Electors are not “allowed to delegate the preference choice” to anyone else. They have the option of selecting a list of preferences in the group voting ticket or writing out their own. If the preference list was determined after the elector had voted, there would have been a delegation, but it is not. It is set out beforehand and is public, despite the fact the apparently numerous people fail to pay attention. If the electors choose the list, they are still directly electing their senator.

If we had a closed list - or maybe even an open list - system, this would not be the case. If we had the Greens’ self-interested option of preferences for parties above the line, this would also not be the case. But we don’t. Every elector is free to vote directly for every Senate candidate in any order he or she chooses. One particular order is contained in an above-the-line vote. He or she may express that choice by filling out all the numbers of by choosing the set of numbers wanted by a particular party

This discussion of constitutionality is separate from the desirability of the matter.

How right Dr Page is over the shonkiness of group voting in the Senate. There should be provision, indeed requirement, for the voter to allocate preferences between the groups. The most that the party should be enabled to do is allocate preferences within the group among its own candidates. If the voter wishes a different pattern of preferences s/he should vote below the line. Strength to the elbow of anyone who seeks to challenge the current pig’s breakfast in the High Court.

A more radical proposal, closer to representative government, is to end the gerrymander whereby a Tasmanian voter gets 10 Senate votes for a New South Wales voter’s one. The number of senators to represent a State in the Senate should be in proportion to the number of electors in the State – roughly like the way the American electoral college in Presidential elections is constituted but without the “winner takes all” arrangement of the American system – the one that allowed bent judges to select who got ALL the delegates from Florida in 2000 and hence the presidency and bent electronic voting machines to decide who got all the Ohio delegates in 2004.

An even better alternative would be a single list to be elected by nationwide PR so that it is people, not States, that are represented in the Senate, given that the parish pump already gets its say in the House of Representatives.

Excellent ideas, Emperor Julian. I especially like the first one, but do you seriously think that the politicians would let it get up and eliminate their ability to do preference deals?

Let's say that someone does challenge the current arrangements in the courts, as Dr. Page suggests, and they win. There would be complete chaos on election day if everyone had to effectively vote below the line and order well over 100 names. Voting would quite likely require waiting in line for most of the day because of the time required for everyone to do this. Unless you intend a donkey vote, there is an excellent change that you will get mixed up and leave out a number or write the same number twice, so your vote will be declared invalid. The politicians could then take advantage of the outrage over the chaos to make the Senate even less democratic, electorates for Senators, for example, rather than electing them at large from the state.

I also think that every candidate should be required to post a statement on the internet about what they would do in Parliament if elected. We are being required to order the names of people when we have no idea and no way to find out about what many of them stand for.

I totally get the point Dr Page is making, having seen some of the shocking deals made to line up preference in past Australian elections. However I doubt very much that a constitutional challenge is on because you have the option to vote below the line, even if not all that many people would take the trouble to number 70-80 candidates individually.

The real issue is that the form of election is excessively complex for the average voter to understand. While small parties and independents represent a clear choice, when voting for the large parties, unless you number each candidate, you are not only voting for the party's preference flow but their ranking of candidate within their own party.

An election system that the average voter can't fully understand and which puts ranking of candidates in the hands of party bosses in any shape or form is anti-democratic. Here in South Africa, we have a pure proportional-representation system at most levels and though it is easy to understand, the party list from which MPs are elected is totally under control of the party, so you have no direct line of responsibility between MP and electorate. At least you do get that in Australia in the lower house.

A better system has to be possible than the Australian Senate system for statewide representatives.

Here is my proposal for a lower house system that combines some of the benefits of PR and electorate MPs: http://opinion-nation.blogspot.com/2012/12/second-chance-elections.html

I’d quibble with some of the article’s comments on the phrase “directly chosen by the people” in s.7 of the Constitution. But it is correct to say that it prevents delegation by voters of their choice of senators to another person or entity. This follows from the decision on the similar phrase in s.24 in Attorney-General for Australia (At the Relation of McKinlay) v Commonwealth of Australia (1975) 7 ALR 593.

However the argument that group voting infringes the prohibition on delegation seems to have been rejected already in McKenzie v Commonwealth (1984) 57 ALR 747: http://www.austlii.edu.au/au/cases/cth/HCA/1984/75.html. A candidate for the Senate in Queensland challenged the group voting provisions in a case argued just 4 days before the election. As a result, his application for an injunction was dealt with quickly, by one judge. Justice Gibbs said:
“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 in 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 article is correct in saying that group voting has yet to be tested before a Full Court of the High Court. In any such challenge, the McKenzie decision would be influential, but not decisive.

I would however expect such a challenge to fail. As Chris C has pointed out, when the order of preference allocation is available to voters beforehand, and they are not compelled to vote that way, their choice to do so is merely a different, more convenient way of expressing their preference.

