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1. Discuss and compare the current system of electing the members of the Senate with an optional preferential system and critically analyse the difference(s) and

2. Which voting method for the Senate best advances the objective of representative government contained in the Constitution and how?

3. While a right to vote has been found to be entrenched in the Constitution through the use of the words 'chosen by the people. Do you think the method of voting for the Senate should also be constitutionally entrenched, limiting the power of the Parliament to determine and change the method of electing the Senate and require a constitutional amendment approved by the people under the terms of s.128?

Background of Senate electoral system

The electoral system that has been followed in the House of Representatives has remained same since the year1918 and there has not been much change to that system. Fresh row and debate started over the electoral reform in the year 2013. The contention that arose was regards to the voting tickets that were allowed to the ‘micro-parties’. The ticket has given the power to the micro parties a direct preference in the voting system which is inconsistent with the way votes need to be conducted as they are against the voter’s expectations. The resultant of this preference is that candidates who have very little primary votes (0.5 per cent) have been elected. What followed post this issues was that there was a joint committee meeting conducted to enquire into the alleged terms of reference. The election enquiry was instituted to ensure that the reforms could be made ahead of the next election and that the electoral system could be amended. It is pertinent to analyze and find ways to resolve the conflict with the help of constitutional law provisions. The Senate election was done in accordance with the ballot structure which mandated that the voting shall be done above and below the line in consonance with the ballot structure. The reforms came in the year 2016 and before that the ticket voting system was followed which ensured that the voting shall be initiated with full preferences above the line and the voting below the line. The list system that was followed was for the benefit of the voting process so that there is more transparency. This was therefore important as it was necessary under this situation to implement the recommendations that was made by the Joint Select Committee on Electoral Reforms. The parties or the groups who were intending to be part of the electoral system has to register themselves and then they could propose the Electoral Commission.

The Commonwealth Electoral Amendment Bill 2016 was done as a result of the enquiry that took place in the year 2016 and it abolished the voting system and introduced the preferential voting system. The requirement under the new preferential voting system was that the voters had to allocate at least six preferences above the line and had to allocate 12 preferences below the line. In cases w2hen the voters chose to vote below the line, they had to in such cases, express full preferences of all the candidates. The above the line method became more popular and it gained more recognition and popularity. The general election debacle that took place in the year 2013 was unprecedented and therefore it gave rise to a distribution of preferences that was made unknown to the voter and it went beyond their knowledge and acknowledgment. This was widely seen in the 2013 general election and that was the flaw of the general voting in 2013. The reason why the system was held to be against the p0rincipole of constitution was that it was easy to manipulate with the help of the preferences that was flowing in cases of the election and it was done with the help of the voting tickets. The micro-parties started to form alliances and the parties mutually agreed to preference one another in the tickets that they were holding ahead of the parties who did not belong to the arrangement. Therefore, the game was related more to alliances and that the maximum number of parties who had planned to join any alliance would be reflected in the preferences they were holding. The other implication of the voting system was that the number of parties who were in possession of the tickets were excluded or were included. The problem with the voting system that was followed in the 2013 election was that the alliances that were formed between the micro-parties were strategic and it paid no heed to the principles of any sociological ideologies and no public policy regime was kept in mind while devising this system. The registration of the micro-parties was done with the motive of congesting the ballot system so that the funneling will take time.  The new 2016 Bill aimed at abolishing the group as well as the individual voting tickets and it ensured that the voters could allocate the required preferences above and below the line. Only in cases when the ballot papers had at least a minimum of one preference, the ballot paper would be approved and it will be considered formal. This was inserted as a savings clause and it upheld the principles of the preferential voting system. Post the amendment, the situation has recovered and there is an inclusion of voting tickets along with optional preferential voting system. Therefore, under this new principle the order of the parties who are in the system shall be nominated to the party. In a particular situation, if it is seen that an elector shall only prefer one party or in cases when the elector prefers more than one party. The sum that is expected in the party strength shall be recounted as fewer than there is in the Senate vacancy list. According to section 1,7,8,13,24,25,28 and 30 of the Constitution, there is a provision of self-government which is provided in the fundamental feature of the Government’s representation. As was held in the case of Lange v Australian Broadcasting Corporation (1997), it was held that the democracy of Australia should be prescribed by the help of ordinary legislation and it should be should also be related to the minimum content which has been enshrined by the principles of the Constitution. As per section 51(xxxvi), the Parliament has been given the power with relation to matters which are constitutional and it shall continue to do so unless contradiction provided by the Parliament. As per the constitutional mandate, it has been specifically stated that the Constitution has to be chosen by the people and that the process implemented while electing the members has to be uniformly followed across the state.  The implication of this constitutional mandate is that the electoral system should be free and also has to be done keeping in mind the informed choice of the people.

