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Directly chosen by the people

By James Page - posted Friday, 11 January 2013


Sometimes a phrase is indicative of a deep commitment. One such phrase is found in Section 7 of the Australian Constitution, which stipulates that Australian Senators will be "directly chosen by the people". It is instructive to look at exactly what this phrase meant at the time of the framing of the Constitution and what it means today.

It is widely recognized that the framers of the Australian Constitution saw American democracy as an important model and a key notion in the United States Constitution is the idea of "the people" as supreme authority. We see the importance of "the people" in Section 7 of the Australian Constitution. However the framers of the Australian Constitution were also averse to the notion of delegating the choice of a representative. The framers of Australian Constitution identified both choice by the people and direct choice as related and crucial democratic notions, especially when it came to the election of Australian Senators.

Obviously the interpretation of any constitutional document is an evolving process and must include contemporary views. In recent times there has been a growing concern about the so-called democratic deficit, that is, the extent to which current forms of representative democracy give effect to the will of the people and the extent to which our democratic processes are controlled by party politics. In this context, the notion of having elected representatives directly chosen by the people, rather than by a political party or any other entity, is more important than ever. It is the people rather than political parties who ought to determine who is to be an elected representative.

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Even for those who would insist upon a strict literalist interpretation of the Australian Constitution, the language of Section 7, dealing with the election of Senators, is quite clear. The "choice" to which the Section refers is clearly the act of voting, as is indicated when the Section indicates that the people of a state will vote as one electorate. "Directly" denotes without the intervention of a medium or agent. If one does have a form of intervention by any other medium or agent in the process of choosing a Senator, then one does not have a direct choice of a Senator by the people.

It is true that Parliament does have the power to enact laws regarding elections and this is reflected in the Constitution. Yet such laws ought never override the democratic provisions of the Constitution – otherwise there would be no point in having a Constitution. The only way that the democratic safeguards of the Constitution should be overridden is, again, through the direct choice of the people, namely through a constitutional amendment. The fact that the framers of the Australian Constitution made such constitutional amendments so difficult is an indication of how seriously the framers regarded the democratic provisions and safeguards within the Constitution.

The amendments enacted by Federal Parliament to the Commonwealth Electoral Act in 1983, notably Section 211, whereby electors are now allowed to delegate the preference choice for Senator to a decision made by an official or officials of a relevant political party, must give serious cause for concern. This is both from a constitutional perspective and from the perspective of democratic theory. The so-called above-the-line voting system for the Senate may be convenient, although convenience is never a good rationale for retreating from principle, especially when the principle happens to be a constitutional and democratic one.

It is interesting that the above amendments make a slender and dubious pretence of commitment to democratic and constitutional principle by stipulating at Section 216 of the legislation that posters and/or pamphlets indicating the preference choices made by party officials should be "prominently displayed" in all polling booths on polling day. The theory is that electors in the process of voting would at least be aware of what decisions had been made by party officials.

However even this dubious pretence of constitutional observance is a sham. Section 216 is not achieving the aim of enabling voters to make an informed choice. Little wonder that the Report of the Inquiry into the Conduct of the 2004 Federal Elections concluded at Section 5.172 that "the majority of voters appeared to be unaware of Group Voting Tickets and so did not access them, or request access to them, before they voted." This is yet another reason why the legislation ought to be overturned.

It might be argued that a key factor is the reality that the majority of voters opt to use Group Voting Tickets, by voting above the line. However on closer examination this argument is not relevant. An individual voter cannot simply decide to opt out of a constitutional requirement – the constitutional requirement can only be overturned through a constitutional referendum.

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The result of Group Voting Tickets and above-the-line voting is that the election of a Senator is often not the result of the intention of the voter, but rather the result of secretive backroom preference deals between officials of political parties. The election of a Senator is often not the direct choice of the elector, as the Constitution prescribes, but rather the direct choice of party officials.

What can be done about this situation? One of the fundamental principles of the Constitution is the notion of judicial review. Ultimately, the protector and arbiter of the Australian Constitution is the Full Court of the High Court of Australia. The arguments above against the constitutionality of above-the-line voting have yet to be tested before the Full Court of the High Court. The Full Court has been traditionally reluctant to intervene with electoral legislation. Yet there are some signs in recent years that this might change.

For instance, in the 2001 Lucinda Lecture, Chief Justice Murray Gleeson articulated his view that it was for Parliament to devise and alter the method by which people of the a State vote for Senators – however he specifically said that this should be subject to the constraints as embodied within the expression "directly chosen by the people". And in 2007 the High Court overturned electoral legislation which would have limited the right of certain categories of prisoners to vote, a case which seems to confirm a renewed enthusiasm of the High Court to upholding democratic principles embodied in the Constitution.

Democracy is a valuable commodity. I would argue the testing of the validity of Group Voting Tickets and above-the-line voting before the Full Court of the High Court of Australia is now well overdue.

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About the Author

Dr James Page is currently the Australian co-ordinator for an international research project examining social attitudes to peace and war. He is also Adjunct Associate Professor within the School of Humanities at the University of New England, and a member of the Australia Democrats.

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