Shortly after the Commonwealth Electoral Amendment Bill 2016 was legislated by the Parliament, South Australian Family First Senator Bob Day mounted a High Court challenge to test the constitutionality of the legislation.

But some of you might wonder how the High Court has the power to decide whether legislation that has been introduced by the executive government and then passed by the legislature is constitutional?

This week we are going to examine aspects of the separation of powers that are intrinsic to the workings of our System of Government under our Constitution.

We last looked at the Constitutional topic with an article about proposed changes to Australian Citizenship legislation, you might like to take a look by clicking here.

What is the separation of powers?

Articulated by the French political thinker and social commentator Montesquieu in 1748 during the Enlightenment period was the principle of the separation of powers. He wrote in his book ‘The Spirit of the Laws’:

Constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go….To prevent this abuse, it is necessary from the very nature of things that power should be a check to power….When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

These ideas spread and began to influence the work of others including the founders of the American Constitution. And more than a century later the Australian Constitution was formed on the same principles.

The separation of powers principle under the Australian Constitution divides the institutions of Government into three separate groups. The legislature, the executive and the judiciary, which are outlined in Chapters I, II and III of the Constitution.  The legislative power gives the parliament the authority to make the laws, the executive power gives the government the capacity to put the laws into action and the judiciary has the power to make judgements about the law. Each of these groups is a check on the power of the others and ensures that none of these groups hold all the power.

Quick and Garran write about the judicial power in their Commentaries on the Constitution of the Commonwealth of Australia 1901:

The judicial power is the power appropriate to the third great department of government, and is distinct from both the legislative and the executive powers. The judicial function is that of hearing and determining questions which arise as to the interpretation of the law, and its application to particular cases. “The distinction between the departments undoubtedly is, that the legislature makes, the executive executes, and the judiciary construes, the law.”

If we did not have the judiciary to interpret legislation, the legislative and executive arms of Government may be able to use their power, without checks and balances. The High Court, among other things, ensures that legislation is in accordance with our Constitution and the Rule of Law.

Let’s look at the journey this legislation took

At the 2013 election some Senators were elected on a very small percentage of primary votes. As such there was a lot of media and political attention given to this subject.

A couple of months after the 2013 election, Independent Senator Nick Xenophon introduced the Commonwealth Electoral Amendment (Above the Line Voting) Bill 2013 in the Senate. The aim was to amend the Commonwealth Electoral Act 1918 to remove group voting tickets and provide for an optional preferential system for voting above and below the line for Senate elections.

The next month this Bill was referred to the Electoral Matters Committee where an inquiry was launched into the conduct of the 2013 federal election and Senate voting practices. The committee took submissions, held public hearings and then produced several reports throughout 2014 and 2015.

Then in February this year the Government introduced the Commonwealth Electoral Amendment Bill 2016 to amend the Commonwealth Electoral Act 1918. The Bill passed quickly through the House of Representatives and then finally after the Great 2016 Senate Marathon, where the Government was able to secure the support of the Greens to pass the bill, it made it through the Senate. Group voting tickets were abolished and voters given the option of optional preferential voting.

The Bill was given the Royal Assent on 21 March 2016 and very shortly after this Senator Day launched his High Court challenge to this legislation.

Senator Day is challenging the legislation on four main grounds as described by Constitutional expert George Williams:

He is contending, first, that differences between above and below the line voting breach a constitutional requirement that there be a single method of electing senators. Second, being able to vote for parties above the line, rather than for individual candidates, runs counter to the constitutional mandate that senators be "directly chosen by the people".

Third, the optional preferential voting models used for above and below the line voting are unconstitutional because they allow the preferences of electors to run out before they elect a candidate. It is argued that this exhaustion of a person's vote undermines the principle that senators be chosen by means of proportionate representation.

Finally, Day is arguing that the new method will mislead and deceive electors, and so prevent a free and informed vote. He says the system is unconstitutional because the ballot paper does not tell people that their vote will be counted even if they fail to number the minimum amount of boxes. In fact, a vote will be valid if a person numbers just one party above the line or six candidates below the line.

It is now up to the High Court to examine the legislation and make a judgement as to whether it is Constitutional. Most Constitutional experts seem to agree that Senators Day’s argument is weak and that the High Court is likely to find the legislation constitutional. But as many of them have stated, it is very hard to predict outcomes of the High Court.

We’ll have to wait and see what the Court decides and read and analyse this important Constitutional judgement carefully.