High Court unanimously rejects challenge to Senate voting reform

In a unanimous judgment, the High Court has crushed Family First senator Bob Day’s High Court challenge to the recent Senate voting reforms.

The court regarded none of Day’s arguments as having any merit. It dismissed them as “untenable” or failing at their very threshold.

The voting changes to which Day objected provide for optional preferential voting both above the line and below the line in Senate elections.

Under the previous voting system, if an elector marked “1” above the line for a party, the party then determined how the vote was distributed to all the candidates on the ballot paper. If electors voted below the line, they had to number sequentially every candidate according to their preferences. This could amount to more than 100 candidates.

The consequence was that about 95 percent of people voted above the line. This allowed parties to determine the flow of their preferences.

First in New South Wales and then federally, people began to manipulate this voting system. They created microparties with catchy names to harvest votes, and did deals with other parties regarding preferences, so that they could be elected even though they had a very small proportion of the primary vote.

The consequence was that people with negligible public support were being elected on the preferences of voters who often had polar-opposite political views to the candidate their vote had actually caused to be elected.

In NSW, after the infamous 1999 “tablecloth” ballot paper, the Labor government changed the voting system for the Legislative Council to allow optional preferential above-the-line voting. In 2016, it was a Coalition government at the Commonwealth level that adopted the same approach.

Now, when an elector marks “one” above the line for a party, the elector’s preferences go to the candidates for that party in the order they are listed below the line. They then flow to the candidates of the party marked “two” above the line, and so on.

Voters thus regain control over their preferences. They can see on the face of the ballot to whom the preferences go and decide how far those preferences should go.

Voters are instructed to vote for at least six parties or groups above the line, or at least 12 candidates below the line. This is intended to reduce the risk of too many votes becoming “exhausted” by not having enough preferences for the vote to end up electing a candidate.

How the case was argued and decided

Day had argued the government’s changes would leave those voters who wish to vote for minor parties “disenfranchised” because their vote, if their preferences exhaust, will not go on to elect any candidate. His arguments before the High Court, however, were more technical in nature.

First, Day argued that because the ballot offers electors the option to vote above the line and below the line, this is two separate methods of voting – breaching the requirement in Section 9 of the Constitution that there be a single method of choosing senators.

The High Court dismissed this argument. It said “method” should be construed broadly to permit more than one way of indicating a choice within a single uniform system. It said Day was arguing for a "pointlessly formal constraint on parliamentary power to legislate with respect to Senate elections."

Day’s second argument was that when voting above the line, people were really voting for parties – not candidates. Therefore, the Senate was not “directly chosen by the people” as required by the Constitution.

The court described this argument as “untenable”. It noted that, under the new system, a vote above the line is a vote directly for the candidates of that party listed below the line. The court politely refrained from pointing out that the validity of Day’s election would be threatened by his own arguments on this point.

Day’s third argument concerned the problem with the exhaustion of votes and the fact that the votes of some electors may not end up electing candidates. He attempted to derive a principle of “direct proportionality” from the Constitution, which required that all electors have their votes reflected in the election of candidates.

The court was again very dismissive of this argument.

It said: "There is no principle of “direct proportionality” to be infringed. There is no disenfranchisement in the legal effect of the voting process. The plaintiffs’ argument, based upon effects adverse to the interests of so-called “minor parties”, was in truth an argument about the consequences of elector choices between above the line and below the line voting and in the number of squares to be marked. It should be rejected."

Ultimately, it is up to voters to decide whether they want to give full preferences or whether they want their vote to exhaust rather than elect someone they oppose. This is not disenfranchisement – it is democratic choice.

Day also argued the ballot paper was misleading, as it does not include in the instructions all the additional vote-saving provisions. The court concluded the ballot paper was not misleading. The paper’s instructions accurately reflected the law and there was no need to include all the savings provisions.

Overall, the High Court was dismissive of the arguments made, not even attempting to develop them in a way that could give them substance and merit. Being a unanimous judgment, it is plainly clear that the new Senate voting system and the use of above-the-line and below-the-line voting are constitutionally valid.

It is now up to voters to exercise their greater freedom in granting their preferences to ensure the Senate truly represents their voting wishes.

Anne Twomey is Professor of Constitutional Law at the University of Sydney. This article was originally published on The Conversation.