picture-426BY RYAN GOSS

In its recent decision in Day v Australian Electoral Officer [2016] HCA 20, the High Court unanimously upheld the validity of certain amendments to the Commonwealth Electoral Act 1918 (Cth)(the Act) made by the Commonwealth Electoral Amendment Act 2016 (Cth).

The result was not unexpected. It means that voting for the Senate at the forthcoming double dissolution election will take place in the manner set out in the recently amended legislation. It is also a reminder that, notwithstanding recent decisions on the franchise in Roach (2007) and Rowe (2010), the Constitution affords the Commonwealth Parliament considerable flexibility in determining the way in which the electoral system works. When read with these cases, and with the Court’s most recent orders in Murphy, Day helps us build a clearer picture of the parameters of this flexibility.

In this post, I focus on the Court’s reasoning in dismissing the plaintiffs’ challenges relating to the method of selecting Senators (in s 9 of the Constitution) and the requirement that Senators be ‘directly chosen by the people’ (in s 7 of the Constitution).

The target of the challenge

The plaintiffs, led by South Australian Senator Bob Day, challenged provisions concerning ‘the new form of the Senate ballot paper and the process for marking it’. According to the Explanatory Memorandum, the challenged provisions formed part of a broader set of reforms designed ‘to improve the Senate voting system,’ and were a response to a Joint Standing Committee on Electoral Matters report finding that the previous Senate voting system lacked transparency, was overly complex, and needed simplification.

As described by the Court, the challenged provisions affect a number of aspects of voting for Senators. The challenged provisions provide for two ways in which a voter can express their choice. First, a voter could choose to vote ‘above the line’:

The new process requires an elector to number sequentially at least six squares above the dividing line on the ballot paper. A group of candidates may be granted a square above the line on request. Where a group of candidates has so requested, the name of the political party that endorsed them and the party logo will appear adjacent to the square above the line. The numbering of squares above the line indicates the elector’s preference for the candidates in the first numbered group or party in the order in which they appear below the dividing line, followed by the candidates of the second numbered group or party and so on up to the number of the elector’s choices.

Second and alternatively, voters could choose to vote ‘below the line’:

The new process also requires electors who wish to vote below the dividing line to number at least 12 candidates in the order of their preference.

The Court situated the challenged provisions against their historical background, outlining previous systems for Senate voting legislated in 1902, 1918, 1919, 1922, 1924, 1934, 1948, 1983, and 1987. The Court thus made the point that the Constitution has historically embraced a range of ways of organising voting for Senators. As will be clear from the Court’s description above, the challenged provisions are also intimately connected with the existing legislation on the registration and regulation of political parties. In emphasising this connection, the Court noted its decision in Mulholland (2004). As McHugh J put it in Mulholland:

the Constitution does not mandate any particular electoral system, and, beyond the limited constitutional requirements outlined above, the form of representative government, including the matter of electoral systems, is left to the Parliament

The general observations made in Mulholland ‘weigh[ed] against the plaintiffs’ arguments’ in Day.

The plaintiffs’ arguments

It was evident in oral argument that the Court had some difficulty with the construction of the plaintiffs’ submissions. Early in the course of the first day’s argument, French CJ said to counsel acting for Senator Day:

I do not think we are really interested in hearing what I might call normative speeches. I think we need to hear your submissions in relation to the ways in which you say the impugned provisions contravene the Constitution.

In its judgment, the Court summarised five related arguments made by the plaintiffs as follows:

A. The option of “optional first past the post/preferential” voting for parties above the line and “compulsory preferential” voting for candidates below the line, for which the Act now provides, constitutes more than one method of choosing Senators and is contrary to the requirement in s 9 of the Constitution that there be only one method.

B. The option of above the line voting for one or more registered parties or groups contravenes the requirement in s 7 of the Constitution that Senators for each State be “directly chosen by the people”.

C. The changes to the form of ballot paper and the provisions for marking it above the line, read with s 273(8) of the Act, infringe a constitutional requirement of “directly proportional representation” in the Senate.

D. The new form of ballot paper and the instructions on it are likely to mislead or deceive electors in relation to the casting of votes and thereby to hinder or interfere with their exercise of a right to a free and informed vote. It describes only two ways of voting and suppresses disclosure of other ways of voting which are formal.

E. The new form of ballot paper mandates an uninformed choice by electors, preventing the free flow of information and hence impairing the implied freedom of political communication and the system of representative government.

The Court noted that arguments A-C ‘sought to challenge features of the system that have existed since at least 1983’. It then concluded its summary of the arguments firmly:

None of the above arguments has any merit and each can be dealt with briefly.

This post focuses on the Court’s reasons for rejecting arguments A and B.

More than one method of choosing Senators?

