Day v Australian Electoral Officer for the State of South Australia & Anor; Madden & Ors v Australian Electoral Officer for the State of Tasmania & Ors [2016] HCATrans 97 (2 May 2016)

Last Updated: 2 May 2016

[2016] HCATrans 097

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S77 of 2016

B e t w e e n -

ROBERT DAY

Plaintiff

and

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF SOUTH AUSTRALIA

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

Office of the Registry
Sydney No S109 of 2016

B e t w e e n -

PETER JAMES MADDEN

First Plaintiff

MARIA MARCIA RIGONI

Second Plaintiff

KIM MAREE VUGA

Third Plaintiff

ERIC PETER WALKER

Fourth Plaintiff

STUART GEOFFREY PAULL

Fifth Plaintiff

IRWIN ROSS

Sixth Plaintiff

MILIWANGA WURRBEN

Seventh Plaintiff

and

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF TASMANIA

First Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF QUEENSLAND

Second Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF WESTERN AUSTRALIA

Third Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF VICTORIA

Fourth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE STATE OF NEW SOUTH WALES

Fifth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE AUSTRALIAN CAPITAL TERRITORY

Sixth Defendant

AUSTRALIAN ELECTORAL OFFICER FOR THE NORTHERN TERRITORY

Seventh Defendant

COMMONWEALTH OF AUSTRALIA

Eighth Defendant

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 2 MAY 2016, AT 2.15 PM

Copyright in the High Court of Australia

____________________

MR P.E. KING: If your Honours please, I appear with MR F.C. BROHIER, for the plaintiff in the Day matter, and I appear for the plaintiffs in the Madden matter. (instructed by McKells Solicitors)

MR N.J. WILLIAMS, SC: May it please the Court, in each matter I appear with MR N.J. OWENS and MR C.L. LENEHAN, for the Commonwealth. (instructed by Australian Government Solicitor)

FRENCH CJ: Thank you, and there is a submitting appearance for the first defendant in the first case and for the first to seventh defendants in the second. Yes, Mr King.

MR KING: Thank you, your Honour. Your Honours, these are proceedings in applications to show cause why declaratory relief and constitutional writs should not be granted as asked to the first defendant.

FRENCH CJ: Mr King, do you have an outline of your argument?

MR KING: I apologise, your Honour, I do not. That is a misunderstanding on our part. We have written submissions and a reply and if it is of assistance we will prepare such a document overnight.

FRENCH CJ: Well, it is a normal requirement, Mr King, that you hand up a no more than three-page outline of your argument and it is surprising that that has not happened. Anyway, you had better proceed.

MR KING: Thank you, your Honours. The relief sought is not – the form of the writ and the relief sought is not the subject of any further objection in the matter, and the relief sought is in the form guided by the Court’s observations in Rowe v Electoral Commissioner, at passages cited in our written submissions in the application book page 23, line 40.

It is, your Honours, I must confess, with hesitation, that I embark on this voyage in this honourable Court, concerned by doubt – or no doubt in my message, but rather diffidence in the delivery. I begin, of course, by reading the application in the cause in the application book at page 2 - 7 in the Day matter - and the affidavit of Senator Day at page 9, and in the Madden matter at page 2 and Mr Peter Madden’s affidavit is at page 11.

The identity of the plaintiffs in the matter which he is the lead plaintiff is set out and their occupations at pages 8 and 9. There are agreed tables and there are also worked examples. The agreed tables may be found at pages 120 - - -

FRENCH CJ: I think we are familiar with that.

MR KING: Thank you, your Honour.

FRENCH CJ: You can take us to them when and if you need to, Mr King. It might be best to embark upon your argument and indicate to us in what order you propose to address the issues.

MR KING: Yes. I respectfully adopt the written submissions which are found in the application book and in the reply; the first argument in each application which is found in the application book at pages 24 to 27, called argument A, and in the reply at pages 2 to 4. It relates to grounds paragraphs 5 and 10 at pages 4 to 6 of the application. It affects the whole of Part 1 of the 2016 enactment and critically turns upon the construction of sections 4, 239, 268, 268A and 269 and Form E as amended. The second argument identified in the written argument at pages 27 to 30 of the application book is grounds paragraph 6, 7 and 10 in the application.

FRENCH CJ: I think we have got that in your outline. I do not think we need the numbers. We have read the submissions, of course.

MR KING: Thank you, your Honour. I will be proceeding in the order of the arguments set out in the application, referred to in the same order in each set of written submissions and in our submissions in reply. In respect of each argument, as paragraph 10 on the grounds makes clear, the matter is put in two ways: firstly, that the 2016 Amendment Act contravenes or impairs relevant provisions for Senate elections in Constitution Chapter I, in the case of the third argument also section 284, and, secondly, that the 2016 Act, in its terms operations or effect “impairs the constitutional guarantees of representative” and responsible government, including in the case of the fourth argument “freedom of political communication”.

The submissions in the Day matter are read in both. The Madden matter is intended to be complementary, that is to reflect the same relief in respect of the same electoral officers for each of the other States and Territories. I propose only to address your Honours with respect to the Day matter.

Then, your Honours, briefly opening, an examination of the 2016 Act, the plaintiff contends – demonstrates that our voting system has become, as a result of that law and as intended by the majority of the legislators, a rolled gold system for electing candidates endorsed by mainstream political parties including established smaller minor parties such as the Greens, and I use that phrase advisedly – it is in the evidence.

Entrenching those parties and excluding candidates endorsed by minor parties and independents, the proponents of the legislation in the Parliament have, if the plaintiffs are right, disregarded those Australian electors who want to vote differently from the mainstream or support diversity in the next Federal Parliament. The electoral officers for each State and Territory acting honestly at the next election should put up a sign outside each polling booth - - -

FRENCH CJ: Well now, Mr King, I do not think we are really interested in hearing what I might call normative speeches. I think we need to hear your submissions in relation to the ways in which you say the impugned provisions contravene the Constitution and as I understood your first argument was that they prescribe more than one method of voting contrary to section 9 of the Constitution. It might help if we go to the nitty gritty rather than speeches which are best made outside this place.

MR KING: I was proposing – I will come back to that point, your Honour, it relates to our third argument.

FRENCH CJ: Yes.

MR KING: Thank you. If it is of assistance, I will take the Court to the general structure of the Commonwealth Electoral Act insofar as we submit it is relevant to the present matter, and then to the material which the parties have agreed in the unofficial marked up copy of the 2016 Act which I think was handed to your Honours on Friday.

FRENCH CJ: Yes.

MR KING: Thank you. Relevantly, the principal Act in Part XI dealing with the registration of political parties and Part XX dealing with funding of political parties, now it is well accepted, recognise registered political parties as separate entities and organisations under the Act able to sue and be sued with reviewable rights under the AD(JR) Act. Part XIV deals with nominations and particularly I refer to sections 160 to 163 because they pick up the power in the Constitution of the Parliament to deal with qualifications of electors found in sections 8 and 30. Then Part XVI deals with the polling, Part XVIII the scrutiny, Part XXI electoral offence, and Part XX11 disputed returns. I will come back to some of those provisions.

Then separately the unofficial marked up copy to which I just referred deals with a number of provisions. It may be useful to start with section 4. We will take your Honours to new definitions that are there found, in particular, above and below the line and dividing line, and the definition of “political party” and “registered political party” in section 4. Section 126 in the provisions to which I have already referred deals with political parties, how they may make applications and the conditions of the recognition of such entities, including having a Constitution, and that becomes critical in relation to obtaining a logo which the Act recognises the party owns - is the property of the party, not the candidate, and I will come back to that.

Section 168 remains unchanged. That is the section that deals with grouping of candidates. Section 169 is altered. It deals with the grouping of candidates who were endorsed by political parties. That then leads through to a chain of provisions which I will take your Honours to, dealing with the second argument.

FRENCH CJ: That allows for the grouping of candidates and their designation by reference to a registered political party name.

MR KING: That is right.

FRENCH CJ: But the change to 169 is that which abolishes the group ticket.

MR KING: That is right, the group voting ticket, which was considered by Chief Justice Gibbs in McKenzie, which I will come back to. Then we have 169A, dealing with notification of independent candidacy. Section 210 is probably relevant, dealing with printing of Senate ballot papers. Section 210A, I will come back to, the form of the party name on the ballot papers.

Section 214 deals with the printing of political party names on ballot papers, and (2)(d) identifies the party and where it is printed above the line on Form E the ballot paper. Section 214A is the new provision in Part 3 of the 2016 enactment, authorising logos belonging to political parties to be placed only above the line. They are not, of course, entitled to be allocated to individuals or groups.

