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 98 (3 May 2016)

Last Updated: 3 May 2016

[2016] HCATrans 098

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 TUESDAY, 3 MAY 2016, AT 10.14 AM

(Continued from 2/5/16)

Copyright in the High Court of Australia

____________________

FRENCH CJ: Yes, Mr King.

MR KING: Your Honours, I hope that the tipstaves have provided our catch-up three-page outline. I do apologise again that through an oversight on our part that it was not provided yesterday. I am now addressing argument C, and our basic proposition is this, that denial or disqualification of a substantial proportion of enrolled electors of an effective vote by the challenged provisions is not appropriate or adapted to any legitimate legislative end or purpose, and is invalid as a breach of the constitutional guarantee of representative and responsible government.

FRENCH CJ: Now, you use the word “disenfranchise”. Do you mean by that that the right to vote is taken away from someone?

MR KING: I thought I said “denial or disqualification”, your Honour, but - - -

FRENCH CJ: I am looking at paragraph 1 of your outline.

MR KING: The outline; I am sorry. Yes, the distinction between enfranchisement and loss of an effective vote is, for present purposes, we submit, formal; that is to say, whilst we are not suggesting that enrolled voters are denied the opportunity to cast a ballot, what we are submitting is that having cast a ballot, the value of their vote is nil or illusory.

FRENCH CJ: Every voter or every elector has the right to fill out every square below the line, is that right?

MR KING: Every voter has that right, but in this case if they follow the ballot paper in accordance with the method provided for above the line, which on the agreed history is 97 per cent, that is almost all voters in the last election, then - - -

FRENCH CJ: That is a choice that people make, is it not?

MR KING: Yes, but it is not a free and informed choice. The way the defendant appears to put it in their submissions is that we are attacking the failure of particular candidates to be elected. Our case is not about candidates or winners and losers; it is about loss of elector rights and the loss of an effective power or value to a vote in a compulsory optional preferential system which adopts an arbitrary figure of six as the exhaustion provision.

That is acknowledged in the evidence. If I can say this, your Honour. If your Honour goes to the report at page 301 - which was included at the agreement of both parties at the request of the defendant - at paragraph 4, line 29:

This Bill will have the effect of maximising the number of Senators elected representing major parties, such as the Liberal Party, and established minor parties such as the Greens political party. This will deprive Independents and so-called “micro parties” of votes and prevent new entrants from achieving election . . . thereby entrenching the dominance of existing parties. If the Liberals and the Greens engaged in this conduct in trade or commerce they could be prosecuted for cartel behaviour.

Respected electoral analyst Mr Antony Green gave evidence that, under this system, at the - - -

BELL J: This is the dissenting report. Is that right?

MR KING: That is right, but it is not suggested that this is inaccurate, this evidence, because Dr Green’s evidence was referred to in both aspects of the report.

FRENCH CJ: I am sorry, what point are you seeking to make?

MR KING: The point that I am seeking to make, your Honour, is that by the exhaustion provisions in the Form E electors voting for minor party candidates or independents, their votes will be treated as of nil value or unequal compared to those who support major party candidates, and, hence, illusory if they follow the instruction.

GORDON J: But that is their choice. They can choose to do that or they can choose not to do that. You accept that they can choose to vote below the line and fill in all the boxes. That is a free choice.

MR KING: But that was the Commonwealth’s case in Rowe and Roach, your Honour, and that was not accepted. Again, it is the same problem. Here, if I can ask your Honour to look at section 233 of the Act, 231 and 233 of the Act, describing the process - 231 is the communication of the ballot paper to the elector in the form of Form E, and then 233 is the last opportunity that the elector has. He or she goes into the privacy of the ballot box and hands over the ballot paper as the last communication to the polling officer.

If that communication is from the Executive or the government with no opportunity to question the accuracy of anything that is said, and the result of it is to cast an ineffective vote, the exhaustion provision has the consequence for which we contend and which is set out - - -

BELL J: Mr King, why did you take us to those two provisions?

MR KING: I was seeking to answer Justice Gordon’s question, your Honour.

BELL J: Justice Gordon had raised with you the question whether or not it was a matter for the voter to either choose to vote above the line or below the line. You responded by taking us to provisions 231 and 232. I am simply seeking to understand the argument. A voter may vote above the line. The instructions tell the voter to select at least six boxes in that event - is that right – words to that effect, or the instructions indicate that the voter can vote below the line.

MR KING: Either/or.

BELL J: Yes; the voter chooses either to vote above or below the line.

MR KING: Yes.

BELL J: What was the significance of taking us to 231 and 232?

MR KING: Because the importance of a free and informed vote. The voter is not like – does not carry into the ballot box, as the submission of the defendant appears to suggest, a copy of the Commonwealth Electoral Act knowing of the implications – or the full implications of voting in a particular way, or indeed of the nature and effect of the various methods. So the problem is to identify how an effective vote is denied the elector by the provisions that have been adopted.

The point of taking your Honours to page 300 is to demonstrate that the new provisions have the result of denying one minor party seat in South Australia and in item 6 – I take your Honours to, and whilst I am on these pages - - -

KEANE J: But the new provisions do not do that, it is just because other people vote the way they do.

MR KING: Well, that was the opinion of the psephologist which was included in the agreed material, your Honour, and also if your Honour goes to the same effect 316, Professor Fitzgerald at about lines 33 to 35, and at 250 in the body of the advisory report lines 38 to 41, again Green being quoted, saying that the problem which the legislation sought to address was the fact that candidates for minor parties and independents had caught up with the major parties in relation to arranging group voting tickets.

KEANE J: These seem to be observations about voter behaviour.

MR KING: They have regard, your Honour, to what Chief Justice Dixon said in A-G (Vict) v Commonwealth; that is to look at the issue of not just the terms but the operation and effect or the cause and effect in relation to adopting one system as distinct from another.

So, what one needs to contemplate, in our respectful submission, is, why was an arbitrary “six” adopted as the instruction to the elector for above the line voting with respect to parties “at least six”. The answer to that question is, when you look at the evidence that the result is that the candidates who would otherwise have been elected by persons supporting minor parties, are eliminated in favour of major parties.

KEANE J: That is only because of the behaviour of other voters - - -

MR KING: Well, in the sense that - - -

KEANE J: - - - exercising their rights.

