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Day v Australian Electoral Officer (SA)

Day v Australian Electoral Officer (SA)

Case [2016] HCA 20 13 May 2016

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HIGH COURT OF AUSTRALIA
FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ
Matter No S77/2016
ROBERT JOHN DAY  PLAINTIFF
AND
AUSTRALIAN ELECTORAL OFFICER FOR THE
STATE OF SOUTH AUSTRALIA & ANOR  DEFENDANTS
Matter No S109/2016
PETER JAMES MADDEN & ORS  PLAINTIFFS
AND
AUSTRALIAN ELECTORAL OFFICER FOR THE
STATE OF TASMANIA & ORS  DEFENDANTS
Day v Australian Electoral Officer for the State of South Australia
Madden v Australian Electoral Officer for the State of Tasmania
[2016] HCA 20
13 May 2016
S77/2016 & S109/2016
ORDER
Matter No S77/2016
1.Application dismissed.
2.The plaintiff pay the second defendant's costs of the application.
Matter No S109/2016
1.Application dismissed.

2.The plaintiffs pay the eighth defendant's costs of the application.

Representation
P E King with F C Brohier for the plaintiff in S77/2016 (instructed by McKells Solicitors)
P E King for the plaintiffs in S109/2016 (instructed by McKells Solicitors)
Submitting appearance for the first defendant in S77/2016
Submitting appearance for the first to seventh defendants in S109/2016
N J Williams SC with N J Owens and C L Lenehan for the second defendant in S77/2016 and the eighth defendant in S109/2016 (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Day v Australian Electoral Officer for the State of South Australia
Madden v Australian Electoral Officer for the State of Tasmania

Constitutional law – Election of Senators – Validity of provisions of Commonwealth Electoral Act 1918 (Cth) as amended by Commonwealth Electoral Amendment Act 2016 (Cth) – Whether provisions for voting above or below dividing line on ballot paper prescribed more than one method of choosing Senators contrary to s 9 of Constitution – Whether indicating vote for party or group above dividing line contrary to requirement in s 7 of Constitution that Senators be "directly chosen by the people" – Whether prescription of "Droop quota" resulted in effective disenfranchisement – Whether instructions on ballot paper infringed implied freedom of political communication or system of representative government.
Words and phrases – "above the line", "ballot paper", "below the line", "directly chosen by the people", "dividing line", "Droop quota", "free and informed vote", "group voting ticket", "method of choosing senators", "preferential voting".
Constitution, ss 7, 9 and 24.
Commonwealth Electoral Act 1918 (Cth), ss 4(1), 123, 124, 126, 168, 169, 209(1), 210, 214, 214A, 239, 268, 268A, 269, 272 and 273.

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ.
Introduction

Two applications have been brought in the original jurisdiction of the Court challenging the validity of provisions of the Commonwealth Electoral Act 1918 (Cth) ("the Act") as amended by the Commonwealth Electoral Amendment Act 2016 (Cth) ("the Amendment Act"). The challenged provisions concern the new form of the Senate ballot paper and the process for marking it. The new process requires an elector to number sequentially at least six squares above the dividing line on the ballot paper. A…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Day v Australian Electoral Officer (SA)

Details

AGLC: Day v Australian Electoral Officer (SA) [2016] HCA 20
Case: [2016] HCA 20
Decision Date: 13 May 2016

CaseChat Overview and Summary

In *Day v Australian Electoral Officer (SA)*, the High Court of Australia considered a constitutional challenge brought by plaintiffs concerning amendments to the *Commonwealth Electoral Act 1918* (Cth) made by the *Commonwealth Electoral Amendment Act 2016* (Cth). The dispute centred on the validity of provisions relating to the voting process for the election of Senators, specifically the system of voting above or below a dividing line on the ballot paper.

The Court was required to determine several legal issues. These included whether the provisions for voting above or below the dividing line prescribed more than one method of choosing Senators, contrary to section 9 of the Constitution. It also had to consider whether indicating a vote for a party or group above the dividing line was inconsistent with the requirement in section 7 of the Constitution that Senators be "directly chosen by the people". Further questions arose regarding whether the prescription of the "Droop quota" resulted in effective disenfranchisement, and whether the instructions on the ballot paper infringed the implied freedom of political communication or the constitutional system of representative government.