Section 239 will be important. It deals with the marking of votes in Senate elections, and I will come back to that. Section 268 deals with the consequences of the failure to mark a ballot paper in accordance with 239, namely that it is informal, but there is a provision in 268(1)(b) which provides:

subject to sections 268A and 269, in a Senate election –

there are specific provisions as to what happens in that case. Section 268A deals with voting below the line – my friend characterises that as a savings provision – and then 269, we say, is not a savings provision. It deals with formal votes above the line; for example, subsection (1) and (1A) is new, and (1A) relates to the whole Act, not just section 268.

Section 272 is what may colloquially be called “the party secretary provision”, where the new party votes that are allocated above the line are then allocated by the Act, not by the voter. Then section 273 deals with scrutiny of votes in Senate elections. It is a lengthy provision, but I will be particularly referring to subsection (8). There are other provisions that I may refer to but those would be the primary provisions.

Your Honours, the first argument in each application which arise from grounds 5 and 10 in the application, although affecting the whole of Part I, critically turns upon the construction of the sections to which I have just referred – that is, sections in relation to that point, 4, 239, 268, 269 and Form E.

FRENCH CJ: Well, is the essence of your proposition that the prescription of two alternative processes - one for voting above the line, the other voting below the line – constitutes more than one method of voting contrary to section 9?

MR KING: It is slightly more complex than that, your Honour. What we submit is that the challenge provisions breach section 9 in prescribing, in place of the former method of compulsory full preferential voting for choosing senators, uniform across the States and Territories, a choice between a new, first-past-the-post voting method and optional, preferential voting method above the line and a part compulsory preferential method below the line – that is, not one but at least and, correctly construed, three methods of choosing senators among the States and Territories. Whether it is actually two or three for present purposes does not matter because, on our argument, the Constitution requires one method uniform among the States.

As to the demonstration of the Constitution or legislative fact that the 2016 enactment prescribes two or more methods of voting and that each method leads to different results, that issue has now been formally admitted in favour of my client at Table A at page 126 of the application book. That same table was annexed to our written submissions at page ab 39, there are some minor differences to the agreed table, but critically it has the same headings and the same contents. I am going to ask Mr Brohier to explain to your Honours how each method gives rise to different results.

FRENCH CJ: Before we get to that, perhaps we can get an understanding of what you say about the content of the constitutional term “method”.

MR KING: It is our respectful submission that the method of voting referred to in the Act is the method of choosing – the method of voting for senators is the method of choosing senators and, of course, there is a difference between us. Perhaps some history is relevant. The defendant now argues – or argued in its written submissions – that a broad construction of the words in section 9, namely:

the method of choosing senators, but so that the method shall be uniform for all the States –

means the whole process of the election, all the paraphernalia of the election – that is their construction of that critical phrase in section 9. We say that that is in error, is unsupported by authority in this Court, unsupported by the proper construction of Chapter I, Part II of the Constitution, and should be rejected. It is unsupported by the view of the Parliament which itself has acknowledged two different methods of voting, one above - - -

FRENCH CJ: That is your reliance upon the dividing line definition, is it not - - -

MR KING: That is it, and I will come - - -

FRENCH CJ: - - - but I think I suggested in the directions hearing that that might be a case of trying to use a statutory tail to wag a constitutional dog. The constitutional concept of “method” is not determined by the way in which that term is used in a statute.

MR KING: We acknowledge that, your Honour, but nonetheless, my friend starts behind the eight ball, if I can use a colloquialism. The Parliament recognises, in accordance with our case, that there are not one but two methods of voting for the first time since 1901 in the Senate, and we say that that is critical and is consistent with the admission which I was about to take your Honours to in relation to Table A. The reason that it is important, your Honours, to have regard to the consequences, the actual practical working out of what these two different methods means.

For example, in Senator Day’s case, if the different methods had applied in 2013 in the last Senate election there would have been a different result in South Australia depending on which one was adopted. So it demonstrates the importance of the identification of the method of voting, in this case moving from a uniform full compulsory preferential system of voting to a mixed system in the way that I have just described. The reason that the consequences, or the operation effect of the new law is relevant is, I think, we would respectfully submit, picked up by what Chief Justice Dixon said in a passage that we have cited in our written submissions, albeit in a divorce case but none the worse for that, if I may say so respectfully. The matter of Attorney-General (Vict) v The Commonwealth [1962] HCA 37; 107 CLR 529, especially at 543:

The validity of a law as an exercise of a legislative power must depend upon its legal operation. The test of the validity of a law as one made with respect to a given subject matter must in the end be what it does with reference to the subject matter. Doubtless simple statements like the foregoing may conceal many complications: for on the one hand the subject matter may itself involve or include a penumbra of things that are incidental, consequential and ancillary and a law as to some aspects of these things would not be ultra vires, and on the other hand the operation of a law upon any subject may not be apparent on its face but yet be clear when the actual practical working of cause and effect is perceived.

Justices Gummow and Bell in Rowe’s Case in referring to the practical working out of the way in which the exclusion of students in that case – or young people – from a franchise operated demonstrated a similar approach in this important area of constitutional discussion. So, if it is convenient, your Honour, I will now asked Mr Brohier - - -

FRENCH CJ: Well, before you do, I am not sure you actually answered my question. You told me what method was not. What do you say it is?

MR KING: Sorry, your Honour, what did I say? What did your Honour say, sorry?

FRENCH CJ: I said you told me what method is not, I am not sure you told me what method is, for the purposes of section 9.

MR KING: The method of choosing – the method of voting for senators is the method of choosing senators referred to in section 9. In other words, it is not the broad construction of the respondent, it is not the whole paraphernalia of an election as they would have; it is the more narrow construction as we would have it. They have identified our case as a more narrow construction. We embrace that.

FRENCH CJ: What is your narrow construction?

MR KING: Our narrow construction is that the method of voting for senators are, in this case directly chosen, either people as asserted under section 7 - is the prescribed mode in which section 9 operates. In other words, section 9, just to try and be clear, is itself a restriction. Now, in Judd v McKeon and what Chief Justice Brennan said in Langer’s Case, we say in passages which I will take your Honours to, support that proposition. There is a third argument, and that is an even more narrow argument, which funnily enough the defendant took up before your Honour the Chief Justice at the first directions hearing when they sought to summarily dismiss our case, unsuccessfully.

Their proposition then was that “method” meant the mere count or scrutiny of votes and, with respect, they have changed their position on that. They have gone to the opposite end of the spectrum. They have now said “method of choosing” in section 9 means the whole electoral process and there are significant reasons, we say, why your Honours would reject that, both textually within section 9, within Chapter I, Part II, and on authorities to which I will take your Honours.

FRENCH CJ: So can a method of voting for the purposes of section 9 embrace alternative means of expressing a vote, leading to the same form of counting?

MR KING: If there are different ways of expressing the same method, say, for example, there was a discussion of this matter by Justice Hayne in Abbotto and Ditchburn and by Chief Justice Gibbs in McKenzie, and I think Justice Dawson in McClure where their Honours pointed out that under the then system which prevailed there was no impediment to a system which marked a vote 1 above the line by reference to a group voting ticket for all of the people below the line, because all that were doing by reference to a group was marking in accordance with the same method – that is, full compulsory preferential voting, the ballot paper, but this is different. What we have here is you cannot mark above the line to reflect any other vote. It is impossible, as Mr Brohier will point out. It leads to different results, therefore it must be a different method of voting. So let us look at the consequences of that.

GORDON J: Before you do that though, in Langer Chief Justice Brennan said that:

Provided the prescribed method of voting permits a free choice among candidates for election, it is within the legislative power of the [Commonwealth].

Is that not what occurred here? There is a “free choice among candidates for election”.

MR KING: Your Honour is getting into the territory of our second argument - - -

GORDON J: No, we are trying to work out what you mean by “method”. So does it have some restriction on it because it has to be more than just “free choice”?

MR KING: We mean the method of choosing senators; that is to say, from the moment of time that you make your choice in relation to the ballot paper, Form E, until the time you cast that vote via leaving it with the electoral officer and so that is how you express – that is your vote. That is what Lord Holt referred to as the transcendent right to vote, higher than all other property rights. We respectfully submit that what has happened here is that that transcendent right has been compromised by (a) several different methods of voting for the convenience of the government or those who control the legislature, in accordance with Professor Tribe’s observations, and (b) authorises votes for parties and expressly does so in ways that I will take your Honours to.

