Part VII Rights, Ch.40 Political Participation
Edited By: Cheryl Saunders, Adrienne Stone
This chapter on ‘Political Participation’ deals with the form of political participation centrally contemplated by the Australian Constitution—electoral participation. As the High Court observed in Lange, the system of responsible and representative government under the Constitution seeks to ensure that such government is undertaken by those who enjoy the confidence of the people—and ‘(t)hat confidence is ultimately expressed or denied by the operation of the electoral process’.1
The chapter charts the evolution of constitutional law in relation to electoral participation through a focus on the power of the Commonwealth Parliament over federal elections. A starting point of its analysis is a distinction between an emphasis on the breadth of legislative power over federal elections and an emphasis on constraint. The chapter also explains how particular emphasis on the scope of legislative power over elections is informed by views taken on the relationship between the legislative power over federal elections and its impact on Australia’s democracy. In some cases, it is possible to identify a benign view of such power—that is, a perception that the exercise of such power will enhance Australia’s democracy; References(p. 980) in others, a contrary view—a sceptical view—can be found where the exercise of legislative power over federal elections is seen to threaten Australia’s democracy; and of course, there are cases where there is simply an agnostic view.
The following section sets out the provisions of the Constitution dealing with electoral participation. It goes on to explain how early High Court decisions underscored the breadth of this power, most notably by characterizing it as ‘plenary’. Of particular note are the judgments of Isaac J who held a benign view of Commonwealth legislative power over federal elections underpinned by a deep paradox: the ability of the people to shape their electoral system and how it effects democracy—through the exercise of legislative power—is itself an important incident of their democratic rights.
A detailed account of the case of McKinlay follows. In retrospect, McKinlay can be seen as a crucial turning point. While the judgments of Barwick CJ (and to a lesser extent, Gibbs, Stephen and Mason JJ) emphasized—in their different ways—the breadth of legislative power over federal elections, the judgments of McTiernan, Jacobs and Murphy JJ, began to shift the emphasis to the constraints on such power, particularly, from sections 7 and 24 of the Constitution. McKinlay further witnessed the emergence of two variants of the emphasis on constraint itself: one based on a benign view of legislative power (McTiernan and Jacobs JJ) and another based on a sceptical view which saw the exercise of such power as posing risks to Australia’s system of representative government (Murphy J).
This chapter goes on to illustrate how these three broad perspectives—the emphasis on the breadth of legislative power over federal elections, constraint based on a benign view of legislative power, constraint based on a sceptical view of legislative power—map on three aspects of the legislative power in relation to federal elections. The emphasis on breadth is strongly reflected in the body of authorities that insist upon legislative freedom in relation to the federal electoral system; the approach stressing constraint based on a benign view of legislative power is embodied in the ‘right to vote’ cases of Roach and Rowe; and the perspective of constraint based on a sceptical view of legislative power is adopted in a number of judgments of the High Court that deal with challenges to campaign finance laws based on the implied freedom of political communication.
The provisions of the Australian Constitution dealing with electoral participation are found in Chapter I, ‘The Parliament’. This chapter deals with a range of matters (p. 981) concerning federal elections, including: how members of Parliament should be elected;2 the number of representatives in each House of Parliament;3 electoral divisions;4 the duration of each Parliament;5 qualifications of electors;6 qualifications of members of Parliament7 and also disqualifying provisions;8 and disputed elections.9
There are significant requirements prescribed by Chapter I. Section 7 requires that the senator for each State be ‘directly chosen by the people of the State’, while section 24 mandates that members of the House of Representatives be ‘directly chosen by the people of the Commonwealth’. The latter provision also stipulates that the number of members of the House of Representatives be ‘as nearly as practicable, twice the number of the senators’ with ‘(t)he number of members chosen in several States … in proportion to the respective numbers of their people’.10 A different formula applies to the Senate—which was originally intended to represent the States—with equal representation for each State.11 The Constitution stipulates the maximum duration of each House of Representatives to be three years12 and the term of service for senators to be six years.13
Other requirements are clearly aimed at ensuring uniformity in relation to elections for the Senate and the House of Representatives. Qualifications of electors for both Houses are to be the same,14 and so are qualifications of members of both Houses.15 Section 44 also provides for five disqualifying circumstances that apply to members of both Houses.
