02 May 2016
by Malcolm Mackerras

A High Court challenge that could cause Malcolm Turnbull to scrap the election

The High Court is set to hear a challenge to the government's Senate reforms.

Before the full bench of the High Court, and beginning today at 2.15pm, case Number S77 of 2016 between Plaintiff Robert John Day and two defendants from the Commonwealth of Australia will begin.

Intervening between now and then, Malcolm Turnbull will continue to be very careful with his words. According to Michael Gordon in The Canberra Times on April 20, he said this on the previous day, Tuesday: "My intention is, after the budget, an appropriate time after the budget has been delivered, I will be asking the Governor-General to dissolve both houses of the Parliament for an election which I expect to be held on July 2."

Since those words were uttered newspapers and the airwaves have been full of speculation as to the Prime Minister's actual thinking. Let me give my theory, which is that the words were entirely driven by his knowledge of the case mentioned in my opening paragraph. Being a lawyer, he also knows the strength of Day's case.

Suppose that on May 6 the High Court announces it has struck down as unconstitutional in its entirety the Commonwealth Electoral Amendment Act 2016. Faced with the prospect of a double dissolution election on exactly the same rules as applied in September 2013, what would Turnbull do?

I speculate he would call off the early election and ask the Joint Standing Committee on Electoral Matters of the Federal Parliament to re-examine the whole issue of Senate reform. What wonderful news that would be to me!

Let me assert this: such a decision by the Court would not be a personal humiliation for Turnbull. Australia's greatest prime minister, Sir Robert Menzies, suffered a substantially similar rebuff when the High Court ruled unconstitutional in 1951 a piece of legislation for which he had a clear electoral mandate.

The second day of the full hearing comes on the exact second anniversary of the May 2014 report by the JSCEM titled Interim report on the inquiry into the conduct of the 2013 federal election: Senate voting practices.

Over the past two years I have been campaigning against that report, as a consequence of which I have learnt more about this subject than virtually anyone else in the country. Within four months of its publication I knew the numbers would not be there in the Senate for the implementation of that report.

The reason for my knowledge is easily explained: both Labor and the Nationals would vote against it, as would at least one Liberal senator and seven of the eight crossbench senators.

Tony Abbott was prime minister at the time. Clearly he came to the same conclusion as I did. He did not publicly reject that report but his lack of words and action spoke as loudly as if he had shouted his view from the roof tops. He rejected that report, as did his government.

Buoyed by favourable opinion poll ratings, Turnbull decided he was smarter than Abbott. He knew best but he needed support from the entire Coalition. He was able to get that by virtue of a scheme being a 10 per cent variation on the scheme proposed in the JSCEM report. To be blunt: he bought a Senate majority by that variation.

Legislation was presented to Parliament on February 22, a very brief hearing was held by the JSCEM on the morning of March 1 and the legislation was passed on March 18.

In respect of that hearing, the JSCEM decided to invite four academics to present their views and be questioned. Three were from the "cheer squad": Kevin Bonham, Antony Green and George Williams. Mine was the dissenting voice.

Throughout this whole saga there have been two men to whom I give unstinting praise. One is Abbott – for reasons explained above. The other is the opinion editor of The Canberra Times who caused to be published in this paper seven articles by me on this subject.

My seven articles prompted five articles by other commentators, and those 12 articles prompted 25 letters to the editor. Only the people of Canberra were kept fully informed on this important subject.

The 22nd letter appeared as recently as April 8. It was in the "to the point" column and was headed "Person Not Party". It was by Kevin Cox of Ngunnawal and reads: "Frank Marris (Letters, April 7) misses the point of the Malcolm Mackerras and Bob Day High Court challenge. The constitution says we vote for people, not parties. A person, not a party, should decide how to distribute votes if a voter fails to give preferences."

I do not know Cox but I wish we had met. I could have explained to him how he could use his words better. Nevertheless, he has used 40 words where I have needed 50,000 to prosecute my case!

Letters numbers 23, 24 and 25 appeared on April 12. To Bogey Musidlak, I agree. To Paul Bowler, I disagree, and to Frank Marris, I disagree most emphatically. He must be taught that Bob Day and I are principled men who are fighting for Australian democratic values which are summed up by the words "directly chosen by the people", which appear in two sections of our Constitution, 7 and 24.

Marris must also be taught that occasions can arise when the High Court will take advice from principled people such as us. That may sometimes mean the Court will reject advice from cynical pragmatists like Marris and his ilk. He has, indeed, missed the point.

My view is well known. The High Court should strike down this unconstitutional, cynical, dishonest and botched Senate reform. But, of course, the Constitution means what the High Court says it means, and I don't know whether the judges are interested in my opinion. I do know that I am not yet over the moon.

I also know that the High Court can (and, of course, I hope will) overturn the decision of Chief Justice Sir Harry Gibbs in McKenzie v Commonwealth (1984) 55 ALR 747.