So it is important, if I can just interpolate here, the consequences of the defendant’s submission. If it is possible – if it is permissible to have different methods of voting, for example, it would be possible to vote only for women as a category, or only for Indigenous people, or only for gay people, then you can have different methods among the States upon the defendant’s argument. Or, let us assume you have, as indeed it is possible in this case, a Liberal government in South Australia, a merged Liberal National party in Queensland, and a coalition in New South Wales. According to the defendant’s argument, you may have different methods of voting advocated by them in different States. For example, in South Australia, you may advocate first-past-the-post under this new system – above the line – with completely different consequences to a vote in Queensland, which is a full preferential vote above the line.

So that when these senators then sit in the Parliament, the Australian people may justly ask themselves “well, how did these advocacies occur in different States by different methods?” giving rise to complications and indeed political disputes and debates which would otherwise be unnecessary or inappropriate. It all goes back to the fact that in 1901, the first Senate was elected in accordance with the franchises in the State’s Houses, so in New South Wales there was a property limitation upon voting in the Upper House. In Victoria, there was a seats limitation, and in other cases, different limitations. As your Honour the Chief Justice said in Rowe’s Case, and Chief Justice Gleeson said in Roach’s Case, the Australian system of representative government has developed since that time in ways that mean we cannot go back.

So, your Honours, I will come back to – perhaps if I can just briefly myself explain Table A and how we rely upon it. It is found at page 126. Firstly, I would ask your Honours to note – this is formally admitted by the defendant – the heading, “Results by Different Voting Methods”. That is a concession, we say, in our favour. In their prior submissions they spoke about options or ways of voting. They now acknowledge different methods of voting, we say consistently with the applicant’s case on a constitutional, legislative fact of significance.

The first method is just vote 1 above the line, authorised by section 269(1)(b) in a way that I will come back to, and assuming 52 candidates, and assuming that we go to the ballot paper which one of the plaintiffs in the Madden matter prepared, and the new system, contrary to the old system, allows voters and parties to advocate one above the line only, with the result, assuming that it is for the Pirate Party - which, strangely enough, is the governing party in Iceland – leads to two votes only being cast ultimately in respect of that party.

Now, that differs from below the line voting because it is not possible to vote for less than 12 persons below the line - in fact, more accurately less than six persons below the line. The second method of voting is in accordance with the instruction on the ballot paper. I would prefer to take your Honours to the unadulterated Form E, as it were, which is in the material handed to your Honours.

FRENCH CJ: By the material, you mean the unofficial marked up copy?

MR KING: Yes, your Honour, thank you. That is at pages 52 and 53. Your Honours will see:

You may vote in one of two ways

either

By numbering at least 6 of these boxes in the order of your choice, (with number 1 as your first choice)* –

or

then there is a big arrow –

By numbering at least 12 of these boxes in the order of your choice (with number 1 as your first choice)** –

and so on. If in accordance with the instruction the above the line method is adopted, then your Honour will see the effect of that voting method set out in the third column in the second row below the line. Then on the other hand, if the voter decides to fill out every box, in this case 54 - - -

FRENCH CJ: So, you have moved from the case in which the voter puts the number 1 in a box for a political party, the Pirate Party, which happens to have just two candidates, that was the first example.

MR KING: Yes. Just pausing there, too, your Honour, the example at page 127 is not complete in terms of the appropriate boxes above the line. There should be a group box of individuals – not that it presently matters – that is, candidates not endorsed by parties or individuals. There also may be parties which do not have logos but, in any event, it demonstrates that a vote above the line for - - -

FRENCH CJ: Yes, but I am just trying to get what example – I understood you dealt with the first example, then you moved to the second example and that involved, what, ticking off two boxes?

MR KING: Voting 1 to 6 above the line, that is at page 128. The arrows of course are - - -

FRENCH CJ: Yes, I understand.

MR KING: - - - not part of it, part of any - - -

FRENCH CJ: So that is imagining that somebody votes for six political parties, ordering them as indicated at page 128, and they representing a total of 14 actual candidates.

MR KING: Yes, so 14 in that example would be distributed and then - - -

FRENCH CJ: Then the third figure in your table, 32, is what you call the “Number of candidates not voted for”.

MR KING: That is right.

FRENCH CJ: Yes.

MR KING: Then the third method – and we have handed up, your Honour, there is an error in the table as printed. We have handed up the correction of that error to your Honours, “Table A, Part 1 – Results by Different Voting Methods”. The error is obvious that when one looks at page 126, line 33, the “3” has been printed beside “272(2)”. It should go below the line under the previous box. Do I make myself clear?

FRENCH CJ: So the third example that you are giving is where the voter - and that is the example shown on page 129 - - -

MR KING: Yes.

FRENCH CJ: - - - has numbered every box below the line, that is, put in a vote - - -

MR KING: That is right.

FRENCH CJ: - - - in respect of each individual candidate.

MR KING: That is the only form of voting which is equivalent to what has hitherto gone before, that is, a full compulsory preferential system of voting. So it is not possible, for example, to vote above the line for all candidates unless all candidates are members of a political party – endorsed by a political party which has been registered other than in a group. So it demonstrates that the only practical way of now voting for all candidates 1 to 54 is by doing it below the line and we know that the record of that sort of voting is very low.

FRENCH CJ: But the fact is the elector has a choice between voting for all candidates or a lesser number.

MR KING: That is right.

FRENCH CJ: By two or more ways – at least one or two ways. Vote for a lesser number above the line, in fact vote for a lesser number below the line by filling out the minimum number of squares which I think is six when you make allowance for the saving provision.

MR KING: Well, it says at least six, your Honour, but six is an arbitrary number, it has no - - -

FRENCH CJ: Well, it is the saving provision, is it not?

MR KING: Well, it is an arbitrary number that does not relate to anything because six – assume that there are six parties above the line who nominate six candidates. You end up with a pool of 36 candidates. Or let us assume as in the example we have given at 127 – 128, sorry – there are only – some of them do not nominate six. There are only two in some cases. You end up with 14 candidates.

The new system leads to an exhaustion of preferences at six and, as Justices Toohey and Gaudron pointed out in Langer’s Case [1996] HCA 43; 186 CLR 302, especially at page 334, their Honours said at the middle of the page:

One matter that furthers the democratic process is full, equal and effective participation in the electoral process . . . And a voter does not participate either fully or equally with those who indicate an order of preference for all candidates if his or her ballot paper is filled in in such a way that it is earlier exhausted.

That they said was not – sorry, a criminal provision, in that case section 329A which required people to express a full preference, was reasonably “appropriate and adapted”. We put it the other way round here. A new system, which means people are forced to vote, 25 per cent of the population who voted for candidates for minor parties in the last election, 3,150,000-odd people, those people under this new system will be voting by a method which above the line – 97 per cent in the last election – which has the consequence that their votes do not count through the exhaustion process.

In that way, to adopt Professor Tribe’s observation cited by Justices Gummow and Hayne in Mulholland, it leads to an unconstitutional impermissible outcome. Now, I am just adumbrating an issue that your Honour raised, but the exhaustion by an arbitrary number - vote for at least six - it looks right, if your Honours think about it. The number seems okay because in periodic elections every six years there are only six persons elected. But what about a double dissolution election? Why not seven? Why not 12? And then below the line it is 12. There is no relationship between six above the line or 12 below the line in these instructions; no relationship between an advocacy of just vote one above the line, which is now permissible, a first-past-the-post method for the first time since 1919 – in a way that strips about 23.5 per cent, the numbers agreed between the parties, of their participation in the democratic process of this nation.

FRENCH CJ: Now, staying back with argument A, the point of your example – the worked example in Table A, and the, as it were, sample ballot papers that you have set out in the application book – is to support the proposition that, properly understood, these different processes which an elector can choose represent different methods of voting, and therefore offend against section 9.

MR KING: Yes. The reason I was drawing attention to it at this stage, your Honour, in my argument was to demonstrate that the defendant admits, as a constitutional or legislative fact – citing Justice Gageler’s expression in Maloney’s Case – that there are different methods - see the heading, it is a formal admission, and they have different results also admitted in the three boxes on the third column of that table.

FRENCH CJ: I do not think you can win an argument of constitutional construction by admission from the other side, even if there were an admission, which I suspect will be disputed.

MR KING: I accept that, your Honour, but it does point up the improbability of the defendant’s position, when they put to your Honour at the first directions hearing seeking to strike us out, that it is only about options. Now they admit it is about methods. We respectfully submit that it demonstrates that the Commonwealth is not only unclear and uncertain about its case in relation to this question, it has acknowledged the force of what we are submitting, that the new Act, the 2016 Act, whatever else it does, gives rise to more than one method of voting.