Two important requirements with respect to voting can be found in Chapter I. Firstly, plural voting is prohibited, meaning that each elector in a federal election is allowed to vote only once.16 Secondly, there is section 41, which provides as follows:
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 from either House of the Parliament of the Commonwealth.
When reading the text of Chapter I, however, one is struck not by the requirements it stipulates, but by the broad power it confers on the Commonwealth Parliament to legislate in relation to federal elections. Chapter I states that the Parliament may make laws in relation to: the qualification of electors for the Senate,17 the method of election of senators,18 and the alteration of the number of members of the House of Representatives.19 In other situations, Chapter I specifies the arrangements that apply in the first instance—in most, cases, relying upon State laws—with these arrangements only applying ‘until the Parliament otherwise provides’ in most cases. (p. 982) As section 51(xxxvi) confers upon the Commonwealth Parliament the power to legislate on ‘matters in respect of which this Constitution makes provision until the Parliament otherwise provides’, this means that the Constitution additionally confers upon the Commonwealth Parliament the power to make laws relating to: electoral divisions,20 qualifications of electors,21 qualifications of members of Parliament,22 disputed elections,23 and federal elections generally.24
The breadth of the power of the Commonwealth Parliament over federal elections was recognized by the early cases of Smith v Oldham25 and Judd v McKeon26 with several judges characterizing the power of the Commonwealth Parliament over federal elections as ‘plenary’. In Smith, the High Court unanimously upheld section 181 of the Commonwealth Electoral Act, which imposed the requirement—including on newspaper proprietors—that election material be signed by their author/s giving their true name and address at the end of the publication,27 an early Australian example of what is referred to in electoral law as authorization requirements.28
In rejecting the challenge to the validity of this provision, the High Court concluded that the power of the Commonwealth Parliament over federal elections extended beyond ‘the conduct of elections in its official aspect’29 and ‘the mechanical process of election’.30 Griffith CJ stated that:
It is not disputed that that Parliament has power to make laws for the regulation of federal elections … Perhaps, ‘regulation of elections’ is an inexact term. What is really meant is regulation of the conduct of persons with regard to elections. The main object of laws for that purpose is, I suppose, to secure freedom of choice to the electors.31
Barton J similarly concluded that the Commonwealth Parliament had the power to make ‘a law dealing with the conduct of citizens as affecting elections’.32
For Isaacs J, restricting the power of the Commonwealth Parliament to the supervision of the mechanical process of the election was to ‘neglect the vital principle behind it’33—which was ‘(t)he vote of every elector is a matter of concern to the whole Commonwealth’.34 In other words, how the ‘people’ chose their representatives is of collective concern to the ‘people’ as a whole.
This ‘vital principle’ or ‘public interest’35 explains the emphasis of Isaacs J on the plenary power of the Commonwealth Parliament over federal elections—collective concerns underpinned the collective power of the ‘people’ in determining the federal electoral system through the exercise of legislative power. In his Honour’s words:
(p. 983) It is, of course, conceded the Commonwealth Parliament has plenary power over federal elections. But plenary power is incapable of restraint; and it is a mere lip loyalty to principle, if, while acknowledging the doctrine, it be assiduously sought to defeat its application. The limits of plenary power end only with the subject matter in respect of which it may be exercised.36
In Judd,37 there was an unsuccessful challenge to the constitutional validity of compulsory voting. The principal argument of the appellant was that section 128A (12) of the Commonwealth Electoral Act 1918–1925 (Cth), which stated that ‘every elector who … fails to vote at an election without a valid and sufficient reason for such failure … shall be guilty of an offence’, was not a valid exercise of the power conferred by section 9 of the Commonwealth Constitution on the ground that it did not involve ‘choosing’ under this section.38
This argument was unanimously rejected by the High Court. For Knox CJ, Gavan Duffy and Starke JJ, the challenged compulsory voting provision was compatible with ‘choosing’ under section 9 of the Commonwealth Constitution because ‘[i]n common parlance “to choose” means no more than to make a selection between different things or alternatives submitted, to take by preference out of all that are available’.39 For Isaacs J, ‘[t]he compulsory performance of a public duty is entirely consistent with freedom of action in the course of performing it’.40 In concluding that the challenged provision was valid, Rich J tersely stated ‘[t]he vote is not merely a right but a duty’.41
