Drawing the line: High Court upholds Senate electoral reforms

Cain Sibley, Ken Powell

The High Court considered, and rejected, five arguments against the reforms.

On 13 May 2016, the High Court ruled that reforms made to the Senate electoral process earlier in 2016 were constitutionally valid. The decision underscored that the Commonwealth Parliament’s constitutional power to prescribe the method of choosing Senators is broad. The decision meant that the reforms were effective for the double dissolution election held in July 2016, in which all Senate seats were contested (Day v Australian Electoral Officer for the State of South Australia; Madden v Australian Electoral Officer for the State of Tasmania [2016] HCA 20).

The reforms
In the proceedings, incumbent Senator for South Australia Robert Day (and others) challenged the constitutional validity of amendments made to the Commonwealth Electoral Act 1918 (Cth) by the Commonwealth Electoral Amendment Act 2016 (Cth).

The reforms (the most significant in 30 years) amended the Senate election process and ballot paper. In  modern times, the Australian Senate has been elected under a proportional representation system. To be elected, candidates must achieve a “quota” of votes (set by a statutory formula known as the “Droop quota”). Voters have a “single transferrable vote”, which they can allocate to candidates preferentially.

Prior to the reforms, voters could vote above or below the line in the following ways. First, voters could vote “above the line” by voting 1 (only) for a group of candidates. The voter’s preferences would be those of the group’s, which had been pre-determined and displayed on a ticket at the polling booth and online (group ticket voting). This system would often lead to pre-election negotiation and trading between parties on how each party would allocate their preferences to other parties and candidates. Some considered it being susceptible to being “gamed” by micro-parties in a way which “distorted the will of voters”.[1] Historically, an overwhelming majority of voters have voted above the line. Alternatively, voters could vote “below the line” by allocating a sequentially numbered vote for each and every candidate on the ballot paper in order of the voter’s preference (in many States the number of candidates would often be well over 30).

The effect of the reforms was to abolish group ticket voting and give voters the following two options for electing Senators:

1. Voters can vote “above the line” by numbering (at least) 1 to 6 in boxes which represent groups of candidates. Preferences within the group would be allocated in accordance with the order of the list of the candidates as they appear on the ballot paper. Preferences outside the group would be distributed in accordance with the voter’s choice (if any) of other groups (and the order of candidates within those groups as displayed on the ballot paper). Under a “vote-saving” provision, a vote above the line will still be a formal vote as long as the voter marks at least the number 1 in a box above the line (ie. a voter doesn’t need to allocate any preferences beyond the group to cast a valid vote).
2. Voters can vote “below the line” by numbering at least 1 to 12 in boxes which represent each individual candidate. The voter orders the numbers in accordance with their preferences. Again, under a “vote-saving” provision, a vote will still be a formal vote as long the voter has marked at least six sequential votes below the line.

The plaintiffs’ arguments and the Court’s rulings
The plaintiffs alleged that the reforms were unconstitutional and sought declarations and writs of mandamus and prohibition. Before addressing the plaintiffs’ arguments, the Court set out and examined the history of the Senate electoral process (which is an informative read of itself). The plaintiffs relied on five arguments, all of which the Court gave relatively short shrift.

More than one “method” of choosing senators
The plaintiffs argued that the reforms create more than one “method” of choosing Senators in contravention of section 9 of the Constitution: ie. the “above the line method” and the “below the line method”.

Section 9 of the Constitution provides that the Parliament may prescribe the method of choosing senators, but that “the method shall be uniform for all the States.” The Electoral Act as amended refers to each of the “above the line” and “below the line” ways of voting as “voting methods”.

The Court held that the purpose of section 9 is to achieve uniformity in the voting method across the States. The term “method” is a constitutional term which should be construed broadly, allowing for more than one way (or option) of indicating choice within a single uniform electoral system. The statutory use of the term “method” has no bearing on the interpretation of that word as used in the Constitution. The two options effected by the reforms constitute a method with a common effect, which gives a voter discretion as to how the voter allocates preferences (and how many preferences the voter allocates). The plaintiffs’ argument contended for a “pointlessly formal” constraint on Parliamentary power.