GAGELER J: Mr King, can you just tell me what are the different methods? Can you give them labels?

MR KING: Yes. The first method is the “first-past-the-post” method. The second method is the “optional preferential” method - - -

GAGELER J: Sorry, where do we find “first-past-the-post”? Just link it to the material, if you will.

MR KING: An example is the ballot paper at page 127. If your Honour goes to page 144, we have described it more particularly, demonstrating how Senator Day would have been prejudiced in the last election if this system had existed.

NETTLE J: Did you say 127 was “first –past-the-post”, Mr King?

MR KING: Yes, that is an example, because what it does is, above the line, it allows you to vote “1” only.

NETTLE J: But that still gives you two preferences, does it not?

MR KING: What it does is - you then have to go back to the Act to work out what result that is, under section 272(2), which the Act then distributes to the persons who, in this case, are listed below the line. That is the purpose of our arrow, to assist the Court to understand what we are saying. If your Honours then go to page 144, your Honours will see how we have in detail prepared outcomes of the various voting methods, these three different methods. Now, initially, we - - -

NETTLE J: Sorry, on 127, which is it not still preferential – 1, 2? That is the point I am missing, I am sorry.

MR KING: Because there is no such thing as a ballot paper in the form at 127, your Honour, and it is probably our error. The way to look at the ballot paper at 127 would be to delete the arrow and delete the numbers below the line.

NETTLE J: Would not the consequence of putting a 1 in square E above the line mean that one would express a preference 1, 2, in the order dictated by party E?

MR KING: Ultimately it would be distributed in that way through section 272(2), that is right, and that is why we put it that way, just to explain it.

NETTLE J: It is limited preferential then rather than first-past-the-post or do you say first-past-the-post –

MR KING: No, it is first-past-the-post party list method. We have used the expression “party list method” because your Honour will see that is the expression that was used in the evidence before the parliamentary inquiry. If your Honour goes at 144 to the second column, the third entry down:

A ‘party-list’ “first-past-the-post” method -

Does your Honour see that?

NETTLE J: I do, thank you.

MR KING: That is what we call the first method, hitherto not possible. The second method, also above the line, also voting as between parties, is an optional preferential party list method, and that is demonstrated, if one goes back to the ballot papers to which I have referred, at page 128. Again, your Honours would need, doing it as it were properly in real time, to delete the arrows, to delete the numbers below the line because that is not what a ballot paper only looks like as received by the electoral officer as what appears above the line. So it will be vote 1 Liberal, 2 Liberal/Democrat, 3 DLP.

FRENCH CJ: What you are demonstrating is the effect of the numbering of the party boxes above the line.

MR KING: Yes.

FRENCH CJ: So it is equivalent to the numbering below the line that appears in an example.

MR KING: That is right, just to assist the Court, but it has different outcomes for those different methods, and that is the critical thing and that is what we have set out in detail at page 144.

GAGELER J: Would it be open to the voters to fill in every square above the line under the new system?

MR KING: Yes, but it does not say that. That is a very good question, your Honour. What it says is:

You may vote in one of two ways . . . By numbering at least 6 of these boxes in the order of your choice -

We have handed to your Honours the advertisement, which is being distributed at the moment - we have shown it to my friends – by the Australian Electoral Commission about new voting.

MR WILLIAMS: Well, we object to that.

MR KING: My friend objects to that. But it demonstrates in the third paragraph under “Make our vote count”:

If you choose to vote above the line, you now need to number at least 6 boxes -

et cetera. But, of course, we know that under the new system – and Senator Day’s second affidavit demonstrates this – that the major parties have in their back pocket a just vote 1 above the line campaign, which will have the result of what Sir Harrison Moore referred to in his text of plumping the vote and denuding all of my clients of the support that they would otherwise have through a full preferential vote, and it is doing it in a way which is both concealing what is happening, that is, to - - -

FRENCH CJ: That is about elector choice, is it not, and the way in which elector choice may be - in terms of processes to be used may be influenced by advocacy in the form of whether it is the back pocket - - -

MR KING: Of course. But, your Honour - - -

FRENCH CJ: - - - campaign or something else. Are we really concerned with that rather than with the substance of the processes that are available and whether they constitute one method or more than one method?

MR KING: Well, I will come back to that, if I may, your Honour, but your Honour will recall that in Rowe’s Case and Roach’s Case an argument was put by the Commonwealth along the lines of what your Honour just put and was rejected. The fact that a voter or a potential enrollee might have addressed his or her problem in advance of the new law knocking them out is not an excuse under what is proportionally reasonable, or proportionately reasonable, or appropriate and adapted, we submit, under these constitutional arrangements.

FRENCH CJ: With all respect, Mr King, I just do not see how Rowe helps you at all here. There, there was a question of inability to access the electoral roll to get registered. This is something quite different. There is no restriction of choice. You are complaining about, it seems to me sub silentio, the way in which choices – perhaps not so silentio – the way in which choices can be manipulated - - -

MR KING: Well, that really comes back - - -

FRENCH CJ: - - - to produce certain results, and then you seem to be arguing backwards from that to characterisation of these different processes as distinct methods.

MR KING: Well, I am really adumbrating something that I am putting under our third argument, your Honour, but if I can just - - -

GORDON J: Can I ask one question? Do you accept that this ballot form in the form that you have handed to us, which is the new Form E under section 209, permits a free choice among candidates for election?

MR KING: It does not permit a free and informed choice. That is to say, the words, coming back to those that we have just identified, by numbering at least six, and then in the third paragraph of this document, “you now need to number at least 6 boxes”, what it is concealing is the operation of the Act in relation to a just vote 1 above the line campaign, or the fact that the voter, if he or she actually distributes all of his or her preferences, then has a vote which will count.

But if they only mark the ballot paper in accordance with the instruction, above the line, the vote will exhaust at six and, as we say, about 3,100,000-odd people who voted first preference for candidates for minor parties and independents in the last elections, their votes will be required – they will have been required to vote, but they will be illusory as they will not count by reason of the exhaustion process in the way that Justices Toohey and Gaudron described in Langer’s Case.

BELL J: Is it part of your argument that one can only have as a constitutionally sound method of choosing senators a system of full preferential voting?

MR KING: I think, your Honour, it would depend upon whether it was compulsory.

BELL J: Compulsory full preferential voting. Is that the argument that that is the operative constitutional restraint now?

MR KING: Yes. Section 245 of the Act obligates everybody to vote, and almost everybody does, in accordance with the instructions on the ballot paper. Mr Langer did not, but that was a special case. The consequences of a full compulsory preferential vote is the only way, to use the words of Justices Toohey and Gaudron, I think it was, in Langer’s Case, to have a full and effective vote. If it was a voluntary system of voting – and that of course is open to the Parliament – it would be different. But to force people to vote and then make their vote illusory, that leads to oppression in a democracy.

NETTLE J: Could we have a compulsory first-past-the-post – not first-past-the-post party but first-past-the-post?

MR KING: I am sorry, your Honour, I did not quite understand - - -

NETTLE J: Could we have a compulsory first-past-the-post system?

MR KING: Yes, you can have a compulsory first-past - - -

NETTLE J: That would comply with the Constitution?

MR KING: Any method of voting uniform among the States would comply, but the question I was asked was a slightly different question but the answer to your Honour’s question is yes.

NETTLE J: So we can have compulsory first-past-the-post and compulsory full preferential but we cannot have a mix, is that it?

MR KING: You cannot have a mix.

NETTLE J: Because?

MR KING: Because section 9 says so, and also because the consequence is that you will end up – if you can have two, you can have 10 or 12 different methods. You will end up with the situation you had prior to 1901; different methods of voting for different States. States might say to their senators, because it is a States House, the Senate, “if you want to get support from New South Wales or Tasmania, we want you to adopt a new method of voting, and here it is”, property rights, the subject of the restriction, or whatever, or no gays. That would, under their construction, be permissible.

We say that is not permissible. You cannot have more than one method. The federal Constitution was a new national instrument, a new compact, going forward, getting rid of the States’ inconsistent unsatisfactory voting methods and systems – excluding women, excluding Indigenous persons, et cetera, excluding Catholics. So, your Honours, in our respectful submission, section 9 is more than just a technical requirement. It is an important restriction upon the Constitution going forward in relation to voting. Here the defendant admits, Table A, Part 1, that there is more than one method. In fact, there are three, according to Table A, Part 1.

GAGELER J: So going back to my question, the three methods are the three different ways of filling in the ballot paper. Is that what it comes down to?