Reforms to voting system in 2016

In the case of Ditchburn v Australian Electoral Officer for Queensland [1999], the primary question that was made as a submission was regarding the representation made in case of preferential voting system. The doubt was if the senators elected in cases of the line preference system was ‘directly chosen by the people’. The important case in the constitutionality of the election system was in Attorney-General (Cth); Ex rel McKinlay v Commonwealth 91975) where it was held that there shall be no interposition of any electoral college between the electoral candidate and the voter. The proportional representation which is inherent in the system is a constitutional mandate and it is very inherent to the system. The power which has been given to the Parliament is very inconsistent with the provision of constitutional requirement. Though the Court has the power to intervene in cases of electoral matters, it shall only do so in cases when there is an express violation of constitutional terms.

The above the line voting system as tried to adopt the Group Voting Ticket regime and the relation between the two systems have been very strongly connected. The relation between population and the voting preference system, it has been very clearly established that it is proportional. With the new amendment in the year 2016, it has been observed that there has been a substantial reduction in the influence that the parties have imposed. The voter’s behavior as well as rights are directly related to the way the constitution mandates. The Senate Ballot is divided into above the line and below the line depending on the counting. The below the line are considered to be formal whereas the above the line are formal when the ballot paper shall be considered as a formal paper.

The proportional representation is a part and parcel of the inherent feature of the Australian constitution. The proportional representation is a constitutional mandate and it forms a very important part of the representative government. The senator’s choice in this forum shall be directly proportional to the needs of the constitutional requirements and they shall receive the votes as per the voting rights of the senate and shall be termed as one electorate. As per the provisions of section 24, there is also a discourse on the way the election can be conducted and it shall be in the similar requirements of the seats that are all prescribed by the constitution. With reference to the election method, it has been amply put that even though there is an implied condition of proportional representation which has been mentioned in the Constitution, there shall be disparities with relation to method of voting and the rights that accrue later. The directly proportional representation is the method used for the purpose of calculating the number of seats which are available within the senate as well as the House of Representatives. The Commonwealth requirements are that there has to be a specific method applied for calculating the votes and also denoting the quota wherein it shall be necessary to denote an attainment of one sixth of the vote.

Constitutional mandate for choosing Senate members

Under the Australian Parliamentary regime, members form groups or parties with people of different values and ideas and the Government is formed by method of coalition along with the support from the majority. Australia forms a representative democracy where the eligible people shall have the right to vote for candidates. The voted candidates shall carry out all the relevant business of the government in relation to carrying out the best business of the government. The Government is responsible to the people and they are also answerable to people as they are considered the responsible government as they are responsible to the Parliament. The Government is responsible to carry on the functions and with complete responsibility as their actions are questionable by the Parliament. The Parliament shall have the power to oversee the functions and shall also answer the Parliament for all the actions taken by the Government as well as its department.

The history of the electoral system in Australia has been very rich with the influence of the colonies. The colonies formed the most important seedbed for colonies which led to the increase of representation. This was a very important factor that led to the formation of the electoral system. Since the very incorporation, there has been varied contravention of the principles of democracy and therefore these also led to many contradictions which were against the best interest of the federation. The principal agent concept within the federation has been debated to be incompatible. As early has the 16th century has been testimony to the growing rivalry between the two concepts- the ‘representation’ and ‘to represent’. Though both these concepts are right in their places and they are not wrong conceptually, but there have been some misgivings regarding the two concepts. When it comes to analyzing the two concepts in the form of democracy, there has been some miscommunications and they have been held to be incompatible in its democratic framework. Both the concepts cannot be used side by side in a democratic set up and they cannot be held to be a good substantial reasoning behind using them in an electoral system.