MR KING: Your Honour is right with respect to the fact that we can predict that, it is a prediction for the next election but the agreed worked tables, which I will take your Honour to now, demonstrate that on the evidence agreed by the defendant, it happened. If the same system that has now been adopted was adopted in the last election, for example, Senator Day would not have been elected, in favour of a major party.

So, it demonstrates that the purpose – and I am now harking back to what Professor Tribe said as a reason why a court of law would intervene in such a process - is to ensure the integrity of the transcendent right to vote. If the legislators, the temporary majority, set about undermining the equality of the vote or the power of the vote, then that renders it subject to constitutional scrutiny and when one scrutinises the process that has occurred here, it fails. It fails because of the principle of representative and responsible government applied to the law.

GAGELER J: Mr King, to accept your argument C, are you asking us to make some finding of fact and, if so, what is that finding that you seek?

MR KING: The finding or the constitutional fact - and appreciating your Honours referred to it slightly differently in Maloney’s Case - is that by adopting the instruction – I will start again - that the requirement in section 209 of the Act, insofar as it authorises and prescribes the use of Form E, has the consequence that those electors who follow the instruction above the line that we have talked about - that is an agreed very large percentage, almost all - their vote is compromised, rendered ineffective, rendered illusory, if they follow that instruction and they have the purpose of supporting a candidate for a minor party because of the exhaustion provision, and that takes us directly back to what Justices Toohey and Gaudron said in Langer’s Case which perhaps I should ask your Honours to look at right now.

GORDON J: Mr King, can I just understand this. Is your proposition that if the form told you that you could above the line vote by filling in every box there would be no complaint on the basis that you do not seek to challenge optional preferential voting, you do not seek to challenge that they have got a choice whether they vote above the line or below the line? Is it really a complaint about the content of the form?

MR KING: In the sense referred to by Chief Justice Gleeson in Mulholland, yes, but it is not quite correct, your Honour, to say that we do not challenge optional preferential voting.

GORDON J: I thought you accepted the proposition yesterday put to you by Justice Nettle that you did not regard it as unconstitutional in itself; what you were concerned about was the way in which they were instructed to fill out the form.

MR KING: If it were voluntary in a compulsory system, then the optional preferential vote has the consequences which we contend for. It is the undue combination of a compulsory – an elector is required to vote and his or her vote is rendered valueless by the way in which the new system operates and that is its purpose.

GORDON J: Well, no, the new system operates in a way which permits you to fill out above the line or below the line. It permits you to choose whether you fill in all the boxes or the form says at least six of the boxes. There is nothing preventing you from making a choice as a voter how many boxes you fill in above the line or below the line.

MR KING: That is its terms but that is not its operation or effect. It is Lange’s Case at 567 which directs attention to the operation or effect and what Chief Justice Dixon said in A-G (Vict). That is the problem, your Honour.

FRENCH CJ: When you say its operational effect - - -

MR KING: Operation or effect.

FRENCH CJ: Operation or effect, you are really talking about what people do, not what it makes them do but what they do. There is no legal effect that requires people to vote above or below the line. You are saying that is a kind of political reality, if you like.

MR KING: It is a political reality and it is the evidence before the Court and it is the agreed position of the defendant as well. One would submit that it is, in a sense, commonsense because if one goes into the ballot box in the way that section 233 describes, then the last communication that one has with the Executive, that is by marking the ballot paper and depositing it with the polling officer, one is obviously and naturally guided by the instructions on the ballot paper. The normal and natural reaction which was the intended reaction of the legislator is to exhaust at six.

Of course, if the major parties, immediately after the election is called, do what Professor Williams has said, run a “just vote ‘1’” campaign above the line, it will be disastrous for minor parties. But that is why the operation and effect is very significant in a case such as this. To disregard that operation and effect, in our respectful submission, is not to have regard to political considerations but is to disregard the operation and effect of the law itself, which of course is what we are examining, in our respectful submission.

FRENCH CJ: Now, do I understand correctly that the argument C that you are putting up at the moment is the argument comprehended by the particulars to ground 8 in the show cause application?

MR KING: And 10.

FRENCH CJ: I am trying to disentangle C from D. In 8, you talk about the 1918 Act prescribing:

a quota system . . . which is not representative –

There is a question about “not directly proportional”, et cetera. Then:

In combination with the challenged provisions the practical operation of Commonwealth Electoral Act 1918 as amended s 273(8) is to prevent the election of Senators chosen by the people –

et cetera.

MR KING: Yes. There is a compounding effect, and we respectfully submit the defendant has misunderstood our argument about the Droop formula. What Droop does is to authorise an unrepresentative rump to be disregarded in the count, and with respect to major party base, to authorise a cascading springboard effect in their favour as against other candidates. That of itself is, we respectfully submit, a disproportionate response to a representative system of government. But when it is compounded with the exhaustion effect of the new Form E, that has a grossly disproportionate effect – or putting it the other way around, it is not reasonably appropriate and adapted to a legitimate legislative end or purpose.

If your Honours go to the evidence on this point, at page 133, which is agreed – sorry, 131. This is what happens under the new system if a “just vote ‘1’ above the line” campaign is run. The result of that, by reference to the last election, would be, if your Honours see the outcome:

MINOR PARTY D MISSES OUT –

and this is agreed –

(relative to the base case under the old law) –

In other words, the effect of the new law – method A, as we have described it in relation to our section 9 point – is to exclude minor parties. But we are not talking about winners and losers here, with respect, your Honours. We are not complaining that a particular politician may miss out on being elected to Parliament. We are addressing our complaint with respect to the exercise of the right to a pre-informed vote of electors who wish to or intend to vote for such a candidate - the 3,150,000 who did so on the last election, 23.5 per cent of the electorate, which is also an agreed figure.

NETTLE J: Mr King, will they not still vote for him presumably?

MR KING: Yes, but they miss out, that is the whole point.

NETTLE J: Because they cannot get as many preferences compulsorily voted as they would have under the old regime.

MR KING: No, because if they follow the new ballot paper – or if they vote “just ‘1’ above the line” in accordance with method A, it has the result of excluding the minor parties.

NETTLE J: That is because there are not the preferences there would have been under the old system going to minor parties.

MR KING: Yes. So no matter what they do, they are left high and dry.