MR KING: Yes, three methods of voting.

KIEFEL J: Three ways of exercising a choice.

MR KING: Not three ways because you could have a different mode or a different way of voting so long as it conformed to the method of voting. So, for example, you could have a genuine savings provision, people sick in hospital or people overseas or the like, so long as they still voted in accordance with the optional preferential system of voting or, to take your Honour Justice Nettle’s point, first-past-the-post compulsory method, then there can be no objection because, as Justice McHugh pointed out in Langer’s Case, those savings provisions of that character simply have the purpose and intention of giving effect to the one method, and that is where the defendant’s argument about savings provision is in error.

This new enactment does not have the savings provisions like that. It involves a completely new, different method of voting at 269(1)(a) and (b), referrable back to 239. So, in our respectful submission, the Commonwealth has wavered on this question between 24 March, when they first sought to have this case struck out, and today. Firstly they said it is only about options, not methods. Now they admit it is about methods, but they say on the proper construction of section 9, it is a broad construction, it has not content – the sort of observation that Justice Hayne made dissenting in Roach’s Case.

But we say that the narrow construction, as designated by the Commonwealth, is the correct construction. To give it the construction they suggest would be pointless, inconsistent with the other parts of section 9, which provides for concurrent legislative powers over voting systems in the State and the Commonwealth and an exclusive power in the State in relation to general voting arrangements, as explained by Justice Gummer in re Kelly. Your Honours, if I may now pass respectfully from - - -

KIEFEL J: Just before you do, Mr King, would you agree that the other provisions of the Electoral Act which deal with the matters that you identified earlier including scrutiny, how polls are undertaken et cetera, also fall under section 9 as a law prescribing the method by which senators are chosen?

MR KING: No, your Honour, because - - -

KIEFEL J: Where is the authority then for the other provision?

MR KING: Can I take your Honour to that authority now? Could I begin, your Honour Justice Kiefel, by perhaps taking your Honour to the Constitution and then to the authorities, or would your Honour prefer me to go straight to the authorities?

KIEFEL J: Whichever way you wish to argue it.

MR KING: Thank you. If your Honours look at Part II of Chapter I, section 9 which is presently in issue, refers to:

prescribing the method of choosing senators, but so that the method shall be uniform for all the States.

And we note that it is singular, not plural. Then the second sentence confers what Justice Gummow in Re Kelly said was a concurrent power on State and Commonwealth Parliaments:

Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Then, thirdly – this is the exclusive power:

The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

So, the first point we observe is that if the broad construction proposed by the defendant were accurate, there would be no need for a provision such as the third sentence because the whole process of the election, and including its paraphernalia and arrangements, is what they say it means, then the third sentence would be unnecessary and, in any event, it would conflict, being an exclusive power, with the first sentence. Then if your Honours go to section - - -

KIEFEL J: I am sorry, speaking for myself, I do not understand that. Are you saying that the Commonwealth’s argument is that the method refers to everything involved in the process by which senators are chosen?

MR KING: No, their argument is the whole electoral process.

KIEFEL J: Yes, quite, it is the system by which senators are chosen. So how is that inconsistent with the words under “times and places”?

MR KING: Because if the construction which they have set out at the whole process of the election – AB 57, line 35 – was the correct instruction, there would be no room for the States to make laws for determining the times and places of elections, for example, the places of elections would be a polling booth situation, where they are located, where they would be counted, and so on. So those two things are inconsistent.

KIEFEL J: That is the when and where. It is not the system by which senators are chosen.

MR KING: Yes, the first sentence is just dealing with the method of choosing senators; the voting method by which they are chosen. If your Honours go to other provisions such as section 7, which deals with the term of senators and the number of senators, and section 8, the qualifications of senators and the fact that people may only vote once, and then in section 10:

Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.

That more happily fits within the Commonwealth submission that it relates to the whole process of the election, not just the method of voting. The method of voting is, is it “first –past-the-post”, is it “full preferential”, is it “proportional” or the other various methods of voting.

KEANE J: Do you see any significance in the fact that some sections – for example, section 8 – speak of “voting” and the fact that section 9 speaks of “the method of choosing”? The Constitution itself seems to observe a difference by referring to “voting” as opposed to “method of choosing”. It does not say “method of voting”, as you keep saying.

MR KING: Yes, and indeed, that in the choosing of senators in section 8 – the last clause, for example:

each elector shall vote only once –

It is reflecting the notion which we submit is at the heart of 9 – one method, and the mode in which you vote. That is what it is about, the method of voting. We submit that is relevant.

FRENCH CJ: You would not accept the characterisation of “method of choosing” in Quick and Garran, which is relied upon by the Commonwealth.

MR KING: The Commonwealth adopted the Quick and Garran construction, although rather differently to their initial submission, which was it related only to - - -

FRENCH CJ: Well, let us not worry about that.

MR KING: - - - the count, but anyway. But, of course, Sir Harrison Moore in his text, in the passage we quoted, makes it clear it refers to, to use the old fashioned expression, “an uniform method of voting among the States”. He makes it clear, we say, as the judges do, that it relates to the method of voting.

KEANE J: Mr King, do you say that “optional preferential” – if it is fair or accurate to describe that as a method of voting – do you say that “optional preferential” voting can never be adopted consistently with section 9?

MR KING: No, we do not say that.

KEANE J: How is that then different from what you are saying?

MR KING: Your Honour is really taking me to my third argument, but it deals with the – if one has a compulsory full preferential system of voting, and then one abandons the full preferential system for a system which exhausts, forcing people to vote but then having a result of not counting their votes, that is what we say is impermissible.

NETTLE J: But would not compulsory optional preferential do just that, have the result that votes would not be counted as you characterise it?

MR KING: With the instruction in this case, yes. Then the question would have to come back to what is reasonably appropriate and adapted? Is it proportionally acceptable?

NETTLE J: Do you say then that compulsory optional preferential is unconstitutional?

MR KING: Yes, compulsorily part preferential – that is right.

NETTLE J: Or compulsory optional preferential, fill out as many squares as you like from 1 to 1,000.

MR KING: Well, I am dealing specifically with the ballot paper here.

NETTLE J: No, no, we are dealing with the question of whether you say that compulsory optional preferential would be unconstitutional.

MR KING: Yes, although it is not necessary to answer that question in this particular case because of the instructions on the ballot paper which we impugn.

NETTLE J: Yet with compulsory optional preferential there would be only one method even in the way you characterise method.

MR KING: Yes, but that is why, your Honour, it relates to our third argument, not our first argument. What we are saying in the first argument is that – that here we have a mix of three different methods - - -

NETTLE J: I know we have here, but just to stay with the question, so there would be nothing contrary to section 9 of the Constitution with a compulsory optional preferential system?

MR KING: No.

NETTLE J: That would qualify under 9, albeit that you say contravene other provisions.

MR KING: That would contravene section 7.

NETTLE J: All right, thank you.

MR KING: So it might be said, we respectfully submit, that this is a formal point but we say it goes to the heart of the new federal compact and when one looks at the arrangements under Chapter I, Part II in relation to Senate elections, as distinct from Part III relating to House of Representative elections, one sees the reason why this provision – section 9 – is not in Chapter I, Part III. It is only in Chapter I, Part II, and the reason it is is because the States have ongoing entitlements – not only entitlements, obligations in relation to Senate elections.

It seems that the reason for that takes you back to the history of the debates where originally it was proposed the Senate would be actually appointed like in the United States Senate as it then was by the State Upper Houses. But then the Democrats won the day in the Convention and they said no, they must be directly chosen by the people, but the infrastructure in relation to the United States type proposal continued in respect of other issues. Section 12 of the Constitution, State Governor issues the writ; in the House of Representative, Governor-General issues the writ. Section 8 qualification is different for the State to the Commonwealth for voters, and so on, and section 9, different roles for the State Parliament in relation to the conduct of elections generally.

So, in our respectful submission, the real question in relation to this first point is whether the plaintiffs are correct in their proposed construction of section 9, that is, that the narrow construction that we have proposed is correct, or whether the Commonwealth’s broad construction is correct and we say that broad construction is contrary to the text of Chapter I, Part II and to the authorities. May I now take your Honour to those. Firstly, in Judd v McKeon [1926] HCA 33; (1926) 38 CLR 380 in the judgments of the Chief Justice, Justices Gavan Duffy and Starke, at page 383 at about point 2 on the page:

The appellant contends (1) that the provisions of sec. 128A above quoted are beyond the powers of the Commonwealth Parliament, and (2) that the reason he gave for his failure to vote was a valid and sufficient reason.