The Court's reasoning rejected the plaintiffs' arguments. It found that the amended provisions did not prescribe more than one method of choosing Senators, nor did they contravene the requirement for Senators to be directly chosen by the people. The Court determined that the "Droop quota" did not lead to effective disenfranchisement. Furthermore, the instructions on the ballot paper were held not to infringe the implied freedom of political communication or the system of representative government, as no new points had been raised that had not already been considered and rejected in relation to the plaintiffs' other arguments.

Consequently, the applications brought by the plaintiffs in both matters were dismissed. The plaintiffs were ordered to pay the costs of the respective defendants.

Orders

Orders of the court

Matter No S77/2016

1. Application dismissed.

2. The plaintiff pay the second defendant's costs of the application.

Matter No S109/2016

1. Application dismissed.

2. The plaintiffs pay the eighth defendant's costs of the application.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

The last argument advanced by the plaintiffs was a kind of "catch all" proposition repeating the complaint in the previous argument and the complaint of effective disenfranchisement. These complaints were gathered into a proposition that a constitutional principle of representative government, and with it the freedom of political communication, are both impaired by the Act as amended. No point was made under this heading that has not already been rejected in relation to the plaintiffs' other arguments.Conclusion The following orders should be made. In application S77 of 2016:1. The application is dismissed.2.The plaintiff is to pay the second defendant's costs of the application.In application S109 of 2016:1. The application is dismissed.2.The plaintiffs are to pay the eighth defendant's costs of the applicationAnnexure 1Annexure 2

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

Full text does not contain this section.

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Citations

Day v Australian Electoral Officer (SA) [2016] HCA 20

Most Recent Citation

High Court Bulletin [2016] HCAB 4

Cases Citing This Decision

Babet v Commonwealth of Australia; Palmer v Commonwealth of Australia [2025] HCA 21
Citation 1 (Para 11)

…al Legislation Amendment Act 1983 (Cth). [3] Mulholland v Australian Electoral Commission (2004) 220 CLR 181; Day v Australian Electoral Officer (SA) (2016) 261 CLR 1; Murphy v Electoral Commissioner (2016) 261 CLR 28; Ruddick v The Commonwealth (2022) 275 CLR 333.…
Ruddick v The Commonwealth [2022] HCA 9
Citation 2 (Para 9)

…lth (1984) 59 ALJR 190; 57 ALR 747; Langer v The Commonwealth (1996) 186 CLR 302; Day v Australian Electoral Officer (SA) (2016) 261 CLR 1. The focus of attention in the present case can instead be confined to the specific quality of the constitutional concept of choice by the people authoritatively expounded in La…
Palmer & Ors v Australian Electoral Commission & Ors [2019] HCATrans 88
Citation 3

…Can I ask your Honours to go to Day v Australian Electoral Office for the State of South Australia . It is in volume 2, tab 16. It is a (2016) 261 CLR 1. This case, your Honours will recall, was a challenge to the recent reforms for above the line voting in the Senate. If your Honours could turn to page 12, paragra…
Spence v Queensland [2019] HCA 15
Citation 4 (Para 17)

…24-325. [102] Sykes v Cleary (1992) 176 CLR 77 at 99-100; [1992] HCA 60; Day v Australian Electoral Officer (SA) (2016) 261 CLR 1 at 13-14 [23]-[24]; [2016] HCA 20; Re Culleton [No 2] (2017) 91 ALJR 311 at 315 [13]; 341 ALR 1 at 5; [2017] HCA 4; Re Nash [No 2] (2017) 92 ALJR 23 at 28 [23]; 350 ALR 204 at 209-210…
Bell v Culleton [2017] HCATrans 204
Citation 5

…Act by the Commonwealth Electoral Amendment Act 2016 and your Honour will recall that the Court considered that in Day v Australian Electoral Officer (2016) 90 ALJR 639, which is also on our list.…
Re Day (No 2) [2017] HCA 14
Citation 6 (Para 11)

…tly for the purpose of the procedure described in s 273(27). [218](1988) 167 CLR 145 at 174. [219](2016) 90 ALJR 639 at 648 [31]; 331 ALR 386 at 397; [2016] HCA 20.…
Murphy v Electoral Commissioner [2016] HCA 36
Citation 7 (Para 19)

…LR 520 at 568; Unions NSW (2013) 252 CLR 530 at 556 [44]. [387] Mulholland (2004) 220 CLR 181 at 237 [156]; Roach (2007) 233 CLR 162 at 197 [77]; Day (2016) 90 ALJR 639 at 645 [19]; 331 ALR 386 at 393. Impugned provisions are valid…
High Court Bulletin [2016] HCAB 4
Citation 8

