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Rowe's case

The entitlement to vote underpins the functioning of a representative democracy, and yet under the Constitution its effective exercise is regulated by the elected Parliament. 1 Where Parliament acts to exercise this power, the extent to which this entitlement should be protected from adverse legislation is a balancing act between the very foundation of representative government in parliament and that parliament's sovereignty. This balancing act is the subject of Rowe v Electoral Commissioner. 2 Applying a proportionality test, the majority judges appear to severely limit the 'latitude' or discretion granted to Parliament under the Australian Constitution. Whether this was appropriate is to be determined by what the Constitution prescribes and protects. Constitutional interpretation therefore shapes the appropriate limits on Parliament. In practice however, the application of the proportionality test gives the judiciary significant discretion, with the potential to usurp parliamentary sovereignty of law-making. A background Rowe's case disputed the constitutional validity of amendments to the Commonwealth Electoral Act 1918 (Cth) in ss 102(4), 102(4AA) and 155. 3 These amended sections effectively reduced the number of days unenrolled but otherwise eligible voters had to be placed on the electoral rolls after the issuing of writs for an election to three from seven. Although procedural in nature, it was argued that the amendments curtailed the substantive right to vote and consequently were not constitutionally valid. 4 A relevant test to find constitutional validity is found in Roach v Australian Electoral Commissioner. As set out in Roach, a 'legislative disqualification' from the constitutional franchise is valid if it is for a 'substantial reason', or is 'reasonably appropriate and adapted' for a purpose consistent or compatible with the maintenance of the 'constitutionally prescribed system of representative government'. 5 Accepted as equivalent to a criterion of 'proportionality', 6 the constitutional interpretation in Rowe's case significantly influenced the limit on legislative power imposed by the majority judgments.

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Graeme Orr, 'The Voting Rights Ratchet' (2011) 22(2) Public Law Review 83, 88. Rowe v Electoral Commissioner [2010] HCA 46. 3 Ibid, [52]. 4 Ruth Greenwood, 'A Progressive Court and a Balancing Test: Rowe v Electoral Commissioner [2010] HCA 46' (2010) 14 University of Western Sydney Law Review 119, 123. 5 Roach v Electoral Commissioner (2007) 233 CLR 162, 199. 6 Ibid.

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Interpretation of the Constitution and the decision The majority and dissenting judgments of Rowe's case were largely divided along interpretational lines, with the majority favouring a progressive or 'living tree' approach, and the dissenting judges, with the exception of Kiefel J, taking conservative interpretations. 7 Majority The majority judgments founded their decision on the existence of a right to vote. Notably, the Constitution does not provide for any express right to vote under s 41. 8 Sections 8 and 30 of the Constitution merely characterise the right to vote as statutory in nature contingent on an Act of Parliament. 9 However, a right to vote has been implied into the Constitution with a progressive reading of ss 7 and 24. 10 Turning on the meaning of 'chosen by the people', the majority judgments of French CJ, Gummow and Bell JJ, and Crennan J affirmed that the Constitution should be read in context with the 'common understanding of the time'. 11 Sections 7 and 24 of the Constitution were thus informed by current circumstances and the historical development of Australian society since federation. 12 French J noted that s 51(xxxvi)'s granting of authority to Parliament for changes to ss 7 and 24 implied the possibility that the Constitution would acquire 'more democratic content than existed at federation'. 13 Consequently, the majority held that the Constitution implicitly protected universal adult suffrage consistent with the finding in Roach, despite the existence of only universal manhood suffrage at federation. 14 The majority held that historical practice after federation gave rise to an implicit protection on the number of days enrolment was allowed before the closure of the electoral rolls. 15 Significantly, this finding effectively did not distinguish between disqualifications from the right to vote and limitations on the exercise of that right incidental to the procedural amendments. The proportionality test in Roach involved the direct infringement of universal adult suffrage for a class of people, and where the majority judgments unanimously recognised that Parliament could generally impose conditions on suffrage if incidental to
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Orr, above n 1, 88. R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 278, 280. 9 Commonwealth of Australia Constitution ss 8, 30. 10 Roach v Electoral Commissioner (2007) 233 CLR 162, 174. 11 Rowe v Electoral Commissioner [2010] HCA 46, [18], [123], [326]. 12 Ibid. 13 Ibid [18]. 14 Ibid [18], [123], [326]. 15 Ibid [57]-[66], [124]-[126], [367]-[368].