This was a Senate election, unlike Langer’s Case, which was a House of Representative election:

the first contention cannot be supported. By sec. 9 of the Constitution Parliament is empowered to make laws prescribing the method of choosing Senators, subject to one condition or qualification only, namely, that the method shall be uniform for all the States. This power, subject only to the conditioned mentioned, is plenary and unrestricted; and the only reason advanced for denying to Parliament the right to prescribe that every qualified elector shall record his vote was founded on the use of the word “choosing”. It was said that the choosing of a candidate implied a desire on the part of the elector that that candidate should be elected, and that consequently the power of the Parliament was limited to prescribing the method by which electors desiring that a candidate should be elected should signify that desire.

Just pausing there, what Judd was arguing was that choosing inferred consent and if he did not consent to voting, therefore section 9 made it clear there was no power on the Parliament to force him to vote; hence the compulsory voting system was at issue. That was rejected, and then it went on:

We do not think the meaning of the expression “choosing Senators” . . . can be so restricted. In common parlance “to choose” means no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available.

So here on the ballot paper a choice amongst the candidates via whatever the voting method is:

As an illustration of the meaning of the corresponding noun “choice” the Oxford Dictionary quotes the phrase “I have given thee thy choice of the manner in which thou wilt die,” and this use of the word seems to exclude the idea that a right of choice can only be said to be given when one or other of the alternatives submitted is desired by the person who is to exercise the right, or, in other words, to choose between them.

So their Honours are referring to the method of choosing in section 9 is to choose between them, that is, between the candidates. Later on we will come back to this passage and rely upon this to demonstrate that you cannot foist upon the people choose between parties, must between candidates. But it is clear, we respectfully submit, that their Honours are referring to the method of choosing senators, so “that the method shall be uniform for all the States” is a method of choosing between them as candidates, which refers to the method of voting.

FRENCH CJ: It was responding to an argument that the word “choose” implied a consent to vote.

MR KING: Yes, but their Honours are making it clear that the - - -

FRENCH CJ: One has to look at what is said in this judgment, as in all judgments, in the light of the argument to which it was responding, or the submission to which it was responding.

MR KING: Yes, we acknowledge respectfully that, your Honour. This judgment has stood for a long time and it has been - - -

FRENCH CJ: I am not suggesting it would do otherwise - - -

MR KING: No.

FRENCH CJ: - - - but it is just a question of what it means.

MR KING: Then Justice Isaacs, who of course was very involved in the conventions, at the bottom of page 384:

The argument was that the word “choosing” imported voluntary action, and excluded all notion of compulsion upon any elector. That the franchise may be properly regarded as a right, I do not for a moment question. It is a political right of the highest nature.

referring back perhaps to what Lord Holt CJ had said:

The Constitution in sec. 41 speaks of the “right to vote”.

But I am equally free from doubt that Parliament, in prescribing a “method of choosing” representatives, may prescribe a compulsory method. It may demand of a citizen his services as a soldier or juror or voter. The community organized, being seized of the subject matter of parliamentary elections and finding no express restrictions in the Constitution, may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be. The word “choose” in this connection –

that is, expressive of the will of the community –

is the time-honoured expression for the election of a parliamentary representative. Mr. Burke, in his famous speech, said to his constituents: “You choose a member indeed, but when you have chosen him he is not a member of Bristol, but he is a member of Parliament.” A method of choosing which involves compulsory voting, so long as it preserves freedom of choice of possible candidates, does not offend against the freedom of elections, as established and recognized by the Statute of Westminster.

So it is choice again between candidates. The method of voting was critical to that decision, we say, and reflects the construction which the plaintiff would put upon section 9 for the general reasons of policy which we support. Your Honours, Chief Justice Brennan in Langer’s Case [1996] HCA 43; 186 CLR 302, which was a House of Representatives election, not a Senate election, in which Mr Langer I think appeared in person. The judgment for the most part concerned the issue of freedom of political communication, but the Chief Justice dealt with the question of the voters’ choice and referred back to Judd v McKeon and the passages to which I have referred with approval at pages 315 through to the bottom of page 317.

At page 315, for example, his Honour set out what Justice Isaacs had said and emphasised “freedom of choice of possible candidates”, that is, between candidates, and then noted what Chief Justice Knox and Justices Gavan Duffy and Starke had said at page 316. Between those two passages his Honour said at the top of page 316:

What the Constitution requires is that the law prescribe a method of voting which leaves the voter free to make a choice, not that the law leave the voter free to choose the method of voting by which a voter’s choice is to be made.

In other words, the method of choice is prescribed. Section 9 sets the limits. There is no limit, of course, in relation to House of Representatives elections which led to different issues in relation to the freedom of political communication argument later on in the judgment. But in relation to section 9, his Honour was making the observation consistently with our case that the method of voting reflects the expression of the will of the people, the intention of the voter.

He then goes on to refer to Faderson v Bridger, a decision of Chief Justice Barwick, in a case which I will not take your Honours to, but in that case, the Chief Justice cited again the passages from Judd v McKeon to which I have referred. Of course, Mr Brohier points out, in the passage I have just read, that the present Act, unlike that which was being considered in Langer and which was considered in Judd, leaves the voter with various alternative methods of voting which they themselves must choose.

The first thing the voter has to do in this case is decide which method of voting will he or she adopt; which of the three methods which the Commonwealth concedes exist? That is not what the Constitution requires. What it requires is to express the vote as a free choice, not to decide which method to adopt, and so we say that that passage supports the plaintiff’s contention in a way which is very persuasive. Your Honours, I mentioned Faderson v Bridger. In Mulholland [2004] HCA 41; (2004) 220 CLR 181, in the judgment of Justice McHugh at 46, his Honour did a discursus of the relevant constitutional provisions. His Honour said:

the challenged provisions were validly made under s 51(xxxvi) of the Constitution.

That is the law-making power, of course:

They are laws “with respect to . . . matters in respect of which this Constitution makes provision until the Parliament otherwise provides”. Matters that fall within this power include “the method of choosing senators” (s 9), the “elections of senators for the State” –

that is the point I was making a little while ago –

“elections in the State of members of the House of Representatives” (s 31) and “the qualifications –

and so on. His Honour was not adopting the broad general construction that the Commonwealth adopts here. He was adopting the very construction that we adopt in the present case. Similarly, in Rowe’s Case, your Honour the Chief Justice cited as 243 CLR 1, especially at paragraph 7, your Honour says at page 13:

When the Commonwealth Constitution came into effect in January 1901, the qualification of electors of members of the House of Representatives was, by operation of s 30, that prescribed by State law as the qualification of electors of the more numerous House of Parliament of each State. Section 8 prescribed the qualification of electors of members of the House of Representatives was the qualification of electors of senators. There was a transitional “constitutional franchise”. Section 30 was to apply until the Commonwealth Parliament otherwise provided. In addition, by ss 10 and 31, until the Parliament of the Commonwealth otherwise provided, the laws in force in each State relating to elections for the more numerous House of the Parliament of the State, as nearly as practicable, applied to elections of senators for the State and of the members of the House of Representatives. The Parliament of the Commonwealth was also empowered to make laws prescribing the method of choosing senators, but so that such method should be uniform for all States.

We say that that is consistent with what Justice McHugh said, focusing as Justice Isaacs and Chief Justice Knox did in Judd v McKeon and Chief Justice Brennan in Langer’s Case, upon the expression of the intention of the voter, the will of the voter, in relation to the choice as between candidates, not the general paraphernalia of an electoral process as the Commonwealth would have it.

Justices Bell and Gummow were to the same effect, at paragraph 109 and especially at paragraph 132 in Rowe’s Case where your Honour Justice Bell with Justice Gummow actually set out passages from Judd v McKeon, and Justice Hayne, although he dissented at page 200, adopted the same approach to section 9, that it was simply one of the restrictions and limited powers, not a description of the whole process of the election as Quick and Garran would have had it, and as my friends now seek to adopt. There were other references to Judd v McKeon in Rowe but not relevantly to the particular present issue.

Now, I have already put the proposition that the Commonwealth’s case on construction is contrary to considerations of history and policy, that is, the constitutional debates are based upon dispirit, sometimes unsatisfactory, definitely undemocratic, methods of voting – not franchises, methods of voting – and that being used necessarily for the election of the first Parliament in the Senate. But what the framers of the Constitution did, like the builder looking for the true timber to build his house, what the framers of the Constitution did – said we will not go back. From now on there will be one method of choosing senators uniform among the States.

