By Malcolm Mackerras

In the period since Friday 27 October (the day the High Court handed down its outlandish decision confiscating the seats of certain senators) I have searched high and low and here and there and everywhere to find a sensible comment on that decision. My search was a case of finding a needle in the haystack but eventually I found such a needle. It was a letter to the editor published in The Australian on Monday 13 November and it was by John George of Terrigal, NSW. It reads as follows:
“The absurdity of the dual citizenship saga has long been apparent but it was capped off at the weekend by John Alexander’s forced resignation. Few in the parliament can hold a candle to Alexander’s authenticity as an Australian. He has represented this country as a sportsman, and as both a businessman and family man he has been a beacon of decency; a man dedicated to Australia and its values. To see this man having to resign because his father failed to renounce his British citizenship is just crazy stuff.
“When you think the very people who wrote our Constitution were themselves British, you have to wonder what the hell we are doing here. Our whole legal system is British, our head of state is British, and our system of government is British. Yet we have a bunch of overpaid lawyers sitting on the High Court bench who seem to think being a dual British citizen makes you a foreigner who endangers the security of the parliament.”
Were John George and I ever to meet and have a conversation I imagine that he would agree with me that nine-tenths of the blame for this political crisis lies with the seven judges of the High Court. The other tenth of the blame lies with Malcolm Turnbull. I say that because he loudly predicted that the High Court would make a sensible decision based on the dissenting judgment of Sir William Deane back in 1992. He should have known that such arrogance would provoke the judges into making the reverse decision. What a fool!
Looking back on my own contribution to this debate I am struck by my own moderation. In my commentary (“Citizenship debacle dragged on too long” posted Wednesday 1 November) I wrote of various High Court decisions with the words “I do not condemn them” but noted that “I am not a fan of the High Court”. How could I have been so moderate? Of course I condemn the decisions I have discussed! Furthermore, I have been a non-fan of the High Court for a very long time, as I now explain.
Back in 1995 I joined the Samuel Griffith Society, of which I have been a financial member ever since. I did that because the scales had fallen off my eyes in relation to the High Court and I knew that the Society’s members were the most severe critics of the Court in Australia. I realised then that various decisions of the High Court which had been praised by me at the time of their making were nothing more nor less than judicial legislation for which certain words in the Constitution were the cover. I also understood what the future would hold. Judges would use their power to enforce the laws they had made. That is exactly what they have done since 1995.
In 1995 I also realised the truth of then Prime Minister Paul Keating’s description of the Senate as “unrepresentative swill”. It was that because of the Senate voting system. Today it is even more clearly unrepresentative swill because the then system, bad though it was, found itself replaced by an even worse system legislated by the politicians and unanimously approved by the High Court in the autumn of 2016. The men and women who gave us this present constitutional abomination were Malcolm Turnbull, Barnaby Joyce, Richard Di Natale, Nick Xenophon, Chief Justice Robert French and Associate Justices Susan Kiefel, Virginia Bell, Stephen Gageler, Patrick Keane, Geoffrey Nettle and Michelle Gordon. Six of those seven gods and goddesses are still on the Court participating in this recent citizenship decision.
Section 24 of the Constitution commands that “The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth. . .” and that has been the case since Federation. Every member has been and is directly chosen by the people and, in my opinion, every member was properly elected by the people in July 2016 in a direct election. However, two members now require re-election at by-elections forced by the High Court. I sincerely hope that the people of New England and Bennelong decide to cock a snoot at the Court. In modern language I hope the people of the two electoral divisions say “Up You” to the gods and goddesses sensibly described by John George of Terrigal as “a bunch of overpaid lawyers.”
Meanwhile on Monday 13 November various new senators were sworn in and the most interesting of them was a certain Fraser Anning who immediately chose to be an independent senator. He has that right because, under the system supported by a majority of the federal politicians and all the High Court judges, he is deemed to have been directly chosen by the people of Queensland as though the system were candidate-based. So, let me tell readers of his record. Polling just 19 votes in July 2016 the re-count ordered by the High Court saw his vote build up to 207,193 which saw him duly (and properly!) elected.
Finally, here are the cases of senators elected with ridiculously low first preference votes since the set of above-the-line contrivances was introduced. In 1984 Amanda Vanstone (Liberal, South Australia) was elected with 253 first preference votes. In 1987 Noel Crichton-Browne (Liberal, Western Australia) was elected with 155. In 1993 Chris Ellison (Liberal, WA) was elected with 262 primary votes and Dominic Foreman (Labor, SA) was elected with 256. In 2010 Glenn Sterle (Labor, WA) was elected with 156.
However, that system had to be replaced because it proved a tad inconvenient for the machines of big political parties. Under the much-vaunted “reform” (so loved of politicians and judges) in 2016 the two Xenophon deputy senators, Stirling Griff and Skye Kakoschke-Moore, enjoyed the support of 103 and 129 votes, respectively. With those votes Griff has a six-year term and Kakoschke-Moore has three-years. The big daddy of them all, however, was the senator “directly chosen by the people of Queensland” in 2016, Malcolm Roberts, who thought he was elected to a three-year term. However, his record was surpassed by Anning who is now a senator with 19 first preference votes, an all-time record low. His term expires on 30 June 2019. And yet there are people who dispute the description of the Senate as “unrepresentative swill.”
The solution is actually quite simple. The politicians and the judges should get together and devise a decent system under which senators truly are directly elected, like every member of the House of Representatives is. All the politicians and judges need to do is apply to me and I can tell them how to do it.
(Malcolm Mackerras is Honorary Fellow of Australian Catholic University.