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defining the elector qualifications, the incidental or indirect infringement by the amendments did not attract automatic application of the test. 16 Considering the substantive effects of the legislation, French CJ held that procedural laws which incidentally disenfranchised people still required "substantial justification", which allowed application of the test. 17 Similarly, Gummow and Bell JJ considered the consequences of non-compliance with procedural law as denying the exercise of the right to vote, which was equivalent to the denial of the right itself. 18 Crennan J took the same approach. 19 Despite French CJ's exception, it remains difficult to reconcile this 'effects' approach with their initial declarations of the parliamentary power to determine electoral administration, especially where Crennan J accepted the constitutional compatibility of electoral roll integrity as a legislative purpose. 20 Given the relatively low number of 'disenfranchised' voters and the lacking recognition of a clear class of such people, 21 any incidental infringement of suffrage by procedural electoral law would appear to be subject to judicial review. The resulting limit on parliamentary sovereignty appears both arbitrary and overreaching. Minority In comparison, the conservative judgments of Hayne and Heydon JJ focused on whether the amendments prevented the election of Houses of Parliament 'directly chosen by the people' as under ss 7 and 24 rather than the existence of a constitutional right to vote to determine validity. Hayne J held that the meaning of 'directly chosen by the people' should be found solely in the 'text and structure' of the Constitution. 22 Indeed, in a salient criticism of progressive interpretation considering the historical development of enacted legislation, Hayne J aptly identified circular reasoning that predisposed the majority to regard the amended legislation as constitutionally protected. 23 Past Acts of Parliament cannot develop the constitutional concept of representative government as it would, from a 'text and structure' perspective, import a new meaning to the 'exiguous constitutional text'. 24 Constitution leaves the electoral process to Parliament in ss 7, 24 and 51(xxxvi) through its silence on the

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Ibid [10], [24], [154], [381]. Ibid [58]. 18 Ibid [154]. 19 Ibid [381]. 20 Ibid. 21 Ibid [73]. 22 Ibid [192]. 23 Ibid [191]. 24 Ibid [222].

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particulars in Houses of Parliament 'directly chosen by the people'. 25 It follows that the progressive majority risked the assumption that legislation becomes entrenched by reason of history and practice, forcing a uni-directional evolution of the concept of representative government and imposing unreasonable restrictions on Parliament. 26 However, without considering historical developments, the 'text and structure' interpretation leaves open the prospect of disqualifications of female or aboriginal suffrage. 27 Heydon J's originalist reading interpreted the meaning of 'directly chosen by the people' as understood by 'skilled lawyers and informed observers' at federation. 28 Addressing the franchise, the words were considered 'evolving' concepts at federation by these people, allowing a consideration of what meaning could reasonably have been envisaged for the future at the time. 29 Therefore, a conservative interpretation need not endanger the abrogation of recognised modern rights such as universal suffrage. 30 Like the majority, Hayne, Heydon and Kiefel JJ distinguished the incidental effects of the procedural amendments from Roach, precluding the application of the proportionality test. 31 However, far from connecting the prevention of the exercise of a right to vote with an effective infringement of the right, the judgments critically distinguished between the two concepts. 32 Hayne J referred to exercise as 'factual participation' and the right as the 'legal opportunity to participate', where constitutional validity only arose in relation to the legal opportunity. 33 As the plaintiffs' inaction caused the inability to exercise, it was more significant that this was an issue of factual participation rather than legislative disqualification. 34 Accordingly, the minority held there was no infringement. In contrast, the logical corollary of the majority's lack of distinction is a constitutional prescription for maximum participation at the polls by eligible voters where the amendments were found invalid for excluding any number of people. 35 Such a requirement could not be read into the

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Ibid [194]. Orr, above n 1, 99. 27 Rowe v Electoral Commissioner [2010] HCA 46, [203]. 28 Ibid [303]. 29 Ibid. 30 Ibid. 31 Ibid [185]-[187], [284], [411]. 32 Ibid. 33 Ibid [218]. 34 Ibid [225]. 35 Ibid [207]-[210].