NETTLE J: So it is the consequence of no longer compelling people to vote low level preferences which can then be distributed to the minor parties.

MR KING: Up to 23.5 per cent of voters, yes. The same goes, if your Honour has a look at Table C - - -

NETTLE J: No, it is not the 23.5; surely it is those who do not wish to vote low level preferences which would get allocated to minor parties.

MR KING: No, it is those who follow the instruction, walk into the ballot box – let us assume so many people do, five minutes to six, just come out from a building site, walk into the ballot box, grab your ballot paper, look at it, vote six. That is what they do.

NETTLE J: This is your argument D, that they are misled into that option.

MR KING: Yes, I suppose I am swinging forward to argument D, your Honour.

NETTLE J: Just staying with C, it is because they do not exercise a right to cast lower level preferences which are then distributed to lower parties that you say it becomes unrepresentative.

MR KING: The exhaustion provision has that consequence in a compulsory system of voting, and your Honour asked me the question yesterday about a “first past the post” system, Table B at page 131 demonstrates how that is unfair – not just unfair but is unrepresentative because those electors who wish to cast an effective vote for candidates other than mainstream or major parties, their vote will not count. If they did not vote and they were prosecuted before a magistrate and said “I did not vote because there was no point”, that would be no excuse.

NETTLE J: It will still count, it just will not count as much as if they had lower level preferences distributed to minor parties.

MR KING: No, it will not count at all because it has no value. So then that takes us back to what Justice Toohey said in McGinty, everybody has a right to an equal vote, a vote of equal value - sorry, an equal power. So votes by this new system are denied the same power as other votes, and that is the consequence. That is if you vote “just ‘1’ above the line”. So on the agreed base case Senator Day misses out on the next election, and that is the whole purpose of the legislation. The government has admitted it, the Commonwealth has admitted it. Then if you go to Table C, if they follow the instruction 1 to 6, and most people will do that – certainly the defendant does not deny it at paragraph 61 of their submissions, then the consequence again is D misses out.

BELL J: On this argument under a system where voting was not made compulsory, your point would remain the same in the way you characterise the value of the vote that the value of the vote of some persons who (a) choose to vote; (b) choose to vote above the line; (c) for other than one of the major parties, their vote would in that sense have less value.

MR KING: Yes, that is right.

BELL J: So the question of whether the system is compulsory or not does not really get to the point that you seek to make.

MR KING: In relation to the exhaustion issue?

BELL J: Yes.

MR KING: Yes, which is the third argument. Thank you, your Honour. Can I just ask your Honours to look briefly at what Justices Toohey and Gaudron said in Langer on this point at page 334[1996] HCA 43; , 186 CLR 302, and this comes back to something your Honour the Chief Justice said in Rowe as well, which I will take your Honours to in a moment:

One matter that furthers the democratic process is full, equal and effective participation in the electoral process.

That was not just a throwaway line from their Honours; that was based upon the observations of Justice Gummow in McGinty at page 287, Justice Toohey in McGinty at page 204 and Justice Gaudron in McGinty at page 223. Their Honours went on:

If a voter’s ballot paper is informal, as may be the case if it is not completed in accordance with s 240 –

and 240 is the equivalent of 239 in the and we adopt that same reasoning:

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.

Then in the last two lines it says that a system which requires that result:

is reasonably . . . appropriate and adapted.

It follows from that, in our respectful submission, that a system which leads to the opposite result, which is this case, is inappropriate and adapted. Mr Langer, who was gaoled under section 329A, would now be in a completely opposite position according to the Commonwealth.

In our respectful submission, the remarks of those two learned judges are very compelling in the context of this third argument and in the light of the evidence of Dr Green and the minority reports to which I have referred, which have been placed before your Honours with agreement of the defendant. It is not suggested that what Mr Conroy and his colleagues in the Senate said at page 300 is inaccurate. I ask your Honours to look at the comment at page 301, paragraph 10 about the process through which this amended law came into effect. It was a virtual abandonment of the first report of the Parliament and there was a rushed job in relation to this new Act.

BELL J: How can this bear on the question of validity with which we are concerned?

MR KING: The rushed job does not bear on it, your Honour. I mentioned your Honour the Chief Justice’s observations in Rowe and also I respectfully mentioned what Justices Gummow and Bell said in Rowe and what Justice Crennan said in Rowe in the following passages. Firstly, 243 CLR 1, especially at paragraphs 18 to 22 in the judgment of the Chief Justice, and I respectfully draw attention to the whole of those passages.

GAGELER J: It would help me, Mr King, if you could indicate the proposition that you are trying to draw from these passages.

MR KING: Yes, yes. The maximisation of public participation in elections and, critically, making elections as representative of an expression of the will of the majority – that is, an expression of the will of the majority – as is practicable, is an integral part of the system of representative and responsible government expressed in the implied guarantee.

NETTLE J: Does that mean that anything less than full compulsory preferential is unconstitutional?

MR KING: We would put that. Alternatively, we would say that if there is to be – what you cannot have is a mix of compulsory and optional, which is the very point that Justices Toohey and Gaudron were making in the passage I just took your Honours to in Langer.

GAGELER J: What is it that makes this system a mix of compulsory and optional?

MR KING: Section 245 and section 239 are the compulsory elements. Sections 239(2), 269(1)(b) with Form E makes it optional, the two methods above the line.

GAGELER J: So the compulsory bit is what?

MR KING: The compulsory bit is that you must attend and you must vote and you must fill out the ballot paper.

GAGELER J: And the optional bit is what?

MR KING: That you do not complete a full and effective vote. You may just vote first-past-the-post, under section 269(1)(b), or if you follow the instruction, you will fill out a vote which exhausts at six, or if you are fully informed, you will fill out the whole of the vote to ensure that you cast an effective vote. The only way to cast an effective vote under the new system is to complete all of the boxes below the line because, unlike the old system, individual candidates below the line cannot be voted for by any group voting ticket or group arrangement above the line.

NETTLE J: Can I just ask you – I do follow what you say about anything less than compulsory full preferential is unconstitutional, but why do you say that a wholly optional preferential system would equally be constitutional then?

MR KING: Wholly optional, your Honour - - -

NETTLE J: Yes.

MR KING: - - - which is you do not have to vote at all. A voluntary system - - -

NETTLE J: Well, you have to vote, but you pick as many as you wish. I took you to say that that also would be constitutional, in your argument, or not?