In reaching their conclusion, Knox CJ, Gavan Duffy and Starke JJ, echoing the judgment of Isaacs J in Smith, said that the power in section 9 of the Commonwealth Constitution is ‘plenary and unrestricted’ and subject only to the requirement of uniformity in the method of choosing for all States.42
The judgment of Isaacs J in Smith highlighted how questions concerning the electoral system collectively concerned the ‘people’, and how this ‘vital principle’ underpinned the ‘plenary’ scope of the power of the Commonwealth Parliament over federal elections.43 In Judd, Isaacs J continued on this theme by drawing a connection between the importance of the right to vote and the power of the Commonwealth Parliament over federal elections:
That the franchise may be properly regarded as a right, I do not for a moment question. It is a political right of the highest nature. The Constitution in sec. 41 speaks of the right to vote. References(p. 984) But I am equally free from doubt that Parliament, in prescribing a ‘method of choosing’ representatives, may prescribe a compulsory method. It may demand of a citizen his services as a soldier or juror or voter. The community organized, being seised of the subject matter of parliamentary elections and finding no express restrictions in the Constitution, may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be.44
This paragraph not only suggests that the broad power of the Commonwealth Parliament over federal elections is compatible with the significance of the right to vote, but also—crucially—the exercise of this power is an expression of ‘the will of the community’. As put in another part of his Honour’s judgment:
Each elector may—if that be the will of the community expressed by its Parliament—be placed under a public duty to record his opinion as to which of the available candidates shall in relative preference become the representative or representatives of the constituency in Parliament.45
Isaacs J’s dicta can be summed up in the following paradox—the power of the Commonwealth Parliament over federal elections, in particular how it effects democracy, is itself profoundly democratic given that Parliament is supposed to represent the views of the community.46 In other words, popular sovereignty extends not only to the regulation of elections but is given effect through parliamentary supremacy (plenary power).
This perspective clearly reflects a benign view of the exercise of such power. As Isaacs J put in Judd: ‘(t)he community organized … may properly do all it thinks necessary to make elections as expressive of the will of the community as they possibly can be’.47 The key notion here seems to be that legislative power over federal elections is both democratic in terms of process (the exercise of the power) and outcomes (the impact of such exercise).
This connection between legislative power and democratic process and outcomes is also apparent in Harrison Moore’s 1902 treatise, The Constitution of the Commonwealth of Australia,48 which memorably stated that:
The predominant feature of the Australian Constitution is the prevalence of the democratic principle, in its most modern guise.49
References(p. 985) This was because ‘[t]he Constitution of the Commonwealth of Australia bears every mark of confidence in the capacity of the people to undertake every function of government’.50 This, one may add, included the function of designing electoral laws with ‘[t]he system, governing the qualifications of members and electors … dictated by a desire to rest those qualifications upon the widest possible basis’.51 And should there be a threat to democratic rights, the remedy is to be found through the political process. For Harrison Moore:
The great underlying principle is that the rights of individuals are sufficiently secured by ensuring, as far as possible, to each a share, and an equal share, in political power.52
In Smith and Judd, the ‘plenary’ power of the Commonwealth Parliament over federal elections was not said to be subject to any limitations from sections 7 and 24 of the Constitution which, respectively, required the Senate and the House of Representatives to be ‘directly chosen by the people of the State(s)’ and ‘directly chosen by the people of the Commonwealth’. Indeed, neither of the judgments referred to sections 7 and 24. Decades later, in its 1972 decision of Fabre v Ley, the High Court would unanimously state that ‘the legislative power of the Parliament (to enact an electoral law for the election of Parliament) is not subject to any restriction other than that which flows from s. 41 of the Constitution’.53
A crucial turning point in the approach of the High Court to the power of the Commonwealth Parliament over federal elections is the case of McKinlay.54 The principal issue in this case,55 was whether provisions of the Commonwealth Electoral Act 1918–1975 (Cth), which dealt with the redistribution of States into electoral divisions for elections to the House of Representatives, was invalid on the basis that they failed to provide for a House that was ‘chosen by the people of the Commonwealth’ under section 24 of the Constitution. Specifically, it was said that this phrase required that each electoral division contain the same number of people, References(p. 986) or alternatively, the same number of electors, and that the challenged provisions were invalid for failing to provide for such equality.
