AUSTRALIAN LAW REPORTS                                                                            HC of A
McKENZIE v COMMONWEALTH OF AUSTRALIA and OTHERS

HIGH COURT OF AUSTRALIA

GIBBS CJ

27 November 1984 - Canberra

Constitutional law - Commonwealth - Parliament -- Senate - Elections Ballot paper - Allocation of elector's preferences according to group ticket - Whether Senators "directly chosen by the people" Whether disadvantage to independent candidates contravened constitutional guarantee of democratic elections - Commonwealth Constitution ss 7, 16 Commonwealth Electoral Act 1918 (Cth) ss 124, 146, 209, 210, 211, 213, 214, 272, 353, Schedule.

M was an independent candidate in the Senate election for the State of Queensland scheduled for 1 December 1984. The Commonwealth Electoral Act 1918 (Cth) (the Act) provided that the Senate ballot paper was divided in two by a horizontal black line. Below the line the names of the individual candidates appeared, grouped in separate columns according to their party affiliations; independent candidates were also grouped together in columns. A box appeared opposite the name of each candidate and the Act permitted as one method of voting the numbering of all these squares in order of preference. There were also boxes above the black line, one above each of the columns in which the names of candidates belonging to the same political group appeared, but there was no box above those columns in which the names of unaffiliated candidates appeared. As an alternative to the numbering of the individual squares below the line the Act permitted the voter to mark one of the boxes above the line and, if this was done, the voter's preferences were distributed in accordance with the voting ticket(s) lodged by the group selected.

M sought a declaration that the provisions of the Act authorizing this form of ballot paper were invalid and an injunction to restrain the distribution of Senate ballot papers in Queensland. He argued that the Constitution required electors to vote for individual candidates and not for parties as was permitted by the Act and also that the disadvantage caused to independent candidates by the opportunity to vote for parties offended the democratic principles implicit in the requirement that the Senators for a State be "directly chosen by the people of the State".

Held, dismissing the application: (i) While the Constitution requires electors at a Senate election to vote for individual candidates, it does not forbid the use of a system which enables electors to vote for individual candidates by reference to a group or ticket.

(ii) Any disadvantage caused by the voting system established by the Act to candidates who were not members of a parties or groups did not so offend democratic principles as not to satisfy the requirement of s 7 of the Constitution that the Senate be elected by democratic means.

Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth (1975) 135 CLR

1 at 57-8; 7 ALR 593 at 633, per Stephen J, applied.

Application

This was an application to the High Court of Australia for a declaration that sections of the Commonwealth Electoral Act 1918 (Cth) prescribing the form of Senate ballot paper for the election scheduled to be held on 1 December 1984 were invalid and for an injunction to restrain the distribution of ballot papers for the Senate election for the State of Queensland.

The plaintiff appeared in person.

Dr G Griffith QC-SG and W W Caldwell, for the defendants.

Gibbs CJ. The plaintiff, Mr McKenzie, is a candidate for election as a senator for the State of Queensland. By his statement of claim he claims a declaration that the sections of the Commonwealth Electoral Act 1918 (Cth), as amended (the Act), which authorize the use at a Senate election of a ballot paper in Form E in the schedule to the Act are beyond the power of the Parliament and an injunction restraining the defendants from distributing or making available to electors in the State of Queensland ballot papers in Form E in the Schedule to the Act. The practical effect of such an injunction, if it were granted, would be to prevent the holding of the election on 1 December.

The plaintiff argued his own case and did so very clearly. The submissions which he has made are understandable and by no means irrational. The provisions which he seeks to have declared invalid are of recent origin and, so he contends, place him, as a candidate who belongs to no political party, at a disadvantage in his bid for election.

