Direct election means that voters mark preferences next to the names of candidates, as opposed to next to the names of parties (which is indirect election).
Electoral systems that use Party List (or Mixed Member Proportional) deliver a group of representatives who are not directly elected.
High Court Test Cases
Test cases in the High Court of Australia have nevertheless determined that the Group Voting Ticket system for the Senate, which is not a party list system, did not contravene Section 7 of the Constitution because the High Court considered that each ticket is just a convenient simplified way for a voter to cast a vote in one of numerous possible preference orders, and that all voters are free to vote for any other preference order they choose, by voting “below-the-line”.
The single judge, the then Chief Justice, Sir Harry Gibbs, wrote in his determination, “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.” His cautious wording, highlighted in bold here, could suggest that he recognized a degree of offence to democratic principles, which the PRSA considers does very much exist, but he declared that it was not a sufficient degree for the court to declare GVTs invalid. The applicant, an independent Senate candidate, represented himself, and did not appeal.
Sir Harry Gibbs thus determined that whether any perceived discrimination, or discrepancy between the effort, and the risk of error and invalidation of a person’s vote involved in those two different procedures was to be dealt with was a matter for the Federal Parliament, rather than the High Court. The Parliament did reduce the discrepancy between the effort required for each voting option in 2016, but it still failed to discontinue the unnecessary stage management of the above-the-line option.
Entrenchment of Direct Elections
In addition to the limited entrenchment of direct election in the Australian Constitution, Western Australia is the only State with a requirement for direct election of its members of Parliament entrenched in its constitution, so that the requirement cannot be repealed without a referendum. See this 1978 provision in Section 73 of Western Australia’s Constitution Act 1889 [Section 73(2)(c)].
The Australian Capital Territory is the only Territory with an entrenched requirement for direct election of the members of its unicameral legislature.