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Is there a right to vote enshrined in the Commonwealth Constitution? Critically discuss.

(2000 words)

Introduction An ideal democracy ensures that all members of a community have equal access to the political process. Australia relies on popular vote to elect governments. However, despite the fact that most Australians over 18 years reserve the right and obligation to vote, the right to vote is constrained. While Sections 7 and 24 of the Australian Constitution state that the members of the Senate and the House of Representatives shall be 'directly chosen by the

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people' in fact the right to vote can be denied to certain sections of the population.1 For instance, a prisoner serving a sentence of more than three years does not have the right to vote.2 Section 41 (s 41) of the Constitution seems vague in defining the right to vote No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.3 This essay will discuss whether there is a right to vote enshrined in the Commonwealth Constitution. Express right to vote The Constitution does not contain an express guarantee of universal suffrage,4 even though it expressly guarantees through s 41 that persons who have or acquire a right to vote in state elections shall not be prevented from voting at federal elections. Historically, this section was meant to protect the rights of Asian and African immigrants, Aborigines, people between the ages of 18 and 21, people who had not been enrolled on the Commonwealth electoral roll before the rolls were closed for an election.5 The inclusion of s 41 was to protect the existing colonial franchises at the time of federation.6 Section 41 of the Commonwealth Constitution

Jennifer Norberry, Law and Bills Digest Group and George Williams (Consultant) Voters and the Franchise: the Federal Story ( Research Paper no.17 2001-02), Vision in Hindsight Department of the Parliamentary Library (DPL), 2002.

The right to vote is not enjoyed equally by all Australians (February 2010) Australian Human rights Commission < http://www.humanrights.gov.au/human_rights/vote/index.html>

3 Commonwealth of Australia Constitution Act.

4Jerome Davidson Law and Bills Digests Section Information Inside outcasts: Prisoners and the right to vote
in Australia(Current Issues Brief No. 12 200304), Analysis and advice for the Parliament, Information and research Services Parliamentary Library, 2004.

5 Anne Twomey, 'The Federal Constitutional Right to Vote in Australia ' (2000) 28 Federal Law Review 45, 52, 53.

Gray, Anthony, The guaranteed right to vote in Australia [2007] 12 Queensland University of Technology Law and Justice Journal 178.

was also designed to guarantee the vote in Commonwealth elections to people who already had voting rights in their states, for example, to protect the voting rights of South Australian women who had enjoyed the vote in their colony from 1895.7 However, because of the wording of s 41, the question of whether an express right to vote is enshrined in the Commonwealth Constitution is unclear. Early interpretations of s 41. In 1902, s 41 was construed by the Commonwealth Solicitor- General, Sir Robert Garran, to mean that Indigenous people turning 21 and eligible to vote in a State election after federation were not entitled to enrol to vote federally.8 In 1923, Justice Higgins of the High Court of Australia rejected this narrow approach and gave a more liberal interpretation to s 41 of the Constitution. Despite this, the High Court found that a Mr. Jiro Muramats, who was born in Japan, came to Australia in 1893, naturalised in Victoria in 1899 and resided in Western Australia since 1900, was not entitled to vote. He was statutorily prohibited from voting in Western Australia as he was born in Japan and so was regarded as an aboriginal native of Asia or the islands of the Pacific.9 Similarly, in 1924, Indian-born British subject, Mita Bullosh, who was enrolled to vote in Victoria, was refused enrolment by the Commonwealth electoral office. This decision was later reversed by a Victorian magistrate upholding Bullosh's eligibility to vote in Commonwealth elections.10 Nonetheless, 7 History of Indigenous vote (August 2006) Australian Electoral Commission <http://www.aec.gov.au/Voting/indigenous_vote/history.htm>

8 Hon Justice Margaret McMurdo President, Court of Appeal, Supreme Court of Queensland A Judges
attempt to educate the educators and grandma to suck eggs (The Educational Leadership Breakfast Series cohosted by the Professional Development Network (PDN) and the Griffith University Centre for Leadership and Management in Education (CLME), Brisbane Polo Club, Wednesday 23 November 2005) 4.

