Day in court

A bush lawyer’s guide to Family First Senator Bob Day’s High Court challenge to Senate electoral reform.

Family First Senator Bob Day’s legal challenge against reforms to the Senate electoral system reached the full bench of the High Court yesterday, which concluded by adjourning the hearing until tomorrow. Day’s case was advanced before the court by barrister, Peter King, who was the Liberal member for Wentworth before Malcolm Turnbull despatched him in a preselection challenge in 2004. King probably didn’t have the best day, having been admonished for failing to provide the court with the requisite three-page outline of his argument, and straining to have the points of his case understood by the assembled justices. You can view the transcript of yesterday’s proceedings here, both sides submissions to the court here, and my paywalled preview to the hearing in Crikey here.

The most promising lines of argument against the Senate electoral system run through the Constitution’s requirement that members of parliament be “directly chosen by the people”, which arguably mitigates having candidate ordering determined by the parties themselves, as is done for those who vote above-the-line. The obvious problem here is that this was even more true of the system that preceded the passage of the reforms in March, where that control extended beyond the party’s own candidates and ran the full gamut of the ballot paper. When this system was introduced in 1984, an independent candidate sought an injunction to prevent the election from proceeding, which was heard by the then Chief Justice, Harry Gibbs. Gibbs concurred that the Constitution required a candidate-based system, but put a spoke in Bob Day’s wheels by saying it was “not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket”.

Of the various argument put forward by Day, only one carries the implication that the Senate system has been unconstitutional all along. This involves the use of the Droop quota, which requires that successful candidates receive a quota, either as first or subsequent preferences, equal to one divided by the number of seats up for election plus one (with a single extra vote on top to get them over the line). At a typical half-Senate election for six seats in a given state, this means the count progressively whittles the field down to a final seven candidates, each of whom essentially holds one-seventh of the overall vote. This includes six Senators who are elected, and a seventh who is left carrying a big swag of votes that were no use in getting anyone elected. It doesn’t need to be this way – the quota could simply be one divided the number of seats up for election without the plus one, which would mean one-sixth in the previous example rather than one-seventh. The count would end with six elected candidates, with no unlucky spare holding a “wastage quota”. Since the Droop quota has been in use since proportional representation was introduced in 1949, this is a pretty adventurous line of argument. It also invites the inference that a voter in the lower house is disenfranchised merely if he or she votes for the losing candidate.

The other lines of argument avoid the implication that the system has been unconstitutional for years, by identifying new changes that transgress in ways the previous system did not. First, there is the argument that the changes introduce a second method of choosing Senators, contrary to the provision of Section 9 of the Constitution that parliament is empowered to “make laws prescribing the method of choosing senators” — with emphasis on the singular. Under group ticket voting, the argument goes, above and below-the-line voting were different in form but not content, since both were treated as completed ballot papers so far as the count was confirmed. But with the savings provisions under the new system, a voter can number one box above the line, but has to number at least six below it. Unlike the old system, this means one can now vote above-the-line in a way that could not be replicated below-the-line. Among the ripostes that might be made to this is that the old system had a savings provision too, in that below-the-line votes with a small number of mistakes were still included in the count, and this too introduced a subtle discrepancy between what could be done above and below the line.

Another argument is that the newly proposed ballot paper violates the principle of a “free and informed vote”, which was invoked by the High Court in its findings that a constitutional protection existed for freedom of political communication. This is said to be violated by the incorrect instructions to be offered by the new ballot paper, which will tell voters to number at least six numbers above the line or at least twelve below it. In fact, the previously noted “savings provisions” will allow ballots with as few as one box numbered above-the-line or six below it to be admitted into the count. It is argued that this is in breach of Section 239 of the Commonwealth Electoral Act, which makes it an offence to “mislead or deceive an elector in relation to the casting of a vote”. Finally, it is argued that the optional preferential system impermissibly reduces the value of votes that drop out of the count due to incomplete numbering. This one is particularly dubious, as it would seem to invalidate any first-past-the-post or optional preferential regime, which self-evidently is not what the drafters of the Constitution had in mind.

Author: William Bowe

William Bowe is a Perth-based election analyst and occasional teacher of political science. His blog, The Poll Bludger, has existed in one form or another since 2004, and is one of the most heavily trafficked websites on Australian politics.

11 comments on “Day in court”

  1. The argument for the Hare rather than Droop quota is transparently self-serving on the part of the minor parties: their aim is to ensure that smaller surpluses are passed on to the lower down candidates of the major parties, which will make the minor party candidates more competitive against them. This argument is devastatingly rebutted in the Commonwealth’s submissions.

  2. I like the non-constitutional argument based on the Senate paper voting instruction being in breach of s.239 of the Commonwealth Electoral Act.

    If it is true that:
    1. The proposed ballot paper will tell voters to number at least six numbers above the line or at least twelve below it.
    2. “Savings provisions” will allow ballots with as few as one box numbered above-the-line or six below it to be admitted into the count.

    Then the ballot paper is IMO clearly misleading voters into thinking that to cast a valid vote they must put 6 numbers above the line or 12 below. Whether the form of the proposed ballot paper has also been the subject of specific legislative direction that would over-ride s.239 of the Electoral Act is beyond my knowledge, but it could be the only plausible answer.