The plaintiffs argued that the challenged provisions meant that the Act provided for more than one method of choosing Senators, and that this was contrary to s 9 of the Constitution. Section 9 reads, relevantly:

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.

The plaintiffs first noted that the 2016 amendments included the insertion, into s 4 of the Act, of a definition for the ‘dividing line’ that appears on the ballot paper. That definition indicates that the ‘dividing line’ is the line separating ‘the voting method described in sub-s 239(1) [‘below the line’] from the voting method described in subsection 239(2) [‘above the line’]’. For the plaintiffs, the reference in s 4 to multiple ‘method[s]’ of voting indicated that the challenged provisions established an electoral system that contravened the constitutional requirement of a ‘uniform’ method of choosing Senators.

But, as French CJ put it during oral argument, this amounted to ‘trying to use a statutory tail to wag a constitutional dog’. Indeed, this submission was ‘dismissed immediately’ by the Court in its reasons, which noted that the ‘construction of the constitutional term “method”, and its application, is not determined by the use of that word in the Act.’

More generally, the plaintiffs argued that the challenged provisions, including the relevant savings provisions, allowed for ‘a first past the post’ voting method above the line and a different voting method below the line. These submissions, too, were rejected. The Court accepted the Commonwealth’s broad construction of the definition of ‘method’. In so doing, the Court cited the passage from the April 1897 Convention Debates in which Deakin argued for the inclusion of ‘method’ rather than the narrower ‘manner’, and the relevant passage of Quick and Garran supportive of a broad construction. By contrast, the Court found the plaintiffs’ argument unconvincing and inchoate: they had ‘contended for a narrower construction but did not say what that construction was save that the single method did not embrace the options of above the line and below the line voting’.

In the Court’s view, the plaintiffs had argued in favour of ‘a pointlessly formal constraint on parliamentary power to legislate in respect of Senate elections which has nothing to do with the purpose of national uniformity.’ The Constitution’s reference to ‘method’ was a reference to ‘a constitutional term to be construed broadly allowing for more than one way of indicating choice within a single uniform system’. Affording a voter some degree of choice in how they vote for Senators does not amount to creating more than one ‘method’ of choosing Senators.

The Court’s reasons here were shaped by the incomplete nature of the plaintiffs’ arguments. But Day also reflects the overarching constitutional position that the parliament has considerable latitude when legislating in respect of elections, and the correlative reluctance of the Court to weigh into questions of ballot paper design.

Indirect choice? 

For argument ‘B’, the plaintiffs relied on s 7 of the Constitution and its requirement that Senators be ‘directly chosen by the people of the State’. The plaintiffs argued that the challenged provisions created a system of indirect choice, contrary to the Constitution. Above the line voting was said to amount to indirect voting for an intermediary – voting for the relevant political party – rather than a direct vote for an individual candidate. The Court was unwilling to accept this suggestion, given the way that the legislation requires the ballot paper to be structured:

A vote marked above the line is as much a direct vote for individual candidates as a vote below the line. To number a square above the line identifies the candidates appearing beneath that square below the line.… An elector is provided with a direct choice. An elector who does not wish to use the above the line facility is able to vote by allocating preferences below the line.

The plaintiffs’ argument was, the High Court concluded, ‘untenable’.

The Day after tomorrow

The decision in Day is more a reinforcement of existing principle than a trailblazing judgment. Notwithstanding recent decisions in Roach and Rowe emphasising the importance of direct choice and voting rights as a constraint on legislative power, the High Court’s decision in Day serves as a reminder that the Constitution allows Parliament considerable flexibility in shaping many key aspects of our system of representative government. Thus while there are limits to that flexibility, Day emphasizes that the importance of Australia’s system of representative democracy extends to shaping crucial aspects of that representative democracy itself.

The day before delivering judgment in Day, the High Court also dismissed a challenge to the constitutionality of closing the electoral roll a week after the issue of the writs (Murphy v Electoral Commissioner). Reasons in Murphy are yet to be delivered. Insofar as Day reinforces the extent to which the Constitution leaves Parliament significant room to determine the form that electoral systems take, the Court’s reasons in Day may be worth revisiting once the as-yet-unpublished reasons in Murphy are delivered. These judgments thus also serve as a reminder that our understanding in this area – our understanding of precisely how much room is left to the Parliament — is developed incrementally through a process of interpolation and extrapolation. Further steps in developing that understanding will thus have to wait until another Day.

Dr Ryan Goss is a Queenslander working on constitutional law and human rights law. Currently Senior Lecturer at the ANU College of Law. Ryan tweets @RyanGoss.

Suggested citation: Ryan Goss, ‘Judgment, Day’ on AUSPUBLAW (25 May 2016) <https://auspublaw.org/2016/05/judgment-day/>