Day v Australian Electoral Officer for the State of South Australia; Madden v Australian Electoral Officer for the State of Tasmania

The High Court has dismissed a constitutional matter challenging changes to the ballot papers to be used in the election of Federal Senators. Recent amendments to the Electoral Act 1918 (Cth) allowed electors to vote ‘above the line’ on the Senate ballot paper by numbering at least six squares sequentially. The list of candidates marked ‘1’ will be allocated preferences in the order in which they appear, then followed by the list of candidates marked ‘2’, and so on. This system replaces the previous system, by which electors could make a single ‘above the line’ vote by marking a ‘1’ for a particular group vote, after which preferences would be allocated according to that group’s list of preferences. (For further details on the proposed system see [27]ff).

The plaintiff, Senator Day, contended that the new form of the ballot paper as a whole and the method of voting prescribed above the line contravenes ss 7 and 9 of the Australian Constitution because it constitutes more than one method of voting (Argument A) and does not meet the requirements that senators be ‘directly’ chosen by the people (Argument B), that it contravenes the principle of proportionate representation (Argument C), that it prevents a ‘free and informed’ vote (Argument D) or, in the alternative, that it contravenes a constitutional principle of representative government and the freedom of political communication (Argument E). The respondents contended that each of these arguments misconstrues the effect of the provisions or the requirements of the Constitution.

The Court (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ) unanimously held that none of these arguments had merit. Argument A failed because the constitutional method requirements are relevant to national uniformity of ballot paper approaches, and are not a formal constraint on parliament’s power to legislate on Senate election methods unconnected to national uniformity purposes (at [38]–[45]). The Court rejected Argument B because above the line voting is still just as much a direct vote for individual candidates (albeit through a party list) as below the line voting (see [46]–[50]). Argument C, which rested on an asserted principle of ‘directly proportional representation’ (see [51]–[52]), was rejected because no such principle exists, and because while many voters may be encouraged to vote above the line that did not constitute any disenfranchisement in the legal effect of the voting process (see [51]–[54]). Argument D was rejected because the ballot paper was not misleading and did not fail to inform the voter of the range of voting options (see [55]–[56]). Finally, Argument E, which the Court termed a ‘catch all’ argument that repeated the points made in the other arguments above, was rejected for the reasons that those arguments failed (at [57]).

High Court Judgment [2016] HCA 20 13 May 2016
Result Application dismissed
High Court Documents Day
Related Matter Madden
Full Court Hearing [2016] HCATrans 97 2 May 2016
Leave Hearings [2016] HCATrans 85 15 April 2016
[2016] HCATrans 73 24 March 2016
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About Martin Clark

Martin Clark is an PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor in legal theory, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.