The High Court issued six separate judgments in this case with all but Murphy J dismissing this challenge. These judgments reveal different approaches to legislative power over federal elections in their answers to two central questions:
Of all the judgments, Barwick CJ’s is the most in keeping with the emphasis in Smith and Judd on the ‘plenary’ power of the Commonwealth Parliament over federal elections. His Honour concluded that the power of the Parliament in relation to electoral divisions under section 29 of the Constitution, and in relation to the franchise under section 30, is not subject to section 24 because these provisions were not made ‘subject to the Constitution’56—section 24 was not ‘dominant’.57 Further, for Barwick CJ, the Constitution is ‘built upon confidence in a system of parliamentary Government with ministerial responsibility’58—and, importantly, the ‘confidence reposed in the Parliament’ in relation to its ‘plenary power’ under sections 29 and 30 has not been ‘misplaced’.59
The Chief Justice further rejected the argument that ‘directly chosen by the people’ in section 24 required equality in electoral divisions either in terms of people or electors. For Barwick CJ:
the expression ‘directly chosen by the people’ is merely emphatic of two factors: first, that the election of members should be direct and not indirect as, for example, through an electoral college and, secondly, that it shall be a popular election.60
His Honour added, ‘[i]t is not an indirect reference to any particular theory of government’.61 The latter statement was consistent with the opening paragraphs of his Honour’s judgment, where Barwick CJ made clear his approach to the questions at hand:
The problem … presented to the Court is a matter of the legal construction of the Constitution of Australia, itself a legal document; an Act of the Imperial Parliament. The problem is not to be solved by resort to slogans or to political catch-cries or to vague and imprecise expressions of political philosophy.62
Barwick CJ was, however, alone in concluding that section 24 did not impose any limitations on the power of the Commonwealth Parliament over federal elections; (p. 987) all the other judges explicitly or implicitly proceeded on the basis that section 24 did limit such power and that the principal issue concerned the meaning of ‘directly chosen by the people’. This represented a break from the decisions in Smith, Judd, and Fabre, all of which did not consider the ‘plenary’ power in relation to federal elections to be subject to the requirements of section 2463—none of these decisions were mentioned in McKinlay.
Apart from this key issue, the judgment of Gibbs J was similar in key respects to that of Barwick CJ. Gibbs J emphasized that ‘[o]ur duty is to declare the law as enacted in the Constitution and not to add to its provisions new doctrines which may happen to conform to our own prepossessions’.64 Rejecting the argument that ‘directly chosen by the people’ requires equality in the number of persons or electors in electoral divisions, his Honour pointedly observed, ‘[t]he section says nothing in terms as to the weight to be given to the votes of those people who cast them’65 and that ‘[i]t does not mention equality’.66
As to ‘[t]he argument that equality of numbers within electoral divisions is an essential concomitant of a democratic system, so that in any constitution framed upon democratic principles it must have been intended to guarantee that electorates would so far as practicable contain an equal number of people or of electors’, this contention, according to Gibbs J, ‘begs the question and ignores history’.67 For Gibbs J, the argument ignored how the historical development of electoral systems did not reflect such a principle of equality. It also begged the question, which is: what is it that the Constitution requires? Here, the judgment of Gibbs J emphasized the breadth of legislative power over federal elections and expressed a benign view of such power:
The Constitution does not lay down particular guidance on these matters; the framers of the Constitution trusted the Parliament to legislate with respect to them if necessary, no doubt remembering that in England, from which our system of representative government is derived, democracy did not need the support of a written constitution.68
The judgment of Mason J shared the textual approach of Barwick CJ and Gibbs J. Rejecting the plaintiffs’ attempt to interpret section 24 as providing for ‘the shibboleth “one vote, one value” ’, his Honour curtly stated, ‘(t)he submission finds no support in the language itself’.69 Mason J did, however, say in heavily qualified terms that it was ‘perhaps conceivable’ that gross disproportionality in the number of electors or people in electoral divisions may ‘raise a question’ that section 24 was breached.70
