High Court unlikely to strike down voting laws

Until now the potential bear-traps for a double dissolution election have lain in the Senate, where interim supply would need to be passed, and Government House, where the Governor-General needs to be satisfied that all the constitutional conditions have been met.

Now senators Bob Day and David Leyonhjelm have set up a new bear-trap in a third Canberra location — the High Court. They are seeking an injunction to stop the Senate voting reforms from coming into effect, arguing that they are unconstitutional. Are they likely to succeed?

First, it is unlikely that the High Court would act so as to disrupt the democratic process. Rather than grant an injunction, the High Court would be more likely to hold an urgent hearing to dispose of the matter in advance of any election.

Senator Day said that the “basis for the challenge is that voters will be disenfranchised by the laws because their votes will no longer result in electing political candidates”. He also said that these laws are unconstitutional because “they do not provide for the direct choosing of senators by the people, but rather they provide for the direct choosing of parties”.

The argument about disenfranchisement is plainly wrong. No one is disenfranchised by the Senate voting reforms because no one’s right to vote is being limited or taken away. Not only does everyone who already had the right to vote retain it, but the ability of voters to express and control their voting choices is enhanced.

No longer can above-the-line preferences be dictated by party powerbrokers and no longer can voters be deceived by backroom preference deals that cause a vote for one party to be used to elect a person from another party with completely opposed policies.

The High Court has previously been critical of the use of single issue party names “calculated to catch the eye of voters and to channel preferences to another party (whose policies may be entirely unrelated to the name of the ‘single issue’ party)”. It has also accepted the public interest in laws “to reduce confusion in the size and form of the ballot paper; to diminish the risk and actuality of deception of electors; [and] to discourage the creation of phony political parties”.

What Day is actually contending is that optional preferential voting means that some votes will exhaust rather than passing on preferences to a candidate who is then elected. He argues that this means the Senate would not then be “directly chosen by the people” as required by section 7 of the Constitution. Day has a point, to the extent that the High Court has previously stressed the importance of maximising public participation in voting and recognised the value of giving full voting preferences.

But Day’s argument probably goes too far. It suggests that anything less than compulsory full preferential voting would be constitutionally invalid. It would mean that first-past-thepost voting, as was used for both houses in the early years of federation, was constitutionally invalid, as was voluntary voting. Even under the previous Senate voting system, just under one-seventh of votes ended up with candidates who were unelected. In an election, not every vote elects a winner, nor should it.

The High Court has previously held that there is a broad spectrum within which the parliament can enact different types of electoral laws. It will not dictate what the law must be. It is when laws directly or indirectly disenfranchise people, such as preventing prisoners from voting or cutting off the rolls early, that the High Court has struck down voting laws.

The new Senate voting laws are different because rather than preventing people from voting, they allow people to vote in a manner that reflects their genuine choices, even if that choice means that a vote exhausts rather than electing a candidate to whom the voter objects.

The other complaint is that voters would not be “directly” choosing senators, but rather, parties. This argument seems far more applicable to the previous system, when parties controlled above-the-line preferences.

Under the new system, voters control their preferences in above-the-line voting and may more easily vote below-the-line for individual candidates of their choice. Party influence is therefore significantly diminished. In either case, however, it is clear that voters still vote for individuals, directly choosing the Senate.

While it is a matter of judgment, and one ultimately to be made by the High Court, the new Senate voting laws seem to be more conducive to representing the genuine choice of the people in electing their Senate, and are therefore likely to be upheld.

Anne Twomey is a professor of constitutional law at the University of Sydney. This piece was first published in The Australian.