By Crispin Hull

A DELIGHTFUL ding-dong has been going on this month between South Australian Independent Senator Nick Xenophon and the noted psephologist Malcolm Mackerras that has led Mackerras to call for a re-run of the 1984 High Court case that declared the present mad Senate voting system constitutionally valid.

At first blush, it would seem a Quixotic gesture, but here are a few thoughts as to why the idea has merit, if you could get the money for good representation.

The 1984 case was self-represented, which is another reason to question it. Cyril John McKenzie an independent Queensland candidate for the 1984 Senate election ran it himself.

It was also a single-judge decision and Chief Justice Harry Gibbs dismissed McKenzie’s challenge in a brief nine-paragraph judgment.

McKenzie attacked the voting system because it allows for people to vote with just a 1, tick or cross for a political party above the line and for their voting preferences to be deemed to have been selected in the exact order determined by lists given by political parties to the Electoral Commission before the election.

McKenzie argued that that system offends the Constitution which states, "The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting as one electorate."

Gibbs responded: “It is right to say that the electors voting at a Senate election must vote for the individual candidates whom they wish to choose as senators, but it is not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket.”

At the time, before the system was ever used, it looked like a way through the problem of an ever-increasing informal vote caused by large numbers of Senate candidates, huge ballot papers and a requirement that voters number in correct sequence their preference for every candidate.

Many dummy single-issue parties were being pushed by major parties to syphon off each other’s vote.

Incidentally, the 1984 system also provides for split party tickets (two or three), so that half or a third of the voters are deemed to have voted for the preferences in each ticket.

Surely, that random selection of votes must be unconstitutional because it is not a “direct” choice. Indeed, the Electoral Act has some fall-back provisions just in case they are declared unconstitutional.

But even the single party list smacks of indirectness. It is one thing for a party to list its own candidates in order on a ballot paper which the voter can see, but quite another for a parties to provide the Electoral Commission lists of all of the candidates, including those from other parties, which is not apparent on the ballot paper. Very few voters bother to find out who they are really voting for, even though there is a booklet containing the party lists at each polling booth.

As to rearguing the case, a number of points arise.

Before 1984 the court was very reluctant to do constitutional about-turns. The unsuccessful re-running of the Territories Representation case, after the composition of the bench had changed, is an example.

However, since 1984, the court has on several occasions wiped the slate clean in constitutional cases, overthrowing all that went before.

Examples are: the excise case which ruled invalid decades of previously ruled valid state-based licences fees for selling tobacco, liquor and petrol; the corporations reinterpretation which upheld Work Choices, sweeping away a century of industrial relations law; and the reinterpretation of the provision guaranteeing freedom of interstate trade.

In 1984 Gibbs seemed worried about the inconvenience of stopping the Senate election a few days before it was due. These days the court is more interested in getting it right. For example, the inconvenience of wiping decades of states’ fiscal underpinnings was no matter. The Commonwealth had to rush through special legislation to save the revenue.

There is a further reason the court might revisit the Senate matter. The underlying fact base has changed.

When Gibbs looked at the challenged law there had been no experience of its effect. At the time, it seemed a reasonable response to the growing informal vote, even though there were better ways to go about it.

Constitutional law evolves. Also the surrounding facts can change constitutional interpretation. For example, a law controlling the price of food would be a valid Commonwealth law with respect to defence in wartime 1944, but invalid in 1946. Indeed, there are several cases like that.

Thirty-two years and 11 elections later it would be much easier to demonstrate that the Senate voting system no longer results in senators being “directly chosen by the people”. The practical effect of the 1984 legislation is that people like Ricky Muir, Jackie Lambie and others who were elected with pitifully low first-preference votes were not chosen directly by the people, but were the last candidates standing after the artful manipulation by preference-whisperers and micro-party backroom deals.

The really telling point about the present system is that voters do not choose  “candidates” or potential senators they want, but instead choose a “party” which then determines which candidates are chosen.

Yes, we have political parties. Yes they should be allow to order their own candidates on the ballot paper, but they should not be able to do the choosing of all the preferences for all the candidates of other political parties in a way not disclosed on the ballot paper to the voter doing the constitutional choosing of the Senators.

How can you say that that Ricky Muir with half of one percent of the first preference vote was “directly chosen by the people” when he was “chosen” by a tortuous process of preference arrangements that the voters had no say in?

In any event, a High Court challenge to the present system would gee up the politicians to do something about it and the threat of it may persuade them that these poisonous party lists are too constitutionally risky. They might even opt for optional preferential voting so voters only have to vote for six preferences and as many thereafter as they want.

But as is often the case, it takes the force of a court for a politician to put principle above self-interest.