The judgment of Stephen J can also be said to express an emphasis on the breadth of legislative power, albeit with an agnostic stance as to the impact of such (p. 988) power on Australia’s democracy. Further, unlike Barwick CJ, Gibbs and Mason JJ, Stephen J was prepared to go beyond the explicit words of section 24 and ground his decision in what Barwick CJ somewhat dismissively referred to as ‘a theory of government’. In particular, Stephen J was prepared to discern in section 24 ‘[t]hree great principles, representative democracy (by which I mean that the legislators are chosen by the people), direct popular election, and the national character of the lower House’.71
For Stephen J, however, the principle of representative democracy (as his Honour defined it) was not to be understood prescriptively. His Honour adopted a polymorphous understanding of this principle: while there are key ‘ingredients’72 or ‘factors’73 relevant to this principle such as enfranchisement of electors and numerical equality of electors in electoral divisions, none of ‘these in absolute form is necessarily imported into the Constitution by the selection of representative democracy as the chosen mode of government for the nation’74—‘representative democracy is descriptive of a whole spectrum of political institutions, each differing in countless respects yet answering to that generic description’ and while ‘[t]he spectrum has finite limits’, ‘at no one point within the range of the spectrum does there exist any single requirement so essential as to be determinative of the existence of representative democracy’.75
The judgment of Stephen J reflected an emphasis on the breadth of legislative power in relation to federal elections, explicitly and implicitly. Explicitly, by rejecting the challenge on the basis that the Constitution entrusted Commonwealth and State Parliaments with ‘wide powers of shaping as they see fit the details of this nation’s electoral system’76 with the topic of electoral divisions, in particular, ‘a quite unequivocal instance of the Constitution reposing power in the legislatures to determine these matters’;77 and implicitly through his polymorphous understanding of representative democracy which led his Honour to conclude that it was ‘unreal’ to find that section 24 imposed a requirement of equality in electoral divisions.78
The judgments of Barwick CJ, Gibbs, Mason and Stephen JJ can be contrasted with the joint judgment of McTiernan and Jacobs JJ with the latter reflecting an emphasis on constraining legislative power. A key difference here stems from the evolutionary approach to ascertaining the meaning of section 24 adopted by McTiernan and Jacobs JJ. According to their Honours, ‘[t]he words “chosen by the people of the Commonwealth” fall to be applied to different circumstances at different times’ with ‘the common understanding of the time’ relevant to determining its application.79 While concluding that section 24 ‘embrace[s] the notion of equality of numbers in so far as the choice of members must be by the people (p. 989) of the Commonwealth’,80 their Honours, however, rejected the challenge on the basis that ‘there is nothing in our history and our development as a nation which would require that before a member be described as chosen by the people of the Commonwealth absolute or as nearly as practicable absolute equality of numbers of the people exist in every constituted electoral district in a State’.81
The emphasis of McTiernan and Jacobs JJ on constraint is obvious from their Honours’ focus on the requirements of section 24. Their judgments, however, show there is no necessary connection between an emphasis on constraint and a sceptical view of legislative power over federal elections and its perceived threat to the integrity of the federal electoral system. On the contrary, the emphasis placed by their Honours on constraining this legislative power is based on a benign view of such power. This is reflected in their Honours’ approach in giving content to the requirements of section 24 by reference to ‘the common understanding of the time’. Such understanding, their Honours imply, would be distilled from legislative developments in relation to the federal electoral system. So much appears from their comment concerning suffrage or the franchise which is a creature of statute:
For instance, the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be described as a choice by the people.82
So it is in the judgment of McTiernan and Jacobs JJ that legislative protection of the suffrage is transmutated into constitutional constraint.
