What’s apropos for me may for thee be blasphemy… The circus of Day v AEC

Over on re-Constituted, I put up a post about the tricky issue of senate elections.  The tl;dr version of that post is that we need to have a clear idea of what we want to achieve with a bicameral parliamentary system before we can tackle questions about how to elect it (and, subsequently, what should be entrenched in a constitution to give effect to that method of electing senators).

I had the pleasure of being in the High Court today when Day v Australian Electoral Officer (SA) was handed down.  Dismissed.  Boom.  Go home.

Senator Bob Day was elected to the Senate by accident.  Because the Australian Greens had decided to preference Family First ahead of the Australian Labor Party, this hard right malcontent was given a seat in the federal upper house.

Until recently, the method of selecting senators was to give voters two options.  The first was to ask voters to number every single candidate (which was rarely under 70) in order of preference.  The second was to place the number one in the box representing the party for whom they wanted to vote.  If you opted for the latter option, you were saying ‘I trust the party to whom I have allocated this vote to transfer the vote to a party of their choosing if they fail to get enough votes to get elected’.

Of course, political parties abused this system, engineering complex (and often inscrutable) preference deals to direct votes in weird directions.  It’s why the Australian Sex Party directed preferences to the One Nation Party, for example.

So the federal parliament wisely decided to empower voters to indicate their own preferences.  I wrote about this a few months ago.

Bob Day knows that the changes are a giant flush button on the toilet in which his political career bobs around.  If he can’t take advantage of an obviously corrupt electoral system, he’ll never be a senator.  So he took a challenge to the High Court, citing the 1990s Australian movie The Castle as rhetorical precedent.

At no point did Bob Day’s argument make any sense.  Worse, he kept claiming that his challenge was all about the principle and not about his petty self-interest… and yet his case was so devoid of principle that the judgement hasn’t resulted in good case law.

Day advanced four arguments:

  1. The option of “optional first past the post/preferential” voting for parties above the line and “compulsory preferential” voting for candidates below the line, for which the Act now provides, constitutes more than one method of choosing Senators and is contrary to the requirement in s 9 of the Constitution that there be only one method.
  2. The option of above the line voting for one or more registered parties or groups contravenes the requirement in s 7 of the Constitution that Senators for each State be “directly chosen by the people”.
  1. The changes to the form of ballot paper and the provisions for marking it above the line, read with s 273(8) of the Act, infringe a constitutional requirement of “directly proportional representation” in the Senate.
  1. The new form of ballot paper and the instructions on it are likely to mislead or deceive electors in relation to the casting of votes and thereby to hinder or interfere with their exercise of a right to a free and informed vote. It describes only two ways of voting and suppresses disclosure of other ways of voting which are formal.
  2. The new form of ballot paper mandates an uninformed choice by electors, preventing the free flow of information and hence impairing the implied freedom of political communication and the system of representative government.  [Source, [37]]

If something smells off about the arguments, it could be that arguments (A) and (B) seem to be arguments against the existing way of electing the Senate.  Before we go into those arguments (and there’s not much to them), let’s go to the transcripts where the Australian Government-Solicitor, Justin Gleeson, dropped one of my favourite sledges of the proceedings:

They have the rather startling proposition that Senator Day is, in fact, not Senator Day, he is Mr Day. He has been sitting invalidly in the Senate for the last three years. No legislation has validly been passed by the Senate. Now, why – I will call him Senator Day – would leave it until, as it were, five minutes to midnight before this election to bring before this Court three arguments which impugn his own position as a Senator has been left totally unexplained.  [Source]

Argument A relies upon the following segment from s 9 of the Constitution: ‘The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States.‘  Day argued that this meant that there needed to be one and only one method, and that allowing above the line or below the line voting meant that there were at least two different methods.  The Court came to the obvious conclusion that this argument is bananas: method is broadly constructed to mean the whole process for electing senators.  And we can obviously see why: postal voting exists without being a separate method.

Argument B refers to s 7 of the Constitution: ‘The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.‘  Day’s argument appeared to be that voting for a party meant you weren’t directly voting for a senator.  The Court reiterated that ‘the requirement of direct choice excludes indirect choice by an electoral college or some other intermediary’ (so the US system of voting for delegates to form an electoral college to elect a president would be in breach of the Australian Constitution), and dismissed his argument as ‘untenable’.