By s 209(l) of the Act, ballot papers to be used in a Senate election shall be in Form E in the schedule. The form directs the voters to vote in either of two ways. The ballot paper is divided horizontally by a black line. Below the line, the names of the individual candidates appear with a square opposite each; above the line are squares intended to simplify voting for voters who wish to follow a group ticket. Provision is made by s 168 of the Act for candidates to claim to have their names grouped in the ballot papers. In printing the ballot paper the names of the candidates included in groups are to be printed before the names of candidates not included in groups but the order of the groups is determined in the manner provided by s 213, in effect by lot: s 210(a) and (c). Except as otherwise provided by the regulations, a square is to be printed on the ballot paper opposite the name of each candidate: s 210 (f) and Form E. Where the names of candidates are included in a group and those candidates lodge with the Australian Electoral Office a statement in accordance with s 211 indicating their order of preferences or orders of preferences in relation to all the candidates, they are taken to have a group voting ticket or tickets, and a square is to) be printed on the ballot papers for use in the election above the names of those candidates: s 211(4) and (5). Such square appears above the line dividing the ballot paper: see Form E. The voter may mark his vote either by placing numbers in the squares opposite the names of the candidates below the line or simply by placing the figure "1" or a tick or a cross in one only of the squares above the line: s 239. Where the paper has been marked in a square above the line, it is deemed to have been marked in accordance with the group voting ticket or tickets lodged by the candidates in the relevant group: s 272.

Further, by s 214, when a candidate is registered under s 146, and the name of "a registered political party" is entered in the register of candidates in relation to that candidate, the name of that party shall be printed adjacent to his name on the ballot paper - s 214(l). In the case of a group, the name of the party also appears adjacent to the square above the line - s 214(2). Only an eligible political party may be registered - s 124 - and "an eligible political party" means "a Parliamentary party" (that is, a political party which has at least one member in the Parliament of the Commonwealth, or the Parliament of a State, or the Legislative Assembly of the Northern Territory or the Australian Capital Territory House of Assembly) or a political party other than a Parliamentary party that has at least 500 members - s 123. A candidate who is not a member of a registered political party may, but need not, have the word "independent" printed adjacent to his name: ss 146(1)(c), 214(3)(b).

As the plaintiff has rightly pointed out, a candidate who is not a member of "a registered political party" may be disadvantaged because the name of the party, if any, to which he belongs will not appear on the ballot paper. A candidate who is not a member a group cannot take advantage of the simplified voting procedure which involves the marking of a square above the line. Indeed, there is no means provided, above the line, for recording a vote for such a candidate.

The question that now falls for decision is whether the provisions of the Act to which I have referred are open to objection on constitutional grounds. The plaintiff submitted, first, that electors who use the simplified system of voting will be voting for parties and not for candidates and that this will contravene s 16 of the Constitution, which provides for the qualifications of a senator: it is right to say that the electors voting at a Senate election must vote for the individual candidates whom they wish to choose as senators but it is not right to say that the Constitution forbids the use of a system which enables the elector to vote for the individual candidates by reference to a group or ticket. Members of Parliament were organized into political parties long before the Constitution was adopted and there is no reason to imply an inhibition on the use of a method of voting which recognizes political realities provided that the Constitution itself does not contain any indication that such a method is forbidden. No such indication, relevant to the present case, appears in the Constitution.

The second principal ground taken by the plaintiff is that it offends general principles of justice to discriminate against candidates who are not members of established parties or groups. Section 7 of the Constitution provides, amongst other things, that the Senate shall be composed of senators for each State directly chosen by the people of the State. I am prepared to assume that s 7 requires that the Senate be elected by democratic methods but if that is the case it remains true to say that "it is not for this court to intervene so long as what is enacted is consistent with the existence of representative democracy as the chosen mode of government and is within the power conferred by s 51(xxxvi)" of the Constitution to use the words of Stephen J in Attorney-General (Cth) (Ex rel McKinlay) v Commonwealth (1975) 135 CL-R 1 at 57-8; 7 ALR 593 at 633.

In my opinion, it cannot be said that any disadvantage caused by the sections of the Act now in question to candidates who are not members of parties or groups so offends democratic principles as to render the sections beyond the power of the Parliament to enact. I am by no means satisfied that s 353(1) of the Act, which provides that the validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns and not otherwise, would prevent this court from interfering by injunction if a challenge were successfully made to the provisions of the Act on constitutional grounds. The case is distinguishable from Berrill v Hughes, recently decided by Mason J, which turned on statutory and not on constitutional considerations. Nor do I think that s 47 of the Constitution is relevant to the present case. Having regard to the conclusion which I have reached, however, those questions do not now arise.

For the reasons that I expressed the injunction must be refused.

Order

Motion for injunction refused. State of claim struck out. Action dismissed.

Solicitor for the respondents: Australian Government Solicitor. ANDREW BYRNES
BARRISTER