The judgment of Murphy J, on the other hand, can be understood as one reflecting an emphasis on constraint based on a sceptical view of the exercise of legislative power over federal elections. For Murphy J, the lone dissenter, ‘[t]he main question is whether the Australian Constitution guarantees electoral democracy’.83 In adopting a broad construction of section 24, in particular, his Honour stated that ‘[g]reat rights are often expressed in simple phrases’,84 and that the meaning of section 24 was influenced by the ‘silent operation of constitutional principles’.85
In the event, Murphy J concluded that ‘directly chosen by the people’ in section 24 required the alternatives of equality of number of electors or persons (as his Honour found to be the approach of the United States Supreme Court) for four reasons. First, the positioning of the phrase and it being expressed in ‘the language of command’.86 Second, ‘[t]he democratic theme of equal sharing of political power which pervades the Constitution’, and here quoting Harrison Moore that ‘[t]he predominant feature of the Australian Constitution is the prevalence of the democratic principle, in its most modern guise’.87 Third, the phrase originating from the United States Constitution and what Murphy J saw as the ‘compelling’ construction adopted by the United States Supreme Court.88
(p. 990) The emphasis on constraining legislative power in relation to federal elections is evident from the first three reasons. The sceptical view of legislative power over federal elections, on the other hand, is found in the fourth reason which, according to Murphy J, is ‘[t]he absence of any other means of redress for those deprived of an equal share of representation, even where it is grossly unequal’.89 Here Murphy J emphatically rejected the ability of Parliament to redress electoral unfairness—‘with few exceptions, legislators who hold office because of an unbalanced electoral system will not act to change the system’.90 Murphy J went further, ‘[t]he more unbalanced it becomes, the more severe are the consequences of correction and the more reluctant are the legislators to change it’.91
So in contrast with the emphasis on breadth based on a benign view of legislative power over federal elections exemplified by Isaacs J in Smith and Judd and Barwick CJ in McKinlay, for Murphy J, there was a rupture between popular sovereignty and parliamentary supremacy when it came to electoral unfairness, justifying a significant role for constitutional safeguards enforced by the High Court.
In sum, McKinlay reveals three divergent perspectives to the power of the Commonwealth Parliament over federal elections: the various emphases on the breadth of the power (Barwick CJ, Gibbs, Stephen and Mason JJ); an emphasis on constraint based on a benign view of the power (McTiernan and Jacobs JJ); and an emphasis on constraint based on a sceptical view (Murphy J). The significance of these perspectives goes beyond McKinlay. As will be seen below, these perspectives help make sense of the Australian constitutional law on electoral participation and, indeed, may cast light on the ‘deep’ structure of this body of law.
The next section examines the body of authorities that (continue to) emphasize the breadth of the power of the Commonwealth Parliament over federal elections, albeit more in the manner of Stephen J’s judgment in McKinlay rather than that of Barwick CJ. It is followed by an examination of the ‘right to vote’ cases of Roach and Rowe, decisions which stress constraint based on a benign view of legislative power, with the judgment of McTiernan and Jacobs JJ in McKinlay serving as a cornerstone for these judgments. The analysis is completed by a third section which draws out how key strands of the High Court decisions in relation to the implied freedom of political communication and campaign finance laws reflect a perspective of constraint based on a sceptical view of legislative power in relation to federal elections, broadly in line with the judgment of Murphy J in McKinlay.
In a number of decisions, the High Court has found key aspects of the Australian electoral system to be well within the power of the Commonwealth Parliament—including: compulsory voting,92 the list system and group voting tickets,93 compulsory or full preferential voting,94 party registration laws,95 and distributions of electoral divisions.96 These decisions reflect an emphasis on the breadth of legislative power over federal elections, and this chapter deals with them in four parts: how these decisions interpreted the express requirement of choice under sections 7 and 24; their consideration of whether there is an implied requirement of equality (or a prohibition against discrimination) arising from these provisions; the decision in Mulholland which, harking back to the dicta of Isaacs J in Smith and Judd, highlights the democratic nature of the legislative power over federal elections; and the latest in this line of cases, the 2016 unanimous High Court decision in Day.97
1. Legislative Power and Choice
As discussed earlier, the High Court in Judd characterized the power of the Commonwealth Parliament in relation to federal elections as ‘plenary’, and held that compulsory voting was compatible with the requirement of choice under sections 7 and 24.98 What emerges from Judd is that these sections do not require that electors be able to choose whomever they wish, nor do these sections require electors to choose according to a method of voting that they prefer.
