After the federal parliament passed changes to the Senate voting system in March, the Family First senator, Bob Day, quickly brought a case challenging the legislation in the high court.
Day’s case focuses entirely on the new legislation but his arguments have much deeper implications, challenging elements of the Australian voting system that have been in place for decades.
So what will Day be arguing in the high court?
Uniform method of voting
Since 1984 Australians have been able to choose to vote either “above the line” (for a party) or “below the line” (for individual candidates). Day’s lawyers argue that this choice violates section nine of the constitution, which requires that the voting method is “uniform for all the states”.
This clause is generally accepted to simply require that the same voting system be used across Australia. Day’s lawyers instead argue that this clause requires that only one method of voting is permitted – and that below-the-line and above-the-line voting count as different methods.
If you accept this logic, the system that’s existed since 1984 would be unconstitutional, not just the latest changes – despite his lawyers insisting their argument only applies to the new law.
‘Directly chosen by the people’
The constitution requires that senators are “directly chosen by the people”.
Day argues that senators won’t be directly chosen by the people under the new voting rules because many voters will vote for a party above the line, and the votes will be distributed to candidates based on what party they belong to.
If this new law means that senators are not directly chosen by the people, it’s hard to see how the previous system could possibly be constitutional.
Under the former system, a vote above the line would follow the preferences lodged by that party before election day. The new system allows the voter to decide which parties they wish to preference.
Considering that the new method of above-the-line voting gives the voter far more control over their vote than the former method, it’s hard to understand how one could be unconstitutional and the other not.
Malcolm Mackerras, an election expert who has advised the plaintiffs, insists that the entire system has been unconstitutional since 1984.
Exhausted votes are ‘disenfranchised’
Under the new system, voters will have the choice of numbering some, but not all, boxes. If you only number some boxes, and all the candidates you preferenced have been excluded, your vote will “exhaust” and no longer count. This is the system already used for state elections in New South Wales, Queensland and Tasmania.
Under the old system, voters were required to number a large number of boxes if they wanted to choose their own preferences – as many as 110 in NSW. If you made an error, or didn’t want to preference every candidate, you would risk your vote being marked as informal. The new system will let votes count even if very few preferences are marked – but the cost of that change is that many voters will choose not to preference.
Opponents of reform have argued that 3 million voters who didn’t vote for Labor, the Coalition or the Greens would be “disenfranchised”.
First, this number is an exaggeration – many of those 3 million voted for someone who would have been elected under the new system, and the figure is based on an assumption that none of these voters will fill in their preference.
Second, it’s hard to see why a voter exercising a choice to not direct preferences is equivalent to that person being disenfranchised.
How the quota is calculated
To win a seat in the Senate you need to poll a quota of votes – if you get more than a quota you can pass on your leftover votes, and if a candidate reaches a quota they are elected.
The quota is calculated as the lowest number of votes that can be achieved by six candidates but not by seven. This number is just over one-seventh of the total vote. This formula is called the “Droop quota”.
Under this system, up to one-seventh of the vote will end up with a candidate who is not elected. Day argues that is unconstitutional.
In reality, there will always be a losing candidate who misses out. Even if you increased the quota to one sixth, you would still have two candidates competing for the last spot and one of them would miss out.
In House of Representatives elections, almost 50% of voters could vote for a candidate who isn’t elected. Voting for the losing candidate isn’t the same thing as being disenfranchised.
Day’s case will be heard by the full bench of the high court on 2 May and 3 May, and a decision will be expedited to ensure that an election can proceed. It seems very likely the case will fail and the new laws will proceed and govern the conduct of this year’s election – but if the case does have merit, the consequences could be far more wide-reaching than simply invalidating the new Senate voting system.
