The Triumph of Establishment Politics

The High Court and Senate Voting Reform

How to find the voice of a people?  Electoral systems are the stuff of political nightmare and experiment, all attempting the same goal: how best to capture an appropriately, accurate choice.  Australia’s preferential election system is regarded as better than most, envied for its attempt to prevent the premature exhaustion of votes and avoid the misrepresentative nature of “first past the post” polling.

The Australian Senate has been a curious beast in this regard, abandoning first past the post voting in 1919 and introducing the concept of grouped candidates in 1922. But it was 1983 which saw the introduction of a group ticket voting option to minimise voter error, and the number of informal votes, arising from a compulsory numbering of all boxes on the Senate ballot paper.

Since then, that body has been elected using a hybrid of proportional representation by single-transferable vote, requiring candidates to get a quota of votes equivalent to 1/7th of the formal vote.  Combined with group voting tickets with above the line voting, this led to curious outcomes where preferences would be controlled by arrangements made by smaller parties.

The government’s electoral voting reforms abolished group ticket ballots, while allowing the sequential numbering above the line of six preferences.  In voting below the line, only 12 preferences are needed. The policy behind this was sold by its defenders (with the LNP came the Greens and Nick Xenophon), as necessary to eliminate preferential deals between micro parties. As Antony Green has attempted to describe it, such behaviour is “gaming” in nature.

Family First Senator Bob Day and Liberal Democratic Party Senator David Lyonhjelm challenged the reforms in the High Court, claiming that they were disenfranchising.  Up to three million votes, they argued, would be exhausted (that is, not counted) under the laws.  In legal argument, Senator Day’s point was that voting above the line in the new manner defied the section 7 stipulation that Senators for each state be “directly chosen by the people”.

The High Court in Day v Australian Electoral Officer for the State of South Australia was unanimously dismissive of the case against the Commonwealth Electoral Amendment Act 2016 (Cth), arguing that there was no “real constraint” on voters in completing the proposed ballot paper. The reforms did nothing to impair the system of representative government, or the implied freedom of political communication. “The ballot paper,” claimed the full bench, “does not mislead.”

Rather presumptuously, the justices suggested that those who voted above the line would, in fact, be indicating support for the party’s individual candidates named below the line.  “A vote marked above the line is as much a direct vote for individual candidates as a vote below the line.”

Such language, while being advertised as a recapturing of democratic sentiment, the true will, if you like, of the Australian voter, suggests establishment-chat.  The High Court has tended to follow that line, with such decisions as McKenzie v The Commonwealth (1984) holding group ticket voting valid and privileging establishment parties. Chief Justice Gibbs there accepted the idea that the court should not interfere in such electoral rules as long as they be consistent with representative democracy as the chosen mode of government.

Similarly in Day, the term “method” used in choosing the Senators under section 9 of the Constitution had to be “construed broadly allowing for more than one way of indicating choice within a single uniform system.”  This makes accessibility to the establishment more problematic through an exercise of simplification.

In the field of psephology, only Malcolm Mackerras can be regarded as one who finds Senate variety the spice of democratic life. According to Mackerras, advocates of electoral reform such as Green tend towards curtailing that variety, his “advocacy of reform […] based on the idea that Australia has three worthy parties – the Liberal Party, the Australian Labor Party and the Greens.” Others, from the National Party to the Democratic Labour Party, do not count.

It is hard to believe that such changes were motivated by a genuine desire to find the Australian voice, however convincing Prime Minister Malcolm Turnbull made it with his view that the reforms were a “great day for democracy”. Establishment rule is often confused as a truly democratic one.  Functional democracy – and in that, a good deal of untidiness should be allowed to prevail – suggests debate, disagreement and compromise.

Majoritarian and establishment rule rejects such suggestions. From the start of Australia’s young political history, notions of compromise across the political spectrum have been viewed as aberrations of the political experiment, distinctly un-tribal in nature. The High Court decision does little to dispel that, giving the imprimatur to political streamlining under the guise of informed choice.  The quest to identify that true electoral voice continues.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: Read other articles by Binoy.