To come to the conceptualization of representation, it cannot be held to be as clear as it seems from the term of the definition. The citizens are widely represented by their representatives and they are what their representative does in a democratic set up, the Parliament is the guiding platform and a member of that platform is an agent who is not working on the delegation of the Parliament, but is working as an agent. It is called a principal agent world because the relationship between agents and principal is how far the agents can represent the principal and how far the principals are responsible for the works of the agent. The Australian government with the help of the election system tried to thwart the majoritarian government and also aimed to do away with the tyranny that the majority parties proclaim after being in power for a very long time. As was said by J.S Mill that the voting rights should be given to people to allow them to represent themselves. The important aspects of the electoral system is that the incumbent politicians mostly prefer to be represented with the help of the principal agent representation, as they consider themselves the agent to the framework and the principals are the ones who  choose them. The election process should be done keeping in mind the election system should be in line with the constitutional provisions. Since the very inception in the 19th century, the form of election covered in Australia was representative and the predominant framework was microsomic. The colonial government which had small colonies believed that through the form of representation, their ideas will be put forward and the Government will take care of their demands. The colonies started making a robust as well as responsible Government, as a result of which the microsomic government started to fail and it soon started to fade out. The representation Government focuses on the principle of selection. The selection of the Government was done keeping in mind that the ones who would be responsible enough to be the majority Government. The voter will have the power to indicate his preferences with the help of writing numbers against the candidates they deem fit. The number of preferences will be counted in the end and the more the preferences against a particular candidate, the more it will be seen that the candidate is considered to be of equal merit and has the potential to run the election. This is done keeping in mind that the election system should be fair and transparent and everyone should know who the deserving candidate before the election system proceeds. The number of preferences that a particular candidate has received will be finally summed and based on that his merit and worth shall be ascertained. The whole processing of marking the preferences is a fair concept in the constitutional framework.

Relation between above the line and below the line voting systems

The problem with the ‘above the line’ voting system is that the voters are mostly left clueless as to where their votes are going and they feel dejected as to the veracity and the transparency of the voting system. The system which thrives on the ‘above the line’ voting system thrives on creating dummy parties and also commits electoral fraud which goes beyond any accountability. It is also observed that in cases of the lower housing, there can only be a voting for one local member and the party leaders and the prime ministers are considered to be immune from the voting system as they can go without reference to the voting system. This process is not certain as there can be no assurance that the promises have been kept. The problem with the current electorate system is that it does conform to constitutionality but only gives an illusion of democracy which is not the real truth. In case of the electoral system, it is easily accounted that a majority of seat can easily be won with the help of minority of votes. The Senator’s position in the electoral system is similar to that of the House of Representatives and therefore it can be stated that there is no hardcore principle of constitutionality that is followed.

According to section 7 and 24, it is stated that the senators shall be composed in every state and the senators shall be chosen by the people. The method shall be provided by the Parliament and they also have the power to increase or bring down the number of electorates. The Parliament shall also reserve the right of equal representation of senates in each state and it is also the rule that there shall be no less than six senators in every state.

Australia is considered to be of the oldest democracies in the world and after the formation of the Commonwealth, there has also been 47 federal elections in Australia. The duration of the federal elections is 3 years and it occurs at an interval of three years. In Australia, it is compulsory for the people to vote and the citizens who have attained majority need to vote in Australia. The requirements of voting in Australia is that the citizen has to be an adult on the day of voting and also has to be an Australian citizen. The voting system that is followed in Australia is that of preferential voting system and the method is implemented so that there is transparency and fairness in the system. By virtue of this voting system, the voters rank their candidates in order of their preference and then the candidates who have the lowest preferences are eliminated from the system. Again, for the election of the senate, the method that is applied is that of proportional representation, that is, there shall be a parity in the votes the senator has received and the votes the party needed. Therefore, there has to be an equal distribution in the votes and the percentage of votes the party has received has to be proportional to the votes that the party has received. There is a constitutional guarantee to vote in Australia. The Constitution gives the right to every citizen to vote in Australia and it has been enshrined in the legal document that no one shall be deprived of his legal right to vote.