I can only suggest that EmperorJulian study the provisions of Section 128 of the Constitution, as he will find that his proposal to end the equal representation of the States in the Senate can only become law if approved by all the States. As a result the likelihood of such a change being approved by the people in a referendum is slightly less than zero, and may therefore be dismissed from consideration. Nevertheless, studying some of the mind-bending decisions of some activist High Court judges shows that anything is possible. In moving from the rule of law to rule by lawyers we leave ourselves open to a future that is impossible to predict. The persistent refusal by the people over the last 112 years to expand the powers of the Federal Government has proven to be such a minor obstacle that one wonders why we bother to concern ourselves about constitutional matters at all.

S128 of the Constitution, adopted under pressure I understand from Sir John Forrest pressing parochial WA interests, could be junked by a vote of a majority of the people in a majority of States (another provision that needs democratising). This puts the overrepresented residents in a blocking position.

Finding a way to override the legal system to achieve democratisation (Godfather offer to the overrepresented States?) would depend on agreement on what democratisation is and to what extent as a nation we are committed to democracy. However it is right and proper for citizens to consider constantly and actively what is the right thing no matter what the inbred legal system is able to deliver. The deficiencies of the Constitution can’t properly be advanced as a conversation-stopper.

A spectacular case of the legal system's inability to cope with getting things right, and ultimately having to be overridden, is that of Mrs Chamberlain. I recall when, with her held unjustly in prison because of perversion of the course of justice by the prosecution and a prejudiced NT jury disdainful of forensic principles, a prominent law-wonk proclaiming on Radio National that as every legal avenue had now run its course the question of whether Mrs Chamberlain did or didn't murder her daughter was IRRELEVANT! A non-question. Calling on parliament to act was an assault on law, the fool intoned. (The irony in that case was the fact that the trial judge was meticulous and honest, all but instructing the jury not to convict – leaving no legalisms for law-wonks to appeal about).

I can only admire EmperorJulian's innocence. In any campaign over a referendum to alter Section 128, the scare campaign would concentrate on the things that could be done if it were changed, such as abolishing equal representation in the Senate, thus ensuring its defeat.

The only way that I can see that any of these changes could be implemented would be to hold a referendum to provide that all future referendums, including this referendum, would be carried if a majority of people voted "NO'.

The only problem then is which way would you vote in such a referendum.

What we really need is citizen initiated referendum, where changes can be implemented in the teeth of the opposition of the whole political class. However there is no need to worry, the chances of this being implemented are again slightly less than zero.

Just for fun, let us dwell on some of the proposals that could be implemented if citizen initiated referendum were to become law.

1. The salaries of all politicians could be reduced to the level of the dole, and many electors would still consider them to be overpaid.

2. The problem of corrupting political donations could be solved by providing that the only money politicians could spend on getting elected was that raised by putting their daughters on the streets.

3. All foreign aid could be terminated on the principle that charity begins at home.

4. Governments could be required to treble spending, abolish all taxation, balance the budget and pay off the foreign debt, with any deficiency in government finances being made up from the sale of politicians' assets.

I could go on with many more, but would have to wait until the flying pigs have passed over.

Candidates for election in Australia are selected by political parties --- the pre-selection process -- not the electorate at large. A way to increase the "directly chosen by the people" component in elections both for the Senate (s.7) and the House (s.24) would be to move one step back in the whole process and institute Primary Elections of candidates, as is done in the U.S. Primaries winnow a field of candidates prior to an upcoming general or by-election. They were specifically instituted to take the power of candidate nomination away from party leaders and give it to the people. A quick example of how this works (it varies among states): There's an election for State governor in New Jersey this November. The incumbent is a Republican and several Democratic challengers have announced at this time. When you register to vote in NJ you may (but don't have to) declare a party affiliation. Primary elections take place in June, when voters choose their affiliated party's candidate to run in November's Gubernatorial election. This month marks the last date by which a voter may choose, delete, or change a party affiliation.

Among the states more generally, primary elections may be closed or open, or somewhere in between. In closed primaries (like NJ), you may only choose among the candidates of your party affiliation, In semi-closed primaries, the unaffiliated may vote as well. In open primaries, a registered voter may vote in any party primary regardless of his/her own party affiliation. In my opinion, the primary election process works well and I've participated since first registering to vote. Because of Primaries, I would say that voters in the U.S. have the potential to enjoy much greater participation in the entire election process compared to the situation in Australia. Of course, only about half the eligible voters in the U.S. get to the polls at all.

I also want to quickly comment on EmperorJulian's second suggestion in his first post that the equality of state representation in the senate be abolished in favor of representation proportional to state population. This would negate the whole idea of the senate being the "States' house". The idea was critical in inducing the smaller states to join the Australian federation (as it was to the U.S. federation before that). Having equal number of senators made the smaller states comfortable they would not be overwhelmed by the larger, more populous states in the federal government. To renege on that now, would be dishonorable, in my opinion.

Given we elect 6 senators per election (unless a double dissolution is called) then why is it voters have to number every box for every candidate? That makes no sense, particularly when there is a high number of candidates. Simplify the process and make it easier for voters by simply requiring the numbering to match the vacancies.