News: Court ruling on Senate voting this Friday

Yesterday’s High Court’s judgment delivery notification service (an email list) includes the following announcement:

Please be advised that the High Court will deliver the following judgments:

Friday, 13 May 2016 at 10:00 am in Court No. 2 Parkes Place, Canberra

Day v Australian Electoral Officer for the State of South Australia & Anor (S77/2016)

Madden & Ors v. Australian Electoral Officer for the State of Tasmania & Ors (S109/2016)

These judgments are a pair of constitutional challenges by Senator Bob Day and Tasmanian senate candidate Peter Madden (both of the Family First Party) to amendments made to the Commonwealth Electoral Act in March 2016 to some aspects of the system for voting for senators. A successful challenge would (most likely) mean that the coming federal election would be governed by the previous rules for Senate voting, which have been criticised for permitting candidates with little direct support to be elected through complex deals with other parties about how ‘above the line’ votes for particular parties are dealt with. Such a ruling would be one of the apex court’s most dramatic recent interventions in national politics.

There has been no shortage of detailed analysis of the arguments put forward by Day and Madden. Most predict that the challenge will fail because of the weakness of the arguments put forward. In my view, the Court’s own conduct since the hearing also strongly suggests that the challenge will fail. In past pre-election challenges to election laws, the Court has dealt with successful challenges by issuing orders in advance of written reasons, so as to ensure that the challenge can be acted on by the Australian Electoral Commission as soon as possible. On this occasion, however, judgment will come a fortnight after the hearing and will seemingly include written reasons. It is unlikely that the High Court would allow any delay before announcing orders (and, indeed, leave at least three days between announcing the coming judgment and issuing it) if Day’s and Madden’s challenge was likely to succeed. So, it is unlikely that Australia’s mainstream party politicians and election administrators are losing sleep (over this issue) this week.

As it happens, the Court will hear another pre-election challenge to electoral law later this week. This challenge, which has received comparatively less attention, seeks to build on the Court’s 2010 ruling that narrowly struck down 2006 amendments closing the electoral roll within three days of the issuing of writs The new argument attacks the pre-2006 rule that the electoral roll must close within seven days of the issuing of writs. Whatever the merits of this argument, it lacks the administrative consequences, political significance and sheer drama of Day’s and Madden’s challenge. Presumably, the Australian Electoral Commission has contingencies in place that allow it to keep the roll open until polling day if needed. It will be interesting to see whether or not the Court makes a decision ahead of May 16 (when the roll is currently scheduled to close) or whether it decides later (with a successful challenge presumably requiring the re-opening of the roll.) The lengthy election campaign somewhat relieves the burden such challenges impose on the courts and the commission, whatever burdens that length imposes on politicians and voters.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.