MR KING: No.

NETTLE J: So it must be a full compulsory full preferential system.

MR KING: If it is a preferential system of voting, for an effective vote to be cast, it should be as set out by Justices Toohey and Gaudron in Langer’s Case.

NETTLE J: But therefore you would say in order to be constitutional it must be full, compulsory, preferential and nothing less.

MR KING: Well, we do say that but we also put an alternative proposition which we say is also sufficient for present purposes, namely, that a failure to inform the elector that by simply following the instruction on the ballot paper, he or she renders a vote which is illusory, is also a failure of the system of representative government.

NETTLE J: Certainly, but that would have nothing to do with the constitutionality of the system, would it?

MR KING: Yes, it would, because the - - -

NETTLE J: Either the voting system complies with the Constitution or it does not. Put aside whether people are misled.

MR KING: Legislative instruction has the consequence that the vote exhausts prior to casting an effective ballot.

NETTLE J: So, the system would be all right if people were told expressly, you can cast as many as you like.

MR KING: No, the system, on our alternative case, would be sufficient if people were informed that the only way of casting an effective vote, or make a full and effective choice of senators, is to vote completely below the line for all candidates.

NETTLE J: Full preferential.

MR KING: Full preferential vote, yes. But they are not told that. They are told something different. Under the old system, that would have been the effect of their vote - - -

NETTLE J: Yes.

MR KING: - - - because the tick, or a cross or a “1” above the line, is a shorthand way of voting for everybody below the line, as Justice Hayne explained in McClure - - -

BELL J: One difficulty with that was that the voter, voting above the line, was unaware of how in fact the preferences would ultimately fall out unless that voter went to considerable lengths to acquaint him or herself by means that involved inquiry beyond anything on the ballot paper.

MR KING: Well, your Honour is right that that is a criticism that was levelled at that system. It was even - the unfortunate word “gaming” the system was used for that purpose but, your Honour, as Dr Green explained at page 250 in the joint report, gaming of the system occurred by the major parties, it was just that the minor parties caught up and that was the problem. And, more importantly, section 216 of the Electoral Act required the electoral officer to place in a prominent position outside the polling booth a complete notice of the effect of the group voting tickets. That, of course, has now been repealed. So, it was not just that you could ring up the electoral officer and find out. It was actually there at the polling booth, section 216 now repealed.

BELL J: That submission runs rather counter to the encouragement you are urging on us to take regard to the practical effect of the construction worker at 6.00 pm in the polling booth, Mr King.

MR KING: In relation to our fourth point, yes, and indeed what your Honour is - - -

BELL J: The broader point, Mr King, is the concept of an effective vote carries a little bit of freight and there might be a different view about whether an effective vote was a vote that – voting above the line involved a system where ultimately one’s preferences were in favour of a candidate with whom one’s views one did not seek to support.

MR KING: Yes, and that debate that your Honour has just referred to went on in the major report which is with the papers but it was effectively, we say, abandoned for the new Act which is critiqued by Mr Conroy at the passages to which we have referred.

BELL J: It is the use of the expression “effective vote” as distinct from recognising that a vote is a vote.

MR KING: Yes, that is right. So what we have here, going back to the legal proposition adumbrated much better than anything I can say by Justices Toohey and Gaudron is a denial, disqualification of such a vote by the new method, ATL. I mentioned the Chief Justice in Rowe’s Case. I think I should have mentioned also Justices Gummow and Bell in that same case at 123 and 132, pages 48 and 51.

KIEFEL J: Mr King, do I take it that you are seeking to derive from Rowe and some other cases you have just mentioned that for legislation regarding voting for the Senate to be effective it must provide for the maximum number of people to vote and for each person to be able to exercise the maximum number of choices? Does that encapsulate what you are saying?

MR KING: Fully effective, yes.

KIEFEL J: That is what you mean by fully effective?

MR KING: Fully effective, that is right.

KIEFEL J: So - - -

MR KING: To the same effect as the passages which I have cited.

KIEFEL J: That would oblige, in terms of the discussion you have had with Justice Nettle, each voter to have to identify each preferential choice on every ballot paper.

MR KING: That is the dilemma for the elector under the new system. Faced with three different methods of voting, faced with an eye-catching appeal – that is Justice McHugh’s words – eye-catching appeal to a party vote above the line, now you only have to vote six, assuming they do not know anything else than what they see on the ballot paper, then the opportunity to cast a full and effective vote is lost simply by following the instruction on the ballot paper. So that is not a proportional response to achieving a legitimate end which is seeking to prevent gaming of the system by denying to electors of minor party candidates and independents such a result, in our respectful submission.

BELL J: The proportional response is to require that every elector nominate their preferences below the line?

MR KING: Or inform them of that position, which is not what happened.

BELL J: That is your argument D?

MR KING: Yes, that is right.

BELL J: But the constitutional argument that you accepted in your exchange with Justice Nettle is that the only constitutional means of electing senators is full preferential voting?

MR KING: If you have a compulsory system of voting, if you have a compulsory method in relation to a preferential system.

BELL J: Can you just explain why you place this significance on the system of compulsory voting in connection with your argument C?

MR KING: If, as the examples to which I have referred and the evidence to which I have referred shows, that somebody who wishes to elect minor party candidates or independents does so following the instruction on the ballot paper and exhausts at six, his or her ballot - - -

BELL J: I think I understand that aspect of your argument, Mr King. A little earlier, I took up with you why that particular argument did not continue to have strength to the extent that it has strength, regardless of whether we adopt a system of compulsory voting. I think you accepted that that argument did not.

MR KING: I did accept that, yes. Is your Honour suggesting I am at difference between what I said to Justice Nettle?

BELL J: I am not entirely clear, Mr King - - -

MR KING: Sorry, my apologies.

BELL J: - - -but the matter - - -

MR KING: If I can make it as clear as I can. It is our respectful submission, for the purposes of argument C, that the new provisions coupled with the Droop system, or alone, have the consequence that those who exhaust in accordance with method A above the line, section 239(2), do not cast a full and effective vote.

FRENCH CJ: All right. Now, item 7 in your propositions under argument C says the 2016 system renders it impossible for voters to participate fully and effectively, or equally by a free and informed vote. Now, so far as you assert that the system renders it impossible for voters to participate fully and effectively, I take it from what you have said you do not include in that statement the option of below the line voting. You are referring to the above the line voting process, is that right?

