THE Senate voting system is likely to come under constitutional challenge and if successful it will favour the Coalition and the Greens.
Under Senate voting rules, voters can do one of two things: tick a party box above the line, or go below the line and number every candidate individually in order. If you vote above the line for a party, your vote is deemed to follow the preferences according to a ticket lodged before the election by the various political parties.
But above-the-line voting may offend the Constitution which requires that MPs be “”directly chosen by the people”. The argument is that if you let the party do the choosing, the MPs are not “”directly chosen by the people”.
To make it more complex, under the Electoral Act parties are allowed to lodge two or three tickets. If they lodge, say, two, half the voters are deemed to have voted according to one ticket and half according to the other. Similarly with three.
That system is also likely to be subject to a separate challenge.
We have seen numerous appeals to courts about election results, some of them with profound results: for example, Robert Wood, Phil Cleary and Mundingburra.
Wood lost his Senate seat on citizenship grounds and Cleary lost his Reps seat because he held an office of profit under the Crown at the time of his election. (He was a teacher.) Two judgments brought down this week offer some comfort to challengers. Moreover, the Electoral Act virtually concedes constitutional doubt about the split tickets. It says that if “”effect cannot be given” to the split-ticket arrangement, an alternative counting method is to be used. The alternative counts the vote up to where the split takes place and ignores everything below it.
The only reason anyone I’ve spoken to can think of that “”effect cannot be given” to the split ticket is constitutional invalidity.
In a judgment brought down this week, the High Court looked at the �directly chosen” requirement.
It held (with two dissenters) that it did not mean that the electorates must be equal. But all six judges agreed that it did rule out indirect < DROP-LEG >elections, such as an electoral college.
One judge specifically referred to the party-ticket provisions of the Electoral Act and gave a broad hint that at least one element of it was invalid.
That element is the provision by which an electoral official tosses a coin in the event that there is a draw after the split tickets are counted.
It will be a question of degree as to whether the single-party ticket is sufficiently indirect to offend the section.
The likelihood is that it would not.
Voters can easily find out what the ticket says, and therefore they are directly choosing candidates. The split ticket, however, poses a greater constitutional problem. The degree of indirectness is greater.
The two High Court judgments brought down this week explain the difficulty.
All the judges said that the power to construct an electoral system was a “”purposive” one. This is unlike other constitutional powers. With other powers all you need is a reasonable connection between the law and the subject matter of the power.
With a purposive power, however, the court asks whether the law “”is reasonably and appropriately adapted” to the achievement of the end.
< DROP-LEG >It may well be that split tickets or even party tickets in toto are not reasonably and appropriately adapted to the end of constructing an electoral system so that MPs are “”directly chosen by the people”.
There is certainly an argument, and if any seats turn on it, expect it to go to the High Court after the election, in the same way that the Wood and Cleary cases went to the High Court resulting in the nullification of their election.
What would be the result of a successful challenge in this election.
el,3 If the whole system of party voting is invalid, perhaps the whole election would be invalid. The court is unlikely to do that. If only the split-ticket system is invalid, most of the vote would be valid. But significant preferences of Democrat and Labor above-the-line voters would be void. This would be significant.
el,3 In the past two Senate elections there have been situations where the split-ticket preferences either decided or came very close to deciding the last seat in some states.
Typically, there is a three-way struggle between the two majors and the top minor in each state and surplus votes get transferred as candidates get eliminated.
el,3 In South Australia, Tasmania and NSW Labor tickets split very early. It virtually means the surplus from above-the-line Labor voters would not get distributed at all. This would favour the Coalition.
el,3 The Democrats spilt their preferences in all states. A successful challenge would mean that no Democrat preferences would go either to the Coalition or Labor in any state. This would favour the Greens. Amusing, isn’t it? But even with a challenge favouring the Coalition, it still seems unlikely the Coalition can get a majority in the Senate. That means, if Howard wins the election, its industrial-relations legislation may get blocked.
el,3 Bear in mind Senator Brian Harradine may be a social Tory, but he is still pro-union.
If it is blocked, we may find, shudder the thought, that we have a double dissolution and another election.
Aaaaghhhhh!