That was particularly important say, for example, in relation to Queensland because of their unusual history in relation to the State legislature. We say also that it is supported by the policy considerations that we mentioned, namely, if the Commonwealth is right you can have two or 10 or 20 different methods of voting and that could lead to discrimination by reference to adoption of particular methods of voting for, say, Islamists, or women or gays if different methods can be adopted, or it could lead to inconsistent campaigns in relation to different methods of voting by the same party in different States in the way that I have just described with different outcomes.

Of course, whatever the Senate is - and some unkind things have been said about the Senate and its representative nature - whatever the Senate is it should not be the subject of public disputation as to the purity, the integrity of the voting methods and processes by which people are elected to that important institution, the State’s house and the house of review, the two roles which the framers of the Constitution gave to it. In our respectful submission, the Court should reject the defendant’s submission as to the proper construction of section 9, that the construction which the plaintiff proposes should be accepted, and on those bases both the declaration and the constitutional writs should issue.

Turning then to the second argument, this concerns section 7 of the Constitution. We submit respectfully as follows, that the challenge provisions are invalid because the measures in Parts 1 and 2 of the amended Act have the consequence that senators are not directly chosen by the people voting as one electorate as required by section 7 of the Constitution and by the implied constitutional guarantee of representative and responsible government.

Can I just ask your Honours briefly at the outset to note in the following sections 8, 9 and 10, it refers to the phrase “choosing of senators”. It does not say “choosing of parties” or “choosing of persons who themselves may choose senators”. It is very specific with respect to a direct link between the choice and the senator who is elected to the Parliament and I will come to that. That, we say, is consistent with what Chief Justice Gleeson said in Mulholland. I am going to ask your Honours to go back to that case which is reported at [2004] HCA 41; 220 CLR 181, especially at paragraph 26, where his Honour said this and this is, we submit, very important:

I accept that the stipulation –

his Honour is referring there to the stipulation “directly chosen by the people”:

goes beyond a mere prohibition of indirect election, as by an electoral college. I also accept that certain kinds or degrees of interference by the Australian Electoral Commission in the political process, including arrangements as to the form of the ballot paper, conceivably could be antithetical to the idea of representative democracy and direct choice.

Now, we say in the present case – and his Honour’s reference to the stipulation in section 7 going “beyond a mere prohibition of indirect election” is important, because we say the form of the ballot paper here does impair or inhibit – hinder, to use the words in the criminal provisions of the Electoral Act – a free and informed vote, and prevents the senators being elected by this method of being directly chosen by the people voting as one electorate.

FRENCH CJ: Now, at the heart of your argument here seems to be the proposition in paragraph 7, I think, of your submissions, that the “above the line” vote is not made immediately for a candidate but for an intermediary being the party, and that a senator chosen in this way is not directly chosen by the people. When I look, then, at page 127 of the book, with the mock-up ballot paper, we take, say, a vote for Labor – you put “1” in A, assuming the Labor Party is there. That is a vote for each of the named Labor candidates immediately below that, in the order in which they are named, is it not?

MR KING: At 127, your Honour?

FRENCH CJ: Yes. Is that right or not?

MR KING: No, it is not. What happens is that one votes above the line and prefers parties or groups above the line - - -

FRENCH CJ: When you vote for – let us take your Pirate Party example. You put “1” in the square in E against the name “Pirate Party”, and that constitutes, as your arrow demonstrates, a vote for the two named Pirate Party candidates in the order in which they appear below the line.

MR KING: That is the ultimate effect of the Act, but it is not possible - - -

FRENCH CJ: Well, it is the immediate effect, is it not?

MR KING: It is not possible, actually, to vote below the line in that way, but that is a different issue - - -

FRENCH CJ: No, I am just asking about the candidates for whom you are voting when you vote for the Pirate Party are those who are named below the line, are they not?

MR KING: That would be the ultimate effect of it.

FRENCH CJ: Well, what other effect is there in between?

MR KING: Well, there is this; the elector must decide firstly whether to vote above the line and, in that regard, the eye-catching party logos are important. Secondly, he or she must decide whether or not, and if so, which party to vote for, and then he or she must give his or her preferences as between the parties. Once the preferences are given as between the parties, assuming they follow the instruction “vote for at least six” and they vote six, then the Act has the consequence, depending on the number of people that are referable to each vote, of distributing them amongst those persons.

For example, let us assume there are six parties voted for and each of them have six candidates. Thirty-six candidates are then the subject of the distribution. A decision is then made, not by the elector, but by the Act, of the order preference for those candidates.

So it would not be possible, for example, to vote above the line if you had a particular dislike of candidate 1 for, say, the Hemp Party or the Labor Party, to actually vote above the line to express a choice as between candidates. The only way you can do that is to do that by a different method below the line.

FRENCH CJ: So you do not vote above the line if you do not want to put the preferences in the order in which they appear below the line automatically?

MR KING: No.

FRENCH CJ: You go below the line; you make your choices.

MR KING: That is right.

GORDON J: Clearly.

MR KING: Your Honour, why we put the case here is to go back to what Justice Gaudron said in McGinty and having regard to what Chief Justice Gleeson said about the form of the ballot paper, ask yourself what are the features of the process of voting in the particular case and then ask yourself what is the process which is the subject of those features and ask how is it to be determined whether or not those features in that process give rise to a failure to comply with section 7.

I have been a bit wordy and I do apologise, but it is better to go straight to what her Honour said because her Honour’s words were picked up importantly in Mulholland by Justices Gummow and Hayne at pages 156 and 172. Their Honours pointed out that Justice Gaudron had pinpointed the problem in these sorts of cases, as her Honour often did – that is, identify the features and then ask yourself how does one determine whether or not there has been failure to directly choose by the people in accordance with section 7. So it is a two-stage process of reasoning.

Of course, in Mulholland, the problem for the plaintiff was that it was the DLP in Victoria and all they were really seeking to do was to retain their party status and they could not do it because of the 500-member condition, but here it is different. Here we have what Chief Justice Gleeson in Mulholland referred to as a formal impediment or impairment to the exercise of a direct choice and those three impediments or features are – before I go to those features, can I just also refer that in Roach’s Case, Justices Gummow, Kirby and Crennan, at paragraph 78, also applied Justice Gaudron’s observation about the way in which you approach this issue: identify the features, adjudge it against the process. There are statutory features and formal features, that is, from the ballot paper Form E in the present case, which demonstrate that there has been a failure to provide for a direct process.

Let me just summarise the statutory features. Sections 169(4)(b), 210(1)(f) and 210A(5) demonstrate that the old system discussed by Chief Justice Gibbs in McKenzie, changes from political parties comprising groups who endorse candidates to becoming the intermediary or a third party on its own in relation to the ballot paper. Now, it is not enough in understanding our argument to stop there because the next step – and that should be contrasted with section 211(5) and 211(6), discussed by Justice Dawson in McClure’s Case. Those sections have been repealed by the 2016 Act.

The new law also abolishes the incumbency right of somebody like Senator Bob Day to be listed above the line and obliterates his right to have a group voting ticket, all in the name of party voting. Then we go to section 214(2)(d) which I have already taken your Honours to which has the consequence that the name of the registered political party, not referable to its endorsed candidates as a group with a group voting ticket, of the type discussed in McKenzie, McClure, or Abbotto, Ditchburn, but as if a candidate itself is printed above the line.

Then 214A(2) in Part III of the new Act, obligates the Australian Electoral Commission to print the ballot paper with a logo belonging to the party, not belonging to the candidate or an individual or a group but belonging to a third party above the line. The eye-catching feature, to use Justice McHugh’s expression, which of course immediately attracts attention: easy, six above the line parties. That is the whole purpose of the new form of this ballot paper.

Then, representing a connection between the party as applicant and the owner of the logo, and I will not repeat the sections which demonstrate that representation about the logo connection to party, but if your Honours are interested, section 129A(d), 133(1)(iia), 141(1)(ba) and 366(b)(c) and 386A, all demonstrating that the political party is given ownership of an important feature of the ballot paper, namely, the identification of its name and its logo and the representations which it gives rise to above the line on the ballot paper for the first time.

