Senator Bob Day asks Peter King to ask the High Court to overturn senate election reforms … Four pronged attack on Electoral Act amendment … Hannah Ryan courtside 

Senator Day, of the Family First party, dashed over from Parliament House to the High Court on Monday afternoon in an attempt to stop long-debated Senate voting reform in its tracks. He claims that recent amendments to the Electoral Act are unconstitutional.  

He appeared to fare little better with the judges of the High Court, as he confronted a sceptical and occasionally frustrated bench. 

And in a case that might put our nation’s system of voting at stake, a curious number of attendees were overheard grumbling about the closure of the High Court’s café, rather than debating the enfranchisement or otherwise of voters.

But what Senator Day’s case may have lacked in merit, it certainly made up for in rhetorical flourish.

King knows a thing or two about votes. He took a leave of absence from the bar to represent the citizens of Wentworth in the Commonwealth parliament between 2001 and 2004, before being unseated as the Liberal representative in the 2004 election by Malcolm Turnbull.

He served out a 10-year suspension from the Liberal Party after unsuccessfully running against Turnbull as an independent.

The reformed upper house ballot paper invites voters to vote above or below the line. Should they choose to vote above the line, they are told to number at least six parties or groups in order of preference – although a vote which stops at ‘1’ will not be informal.

That vote is then distributed to all the candidates of the party which was numbered ‘1’ in the order in which they appear below the line, and then to the candidates of the party marked ‘2’, and so on.

The bold elector who embarks on a below-the-line vote is to put a number next to the names of at least 12 candidates.

Under the old system, a voter either had to vote ‘1’ above the line, or number each and every candidate below the line. By a “ticket” system, the group or party that received a vote above the line determined the order of the voter’s preferences as to the individuals listed below the line. And so was born preference-whispering, and the political careers of punters like Muir, Leyonhjelm, et al.

He first contended that the new system creates multiple methods of voting in Senate elections, in contravention of s.9 of the Constitution. That section requires the Commonwealth parliament to prescribe a method of choosing senators that is uniform for all States.

The Commonwealth denied that a choice between above-the-line and below-the-line voting created two methods. Its case was that “method” denoted the entire system of voting.

Senator Day’s next complaint was that the 97 percent of the electorate that prefers to vote above the line would not be choosing senators directly, as required by s.7 of the Constitution.

Instead of voting for individuals, they would be voting for parties. The operation of the Act, not the individual voter, would distribute that vote among candidates.

On this argument, political parties act unconstitutionally as third-party intermediaries between voters and the candidates they wish to elect. This unsavoury role is augmented by the appearance of parties’ logos on the ballot paper next to their names above the line. 

According to Senator Day, the old method of group voting was really a simplified method of voting below the line – a vote above the line was a convenient shorthand vote for the candidates of a publicly registered ticket in the order the ticket provided.

All of this means that Senator Day’s argument is that the old system – where parties decided among themselves how to distribute a voter’s preferences – was more democratic and direct than the reform.

The third issue was whether the new system effectively disenfranchised a chunk of the electorate, especially those who prefer to vote for minor parties or independents.

King pointed the finger at the new form of ballot paper, which doesn’t inform electors that if they fail to number every box their vote might exhaust and therefore be “illusory”.

The temptation would be for major parties to run “just vote 1 above the line” campaigns, in order to “plump their vote”.

The result of the new system would be that the outcome would not represent the will of the majority of voters, according to King.

Williams SC gave this argument short shrift, saying that it was “detached from constitutional text and structure”.

The final argument was quite elliptical. Senator Day invoked the implied freedom of political communication to complain about the ballot paper’s failure to inform voters about the different ways of voting.

The complaint seemed to be that the ballot paper neglects to mention that above-the-line votes that number less than six boxes will still be considered formal, and that a vote may exhaust if not all the boxes are numbered.

But was the relevant communication the vote, the ballot paper, or something else? Having closely observed argument, I can’t be sure.

The court has reserved its judgment.

An unlikely victory would certainly be a thorn in the side of Prime Minister Turnbull. If the government loses the electoral commissions in each state would be prohibited from distributing the new forms of ballot paper.

King was elusive in identifying the implications of his argument. Was it that no system other than full compulsory preferential voting could be constitutional? Would optional preferential voting suffice if voters were informed that a vote could exhaust? Or was it that any approach was fine, so long as voters didn’t have a choice between going above or below a line? We’ll have to wait and see.

And we surely won’t be waiting too long – with an election under two months away, the judges will no doubt be scribbling madly. 

Day v Australian Electoral Officer for SA 
Hearing transcript for May 2 
Hearing transcript for May 3