9 Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500.

10Norberry and Williams, above n1. Law 315 Constitutional Law And Administration 1 Essay Assignment 1 31 5

Aborigines and others from Asian and Pacific countries continued to be denied the right to vote in Commonwealth elections, even when they were enrolled to vote in State elections.11 The interpretation of s 41 in King v Jones12 In 1972, King v Jones13 was decided in the High Court of Australia which concerned s41, and whether it provided a person who had the right to vote in elections in South Australia the right to vote in elections at a federal level. The South Australian Parliament, under the Constitution Act Amendment Act (No. 2) 1970 (SA), reduced the voting age for State elections from 21 to 18 years. The court decided in this case that the words adult person in s 41 only applied to persons who had attained the age of 21. Another crucial issue arising from King v Jones14 was whether s 41 was a guarantee or a transitional provision. Menzies J interpreted s 41 as a permanent constitutional provision, not to make temporary arrangements for the period between the establishment of the Constitution and the making of Commonwealth laws.15The constitutional use of the word adult was held to be fixed with the meaning it had in 1901.16 The Interpretation of s 41in R v Pearson; Ex parte Sipka17 11 Twomey, above n5, 134.

12King v Jones (1972) 128 CLR 221.

13 Ibid.

14 King v Jones (1972) 128 CLR 221.

15 Ibid.

16 Tony Blackshield and George Williams, Australian Constitutional Law and Theory Commentary and Materials (Federation Press, 5th ed, 2010) 375 17 R v Pearson; Ex parte Sipka (1983) 152 CLR 254.

R v Pearson; Ex parte Sipka18 decided in the High Court of Australia involved s41 and the question of whether persons eligible to vote in New South Wales could be prevented from voting at the federal level by section 45(a) of the Commonwealth Electoral Act 1918 which closed registration to vote on the day that the writs of election were issued. Gibbs CJ, Mason and Wilson JJ interpreted the guarantee in s 41 as a transitional one. According to them, that guarantee ceased to exist after 12 June 1902, the date on which the Commonwealth Franchise Act 1902 came into force.19 On the other hand, Brennan, Deane and Dawson noted that the practical effect of section 41 was spent. Most of the electors who acquired a right to vote at federal elections under sections 30 and 8 of the Constitution would have died. Since 12 June 1902, when the Commonwealth Franchise Act came into force, no person has acquired a right to vote the exercise of which is protected by section 41.20 Murphy J dissented, explaining that as one of the few constitutional rights, s 41 should be broadly interpreted and given a plain meaning thereby interpreting that not preventing voting sensibly meant an entitlement to vote. In general, the court decided to adopt a narrow interpretation of s 41, that there is no express constitutional right to vote in Australia. In 1988, the Constitutional Commission described section 41 as a 'dead letter' and recommended that it be removed from the Constitution.21 Implied right to vote Despite the High Courts interpretation that s 41 does not bestow express right to vote, it is argued that by usage of the words directly chosen by the people sections 7 and 24 signify an implied right to vote. 18 Ibid 19 Ibid

20

Norberry and Williams, above n1.

21 Constitutional Commission, Final Report of the Constitutional Commission (1988) 144.

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s 7 : The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate22 s 24 which affirms: The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth ...23 The High Court accepted in Australian Capital Television Pty Ltd v The Commonwealth24 that representative government requires freedom of communication on matters relevant to public affairs and political discussion, thus such freedom was implied in the Constitution.25 The act of voting can be seen as the ultimate mode of political communication, and hence it is debatable that a right to vote falls within the Constitutional implication as discussed in ACT v The Commonwealth26. Therefore, it can be inferred that from the phrase chosen by the people , that the right to vote can be directly implied from the constitutional requirement for representative government. Attorney-General (Cth); Ex rel McKinlay v The Commonwealth27 22 Commonwealth of Australia Constitution Act.

23 Ibid.

24 Australian Capital Television v Commonwealth (1992) 177 CLR 106. 25 Australian Capital Television Pty Ltd v. The Commonwealth (1992) 177 CLR 106, per Mason CJ at 140; Brennan J. pp. 14950

26 Ibid

27 Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.