Indirect election
The plaintiffs argued that the option to vote above the line by marking a square with reference to a political party infringes the requirement in section 9 of the Constitution that Senators be “directly” chosen by the people. The plaintiffs argued that political parties represented an intermediary which meant that a vote above the line was not direct. The Court rejected this, finding that the option to vote above the line involves voting for a group of individual candidates who are individually identified below the line. Section 9 is intended to exclude indirect choice by an electoral college or some other intermediary, which was not the case here (noting that the same term is used in section 24 of the Constitution in relation to the House of Representatives and citing Attorney-General (Cth); Ex rel McKinlay v the Commonwealth (1975) 135 CLR 1).

Breach of direct proportionality principle and effective disenfranchisement
The plaintiffs argued that the reforms and the use of the “Droop quota” formula infringe an asserted constitutional principle of “direct proportionality” and effectively disenfranchise voters who vote for minor parties. The Court rejected the existence of such a principle. The Court ruled that there is no disenfranchisement effected by the reforms, noting voters have the choice as to how to allocate his or her preferences by voting above or below the line. This argument, based upon the adverse effects to the interests of minor parties, was said to be “in truth” an argument about the consequences of elector choice between voting above or below the line.

Misleading ballot papers and breach of freedom of political communication
The plaintiffs argued that the new ballot paper was misleading and therefore infringed the implied constitutional freedom of political communication. The plaintiffs alleged that the ballot paper failed to inform voters of the risk of exhausting their vote or of the various options for voting, including that voters only need to mark one above the line to cast a valid vote.

The Court rejected these arguments, ruling that the ballot paper correctly states the statutory requirements. The ability to only mark one square above the line is a “vote-saving” provision, as distinct from one of the prescribed options for voting.

Infringement of representative government
The plaintiffs finally argued (as a catch-all proposition) that the reforms impaired a constitutional principle of representative government, and with it the freedom of political communication. The Court rejected this argument on the basis of its dismissal of the other arguments (particularly the fourth and fifth arguments, it would seem).

The wash-up
It is difficult to measure the precise effects of the reforms on the 2016 election as it was a double dissolution election with all Senate seats up for grabs (as opposed to the usual half-Senate election), which means that the percentage of votes required to win a seat is half the usual amount. With preferences now solely decided by the voter (rather than preference deals orchestrated by the parties), there was a decrease in overall votes for the so-called “micro-parties”. Voters largely appeared to grasp the new voting system, with the vast majority of “above the line” voters complying with the new rules. The number of voters “below the line” also increased nationally from 3.5% (under the old system) to 6.5% (under the new system). According to election expert Antony Green, despite warnings by some that more than three million voters (for minor parties) would be disenfranchised by the new system, the reality was that only about 800,000 (or 25%) of minor party votes would have been exhausted under a notional half-Senate election.[2]

As for Senator Day, he was in fact re-elected under the new arrangements, although he announced his resignation from parliament shortly after amidst financial and business woes. In a further twist, the Senate then asked the High Court to decide whether Senator Day was validly elected in the first place, raising the question as to whether section 44(v) of the Constitution may have been breached (which relates to interests in pecuniary agreements with the Commonwealth). The High Court’s decision is currently reserved. If Senator Day’s election is found to have been invalid, it will likely result in a recount in South Australia—otherwise, his resignation is free to stand and the resulting casual vacancy may be filled by his party.

Cain is a partner and Ken is a lawyer at Clayton Utz in Canberra. They are both alumni of ANU.
This article was written by Clayton Utz, a Premier Sponsor of the ANU LSS, and permission has been given for its use in this edition of Peppercorn. 

[1] See http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters/2013_General_Election/Interim_Report.
[2] See http://blogs.abc.net.au/antonygreen/2016/10/how-voters-reacted-to-the-senates-new-electoral-system.html#more.
[1] See http://blogs.abc.net.au/antonygreen/2016/10/how-voters-reacted-to-the-senates-new-electoral-system.html#more.