Is a constitutional challenge to Senate voting reforms likely to succeed?

The High Court is unlikely to be sympathetic to claims of discrimination against the microparties in the proposed Senate reforms. AAP/Lukas Koch

The response of those senators whose re-election is threatened by the proposed Senate voting reforms has been to lash out with claims of unconstitutionality and threaten High Court challenges. Are these reforms vulnerable to challenge and on what basis would this occur?

‘Directly chosen by the people of the state’

The key provision is Section 7 of the Constitution. It says that the Senate:

… shall be composed of senators for each State, directly chosen by the people of the State…

The critical words are “chosen” and “the people”.

If certain groups are excluded from being able to vote, such as women or particular races, the High Court has taken the view that the houses of parliament would not be directly chosen by “the people”.

The validity of other exclusions from voting, such as those based on age, citizenship or imprisonment, will depend on whether there is a “substantial reason” for the exclusion, compatible with the maintenance of the system of representative government.

The proposed Senate voting reforms will not exclude anyone from voting. It is claimed that up to 25% of electors vote for the non-major parties, and that these voters will be “disenfranchised”.

However, if these electors choose to vote above-the-line, they are instructed to vote for at least six different parties or groups and can choose to give further preferences if they wish. They are not being disenfranchised; it is their choice whether or not they wish to give additional preferences or allow their vote to be exhausted so that it cannot be used to elect a person to whom they object.

The Senate voting reforms are not excluding any of “the people” from exercising their choice in voting for the Senate. Their choices are enhanced by the reforms. We would therefore have a Senate “chosen by the people”.

Maximising participation

There is an argument, however, that the consequence of optional preferential voting is that some votes will exhaust and that this will reduce the participation of “the people” in choosing the Senate.

In the Rowe case in 2010, a majority of the High Court emphasised the importance of maximising the participation of the people in elections and the need to make elections as expressive of the will of the majority of the people as practical considerations permit.

Optional preferential voting would most likely have the effect of reducing the number of votes used to choose the Senate. The critical difference, however, is that the Rowe case concerned a law that prevented people from voting, whereas under optional preferential voting it is the choice of the elector whether his or her preferences exhaust or result in electing a senator.

There is a strong argument that the Senate may still be “chosen by the people” and expressive of the will of the people, even though some choices involve letting a vote exhaust rather than electing a senator who the voter rejects.

Discrimination against microparties?

It might also be argued that these voting reforms are intended to discriminate against small political parties and that this is somehow unconstitutional.

This argument is unlikely to succeed because the High Court has previously accepted in the Mulholland case that electoral laws for above-the-line voting can exclude political parties that have no real public support and have been created as “shell parties” or “front parties” to manipulate the preference system.

In the Mulholland case, Justice McHugh accepted that a law requiring parties to have at least 500 members before they can be placed above-the-line on the ballot paper was valid because it protected the electoral process by preventing voters from being misled by parties with:

… no substantial membership … and a ‘single issue’ party name calculated to catch the eye of voters and to channel preferences to another party (whose policies may be entirely unrelated to the name of the ‘single issue’ party).

Justice Kirby added that it was:

… within the lawmaking powers of parliament to decide that [party regulation] was reasonably necessary to reduce confusion in the size and form of the ballot paper; to diminish the risk and actuality of deception of electors; to discourage the creation of phoney political parties; and to protect voters against disillusionment with the system of parliamentary democracy.

On this basis, it is unlikely that the High Court would be particularly sympathetic to the claims of discrimination by the microparties.

Difference between above-the-line and below-the-line voting

The other area that might have been vulnerable to challenge was any disparity between the above-the-line and below-the-line voting systems. The bill in its original form provided for optional preferential voting above the line but still required full preferences below the line.

The Joint Standing Committee on Electoral Matters has since recommended that optional preferential voting apply below the line as well, with voters only being required to give 12 preferences (with savings provisions if only six are given).

If the government adopts this change, it will remove one cause for constitutional complaint and enhance voters’ ability to express their wishes, permitting them to order preferences for candidates within a party according to their own wishes.

Is a High Court challenge likely to succeed?

The High Court has long accepted that there is a broad spectrum in which different electoral laws may operate to elect the houses. Its main concern has been preventing the exclusion of electors from voting, which is not something the proposed laws affect.

As these reforms will enhance the choices of voters and better reflect their voting intentions – even though they may reduce the number of votes used to elect the Senate – overall it seems likely that they will withstand any challenge.