High Court challenge after senate voting session descends to farce

Parliament house_220aAt 8.20am on Saturday morning on Radio National’s AM, veteran psephologist Malcolm Mackerras slammed the Senate voting reform and predicted a High Court challenge. What upsets him is the party list. He says we should be voting for individual senators directly, according to the Constitution.

At 10.40am ABC Online reported Family First senator Bob Day’s announcement of a High Court challenge.

Mackerras is passionate about the voting reform legislation:

    This legislation that was passed yesterday is clearly unconstitutional. I describe it as breathtaking in its contempt for the Australian constitution.


    Section 7 of the constitution says: “The Senate shall be composed of senators for each state, directly chosen by the people of the state voting as one electorate.”

    Section 24 says, “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth.” The words “directly chosen by the people” appearing in Section 7 and in Section 24, in my opinion, commands that the electoral systems must be candidate-based.

    Now, what this thing does is to introduce a party list system.

But the legislation does not “introduce” a party list system, it’s been there for ages now. Effectively Mackerras is saying that above the line voting is illegal and always has been.

From the first link above, Mackerras had been advising Day, and mentions some-one raising funds for the challenge.

Senator David Leyonhjelm said the Liberal Democrats would help to fund the High Court challenge. Jacqui Lambie and Ricky Muir declined to support the bid, probably saving their money for the elections. Labor has said they’ll take a look, but are extremely unlikely to join.

In the interview I heard Bob Day give, he mentioned a second basis for the challenge – the disenfranchisement of some 3 million voters. It was interesting that this reason, I think the weaker of the two, was the only one mentioned in reports by the SMH and The Australian (paywalled).

Meanwhile the all-night sitting descended into a farce, very much Labor’s doing and to their discredit. For once at least I’d agree with Senator Lee Rhiannon that Labor has ended up on the wrong side of history. To me they never got past their initial anger at seeing the Greens do a deal with the LNP. How they conducted themselves rather than the substance of the matter will stick in voters craw

Laurie Oakes comments:

    They could have presented their arguments and debated the issue in a few hours. Instead, they talked and talked and talked, generally saying little of consequence but behaving like pork chops.

    Monty Python fart jokes, comparing the bill with a colonoscopy, reading a dictionary definition of “filibuster” into Hansard to waste time, hurling insults across the chamber, sneering and shouting. Can they really think this impresses voters? About the only thing they didn’t try was reciting names from the phone book, a ploy a Republican, one Alphonse D’Amato, used in a 1992 filibuster in the US senate.

He points out that if they put on a filibuster of the same kind to delay the ABCC bill on May 10, the Governor General will count it as a “failure to pass”.

It got worse when:

    Senator Jacinta Collins decided to trace a similar theme last night, musing on whether or not [Senator] Robert Simms, a gay man, was in fact a woman.

As Ben Eltham argues, what is behind the Labor position is the existential fear of the Greens taking more inner city seats, ending the careers of high-flyers like David Feeney, Tanya Plibersek and Anthony Albanese. That fear is real and understandable, but in the process they’ve adopted positions which Eltham described as “breathtakingly hypocritical”, made themselves look like fools and lowered the bar for the behaviour of politicians generally.

On the Government side, the sight of LNP back-bencher George Christensen welcoming the ‘gutting’ of ‘bad content’ in anti-bullying program didn’t help.

For earlier posts, see:

A July election to clear out the unrepresentative swill?

Has faffing about cost Turnbull an early poll?

Minor Parties declare war series of skirmishes.

28 thoughts on “High Court challenge after senate voting session descends to farce”

  1. Agree with your interpretation of Malcolm Mackerras’s comments – if there is a constitutional problem now it’s not new and the new system may be less vulnerable to challenge than the previous one. That seems to be the drift of Anthony Green’s response as well. Why he has got so passionate about this particular change I cannot discern

  2. Nor can I throw any light on why Mackerras is so revved up. It could be that there was an opportunity for change which was missed and a HC challenge now presents an opportunity for what he sees as a corrective.

    I’d be quite pleased if we ended up with only what is now below the line. For example, people in SA who want to vote Liberal should have the opportunity of leaving Bernardi off the ticket.

  3. Dr Kevin Bonham has a rather long discourse on why the changes are actually pretty good.

    And yes, at the moment the ALP has not got a good look. I’m particularly disappointed with Senator Wong.