MR KING: That is correct.

FRENCH CJ: So the statement is too broad?

MR KING: To that extent, I agree with that, your Honour. But again, the present system that we now have would – I withdraw that. Just to respond briefly to your Honour the Chief Justice, let us assume that instead of having all of the candidates listed below the line – some grouped, some ungrouped, and individual candidates, and there are many people who want to stand for the Senate who do not wish to have anything to do with political parties – under the new system they may as well be listed on the website of the AEC. A whole three per cent or less now votes below the line. If you are voting with respect to a political party, they may as well be on the AEC website. The system has moved away from voting between people as senators towards - - -

FRENCH CJ: Well, I was just concerned with what section 7 was saying about the legal operation of the 2016 amendments and I thought I had your answer to that.

MR KING: Yes, thank you, your Honour. Now, just if I can briefly conclude on these points. Accept that it was, for the purpose of the present argument, a legitimate object of the law to prevent gaming of the system in the sense referred to, for example, at page 252 of the book – and your Honour Justice Bell and I had a discussion about that – we respectfully submit that it was not reasonably appropriate and adapted, or disproportionate response, for an inconsistent or compatible with any relevant legislative objective to firstly retain compulsory voting in the Senate but to introduce alternative methods, two plus in breach of section 9; second, to prescribe a method of choosing parties directly under section 239; thirdly, to introduce an exhaustion mechanism which means that a significant number of voters up to 23.5 per cent who wish to support minor parties and independents will not cast an effective ballot; and, fourthly, by adopting an arbitrary number for exhaustion without explaining the capricious or arbitrary nature of that number and the effect of adopting it if you follow the instruction above the line.

There has been no explanation, with respect, from the defendant about why it says simply “at least six”. It bears no relation to anything. Let us assume the next election is a double dissolution election. It is still going to say at least six. People are going to walk into the ballot box and scratch their heads. It bears no relation to the number 12 below the line. We know that the alternative voting method in 268(a) and 269 in fact permits you to vote six below the line, not 12.

We know that in respect of above the line you can actually vote simply one, and six has a plausibility because it looks like the number of senators to be elected in a periodic election but it is a misleading plausibility because if there are six candidates for six parties above the line, in fact the number of people you are voting for is 36 people distributed not by the voter but by the axe mechanism itself under section 272(2). That is why this is not only the concealment and the misleading nature of the ballot paper, or to use Justice Gleeson’s word, the “form” of the ballot paper is an impediment to a representative system of government and to direct - - -

FRENCH CJ: We have now moved to proposition 3 under argument D, I think, have we?

MR KING: I was putting that really, your Honour, in respect of the issue of justification that Justices Gummow and Bell had raised in relation to the third point. If I can now move to the fourth point, argument D, we respectfully submit, consistently with what the Judges said in Mulholland at passages we have cited in our written submissions, and indeed in Roach at passages 81 to 85 in the joint judgment of Justices Gummow and Bell, that there are relevantly two significant political communications involved in the present case.

One is the handing over of the ballot paper in the form of Form E to the elector under section 231 and the processes there described and the other is having marked the ballot paper to handing it to the electoral officer under section 233, having marked it in the privacy of the ballot box.

KIEFEL J: Is there any case which says directly that a communication by what is put on a ballot paper is a communication about politics or government and is there any case which says that voting itself is a communication about politics and government, for the purpose of the implied freedom?

MR KING: Yes, those cases - - -

KIEFEL J: Says this directly in as many words?

MR KING: I think the focus of the observations in the ACT Case - Justice McHugh and Chief Justice Mason - and in Mulholland in the passages we have referred to relate to the first of the two communications to which I have referred, that is to say the handing over of the ballot paper. If you then look at it, that is said to be the critical communication, but we would also submit that the return of the ballot paper, the communication from the elector to the enrolment officer who then proceeded to deal with it under the scrutiny provisions, is also a communication.

The instruction has the consequence of, because it adopts the exhaustion provision and the arbitrary figure to which we have referred, failing to inform the elector that an effective preferential vote requires voting for all candidates and to only preference six risks before exhaustion - - -

KIEFEL J: This takes up what you were submitting before about full preferential voting. As I understand what you are saying, the ballot paper must inform the voter not only that they can exercise a preference for all candidates but that they must.

MR KING: No, that the effect of not doing so is to mean that they do not cast an effective vote. Can I come back to your Honour’s earlier question, I was in error. At page 220 of Mulholland at about point 5, Justice McHugh deals expressly with your Honour’s question and the answer is in the affirmative.

It starts at 219, paragraph 94 and goes through to 96, and we say that the burden is not compatible with representative government because the Executive should not mislead the voter, nor is it reasonably adapted or appropriate in terms of proportionality not being suitable, necessary or reasonably adapted.

The Commonwealth in its submissions concedes that Form E is incomplete but impermissibly casts the burden of knowing the intricacies of the Act upon the elector and that is, we submit, the error that was taken up in Roach and Rowe, and Zines in the sixth edition deals with some care and detail on this point at pages 601 to 608, especially at page 604.

There is no adequate reason, in our respectful submission, why electors cannot be given concise, accurate information which will prevent votes for candidates endorsed by minor parties being ineffective and not of equal value or power, to use the phrase of Justices Gummow and the others in McGinty. Unless there is anything further, your Honour, those are our respectful submissions.

FRENCH CJ: Yes, thank you. Yes, Mr Williams.

MR WILLIAMS: Your Honours, there is little I need add to the outline of Commonwealth oral submissions that we have handed up. If I could begin with some additional references in respect of argument A, more than one method of voting. Our friend’s submissions misunderstand both the terms of section 9 and the operation of the amended Act.

