We need to challenge the 2013 Senate result. The Senate voting system is not only bad, it is unconstitutional. We have tolerated a broken system for too long.

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Below is what I would like to address to the High Court.

Your Honours,

The Australian Constitution provides for the election of the Senate with these words.

7. The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.”

I want to concentrate on the phrase “directly chosen by the people” to show that the recent elections in September 2013 are unconstitutional and null and void and that parts of the Commonwealth Electoral Act 1918, including section 211 are not supported by the Constitution, are unconstitutional and need to be amended or repealed.

Section 211 of the Commonwealth Electoral Act states in part,

“(1)  Where the names of candidates nominated in a Senate election are included in a group in accordance with a request under section 168, the candidates may … lodge with the Australian Electoral Officer a written statement that they wish voters in the election to indicate their preferences in relation to all the candidates in the election in an order specified in the statement, being an order that gives preferences to the candidates lodging the statement before any other candidate.”

In other words, parties or groups can decide the order of preferences on behalf of voters who vote for them ‘above the line.’

Subsection 2 of section 211 of the electoral act goes further and provides that a group may lodge 2 or 3 statements of orders of preferences. In these cases as set out in section 272 of the same Act each vote is assigned either half a vote  or a third of a vote to each of the orders of preferences respectively. These sections of the Electoral Act along with some accompanying sections and subsections are the sections that under contention here.

We must note that the Australian Constitution provides for the election of the Senate with these words.

“9. The Parliament of the Commonwealth may make laws prescribing the method of choosing senators”

This section of the constitution permits the parliament to choose an appropriate method for organising an election. The founding fathers were wise enough not to insert unnecessary detail into Section 7 of the constitution. Section 9 permits parliament to determine the details. However, section 9 in no way can be interpreted as over-riding the meaning of section 7. The authors of the constitution did not want the constitution to be entirely prescriptive, so very few words are used. It is because of the very conciseness of the Constitution that we must examine each word and phrase for its intended meaning. The conciseness compels us to treat those words that do appear in the constitution as having gravity and significance. The words ‘directly chosen’ must be taken literally.

The word ‘directly’ in this context could be said to mean, ‘Effected by action of the voters, rather than through elected representatives or delegates’ [http://www.thefreedictionary.com/direct]

The word ‘chosen’ means that the choice must remain directly with “the people of the state”, not indirectly via some other party such as a political party or group.

Note also the subject of the sentence comprising Section 7 of the constitution. Who or what is directly chosen by the people of the state? The answer is the Senators of each state. The constitution does not make provision for the election of groups or lists or multiple lists. While parliament, through section 9, has the explicit power to enable elections and the methods employed to facilitate the elections, section 9 does not convey on parliament the right to override section 7, which is quite explicit on three points,

  1. Elections are for senators (and therefore not groups or lists.)
  2. Senators are ‘directly chosen’, and not by some indirect mechanism.
  3. The choice is made “by the people” which excludes third parties from determining the result.

The constitution is therefore  quite clear that voting preferences should not be delegated to parties who make votes on behalf of the people.

One key word in Section 7 to be examined is the word “chosen.” Chosen is the past participle of the verb ‘to choose.’ Choose is a transitive verb so choose must have an object. The result of a choice follows from the act of choosing. One cannot choose and not be sure of what one has chosen. Likewise, you cannot choose something that has already been determined. For example, when I shop I choose. If I ask for a pair of trousers but I am handed a shirt, what am I to think? If the shop assistant explains that the store policy permits them to sell me a shirt when I asked for trousers I will ask to speak to the manager.  To choose is by its very nature something that is incontestably explicit. If the result of a choice is indeterminate, vague, subject to chance or determined by others, then that is not a choice; I have not chosen; I cannot choose; I have had my right to choose taken away from me.

The result of a choice must flow directly from the choice, it cannot be prearranged. That would be the meaning of the word ‘accept’. Section 211 of the Electoral Act means the constitution has been effectively rewritten to substitute the word ‘accepted’ in place of the words ‘directly chosen’. The voters are expected to merely accept what has been predetermined by the groups on the voting paper.

This is the nub. The Australian Constitution would never have been intended as a means to restrict the democratic choices of the people of the respective states. But the Commonwealth Electoral Act has done so by a bizarre set of sections and subsections whose original purpose was to simplify the voting process but which in effect have moved the legitimate power of the people to political groups. For this reason alone the Senate elections of 2013 should be annulled, parliament should pass amendments to the electoral act that conform to the constitution and new elections held before the retiring senators are replaced in July 2014.

The issues that I wish to raise are related to the assignment of preferences by groups when a voter chooses to vote “above the line” on the senate ballot paper. Associated issues related to the existence of groups, the identification of the names of the groups, the preferential system of voting are not in question. I don’t wish to challenge the constitutional basis for these because they do not affect the voters ability to directly choose who they wish to vote for. In addition, I don’t want to question the validity of existing Senators elected in previous elections, currently sitting in the Senate and representing the people of the respective states. They have passed the test of public acceptance. They are unquestionably legitimate to represent their electorates. I am only challenging the legitimacy of senators elected in the various states on 7 September 2013.