Of course, as for groups and individuals, they have no right to any logos. The second aspect is the ballot paper features itself, and I briefly referred to them, the party logo, the above the line vote for party so identified and then the instruction to vote for at least six and preference those parties and I will come to the relevant provision, section 239, in a minute because it speaks about voting for “parties”, for “groups” and then, for “them”. The three features which emerge are the eye-catching logos of parties and their names are used to attract or influence voters to vote by the above the line method, all parties. That includes the first-past-the-post method under section 269(1)(b) and the optional preferential method under section 239(2). Secondly, an elector is authorised to vote for parties above the line as such and if your Honours go to section 239(2) in the materials, there is express reference. Section 239(1) says:

a person must mark his or her vote on the ballot paper in a Senate election by:

that is really below the line voting. Then (2) is an exception to (1):

may be marked on a ballot paper –

so, still an obligation but by –

writing at least the numbers 1 to 6 . . . printed on the ballot paper above the line (with the number 1 being given to the party or group for whom the person votes as his or her first preference, and the numbers 2, 3, 4, 5 and 6 being given to other parties or groups so as to indicate the order of the person’s preference for them) –

So, critically, the voter is choosing – not choosing senators but choosing parties or preferencing as between parties – they have to make a decision if it is a party or a group. Once they choose a party then they can choose to continue to vote for parties. That is the first time that authorisation has appeared in any legislation since 1901. This is the principal method of voting in the Senate. This is the ..... as it were. You vote for parties.

Now, of course, the Commonwealth says, “well, that is just a convenient reference to other candidates”, but it does not say that. Sections 7, 8, 9 and 10 of the Constitution speak about choosing senators, not choosing parties. At the moment the choice is made, at the moment of voting, one chooses a party and above the line voting is authorised to do so. Now, in our respectful submission, that is the heart of the party list method and if your Honours go to the Commonwealth’s submissions at page 58, we see they admit this. The first sentence:

The Amended Act does not provide for voters to vote for parties or groups in a manner contrary to the requirement for “direct choice”.

That is, they are saying, “Well, yes, it does actually authorise voting for parties or groups but not in a manner contrary to the Constitution”. Now, more importantly, they go on to say – and I should add, nowhere else in the whole of this submission does the Commonwealth come to grips with section 239(2); does not refer to it. In the third sentence they refer to - - -

BELL J: I am sorry, what paragraph number is this in the Commonwealth’s submissions?

MR KING: Argument B, your Honour, 35 through to 43.

BELL J: Thank you.

MR KING: What the Commonwealth puts is that “well, it is really a group method of voting” because if you look at section 272(2), what we call the party secretary distribution mechanism, it tells you what happens to the people who vote for parties above the line. But the Constitution asks the voter to express his or herself for that choice, that decision; not for parties to do it for them. The Constitution does not authorise a vote for a third party, a company, an entity or, in this case, a registered political organisation which is the third party right. Then they say at line 40:

Above-the-line voting is thus no more than a facility to assist voters in their choice of candidates.

But it is not a facility. It is an actual prescription, the vote authorising a vote for parties or groups. Getting rid of the old - - -

GORDON J: A facility you accept they do not have to adopt.

MR KING: That is right, but it authorises or prescribes that method of voting. That is to say, they have to vote, it is compulsory. They are attracted to the party method of voting, the party list method, firstly by the presence of the party’s own logo, the candidate’s logo, then by the presence of the party name and then by the distribution of preferences, not as between candidates, as Justice Isaacs and Chief Justice Knox have said back in Judd v McKeon, but as between parties. It is not possible if you are attracted to voting above the line, which clearly this whole system is designed to do, to vote in the way that the Constitution requires.

That is why, in our respectful submission, the party list method adopted for the first time is impermissible and is not “a direct choice by the people”, to use Chief Justice Gleeson’s phrase. The form of the ballot paper is the vice. The vexing of the people by this form of ballot paper is what, in our respectful submission, must be stopped now.

The other issue that we would respectfully draw to the Court’s attention are the decisions that the defendant relies upon of McKenzie, Abbotto, McClure, Ditchburn and Mulholland. We say each of those decisions are distinguishable. They relate to group voting and group voting tickets, a method – or to summarise it from Justice Dawson’s observation in McClure – a simplified method of voting below the line by simply voting 1 above the line. Professor Williams, in his comments at 275, which were included at the Commonwealth’s request in this book, add that it is wrong to allow first-past-the-post above the line. He said:

protective measures need to be introduced into the bill to ensure that people are unable to produce how-to-vote cards and other material that could effectively turn this into a de facto ‘vote 1’ system.

Your Honour Justice Nettle asked me about that. Professor Williams thought the same thing, but the Parliament proceeded regardless because they wanted to plump the vote, and that of course leaves out of a count 3,125,000 Australians who normally vote for candidates endorsed by minor parties or independents. In our respectful submission, if one looks at McKenzie, on its true interpretation it supports the plaintiff, not the defendants’ case. We would ask your Honours to go to Chief Justice Gibb’s observations[1984] HCA 75; , (1984) 59 ALJR 190 at 193.

Again, this was a self-represented litigant, none the worse for that, but there was a particular line that was run. What Mr McKenzie complained about - and I think it is fair to say Chief Justice Gibbs thought he argued the case pretty well – was that the then above the line group voting system, the group voting ticket, which was the old sections 211(5) and 211A(6), really was a breach of section 16, making the party as the candidate, that is above the line. But as his Honour correctly pointed out at line 20 at page 749 and following, that was not the case. His Honour said:

The question that now falls for decision is whether the provisions of the Act to which I have referred are open to objection on constitutional grounds. The plaintiff submitted, first, that electors who use the simplified system of voting will be voting for parties and not for candidates and that this will contravene s 16 of the Constitution which provides for the qualifications of a senator: 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 –

and we underline that clause:

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.

Now, what his Honour was referring to there was the group voting provisions above the line which then existed. So, in other words, what you did, you could only vote 1 above the line by a tick or a cross or a number 1. There were no other boxes. You could not use any other boxes. The result of that was by a shorthand method, a vote below the line. It was all part of the one compulsory preferential method of voting because it was still the expression of the will through that method of voting. But what his Honour was saying was the group voting provisions were not a contravention of section 16 and the Commonwealth says, by extension, not a contravention of section 7.

But the problem, we submit, for the Commonwealth is that that is not what the present system is. You no longer vote above the line solely for a group whether it is referrable to a party or a group or otherwise it does not matter. What you do now is it is a genuine contest, a political contest above the line. Vote 1, just vote 1 or preference 6 or preference me Greens and Labor, our party Greens and Labor et cetera. That whole political focus has changed. It is an election about parties. It is not an election about candidates and the axe mechanism then distributes the preferences as between the candidates in the notional mini collage to which I have referred under section 272(2).

GORDON J: Can we just check that proposition? Section 168 has not been amended dealing with grouping. So, it is not limited just to parties. A group of people could get together and request to be registered as a group. That could still happen. Your complaint is the logo, is it not?

MR KING: I beg your pardon, your Honour?

GORDON J: Your real complaint is the logo because the group, the collected group will not have a logo.

MR KING: No, your Honour, our real complaint is the - - -

GORDON J: In this context.

MR KING: - - - the direction in section 239(2) to vote for parties or groups and the group that your Honour referred to is a 168 group. The parties is a 169 entity, third party entity. The corporate - - -

GORDON J: Which is the current system.

MR KING: The separate existence of that third party as a registered political party is identified by the logo and I respectfully accept what your Honour says. But our complaint is not limited to the logo issue. It is limited to the direction, the authorisation to vote for parties. The Constitution says you cannot do it. The Commonwealth tries to explain it away. They do not argue about section 239, they just forget it. They admit that the system has that consequence but they say, “Well, you are really voting for groups”, but that is not what is happening. They might say it is a formal point, but it is not a formal point. People will campaign on the issue, “Just vote 1 above the line” or “Just vote 6 for these parties, preference party A against party B”. That is the way it will, we respectfully submit, work out.

So, in our respectful submission, Chief Justice Gibbs’ observation supports the plaintiff, or is distinguishable, and the Commonwealth’s reliance on those cases of McClure, Abbotto, Ditchburn and McKenzie are in truth against it upon a careful analysis of the provisions of the Act, and we end up where Professor Tribe first observed with respect to the present system:

a temporary majority –

that is, in the present Parliament –

entrenching itself by cleverly manipulating the system through which the voters, in theory, can register their dissatisfaction by choosing new leadership.”

and hence immunising the current leadership from successful attack. Now, that passage was cited by Justices Gummow and Hayne in Mulholland at

paragraphs 157, 158 and 159. The force of that comment of Professor Tribe in relation to the American constitutional system becomes even greater when we turn to the third argument which I hope to put to your Honours next.

FRENCH CJ: You have now come to the end of Argument B, is that correct?

MR KING: I have, your Honour, yes.

FRENCH CJ: Yes, all right. The Court will adjourn until 10.15 tomorrow morning.

AT 4.13 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 3 MAY 2016