The Parliament has the ultimate right to take the decisions regarding the voting of the election and therefore they are the supreme authority when it came to the electoral rights. Under section  41 of the Constitution, it has been clearly stated that any person who has attained the age of majority and has also acquired the right to vote shall not be prevented from voting and the people of the Commonwealth should have the right to vote. Voting is done to be done by the people and for the people. The ultimate mandate of democracy is that no one shall be made to lose a preference and they should have the right to represent their votes in an electoral system. One of the most important reasoning for allowing everyone to vote was in line with the democratic mandate that states that being a part of a democracy, everyone should have the right to cast their vote and also make their representation rights marked. The representative Government ensured that the voice of the people could be felt and that it also had a very strong constitutional backing. Therefore, the point that the Government has tried to make with the help of representative government is that people are free to make their choices felt and also they feel that they are part of the Government. The right to freely vote in a democracy is important as it upholds the primary clause of concern that the people who are the representatives of the Government have the free will to vote.

Bush v Gore was a landmark judgment that was related to the concept of democracy where it was reinforced that even though there might be shortcomings and minor differences within the Government, the fundamental principles of the democratic Government are needed. The basic elements of a representative government is that they should follow the principles of democracy and all the allied rights of natural law and the fundamental principles of democracy. Australia has been primarily a country that has boosted of its democratic rights and by allowing people to choose and elect their Government, it has proved to be one of the finest democracies in the world.

The question regarding the amending of constitution has been done keeping in mind the provisions of s 128 which states that it is a tool used to patriate the Constitution. The question has always been asked regarding the amending powers of the constitution and how it can be achieved. The measures that have been taken by the Government have been in sync with the need to change the elements of the Constitution. There are some limitations to the amending powers of the Constitution and the issues regarding the scope and interpretation of the provisions of s 128 have been open to several discussions. The question regarding the scope of s. 128 has been more political and the way it can be altered has been done so keeping in mind the scope and purport of the same.

The word chosen by the people has been entrenched in the Constitution and it is a constitutional mandate which ensures that everyone in the democracy shall have the right to choose their representatives. The question that needs to be resolved is the extent of the amendment is if can be amended to incorporate the elements of the process of selection. The Constitution also follows the principle of separation of power, that is, there are three arms of the Government- the executive, judiciary and the Parliament. The three arms of the Government enjoy the power to make rules and the federal laws. In Australia, the judiciary aims to reach an equilibrium regarding the application of the laws. The Constitution is considered the most powerful legal document in Australia and it is essential to keep in mind that the Constitution has the ability alter and therefore the rights that accrue out of it are also attributed to the Constitution. The Constitution can only be altered if it receives the assent of people. The Constitution can be changed if the majority agrees to the amendment. The process by which the majority view can be taken into consideration is done with the process of referendum. The process by which the referendum can be accepted is double majority. Therefore, the double majority can be achieved when there is a majority of voters as well as a national majority. The proposal is that the powers of the Parliament should be limited so that they do not exercise ultimate and autonomous power.

The Australian Parliament exercises superior and ultimate authority and therefore the beginning of the argument is that the Parliament shall have the right and the authority to bind its successors. The Parliamentary Supremacy exercised by the Australian Government is very basic feature and they exercise the power in electing the Senator. This method has been severely criticized and has also be held to be a mockery of democracy as the voters feel duped and cheated and they never understand where their votes are going. This is a big flaw in the constitutional framework as there has to be proper count of the votes and the voters should be aware of the rights and the exercise of their rights. The question that has been repeatedly asked is if the Parliament should have the absolute right to bind its successors and be an absolute owner of their rights to elect the senator. The entrenchment through the amendment of the Constitution by applying the provisions of s. 128 is a mandatory requirement as it will help in restoring the transparency and will also restore the faith of the people in the Constitution. The purpose of keeping the provision of entrenchment is that the principles and the essence of those provisions are so fundamental that they need proper care and reasoning. The entrenchment provision will therefore bind the Parliament in exercising superior rights and will also bind the successors. The amendment procedure applicable in case of section 128 is very limited in its powers and there are only two ways in which the entrenchment can be possible:

  1. Reconstituted legislation
  2. Renasinghe’s principle

Even if a provision seems to be erring in its principle, it is important to keep the provision in element with section 128. Therefore, there are methods to amend the Constitution, it is necessary to incorporate the provisions of section 6 that states that any legislation of constitutional nature has to be binding.


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