In Attorney-General (Cth); Ex rel McKinlay v The Commonwealth28, the High Court considered the question of whether the Constitution required adherence to the principle of one vote, one value. Gibbs J noted that people might constitutionally be denied the franchise on the ground of race, sex or lack of property29. Mason J pointed that the Constitution does not guarantee or insist upon universal adult suffrage, noting that sections 2530 and 3031 contemplate groups of people being denied the right to vote. McTiernan and Jacobs JJ, however, took the differing view that the words chosen by the people must be applied in the context of the particular facts and circumstances of the time. Their judgements concluded that the commonwealth government had the power to limit and restrict franchise based on factors such as race, gender, ethnicity while still being within its constitutional bounds.32 McKinlay33 demonstrates the right to vote enshrined as an implied right in the constitution.

Roach v Electoral Commissioner34 28 Ibid.

29 Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.

30 Provisions as for races disqualified from voting.

31 Qualification of electors.

32 Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.

33 Ibid

34 Roach v Electoral Commissioner (2007) HCA 43. Law 315 Constitutional Law And Administration 1 Essay Assignment 1 31 5

In Roach35 the High Court confirmed that there is no express right to vote in the Commonwealth Constitution and that sections 736 and 2437 limit the Commonwealth Parliaments legislative powers to regulate the franchise in ways that are not consistent with a direct choice by the people. The 2006 Commonwealth Amendment Act inserted s 93(8AA) into the Commonwealth Electoral Act 1918 (Cth) which provided that a person could not vote at a House of Representatives or Senate election if they were serving a prison sentence. Section 93(8AA) was held to be constitutionally invalid by the majority of the High Court. The majority (Gleeson CJ, Gummow J, Kirby J, Crennan J) were influenced by the fact that the 2006 disenfranchisement applied to all prisoners, and not just those found guilty of a serious crime. Gleeson CJ found that although universal suffrage was not protected by sections 7 and 24, they did provide a protection for franchise apart from where there would be a substantial reason to remove franchise from a group. Gleeson CJ also noted that the founding fathers of the constitution empowered the Parliament to prescribe the form of the Australian system of representative democracy, further adding that Australia came to have universal adult suffrage as a result of legislative action38

35 Ibid

36 The Senate

37 Constitution of the House of Representatives.

38

Anthony, above n6.

Rowe v Electoral Commissioner39 In Rowe40 legislation reduced the time period during which a person could enrol after a federal election was called. Rowe41 challenged the accepted position that the Commonwealth Parliament could choose what laws they made, thereby regulating the mechanics of federal elections. Majority (French CJ, Gummow J, Bell J, Crennan J) of the High Court decided that these early roll closure provisions (2006 amendment Act) were invalid because they contravened sections 7 and 24 of the Commonwealth Constitution. This was because sections 7 and 24 requires that elected representatives be directly chosen by the people, which requires that the electoral system align with the principles of representative government.

Conclusion There is no definite express constitutional right to vote enshrined in the Commonwealth Constitution of Australia, although as demonstrated by McKinlay42, Roach43 and Rowe,44 there is an implied right to vote, which is binding upon the federal legislature. Therefore, the right to vote in Australia is a debatable issue as the framers of the Australian Constitution have empowered the Parliament on the technicalities and legalities of the right

39 Rowe v Electoral Commissioner [2010] HCA 46.

40 Ibid.

41 Rowe v Electoral Commissioner [2010] HCA 46. 42 Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1.

43 Roach v Electoral Commissioner (2007) HCA 43.

44 Rowe v Electoral Commissioner [2010] HCA 46. Law 315 Constitutional Law And Administration 1 Essay Assignment 1 31 5

to vote. Legislature mostly determines franchise within Australia and although it provides a right to vote it does not guarantee the right to vote. The High Court has been rather inconsistent with their interpretation of s 41 of the Commonwealth Constitution in deciding the right to vote. Nonetheless, this interpretation is open and ongoing to protect the right of Australians to vote in federal elections.

Law 315 Constitutional Law And Administration 1 Essay Assignment 1 31 5