  4. ALP throwing a hissy fit is a sight to behold – says more in this case about the ALP than the merits of the issue

  5. Copped a bit of flack at the weekend from ALP people who somehow believe that the Greens should always vote in line with the ALP!!
    If the ALP really believes that it should be easier for micro parties to get elected they should be supporting a move for all Senators to face the voters every time the house of reps goes to an election. This would halve the Senate quota.
    One voter suggested that the whole of Aus should be treated as a single electorate for Senate elections. If all senators had to face the voters under this system the quota would drop to about 1.3% resulting in a Senate that would be far more representative of the voters wishes. Might be a bit hard to get through the constitution.

  6. ALP as a party have not gotten past an unacknowledged sense of entitlement to be the sole carrier of left of centre politics. The ALP has had a great role in the history of Australian politics to which we are all indebted – but they assume that history entitles them to a monopoly role now and forever amen.

  7. Illegal? My oath it is – and it has been for decades – so what are we going to do about it: call a policeman? Of course! Why didn’t I think of that?

    That this illegal situation continues to exist says volumes about the docility and stupidity of ordinary Australian voters. As for the High Court rescuing us from our mass idiocy, well, good luck with that.

    In an ideal world, one where Australian voters got off their backsides and protected their own interests, we would have :

    (1) A public raffle for candidates’ positions on the ballot paper.

    (2) A single mark for one’s favoured candidate – whether there be 2 or 402 candidates.

    (3) First-Past-The-Post voting – even if that meant the first senator elected got over a million votes and the sixth senator got only a thousand; would that be any worse than the present dodgy system of backroom deals and near-nepotism or that of ‘preference whispering’?

    (4) A Federal Anti-Corruption Force – with its first campaign being to put the cleaners through the present political parties and the main stream media.

    But this is good old Australia so none of this will ever happen.

  8. Yes, John, Australia is basically a federation of states, and there is little chance of a radical revision of the constitution.

    Douglas, I think when Di Natale talks about a future coalition with Labor which can only be achieved in the shorter to mid-term by knocking of some of their leading players, this is not a recipe for calm and rational cooperation.

    zoot, Kevin Bonhan gives the whole thing a very thorough workover. I’d highlight this bit about a DD under the new rules:

    The big winner should be Xenophon. On 2013 support levels he would be likely to win three seats in SA alone, and there is some possibility of the odd win in other states. If the Coalition wins the Lower House well then it is distinctly possible Xenophon’s team could share the balance of power with the Greens, so that bills pass with the support of one or the other. Or it is possible that the Coalition could pass legislation with support from Xenophon and one or two others.

    OTOH if Labor wins the lower house it is more likely to have a blocking position than the LNP if they win.

    I have to agree with you about Penny Wong. She’s the leader of the opposition in the house, so that’s where much of the responsibility lies.

  9. Bill Shortens reply speech to Malcolm Turnbull’s justification of his actions was powerful, well considered, real substance issues for the whole electorate, and short. A brilliant effort.

    LNP have proven that they are NOT good economic managers, they have not fulfilled any of the economic promises they made, and now they can’t wait to spend our money as soon as possible,…they’ve brought forward the date for getting their hands on the money. Why?? that makes the budget blowout that little bit less as it has a fortnight less (1/25 less blowing out time), pushing their mess more onto Labour’s shoulders when they take command in July.

  10. So what are people predicting for the ABCC vote? As far as I can work out the LNP need at least five of the eight Senate cross benchers to get it through and I can’t see them getting that.

    My bet is that at least Lambe, Muir, Madigan and Lazarus will vote no, so DD here we come.

  11. actually – I suppose if they vote no they have to face the prospect of losing their seats – so I don’t know about Lambe and Muir, they should in theory but will they in practice? Madigan and Lazarus have pretty much said they would (see Guardian report) even if it means they lost their seats.

  12. The ABCC should be reinstated.
    I can think of no other oversight/regulatory enforcement body that the ALP/greens have ever abolished.

    Election donations are the only reason I can think of as a reason.