The ability for groups to assign preferences via lists that are submitted by statements to the Australian Electoral Commission and which are displayed by the commission via pamphlets and posters at polling places was introduced by amendments to the Australian Electoral Act in 1993 (I believe) to simplify the process of assigning preferences in the Senate where the task of completing numbers from 1 to the total number of Senate candidates had become onerous due to the number of candidates becoming greater and greater. It also had the advantage of making vote-counting in the senate elections much quicker and more accurate. These advantages, do not in themselves, justify the parliament introducing legislation that contradicts the requirements of the constitution that senators be elected “directly chosen by the people”.

Someone could argue that the lists are not secret, they are available for perusal before the person votes. Section 216 of the electoral act says.

“(1) If one or more group voting tickets are registered for the purposes of a Senate election, the Australian Electoral Officer must ensure that either or both of the following are prominently displayed at each polling booth:

(a) a poster showing the tickets;

(b) a pamphlet showing the tickets.”

It could then be argued that a voter has the right to choose not to vote above the line if the preferences lists in the tickets displayed in the pamphlets available at polling places do not agree with his/her own choices.

There is one practical objection to the above argument and one logical one:

On a practical basis, the knowledge of the existence of the pamphlets displaying the lists of preferences of the groups is not widespread and in practice they are never “prominently” displayed. Just having one list available at the polling place would be completely inadequate to handle the amount of usage if each person chose to examine carefully the preferences listed by the respective groups. To be of practical use, the AEC would need to have such pamphlets or posters displayed in each of the voting cubicles, but I know this not to be the case.

On a logical basis, you still have the basic contradiction between the words “direct” in the constitution and the existence of lists of preferences which by their nature are an “indirect” method of voting whereby the voters effectively delegate their right to select preferences to another party. While a voter choosing to vote above the line might say, “I voted for Party X”, the actual result of their votes is unknown to them. There may be six senators elected, but Party X will probably only have two or three senators elected. That means that the majority of senators are elected via the preferences arranged between the parties before the election. The voter may not realise that he has effectively voted for Party Y and Party Z. I repeat, if the voter does not know who he/she voted for then he/she has not “chosen” within the meaning of the constitution. In addition, if the distribution of preferences is indirectly assigned by a party or group then the senators are not “directly chosen by the people” within the meaning of section 7 of the constitution. The effect of Section 211 is in fact to give parties a virtual ‘proxy’ vote for all but the first two or three senators elected.

I seek leave to present to the court an example of the pamphlet specified in Section 216 of the Commonwealth Electoral Act. It can also be downloaded from the website of the AEC and shows the preferences listed by the 44 registered groups for the senate election for NSW of 2013. The list consists of 5720 lines. It is completely mind-boggling. To properly assess the preferences for just one group would take several minutes. As a tool for people to make a meaningful choices about the distribution of preferences it is a complete failure. No normal human brain could process the information in order to make a legitimate choice during the time reasonably allotted to the voting process. I will call a witness from the AEC to explain how many of these pamphlets containing this information were available on the day of the election in each polling place, how they were prominently displayed and (in his opinion) how many people chose to view these pamphlets. I will also ask him how many downloads from websites of the documents were made prior to voting.

I also present these newspaper articles, totalling xxx in number. (Many such articles are easily found on the newspaper websites.)

The subject of these articles is how the various parties allocated their preferences and how this influenced the outcome of the election. If we examine these articles, such as xxx in the Australian on xxx august 2013, and …….. and …….. and ……… and ……..

and examine the content of the articles they all show that it was the parties, groups and their backroom deals that determined the result of many seats in the senate. We must therefore come to the incontestable conclusion that the real power to choose who becomes a senator and who does not, no longer entirely directly resides with the voters of each state! It now partly resides with the multitude of groups and parties that have arisen in order to manipulate the flaws in the Commonwealth Electoral Act. These flaws derive from the fact that the Act itself does not conform to the letter nor to the spirit of the constitution. The wisdom of the founding fathers has been ignored and the result is a chaotic and disreputable system.

I have contended that there is no constitutional support for the process that has flourished under the current Electoral Act, but the above newspaper articles really are the proof of the pudding. We can see that while the Commonwealth Electoral Act sections 211 et al may appear on face value to contradict the true meaning of the Section 7 of the constitution that appearance of conflict could in practice have had no consequence. It could have happened that electors had all chosen to vote below the line. It could have happened that voters had checked the pamphlets listing the preferences of the parties and made their own informed decisions. In such a world the behind-the-scenes manoeuvring of the groups and parties would be futile. But these newspaper articles point us to the reality. The reality is that the words “directly chosen by the people” have been confounded. Choice has been taken away from the people and handed to the groups and parties that register statements of lists of preferences. There can be no doubt that the choice of some senators in the senate elections of 7 Sep 2013 was not the choice of the people and certainly not directly chosen by the people. These five words, “directly chosen by the people” have been effectively expunged from the constitution in respect to the most important aspect of the constitutional rights of the people.

This is not trivial.

It undermines the very basis of our democracy. Section 7 of the constitution must rank in the top six most important sections that define our political system. We cannot ignore a situation where its principle meaning is perverted. This is unacceptable, not just on some sentimental ideal or day-dream of a utopian electoral system, but this is unacceptable in a very real legal sense. Parliament, in passing the amendments to the electoral act that inserted section 211 and the associated sections and subsections that support it, did not have the power to override the explicit words of section 7, “The Senate shall be ….. directly chosen by the people”.

I humbly request the Court to declare section 211 and associated sections of the Commonwealth Electoral Act 1918 to be void and the most recent senate election of September 7, 2013 to be made null and void.