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Constitution, 36 and thus the dissenting judgments appear to prevent arbitrary restrictions on Parliament through a more principled approach. Parliamentary sovereignty Despite the majority's stance on the amendments, parliamentary discretion as to lawmaking was readily accepted as paramount within the bounds of the Constitution. 37 French CJ affirmed that it was not for the courts to determine validity on the basis of 'benefit and detriment'. 38 The notion that the courts should respect parliamentary sovereignty as a commitment to a democratic system of government is most relevant for a matter that strikes at the very foundation of that system. 39 Judicial review would be appropriate where legislation threatens that foundation, as Parliament's legal sovereignty must draw its ultimate authority from political sovereignty. 40 Importantly, such review should be limited to genuine threats to expressions of political sovereignty in voting. That a distinction was not drawn between the right to vote and its exercise militates against the majority's seemingly arbitrary limit on Parliament. Irrespective of its appropriateness, it remains that where the Constitution is the source of validity and force of legislation, it is up to the courts alone to determine the validity of those laws. 41 Differing applications of the test However, there is significant judicial scope in the application of proportionality test in Rowe, with Kiefel J's progressive dissent as a key example. Where the test has been stated, it has taken the form of multiple equivocal tests described by 'rational connection', 42 'substantial reason', 43 'reasonably appropriate and adapted', 44 and 'proportionality' 45 among others. Without consistent rules for guidance, these tests broadly involve an ad hoc balancing of
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Ibid [218]. Ibid [29], [132]. 38 Ibid [29]. 39 Trevor R S Allan, Law, Liberty, an Justice: The Legal Foundations of British Constitutionalism (Oxford University Press, 1994) 282; Tony Blackshield and George Williams, Australian Constitutional Law (The Federation Press, 5th ed, 2010), 89-95. 40 Allan, above n 39. 41 Michael Kirby, 'Constitutional Law and International Law: National Exceptionalism and the Democratic Deficit?' (2010) 12 University Of Notre Dame Australia Law Review 95, 96. 42 Rowe v Electoral Commissioner [2010] HCA 46, [23], [74]. 43 Ibid [24], [75], [184]. 44 Ibid [24], [181], [219], [443]. 45 Ibid [263].

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factors, with the 'reasonably appropriate and adapted test', for example, balancing different factors depending on the judge. 46 In his reasons, French CJ considered the balance between the benefits of the amendments to the electoral system with its cost on rights, holding that the cost was 'disproportionate' to the benefit. 47 Similarly, the judgment of Gummow and Bell JJ considered the balance between disqualification and the constitutional right infringed and held that the amendments as a 'prophylactic' measure for fraud did not have a 'substantial reason' for enactment. 48 Meanwhile, Crennan J held that the provisions were not 'necessary or appropriate', balancing the legislation's purpose and the 'centrality of the franchise' in community. 49 Hayne J determined whether the infringement 'detracted in some significant way' from the franchise and whether it had a 'substantial reason' when applying the 'reasonably appropriate and adapted' test, noting that legislation need not be 'essential' or 'unavoidable' to achieve its purpose. 50 While seemingly rule-based, his test ultimately balanced the intended purpose of the legislation with the disqualification caused. 51 Heydon J did not consider the test beyond interpreting the 'reasonably appropriate and adapted' test as being satisfied if there was a 'substantial reason' for the disqualification. 52 Kiefel J's unique progressive dissent produced a radical formulation of the 'reasonably appropriate and

adapted' test that referred to the availability of 'alternative, practicable and less restrictive' legislative measures to determine validity. 53 Significantly, her rule-based formulation was cited as preventing the widening of scope of discretion, while increasing the rigour and transparency of reasoning. 54 Although it has been asserted that the 'reasonably appropriate and adapted' test does not involve ad hoc balancing, 55 the apparent variance in the application of the test in the Rowe judgments and inconsistent balancing factors employed suggest otherwise. With the exception of Kiefel J, the judgments employ an ad hoc balancing of variant factors giving rise to significant ambiguity and scope for judicial discretion. However, proportionality does not
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Greenwood, above n 4, 133. Rowe v Electoral Commissioner [2010] HCA 46, [73]. 48 Ibid [74], [161]. 49 Ibid [384]. 50 Ibid [181]. 51 Ibid [263]. 52 Ibid [283]. 53 Ibid [458]. 54 Ibid. 55 Coleman v Power (2004) 220 CLR 1, 49.

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necessarily involve unreined judicial discretion as continued development in the common law to find rules can provide guidance to courts. 56 Expansive scope is merely a symptom of an undeveloped test. Germany in contrast has an established rule-based test with three subprinciples that provide for reasonably consistent application across the judiciary. 57 While complete certainty in the law is not possible, principled reasoning can guarantee certainty of quality of outcome in application. 58 It follows the scope available to Australian judges in applying an undeveloped proportionality test reduces consistency, undermines principles of the rule of law and ultimately detracts from parliamentary sovereignty. 59 Conclusion The proportionality test adopted in Rowe attempts to find the appropriate balance between the protection of a constitutional right and parliamentary sovereignty. However, as applied by the majority, interpretation and the obfuscation between a right and its exercise inappropriately tips the balance. The scope of judicial discretion allowed by this undeveloped and variable test has restricted Parliament contrary to constitutional intent.

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Gabrielle Appleby, 'Proportionality and Federalism: Can Australia learn from the European Community, the US and Canada?' (2007) 26(1) University of Tasmania Law Review 1, 29-30. 57 Ibid 7. 58 Marilyn Warren, 'Unelected does not equate with undemocratic: Parliamentary sovereignty and the role of the judiciary' (2008) 13(2) Deakin Law Review 1, 13. 59 Ibid 9.

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