This is made plain in Langer v Commonwealth,99 where the High Court unanimously held that the compulsory preferential system provided to the House of (p. 992) Representatives under section 240 of the Commonwealth Electoral Act 1918 (Cth) was compatible with section 24 of the Constitution.100 As Brennan CJ stated in that case:
What the Constitution requires is that the law prescribe a method of voting which leaves the voter free to make a choice, not that the law leave the voter free to choose the method of voting by which a voter’s choice is to be made.101
Citing Isaacs J in Smith, Brennan CJ further characterized the power of the Commonwealth Parliament in relation to elections for the House of Representatives as ‘a plenary power’, and provided that Parliament were to prescribe a method of voting that allowed for ‘a free choice among the candidates for election’, such a method was within the Parliament’s legislative power.102 As section 240 allowed for ‘a discriminating choice among the candidates for election to the House of Representatives’, Brennan CJ went on to find the section compatible with section 24.103
In a joint judgment, Toohey and Gaudron JJ found section 240 of the Commonwealth Electoral Act to be compatible with section 24, ‘no matter how broadly the words “chosen by the people” are construed’.104 Dawson J reached the same conclusion, adding that ‘[t]he Constitution does not require the provision of any particular electoral system’,105 emphasizing the ‘wide powers’ conferred by sections 29 and 31 of the Constitution and the ‘wide choice of electoral systems’ which Parliament can adopt.106 McHugh J similarly held that section 240 did not breach section 24 of the Constitution ‘by requiring a voter to record a preference for a candidate that he wishes to vote against’.107 Referring to the phrase, ‘chosen by the people’, in section 24, his Honour said ‘[t]hose words were not intended to confer a personal right on each elector to vote for the candidate of his or her choice’.108 In similar terms, Gummow J stated that:
s 24 (of the Constitution) does not confer upon each elector a personal right to vote for the candidate of that elector’s choice, and, therefore, a right (or immunity) not to state a preference for a candidate whom the elector does not wish to be elected.109
Another unsuccessful challenge was made to the validity of the compulsory preferential voting system in Ditchburn,110 this time on the basis that this system was in breach of the injunction in sections 8 and 30 of the Constitution that ‘each elector shall vote only once’. Hayne J, sitting as the Court of Disputed Returns, rejected the References(p. 993) challenge, finding that ‘[t]he choice (of a voter) is expressed in a complex way but it remains a single expression of the will of that voter’.111
2. Legislative Power, Equality, and Discrimination
The question of whether section 24 of the Constitution gives rise to an implied requirement of equality of numbers in electoral divisions for the House of Representatives arose in the case of McGinty.112 This, of course, was the key issue in McKinlay, with the High Court in that case rejecting any such requirement.113 Emboldened, however, by the implied freedom of political communication decisions of Nationwide News,114 Australian Capital Television,115 Theophanous,116 and Stephens,117 a challenge was made to the electoral districting arrangements under Western Australian electoral laws, seeking that McKinlay be overruled.118 Under these arrangements, electoral districts for the Western Australian Legislative Assembly in metropolitan areas had nearly twice the number of electors as those for the rest of the State.
The majority of Brennan CJ, Dawson, McHugh and Gummow JJ, rejected the challenge based on section 24 principally on the basis that, whatever implications could be drawn from section 24 in relation to equality of numbers in electoral divisions, these implications did not apply to State electoral laws.119 Toohey and Gaudron JJ dissented on the basis that the challenged provisions of the Western Australian electoral laws offended the implications of representative democracy found in the Constitution Act 1889 (WA).120
Strictly speaking then, the High Court did not have to determine whether section 24 of the Constitution impliedly required equality of numbers in electoral divisions for the House of Representatives. All the judges except for Brennan CJ, however, devoted key parts of their judgments to this question, with Dawson, McHugh and References(p. 994) Gummow JJ rejecting any such requirement, while Toohey and Gaudron JJ accepted that the Constitution required equality of voting power in relation to the House of Representatives.