Argument C makes zero sense, and the Court agreed: ‘The argument was elusive. […]  The plaintiffs’ argument, based upon effects adverse to the interests of so called “minor parties”, was in truth an argument about the consequences of elector choices between above the line and below the line voting and in the number of squares to be marked. It should be rejected.’

Argument D was an argument that the ballot paper itself was misleading, but Day couldn’t show why it was misleading.

Argument E was a restatement of the general argument of the other arguments, and so the Court rejected it.

You’ll notice that there’s no principle that’s been presented by Day.  It’s like a stream of consciousness rant about why the new changes would impact upon him adversely.  There was no precision to the arguments, and there was no obvious sense what Day wanted from the Court.

We can ask better questions.  Imagine that Day had fluked a win out of the case, what then?  Should the Court have been put in the position of enunciating what models of senate election are valid and which are not?  And by that, I don’t mind in general principled terms, but in detailed nitty gritty terms.  If the Constitution envisaged that responsibility for adapting the electoral system to the needs of an evolving society should be given to the people’s elected representatives, what would it mean for the Court to usurp that role by demanding particular models?

If we are to believe in parliamentary supremacy (and we should) then it’s difficult to see how a win for Day would be consistent with it.  Sure, if the proposed model breached some fundamental principle of democratic representation (or instituted an electoral college, for example) the Court could say: ‘Hey, that model is in breach of the general principles governing valid election methods.  We therefore restrain the Australian Electoral Officer from issuing ballot papers under the new Act, invalidate the amending Act, and direct the Australian Electoral Officer to issue ballot papers in accordance with the Act now in force.’

But otherwise?  What options were available here?  The Court might have invalidated every amendment to the Act dating back to the 1980s… maybe?  The Commonwealth argued that only declaratory relief was really possible — that the Court would declare that the Act did not comply with the Constitution and ought to amend the Act.   The Commonwealth might have underestimated the availability of other remedies, but it’s certainly the one for which I would have opted.

But let’s ask an even better question: regardless of what the constitution says, should Day have been correct?  That is, should parliaments have quite a broad discretion in the way it establishes its electoral processes, or should electoral methods be entrenched in a constitution (either explicitly in the text or implicitly by judicial interpretation)?  To answer this question, you have to ask if you think the unrepresentative white guys in 1901 should tell every subsequent generation how to participate in democracy, or whether modern societies should have modern systems of parliament.

Let’s turn to a final issue that Day v AEO raises, and that’s the role of the media.  I collected my phone from the lock up and then hurried downstairs to join the media scrum waiting to ask Bob Day and David Leyonhjelm questions about the decision.  There was a photo opportunity: Day and Leyonhjelm held up copies of the judgement and looked forlorn, then Day made a little speech about how disappointed he was but how he’d had a go and how this was just like the film The Castle.  Then a journo asked a question and Day repeated that he’d had a go and how he was disappointed.  Then another journo asked a question and Leyonhjelm inexplicably ranted about drawbridges.  And then he said that he wanted to make it illegal to campaign on a ‘Just Vote One’ platform… which was a very odd thing to hear from a libertarian senator.

The journos did nothing to advance the conversation.  Not one thing.  Either they didn’t understand the case (they certainly didn’t understand the decision because it hadn’t been published yet) or they just didn’t care about advancing the discussion.  All they really did was provide the platform for Day and Leyonhjelm to make a number of bizarre assertions unchallenged.

This is clearly an inefficient system.  Those journos might as well have just published a media release in full instead of forcing the senators to stand in the bitter Canberra wind.  Get some pictures and then copy and paste the statement.

Journos routinely complain when politicians avoid them, or don’t provide an opportunity for them to ask questions.  But when they are given the opportunity, they flub it.  If your whole job is to ask questions in order to inform a democratic system about its political choices, why are you so bad at asking questions?  And why are there so many of you?  Inefficiencies abound.

And then they’re rude to the general public.  This arsehat dudebro stepped right in front of me in order to get a better shot of Leyonhjelm and Day not saying much.


If society has given you a stack of statutory protections from a wide variety of legal actions, you should probably consider treating society better.

On the other hand, at a press conference about an accidental senator failing to apologising for wasting society’s resources on his frivolous High Court case, it is perhaps appropriate that journos should also treat the community like garbage.



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