Bob Day

As the government prepares to bring down the budget a week ahead of the original schedule, its elaborate plan for a double dissolution election under a reformed Senate electoral system is near fruition.

However, a potential obstacle remains in the form of a legal challenge to the electoral reforms from Bob Day, the deep-pocketed Family First Senator from South Australia.

The High Court has at least taken the matter seriously enough to allow it through to a hearing of the full bench, to be held with exquisite timing this afternoon.

While the government would be feeling fairly confident about the outcome, there is enough lingering doubt to warrant at least some anxiety, given the stakes at play.

The arguments underpinning Day’s case may sound a little pedantic to those who have learned to take the party system’s stranglehold over modern politics for granted, but they involve genuine questions as to whether the parties have intruded on the Senate electoral system in ways the constitution did not envision.

The biggest theoretical difficulty relates to the constitution’s requirement that members of Parliament be “directly chosen by the people”.

In its more expansive moments, the High Court has interpreted this to entail protections for political speech, and used it to strike down the Howard government’s endeavours to curtail prisoners’ voting rights and close the electoral roll at the start of the campaign period.

So it doesn’t seem too exotic to argue that an impermissible element of “indirect choice” is introduced when voters simply number party boxes, and let the parties themselves determine the ordering of their own candidates.

Certainly, the Senate ballot paper that voters are to confront at the next election, with candidates grouped into party columns identified by logos as well as names, is a far cry from the unadorned alphabetical lists of candidates that prevailed in the years after federation.

The chief question that Day’s legal team might struggle to answer is, why now?

The strongest arguments seem to apply as much to the system of above-the-line and group ticket voting that has operated since 1984 as the one to be introduced at the coming election.

The closest the High Court has come to visiting the relevant issues was when an independent candidate applied for an injunction to prevent the 1984 election from proceeding.

This was heard by the then-chief justice Harry Gibbs, who concurred that the constitution demanded a candidate-based, rather than a party-based, system.

However, his judgment offered that 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”.

So for the court to decide in Day’s favour, it will either have to reject the reasoning of a former chief justice, or conclude that the new amendments land on the wrong side of a line that had gone uncrossed under the previous regime.

The latter might seem nearly as tall an order as the former, given that the reforms were brought in to address the egregious indirectness entailed by group ticket voting.

Nonetheless, Day’s submission seeks to identify cracks in three distinctions between the old system and the new.

The first argument is that the new system creates two distinct methods of voting, in contrast to the old above-the-line voting system, which simply provided a short-cut for casting a full compulsory preferential vote.

This is said to violate the power the constitution grants the Parliament to “make laws prescribing the method of choosing senators” — with emphasis on the singular in “method”.

The second line of argument is that the new ballot paper instructions fail to give an accurate account of how a formal vote may be cast.

Voters are to be instructed to number at least six boxes above the line or at least 12 below it, without any indication of the “savings provision” that validates above-the-line votes even if only one box is numbered (or below-the-line votes with as few as six boxes numbered).

The ballot paper itself is thereby said to “mislead or deceive an elector in relation to the casting of a vote” — an offence under the Commonwealth Electoral Act.

The third argument relates to the replacement of a compulsory preferential system with an optional one, which will diminish the value of votes that fail to number every box.

The obvious difficulty here is that it would seem to apply just as readily to state and territory optional preferential voting regimes — not to mention the first-past-the-post system that is still used to elect local parliamentary representatives in Britain, Canada and New Zealand.

On any score, a ruling to strike down the reforms would defy a long tradition of the High Court deferring to the sovereignty of Parliament in relation to such matters.

Failing a very considerable surprise, the Prime Minister should be free to pursue his widely reported plan to visit the Governor-General on Friday or Saturday, kicking off a gruelling eight-week campaign ahead of a July 2 double dissolution election.

Peter Fray

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