Senate election results are likely to face constitutional challenge if any result swings on split-preference tickets.
A successful challenge to the tickets would damn Democrat Rick Farley’s chances because he must rely on preferences from Labor Senator Kate Lundy’s split-ticket preferences.
The national president of the Proportional Representation Society, Bogey Musidlak, advised voters yesterday that the only way to be sure was to vote below the line, numbering every square consecutively.
For above-the-line voting, voters just tick a party box above the line. Preferences are determined according to a list submitted by the political party to the Electoral Commission before the election.
Since 1983, the Electoral Act allows parties to put in split tickets so half the preferences are deemed to go one way and the other half the other way. The Democrats invariably split their preferences between Labor and the Coalition, for example. The Act allows preferences to be split into two or three ways.
But the Constitution demands that senators be “”directly chosen by the people”. A split preference ticket adds an element of indirectness. You cannot tell which way a particular voter voted.
The society pointed out the constitutional problem in a submission to the Joint Standing Committee on Electoral Matters to no avail.
The Electoral Act itself recognises the problem because it has a saving clause “”if, and only if, effect cannot be given . . . for any reason” to the split ticket then the vote is valid up to the point where the two ticket diverge.
There can be only one reason, and that is constitutional.
There is no requirement, however, for territory senators to be directly chosen by the people. The Constitution allows the Parliament to determine territory representation as it sees fit. But the territory senators may be caught up in a general invalidity of the provisions for split tickets.
A very high proportion of voters vote above the line. The number increases with the number of candidates. It can be higher than 90 per cent in the larger states. With split tickets voters often had no idea how their vote was going.
This election every state and territory has at least one split ticket, most have several. In virtually every Senate election the last seat in each state is determined by preferences, often over-quota votes spilled from the major parties. It is likely that this election the last seat will be determined by the preferences of a split ticket.
In the ACT for example, if the Democrats’ Rick Farley were to win it could only be on Labor preferences. If Labor’s split preference ticket were held unconstitutional, voters preferences would stop at Kate Lundy 1, and the Liberals’ Senator Margaret Reid would be elected. If split tickets in NSW, for example, were invalid, it would help One Nation which is last on both legs of Labor’s split ticket.
Australia has a long history of court challenges to election results.