  13. ABCC did nothing about tackling the major issue of the industry – industrial deaths – hard to see it as anything but a response to donations from the industry to the LNP – but then I may be just too cynical

  14. Okay Jumpey, how about a compromise?

    Reinstate the ABCC – if we can set up a Permanent Commission on Treason for a whole raft of asset sales/”leases”, trade agreements, military frolics and currency fiddles. Retrospective, of course, with “rendition”, waterboarding and enforced confessions – oh yes, with seizure of spousal assets too.

    Couldn’t be fairer than that, could I?

  15. Douglas, every industrial major incident, injury or not, is investigated by plenty of bodies.
    In the advent of a fatality, add police and coronial inquiry also.

    Who investigates union intimidation ?
    Members of the Police union ?

    ( disclamer, I’m on construction sites every day )

  16. Graham
    I would have an ABCC that has jurisdiction over Corruption in the Construction Industry.
    Investigating issues brought to their attention ranging from land acquisition to final payments to all involved in the project.

    Turnbulls ridiculous softening on bankruptcy will see more companies set up to milk and fail.

    Have compulsory Super contributions strictly enforced and paid quarterly or assets and accounts frozen till its paid in full.

    Faster legal resolutions of contractual payment disputes. ( it’s 30 days )

    ANY illegal activity reported to be thoroughly investigated.

    The FWC will not touch union crime, at all.

  17. Oh, and variations/instruction + retentions payed without the need for $20,000.00 worth of lawyers 6 minute increments.

  18. Val the LNP need 6 out of 8. Day is a definite yes and Lazarus is a definite no. A number of others have amendments which are conditional on their support.

    Michaela Cash says she will negotiate in good faith, but there is well-founded feeling the LNP doesn’t want it to pass. Turnbull wants a full bore union bashing election.

    Jumpy I’ll do a post in due course. Discuss away, but I won’t join you just yet.

  19. Brian.

    Jumpy I’ll do a post in due course

    Sounds good.
    I’ll add a note, ALP never went to any election with abolition of the ABCC as policy but it was a major policy of LNP.

    I want democratically elected governments to have their major platform policies passed, the ones specially stated as reasons to vote for them in the campaign. They can quibble on all the rest and do bugger all till the next campaign.
    A mandate is a real thing to me, no matter wins the voters over.

  20. Watching Teev, Madigan was a definite no too. Only needs one more no and it’s cactus.

    Jumpy, that mandate thing is BS. The only mandate is for overall good government. It’s never the case that 50% plus one of voters all agree with every single policy of any one party. We elect a senate to counterbalance and genuinely review whatever the HoR puts up.

    End of story!

  21. No Brian, the BS is some people pretend to advocate democracy, then ditch it when it suits them.
    Then justify it with more BS

    Not end of story by a long shot !

  22. Jumpy, to get a mandate for every policy you would need a referendum on each. Otherwise my logic holds and to say it’s abandoning democracy is BS.

    Jacqui Lambie is a no, so that makes three. The bill won’t pass unless someone caves.

  23. From John Quiggin:

    In Australia, the unrepresentative aspects of the Senate (equal state representation and long terms) are matched by the spurious lower house majority produced by single-member constituencies. So, senators have just as much a mandate to block legislation they have campaigned against as the government has to push it forward.

  24. On the mandate issue, John Turner makes some fair points.

    In a unicameral system like Qld you’d expect the government to deliver on promises. But even there, circumstances may change, a majority of citizens may actually oppose a specific policy, or technical difficulties or unforeseen effects may emerge.

  25. There are differing levels of policy importance to each party ( including the greens ) going to an election.
    Primary, pillar, core policies.
    Secondary principle yet will consider amendments ( non core )
    Third level wishes if…..and whatever we come up with after.

    I consider the 1st mandate policies, the others not.

    They got 2/4 done but the Senate blocked the other 2.
    I admit the ABCC was not one of them, but, they always said they would.

    Now we will have to determine the LNP and ALP primary/mandate policies going into this election.

    As yet Ive seen none.

  26. Jumpy, the ALP say they’ve released over 70 policies, so perhaps you haven’t been looking.

    I’ll do some posts along the way on policy areas if I can find any decent links.

  27. The only mandate a government gets is the right to govern – each piece of legislation then has to be argued on its merits. That’s parliamentary democracy.

  28. Yes DH, when the two big union beneficiaries axed the ABCC in 2012, right?
    Pretty quick argument that one, all over the news ay, all those opinion pieces on ABC about it ?

    Yeah right.

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