High Court loses its patience

Many were surprised that the High Court agreed to give a full hearing to the challenge made by Senator Bob Day and others to the recent reform of Senate voting rules. But the outcome of the hearing, handed down on Friday, was no surprise at all.

Still, it’s well worth reading the full judgement, just to see a bench of very distinguished judges getting exasperated at the thinness of the argument put before them.

Most of the judgement is spent on filling in the background; consideration of the actual arguments, such as they were, doesn’t take long. After summarising them (page 18), the judges remark that “None of the above arguments has any merit and each can be dealt with briefly,” before proceeding to do so.

The first argument, the court says, advocates “a pointlessly formal constraint on parliamentary power.” The second argument is “untenable”. The third is “elusive”. The fourth “fails at its threshold” and is dismissed in just two paragraphs. The fifth is a “catch all” proposition and contains “No point … that has not already been rejected.” Rarely does one see a full bench deal with a case so brutally.

The fact that the argument against the reforms would, if followed consistently, have invalidated every Senate election since 1984 (or perhaps since 1948), was – rightly – not considered as a factor in the legal argument. But it must have added to the judges’ sense that they were faced with a piece of political opportunism dressed up in very flimsy legal costume.

This is, of course, a good result for democracy. It’s also only fair to point out that the ALP, which switched sides to oppose the changes in parliament, made no attempt to associate itself with the challenge to their legality.

But the minor parties that did support the challenge – both Day’s Family First and the Liberal Democratic Party – have come out of the exercise looking rather silly.

I must say that personally I find all this very disappointing. Of all the parties on the Australian political scene, the LDP is closest to my philosophical views, with generally libertarian positions on both social and economic issues.

And it’s from minor parties, if anywhere, that one expects to see some sacrifices made for the sake of principle. It’s frustrating but understandable when major parties, desperate to win over swinging voters, engage in various sorts of unprincipled conduct; for minor parties it’s much less excusable.

There’s nothing libertarian about telling people that political parties should control the distribution of their votes. But the LDP, in its quest to retain a seat that it won on the back of grossly undemocratic preference shenanigans, has bought wholesale into the battle against voting reform. Sad.