Senate voting changes contemptuous of constitution

Late in the morning of Monday, February 22, there was made an announcement of the government's position on Senate reform. My first reaction was one of anger at the cynicism and misrepresentation of the facts displayed by Malcolm Turnbull and Senator Mathias Cormann. 

On Thursday, February 25, I was invited by the Joint Standing Committee on Electoral Matters to appear on Tuesday March 1 to  be questioned, along with other experts. 

The proposed changes to Senate voting will sharply restrict voters' choices.
The proposed changes to Senate voting will sharply restrict voters' choices.  Photo: Jesse Marlow

Anticipating this request I completed a 23-page document which I sent to the committee on the Thursday. However, as the (perhaps) unwise comments of the last two pages will be interpreted by the politicians, I was still simmering with anger on that day. 

It is my considered judgment, however, that Labor made the right call to oppose the Bill – but Labor has a problem which I lack. 

My consistent sympathy with the Senate cross-bench (Nick Xenophon excepted) means I can say and write what I actually think. While I am of the view that Labor (Gary Gray excepted) has recently been saying sensible things, they still have a credibility problem. 

Consequently, no one has any respect for them. Even those disgusted by the cynicism of Turnbull and Cormann may well still vote for them at the double dissolution election which I now predict will be held on July 2. 


Having at last simmered down I offer this judgment. While my hostility to the Bill would remain, it would be diminished if they would restore the one element of the 2014 Report of the JSCEM of which I truly approved, namely optional preferential voting below the line. 

By that I mean an elector in a state could vote 1,2,3,4,5 and 6 for candidates and still have it counted as a formal vote. 

More important, however, is my judgment of what would happen in the event of a High Court challenge which I regard as a near-certainty – launched by South Australian Family First Senator Bob Day. 

My lawyer friends advise me that the odds would favour the government if that simple right of below-the-line voting were given to the elector. If, by  contrast, the present outrageous provision of the Bill (and of the present system) were retained, then the odds would be that the High Court would strike the legislation down as being unconstitutional. 

Assuming this all goes through, and assuming the High Court gives it the OK, how would I describe the new system? 

I describe the system operating from 1949 to 1983 as "the first Single Transferable Vote system". The method used from 1984 to 2014 I call "the second STV system". The one applying from 2016 into the future I would then call "the Party List system". 

If the High Court upholds the constitutional validity of the legislation then the judges would use the legalistic talk to the effect that a vote for a party is a vote for its candidates, in the order decided by the party. 

I do not buy that – but then my opinion does not matter. The constitution means what the judges say it means. 

In any event the provision is found in section 7 which commands that: "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting as one electorate." 

Section 24 deals with the House of Representatives. They, too, are commanded to be "directly chosen by the people". 

These provisions mean that the electoral system for choosing all our federal politicians must be candidate-based. 

In  my opinion the Commonwealth Electoral Amendment Bill as it now stands is breathtaking in its contempt for the constitution. 

It is not about fairness. It is about the re-shaping of our party system. South Australia is to have a four-party system, Liberal on the right, Xenophon in the centre and Labor and Greens on the left. The rest of Australia is to have a three-party system, Coalition, Labor and Greens. There will be no independent senators, unless Jacquie Lambie can get a short term at a 2016 double dissolution election. 

There will be only one benefit for voters. The ballot paper will be smaller. 

Malcolm Mackerras is a visiting fellow at the Australian Catholic University's Canberra campus.