…S77/2016; S109/2016: [2016] HCA 20…

See all citing cases →

Cases Cited

Mulholland v Australian Electoral Commission [2004] HCA 41
Citation 1 (Para 4)

…4) 59 ALJR 190; 57 ALR 747; [1984] HCA 75. [46](1984) 59 ALJR 190 at 191; 57 ALR 747 at 749. [47]See also discussion of the party political system in Mulholland v Australian Electoral Commission (2004) 220 CLR 181 at 196 [29] per Gleeson CJ, 213-214 [78] per McHugh J, 237 [155] per Gummow and Hayne JJ. [48](1975) 135 CLR 1 at 57-58; [1975] HCA 53 qu…
Ditchburn v Australian Electoral Officer (Qld) [1999] HCA 40
Citation 2 (Para 5)

…" by the people[53]. [50](1997) 71 ALJR 675; 144 ALR 352; [1997] HCA 18. [51](1999) 73 ALJR 1086; 163 ALR 734; [1999] HCA 31. [52](1999) 165 ALR 147; [1999] HCA 40. [53](1999) 165 ALR 147 at 148 [3], 149-150 [5]. The pre-amendment Senate ballot paper…
McClure v Australian Electoral Commission [1999] HCA 31
Citation 3 (Para 5)

…mbers of the Senate be "directly chosen" by the people[53]. [50](1997) 71 ALJR 675; 144 ALR 352; [1997] HCA 18. [51](1999) 73 ALJR 1086; 163 ALR 734; [1999] HCA 31. [52](1999) 165 ALR 147; [1999] HCA 40. [53](1999) 165 ALR 147 at 148 [3], 149-150 [5]. The pre-amendment Senate ballot paper…
Abbotto v Australian Electoral Commission [1997] HCA 18
Citation 4 (Para 5)

…group ticket was contrary to the requirement that members of the Senate be "directly chosen" by the people[53]. [50](1997) 71 ALJR 675; 144 ALR 352; [1997] HCA 18. [51](1999) 73 ALJR 1086; 163 ALR 734; [1999] HCA 31. [52](1999) 165 ALR 147; [1999] HCA 40. [53](1999) 165 ALR 147 at 148 [3], 149-150 [5]. The pre-…
McKenzie v The Commonwealth [1984] HCA 75
Citation 5 (Para 4)

…r groups so offends democratic principles as to render the sections beyond the power of the Parliament to enact." [45](1984) 59 ALJR 190; 57 ALR 747; [1984] HCA 75. [46](1984) 59 ALJR 190 at 191; 57 ALR 747 at 749. [47]See also discussion of the party political system in Mulholland v Australian Electoral Commiss…
Attorney-General (Cth); Ex rel McKinlay v The Commonwealth [1975] HCA 53
Citation 6 (Para 4)

…ommission (2004) 220 CLR 181 at 196 [29] per Gleeson CJ, 213-214 [78] per McHugh J, 237 [155] per Gummow and Hayne JJ. [48](1975) 135 CLR 1 at 57-58; [1975] HCA 53 quoted in (1984) 59 ALJR 190 at 191; 57 ALR 747 at 749. [49](1984) 59 ALJR 190 at 191; 57 ALR 747 at 749.…

Legislation Cited

Commonwealth Electoral Act 1918 (Cth) 123, 124, 126, 168, 169, 209(1), 210, 21...
14 mentions (from Para 1)
Commonwealth Electoral Act 1902 (Cth)
1 mention (from Para 6)
Commonwealth Electoral Act 1919 (Cth)
1 mention (from Para 7)
Commonwealth Electoral Act 1922 (Cth)
1 mention (from Para 8)
Commonwealth Electoral Act 1924 (Cth)
1 mention (from Para 9)
Commonwealth Electoral Act 1934 (Cth) 8
1 mention (from Para 9)
Commonwealth Electoral Act 1940 (Cth) 7
1 mention (from Para 9)
Commonwealth Electoral Act 1948 (Cth)
1 mention (from Para 10)
Commonwealth Electoral Amendment Act 1987 (Cth)
1 mention (from Para 14)
Commonwealth Electoral Amendment Act 2016 (Cth)
1 mention (from Para 1)
Commonwealth Electoral Legislation Amendment Act 1983 (Cth)
1 mention (from Para 11)