In relation to method, could I give your Honours a reference to Langer. Could I take your Honours to Langer [1996] HCA 43; 186 CLR 302 and start by taking your Honours to page 332 in that report. In the joint judgment of Justices Toohey and Gaudron, we call attention to the middle paragraph beginning with:

The words “choose”, “choosing” and “chosen” –

and we emphasise the end of that paragraph, the last sentence. We call attention also to the following paragraph beginning:

When regard is had to the absence of any reference in ss 7 and 24 to electors –

and we read through to about point 2 on the page, the words “chosen by the people”. If I could take the Court then to page 342 in the judgment of Justice McHugh, at the foot of page 342:

The words “chosen by the people” are therefore words of inexact application, dependent upon matters of fact and degree and always involving a value judgment. They describe the result of a process that begins with the calling of an election for the House of Representatives and ends with the declaration of the poll –

That is, in turn, reminiscent of the reading given to the similar words elsewhere in the Constitution – in section 44 of the Constitution – in Sykes v Cleary [1992] HCA 60; (1992) 176 CLR 77. At page 100 of the report – this was, of course, a disqualification case. In the middle of page 100, the plurality state that:

Reflection on these considerations persuades us that the words “shall be incapable of being chosen” refer to the process of being chosen, of which nomination is an essential part. That interpretation is supported by s. 43 –

which is then quoted –

In that context, the words “shall be incapable of being chosen” must refer to the process of being chosen.

That approach was agreed in – I do not need to take your Honours to it – by Justice Brennan at page 108, Justice Dawson at page 130, and Justice Gaudron at page 132. Justice Deane dissented - the relevant passage at pages 120 to 121. But even in the dissent his Honour observed – this is at page 120 at about point 9 on the page, the last full paragraph:

As a matter of mere language, the words “being chosen” are clearly capable of referring to the whole process of election commencing with nomination and finishing with either the declaration of the poll or the return of the writ –

which his Honour refers to as “the wide construction”, but then goes on to observe that –

They are, however, also capable of being construed as referring to the declaration of the poll which represents the final step –

His Honour at page 121, at about point 3, favours the narrow construction by reasons of content and context – in the context of reading a disqualification provision. Those provisions support the wider view of a method for which we contend.

FRENCH CJ: The question being then whether the level of generality at which the term “method” is construed for the purposes of the Constitution embraces alternative processes for casting of votes which are then uniform across the States.

MR WILLIAMS: That is so. The essential element is uniformity across the States and we are unable to identify anything in our friend’s submissions that give rise to any question of uniformity across the States. Plainly there can, in terms of particular ways of expressing a vote, be provision by the Parliament for different mechanisms. We give the example of the sight-impaired voters for whom particular provision is made. On our friend’s construction of method that would be impermissible because it too would be a separate method.

FRENCH CJ: I think the Convention Debates – the Adelaide Convention in 1897 suggest that the term “method” was proposed by Alfred Deakin as a way of overcoming a narrow construction of the term “manner” which had appeared in the earlier drafts and which had been suggested by Edmund Barton as having a narrower meaning.

MR WILLIAMS: Which supports again the wider construction for which we contend, that “method” was intended to embrace the entire system leaving aside that which is reserved by section 9 in its express terms to the States, that of fixing the time and place of polling for the Senate. The suggestion was made that we have made concessions about page 126 of the book. We have made no such concession except that it could be included in the book in the same way that the submissions of both parties were to be included.

It was also suggested that we have agreed that 97 per cent of voters will vote “1” above the line. We have accepted that that was the figure in South Australia at the last election and we have made this quite plain in our paragraphs 58 and 61. We do not accept that any inference can be drawn from the system in which a voter is offered a choice between voting “1” above the line or numbering all the squares below the line, 30-odd, will be reflected in the current voting system as enacted in 2016.

The argument that we put concerning the operation of the system is essentially what we have set out in writing and I do not need to add to that. The point we make at paragraph 7 of the outline is that once one gets past section 272(2), which in effect gives content to an above the line vote, from there in the scrutiny from section 273 onwards the provisions draw no distinction between above and below the line votes.

What effectively is required, and much is said of the arbitrariness of the number 6, when one votes “6” above the line one is voting for at least 12 candidates because in order to be above the line one needs a group of at least two. So voting 1 to 6 above the line has the effect of voting at least 1 to 12 below the line and that is consistent with the instruction for below the line voting. So there is nothing in that that raises any constitutional question.

In any event, your Honours, the concession that was made yesterday at transcript 26 at line 1021 in an exchange between my friend and your Honour Justice Nettle that a compulsory optional preferential system would not be contrary to section 9 is effectively the end of any submission on section 9 concerning this system. There is nothing left by way of content in our friend’s argument once that concession is made.

If I can turn then to the second argument, that of directly chosen, our friend’s argument misunderstands the operative provisions of the amended Act. Your Honours have been referred to them in detail in our written submissions but in effect what the provisions do in 239(2)(a), which incidentally we refer to in the first substantive paragraph of our written submissions and elsewhere, is by reason of 272(2) a vote below the line for the candidates in the list order in which they appear.

Our friends place much emphasis on the particular words in section 239(2) and the reference to “party”. That is again a case of the statutory tail seeking to wag the constitutional dog in the sense that one has to look at the legal operation of the provisions rather than look at the particular word which is used in the statute and endeavour to attribute constitutional significance to it. But, in any event, the reference in 239(2) to a party is surplusage. The way in which the provision works, it is group, not party, that gets candidates above the line. We see that in section 210(1)(f). Section 210 deals with the printing of ballot papers and in subsection (1):

In printing the ballot papers to be used in a Senate election:

(a) the names of candidates by whom requests have been made under section 168 shall be printed in groups on the ballot papers in accordance with the requests and before the names of candidates –

Then there is effectively a lot for the others, for the order otherwise. But in paragraph (f):

except as otherwise providing by the regulations:

(i) a square must be printed opposite the name of each candidate; and

(ii) for candidates who made a request under section 168 that their names be grouped . . . a square must be printed above the dividing line and above the squares printed opposite those names.

FRENCH CJ: I suppose if you voted for a party, there is provision for you to vote for a party and the party will then determine who would be its candidate and that would be a different kettle of fish. There was something like that I think in 1917, was there not, where defence or service people serving overseas could vote for the prime ministerial or the opposition party and the Prime Minister or the opposition leader would nominate three candidates each?

MR WILLIAMS: That is so, your Honour, and indeed nominate after the vote.

FRENCH CJ: Yes, that is right. That is the point. That looks rather indirect.

MR WILLIAMS: That may verge on the indirect although even that may be within the constitutional power, but we do not need to determine that.

FRENCH CJ: We do not need to revisit 1917.

MR WILLIAMS: No. It might be a bit late for that argument.

