Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20

In a unanimous judgment the High Court upheld the constitutional validity of Senate voting reforms designed to put an end to preference deals

The amendments to the Commonwealth Electoral Act 1918 (Cth), introduced in March 2016, changed the Senate ballot paper and the process for marking it. The amendments were designed to put an end to preference-swapping deals that had resulted in the election of senators from “micro parties” who held only a fraction of the popular vote. In proceedings brought in the original jurisdiction of the High Court, South Australian Senator Bob Day and Tasmanian Senate candidate Peter Madden, both from the Family First party, alleged that the amendments offended various constitutional requirements, including that they prescribed more than one method for choosing senators, contrary to s 9, and offended the requirement in s 7 that senators be “directly chosen by the people of the State”.

The amendments abolished group voting tickets, which had allowed parties to determine the allocation of preferences for voters who voted above the line. Instead of marking only one square above the line, voters choosing to vote above the line must now mark at least 6 squares; their preferences will then be allocated sequentially to the group of candidates appearing below the line in the order in which they appear. Voters choosing to vote below the line must now allocate their preferences to at least 12 candidates, rather than marking every square. Vote-saving provisions allow a ballot with one square marked above the line or at least six squares numbered consecutively below the line to be counted as a formal vote.

The amendments were said to offend ss 7 and 9 of the Constitution in two respects:

  • first, by requiring voters to choose between two “methods” of voting – one above the line and one below the line – contrary to the power in s 9 to prescribe “the method” of choosing senators.
  • second, by interposing an intermediary– the political party– between the voter and the individual candidates below the line, offending the requirement in s 7 that Senators be “directly chosen” by the people.

The High Court rejected each of those arguments. The Court began by contextualising the amendments as “the latest episode in an historical evolution” of voting methods since Federation. Against that background, the Court held that above and below the line voting options did not create more than one method of choosing senators; “method” is to be construed broadly and allows for more than one way of indicating elector choice within a single uniform system. The Court characterised the plaintiffs’ arguments as a “pointlessly formal constraint” which had nothing to do with the section’s evident purpose of ensuring the method of choosing senators was uniform across the states. The Court also described the plaintiffs’ arguments in relation to s 9 as untenable, holding that above the line voting is a direct vote for the candidates appearing beneath that square below the line – and that it is as much a direct vote as allocating preferences below the line.

The plaintiffs also argued that a principle of “direct proportionality” – said to be derived from s 7, read with ss 24 and 128 of Constitution – required that all electors have their votes reflected in the election of candidates. Essentially the plaintiffs contended that voters who wish to vote for minor parties will be “disenfranchised” because their vote, if their preferences exhaust, will not go on to elect any candidate. The Court rejected the argument that there was such a principle to be infringed or any disenfranchisement in the effect of the amendments.

The plaintiffs made other more general arguments that the amendments infringed the implied freedom of political communication by misleading voters about their voting options, and otherwise impaired that freedom and the principle of representative government, each of which the Court rejected.