  3. Section 239 contains the instructions that are to be presented on the ballot paper. The savings provisions are not rules for filling in the ballot paper but rather a set of rules that permits certain ballot papers, completed in contravention of the instructions and Section 239, to remain in the count. There have always been savings provisions. Section 239 also instructs voters to vote above OR below the line, but the savings provisions can save ballot papers that do not obey this instruction. The BTL instructions used to say number all the squares but savings provisions meant that 90% was enough to save the ballot.

    The Parliament made clear that it wishes voters to complete preferences with its instruction in Section 239, but given that for three decades a single ‘1’ has been formal, the parliament also made clear through savings provisions that it did not want to disenfranchise voters by making their ballot papers informal.

  4. I think that the independent candidate in 1984, McKenzie, had a point that the above the line voting system requiring groups for above the line boxes is unfair to single candidates. It may have been interesting if this had preceded to an actual trial and thus set an official precedent one way or the other. The full court may have decided that the voting system must treat all candidates equally.

    Presumably the requirement to place instructions on the ballot paper to number at least 6 boxes is legislated in the same electoral act and thus valid as an act cannot breach itself.

  5. I have not been following this closely. In particular, I haven’t read any of the submissions. But I doubt the s239 point has any legs. As Antony points out, 239 directs how a person is to mark their vote. Whether a vote (however marked) is formal or not is determined elsewhere (ss268A, 269). The instructions in 239 are more or less reproduced in the form of the ballot paper given in the schedule to the Act. The only point of argument I can see is that the ballot form refers to how a person may ‘vote’ rather than how they may ‘mark their vote’ and, depending on how the word ‘vote’ is to be interpreted here, is arguably inconsistent with the ‘savings’ provisions. Having regard to the usual principles of statutory interpretation, that argument is rather weak.

  6. Wednesday, May 4, 2016 at 8:16 am
    High Court transcript of 2nd day of hearing of Day’s application
    One way traffic with most judges trying to ascertain what Peter King is trying to say, No such difficulty experienced with counsel for the Commonwealth.
    The States and Territories did not even appear which may seem odd given the reform applies to the State house but may reflect their views as to the cluelessness of the Day camp.

  7. I do see the remnant quota as a loss of proportionality in the count. However I am don’t see how that comments in any way to the ballot changes in the latest reform.

    Maybe a Condorcet count would be nice. 🙂

  8. Disasterboy: One advantage of the Droop quota arises when the number of vacancies is odd. Take a case of a 5 vacancy election. The Hare quota is 20%, and a party will need >60% of the vote to get 3 quotas. If the Droop quota is used, it’s equal to 16.67%, and just over 50% of the vote will get it a 3 out of 5 majority of seats, which would seem better attuned to concepts of majority rule. See

    More generally, the fallacy of the proposition that certain voters are disenfranchised through the use of the Droop quota rather than the Hare quota is discussed in detail in Enid Lakeman, How Democracies Vote, 3rd ed, Faber & Faber, London, 1970, pp. 137-139. Miss Lakeman among other things provides numerical examples of how it is possible for a party with a majority of votes to win only a minority of seats when the Hare quota is used.

  9. Thanks Michael. I will read that.

    In a dim distant past, I have read the details of such things. And I will take your point on trust.

    I still suspect that there are better methods than either a Hare or droop quota for getting a proportional representation.

    And most here would understand that its a complex debate to re-examine the Senate and its purpose. And it’s purpose helps us decide an optimal voting method. If we really want a States house, maybe the German system of State parliaments nominating Senators would be the most suitable way. 😀
    (I am not really advocating that)

  10. The members of the Bundesrat are not chosen by the state parliaments (landtag) but by the state governments. This means they are not proportional but majoritarian.

  11. The analyses presented on this page are really good.
    Having read all the documents published by the High Court (they rejected Malcolm Mackerras and Stewart’s affadavits as “polemics” of no legal value) and watched the videos, one would have to say that Day’s arguments A,B,C,D & E (E was abandoned) are all pretty hopeless causes – not the least of the reasons being the unbelievably muddled presentation by Peter King. Their Honours interrupted King repeatedly for clarifications and to point out numerous inconsistencies in the arguments. If it was King’s attempt at “Bulldust Baffles Brains”, then I think he has failed in his task.
    The arguments were presented in order of the priority assigned by Day and the transcripts show that Argument A, the (“More than one Method” argument) attracted about 50% of the attention. It is the most especially weird of the arguments. The Constitution requires that the Method of Electing (or Choosing) Senators be uniform between the states. The reason for this lies in that the original intention was that the States would run the Senate elections themselve. Day contends that the new legislation has created “more than one method” and that the voting method now differs between states. This is a patent nonsense – the method is still uniform.
    In the early hearings, Gleeson (for The Commonwealth) remarked that this argument was at least as weird as the “Alternative Universe” case argued in 2009 before CJ French. This hit a chord with French, who is a science fiction fan.
    So Day’s case falls at his first and most significant hurdle. Day left the court “confident”, however.
    At one point King argued that, had the 2013 election been run under the new rules, Day would not have been elected. This was a bit revealing as to motives. It IS true that if we were to rescrutinise the 2013 ballot papers through the new counting system, the result WOULD be different:
    LP 2
    XEN 2
    ALP 2

    But that is not the same thing. Day’s argument assumes everybody voting for a minor party would ignore the “Across The Top” instructions. Day appears to not want to set up a group with him ATL, so he is relegated to the Ungrouped, from which nobody has ever escaped.

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