FRENCH CJ: It was only good for one election anyway, I think.

MR WILLIAMS: Yes. There is reference to it at page 108 of the application book to the detail of it. The system that prevailed from 1984 was one in which there was no ability on the face of the ballot paper to determine which way the vote would go if one voted above the line. Indeed, there was a potential for parties to lodge not one but two and not two but three different tickets in which case the votes would be divided either 50/50 in the case of a two-ticket allocation or 33⅓ each way. In that case, the voter marking “1” above the line would not actually know which of the two or three ways their vote would be going, but it was never suggested that that system offended.

The present system is one which is in fact highly transparent. A voter has the option of marking along the top of the ballot, above the line, the order of preference of the groups and plainly enough, although the ballot paper is not explicit because the explanation is not without complexity, it is plain enough that in so marking those who are listed below the line under the name of that party attract the vote in descending order, followed by the second party so preferenced. For those reasons, there is nothing in the plaintiff’s reliance upon section 239 and its particular terms.

Your Honours, if I could turn then, unless there are other matters on argument B, to the principle of proportionate representation. The argument that is presented by the plaintiff in this respect is almost entirely detached from constitutional text and structure. The plaintiff has to start with an inference that there is some principle of proportionate representation to be derived from the Constitution before getting on to points about Hare and Droop, and the arguments that are advanced. The arguments that are in fact advanced, particularly this morning, do not rise above mere assertion.

It is, in our submission, impossible to derive a principle of proportionate representation for selection within a particular State of senators from provisions such as section 24 and section 128. Section 24 is concerned with division of members of the House of Representatives between the States.

If one endeavours to move from that national division back to the State level, given that the Senate representation structure dictated by section 7 itself – equality of senators for each State – it is impossible to derive a proposition that there is some kind of proportionate representation when the vote of an elector in a less populist State will carry proportionately much greater weight than one in - - -

FRENCH CJ: Well, the way argument C is now put, as reflected in the outline handed up this morning and the oral submissions, it in any event focuses upon a contention that there is what amounts to an effective disenfranchisement; a robbing of value, if you like, of votes from those who vote for minor parties above the line.

MR WILLIAMS: It is difficult to see how that can be so within a system in which voters are given the choice whether to vote below the line or above the line, and if voting below the line, the option of voting for as many as they like below the line subject to the instruction of at least 12, and the savings provision having the effect of requiring a vote for at least six. The argument - - -

FRENCH CJ: Do you say that the existence of the choice is a complete answer to argument C?

MR WILLIAMS: It would be a valid system, whether or not there was a choice. There is nothing in the Constitution that mandates any particular kind of system. The systems that prevailed until the Second War were systems that produced a Senate that was dominated almost entirely by one party rather than the other. I think there were three opposition senators when the post-war changes were introduced – the rest of the Senate belonged to one party. It is difficult to see, in the light of that constitutional history, any basis for arguments mandating any particular kind of Senate voting system as having any kind of constitutional foundation, or any foundation in history of the kind relied on in Rowe.

GAGELER J: I think it is at this point in his argument that Mr King relies on a passage in Langer in the joint judgment of Justices Toohey and Gaudron; the passage at page 334. What do you say about that passage?

MR WILLIAMS: That passage needs to be read in the context of what was being considered in that case. The case, of course, concerned a system in which there was full mandatory preferential voting and there were provisions that prescribed statements designed to encourage voters to express a voting intention otherwise than in accordance with the instructions on the ballot.

Those observations cannot be read as stating any general constitutional principle that a proportional system is mandatory. There is no basis in the Constitution for that. Their Honours were merely making observations about the constitutionality of the ancillary provisions, the particular effects of which Mr Langer complained. So it is not, in our submission, to be read as stating any wider constitutional principle.

There is no analogy between the issues before the Court at present and the franchise cases. The development of the franchise has been linear, long established in Australia’s federal history, consistent, universal among the State and federal polities. There are no universal propositions to be derived about Upper House voting systems of the kind on which our friends seem to seek to draw from Langer.

The specific requirements for which our friends contend, although little has been heard of them today, the Hare system, has indeed no history in Commonwealth electoral law. It has been used only once briefly in Tasmania between the early 1890s and I think 1902 and it has never been used since. There is no basis upon which such a system could be constitutionalised, if indeed some form of proportional representation were to be inferred, but our friend fails at the threshold with the principle of proportionate representation. Plainly enough in a polity which had for the first 19 years of its existence essentially a “first past the post” system, it is rather difficult to find a basis in the Constitution for the proportionate arguments that our friends rely on.

The arguments that are advanced under argument D, and I take it argument E has been abandoned, concern the instructions on the ballot. The provisions seek to strike a balance between encouraging voters to express their preferences as fully as they wish. The words “at least” mean what they say; 12 at least and as many as you wish would be the ordinary reading of those provisions, or six at least and as many as you wish, while at the same time preserving from informality the votes of those who fail to comply with the instructions on the form, especially in light of 30 years of the instruction being for a valid vote above the line vote only one box above the line.

Those instructions and the savings provisions and the absence of a complex explanation as to the interaction between the provisions can be seen to be designed to further voter understanding to prevent misleading and invalid votes rather than anything else. There is no basis for impugning them.

To the extent that reference is made to freedom of communication, we have collected the references in footnote 46 of our submissions to the passages in Mulholland [2004] HCA 41; 220 CLR 181 that deal with this. The first of the references is to page 223, paragraph 107 in the judgment of Justice McHugh:

Because the DLP has no right to make communications on political matters by means of the ballot-paper other than what the Act gives, Mr Mulholland’s claim that the Act burdens the freedom of political communication fails. Proof of a burden on the implied constitutional freedom requires proof that the challenged law burdens a freedom that exists independently of that law.

That is, of course, still good law after Unions New South Wales, and paragraph 110:

No political party or its candidates have any right under the common law or the statute law of the Commonwealth or the States other than the Act to have the party’s name printed above the line or on the ballot-paper. The only rights concerning ballot-papers which political parties and their candidates have are those rights that the Act confers on them.

Page 245, paragraph 180 in the joint judgment of Justices Gummow and Hayne:

personal “rights” are not bestowed upon individuals by the Constitution in the manner of the Bivens action for damages . . . Rather, the freedom creates an immunity or protection which has two aspects: (i) the exercise of legislative or executive power is precluded . . . and (ii) the rules of the common law of Australia are required to conform with the Constitution.

