis that they are blatantly unconstitutional. If our politicians want to put political parties into the Constitution then they should have a referendum, otherwise they should do their job or make way for someone who is able to do it.
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