GAGELER J: Mr King I do not think is arguing against – arguing for the existence of some affirmative right. He simply says that what is printed is misleading.

MR WILLIAMS: I took his argument to be founded in the implied freedom this morning but - - -

GAGELER J: I do not understand any part of his argument to be asserting that the implied freedom carries with it some affirmative ability to communicate on the part of a candidate or a political party through the ballot paper. That is really not his point. It is that the communication that is made by the Executive through the ballot paper is somehow misleading.

MR WILLIAMS: That is an argument that fails at the threshold because it is not misleading to - - -

GAGELER J: Correct, I understand that but I just do not understand how these passages deal with his argument.

MR WILLIAMS: That may be so with the argument in the way in which it was put.

FRENCH CJ: He says essentially, as I understand it, that it misleads by silence because it does not tell the full story to the elector and to that extent somehow affects the elector’s choice.

MR WILLIAMS: Well, we return to the submission I made orally a few moments ago, that is that the provisions dealing with the content of the ballot paper strike a balance between encouraging, consistently with the primary terms of section 239, the voter to state their preferences at least to a certain level and as far as they wish while at the same time preserving from informality those who do not comply with the instructions on the ballot paper and there is nothing misleading in a ballot paper which is in those terms.

FRENCH CJ: It is paragraph 3 of his argument D:

The instruction . . . fails to inform the voter that an effective preferential vote requires voting for all candidates and to only preference six risks vote exhaustion and does not set out the full range of voting options –

That is the argument, I think, so it is a silence and therefore on the basis of that silence the elector is given partial information and may make a mistake in terms of - may be even misled into a voting above the line or voting below the line for six or less, 12 or less.

MR WILLIAMS: These all involve large policy choices as to how much information is to be put on the ballot paper. A ballot paper which contains a full instruction about the operation of the Act and its savings provisions will be incomprehensible to many electors, certainly off-putting to most electors and first we say there is nothing misleading in providing the primary operation of the provisions, designed as they are to encourage fuller expression of the vote than the savings provision would require. But secondly, we say there is nothing in the Constitution that could anchor any argument of this kind, given as your Honour Justice Gageler points out, that does not appear to be based in the implied freedom cases. Now, your Honours, unless there are matters with which I can assist, those are our submissions.

FRENCH CJ: Yes, thank you Mr Williams. Mr King.

MR KING: Thank you, your Honours. Your Honour, the reference to Sykes is against my learned friend. If your Honours would go please to page 99, Sykes v Cleary [1992] HCA 60; 176 CLR 77, the passage that my friend passed over in Chief Justice Mason, Justices Toohey and McHugh’s observations, their Honours say, in the middle paragraph:

this interpretation must be rejected. As a matter of language, the disqualifying characteristics set out in s. 44 are related to “being chosen”. Whether those words refer to the act of choice or the process of being chosen is a question to be determined. Even on the narrower of the alternatives, namely, that the words refer to the act of choice, the outcome would be unfavourable to the first respondent. The people exercise their choice by voting –

and that is our point. That is what Chief Justice Brennan said in Langer’s Case and the passage we have referred to and my friend disregards. That is what Justice Isaacs said in Judd v McKeon, which my friend disregards. It was what Chief Justice Knox, Justices Gavan Duffy and Justice Starke said in Judd v McKeon which my friend does not take your Honours to or explain. So we say that Sykes is against my friend.

My friend introduced for the first time in this case in the various versions of the written submissions we received from them the notion that the word “party” in section 239 – this is the “directly chosen by the people” point – is surplusage. That has never been submitted before. We respectfully submit it is not surplusage. If it is not surplusage, then we should, we respectfully submit, succeed. My friend cannot disregard a key word in 239(2) which is the whole purpose of the first of the new methods of voting that are provided for; the party list method.

The sections to which we have referred in some detail demonstrate how the group voting ticket method and the group method is replaced by the party method and the redistribution mechanism is now not below the line by a simple prescription, as explained by Chief Justice Gibbs in McKenzie. It is now by the party mechanism method to which we have referred and which my friend says is mere surplusage.

He has moved away from suggesting that – or from submitting, indeed – that section 239(2) is merely another example of what Chief Justice Gibbs referred to in McKenzie’s Case, a convenient facility to saying it is surplusage. That submission should be rejected, we respectfully submit. It is not an answer to the careful case prepared by the plaintiff on this point.

Then my friend in relation to the third argument referred again to the Hare-Clark system. Your Honours, we have not referred to the Hare-Clark system in any of our submissions; it has nothing to do with our case. My friend is running a hare by referring to the Hare-Clark system, with respect – excuse the mixing of metaphors.

Our case is not about proportionate representation in the sense that my friend refers to and he makes reference to in his oral outline, paragraphs 15 to 19, as being about winners and losers. Our case is not about candidates. It is about the rights of electors, and the Commonwealth has disregarded those rights.

At paragraph 61 of their written submissions in the application book, in effect, they do not engage with the principles of our case. They simply acknowledge the factual basis of it and say for some reason or other it does not apply here without any explanation, hoping that your Honours will just wipe away the issues and rights of the electors that are being trampled on by this legislation.

Then turning to argument D, a free and informed vote, he puts the submission and summarised in paragraph 20 of his oral notes, that Form E does not purport to be a complete statement of the statute. This seems to be a version of “it is all the voter’s fault” argument that was unsuccessful in Roach and Rowe. One needs to look at it more carefully, in our respectful submission, having regard to what the legislators have done.

It is not correct to submit, as my friend did, that there is no restriction, no curtailment, no burden that is involved in relation to the

fourth point. The burden is upon the free and informed vote by the form of the ballot paper issued and marked pursuant to section 209 of the Act and Form E. The burden upon the free and informed vote goes to the heart of political communication. It goes to the heart of what Senator Day is concerned about, and Mr Madden and the other plaintiffs. In our respectful submission, the Commonwealth is seeking to whitewash the 2016 enactment in the respects for which we have put forward in this case in a way that is not permissible. If the Court pleases.

FRENCH CJ: Yes, thank you, Mr King. The Court will reserve its decision. The Court adjourns until 10.15 tomorrow morning.

AT 11.50 AM THE MATTER WAS ADJOURNED