The judgments of Brennan CJ, Dawson, McHugh and Gummow JJ stressed that any constitutional implications in relation to representative government were to be derived from the text and structure of the Constitution.121 For Dawson J, this meant that the constitutional concept of representative government only provided ‘an irreducible minimum requirement that the people be “governed by representatives elected in free elections by those eligible to vote” ’122—‘(o)therwise the form of representative government which we are to have is left to Parliament, provision being made until Parliament otherwise provides’.123 According to Dawson J, the power conferred upon the Commonwealth Parliament in this context extended to laws concerning electoral divisions, and together with his Honour’s endorsement of the majority decision in McKinlay,124 Dawson J therefore rejected any constitutional requirement of equality of voting power.
Dawson J’s judgment contains important passages on the rationale for the broad power conferred upon the Commonwealth Parliament in relation to federal elections. According to Dawson J, the exercise of this power required the Commonwealth Parliament ‘to determine questions of a political nature about which opinions may vary considerably’,125 especially in light of the ‘hundreds of electoral systems in existence today by which a form of representative government might be achieved’126 with ‘[t]heir merits … judged by a number of different criteria which are likely to be incompatible with one another’.127 As such, Dawson J considered it ‘unwise to freeze into a constitutional requirement a particular aspect of an electoral system the attraction of which might vary at different times, in different conditions and to different eyes’.128
The views of McHugh J on whether there is a constitutional requirement of equality of voting power is summed up in the following statements:
Equality of voting power is not a fundamental feature of the Constitution. On the contrary, inequality of individual voting power is one of its striking features.
Under the Constitution, therefore, individual Australians do not have an equal share in the sovereignty of Australia.129
(p. 995) On the question of whether section 24 gave rise to an implied requirement of equality of voting power, Gummow J essentially followed the approach of Mason J in McKinlay.130 Like Dawson J, Gummow J also highlighted the broader rationales for conferring broad power on the Commonwealth Parliament in relation to federal elections. A key passage of Gummow J’s judgment provides as follows:
The recurrent phrase ‘until the Parliament otherwise provides’ has a deeper significance. Its effect is to accommodate the notion that representative government is a dynamic rather than a static institution and one that has developed in the course of this century. The accommodation is effected in the Constitution itself by authorizing the legislature to make appropriate provision from time to time. It is by this means that the Constitution continues to speak to the present and allows for development of the institution of government by changes which may not have been foreseen a century ago) or, if foreseen by some, were not then acceptable generally.131
Through this conferral of power, the Constitution made ‘allowance for the evolutionary nature of representative government’,132 and in this respect, ‘the architects of the Constitution “placed great faith in the capacity of the elected senators and members to design statute law for a system of representative self-government, notwithstanding that they would be legislating in their own interest” ’.133
Gummow J further added that ‘(t)o adopt as a norm of constitutional law the conclusion that a constitution embodies a principle or a doctrine of representative democracy or representative government … is to adopt a category of indeterminate reference’134 with difficulty arising ‘where the wide range for variable judgment depends upon, or at least includes as a significant element, matters primarily or significantly of political weight and estimation’.135
The judgments of Dawson, McHugh and Gummow JJ strongly reflect an emphasis on the breadth of legislative power over federal elections, with Dawson and Gummow JJ further proceeding upon a benign view of such power in the context of the polymorphous and dynamic nature of representative government.
The judgments of Toohey and Gaudron JJ, on the other hand, express a perspective of constraint based on a benign view of legislative power. Toohey J, with whom Gaudron J generally agreed,136 concluded that ‘(e)quality of voting power is an underlying general requirement in the Constitution’,137 deriving from the phrase, ‘chosen by the people’ in section 24, ‘but more fundamentally from the very structure of the system of government enshrined in the Constitution’.138 The emphasis on constraint is clear from this conclusion.
A benign view of legislative power in relation to federal elections is bound up with Toohey J’s interpretive approach—‘[t]he Constitution must be construed as (p. 996) a living force and the Court must take account of political, social and economic developments since that time’.139 Foreshadowing the approach taken in Roach and Rowe (and citing McTiernan and Jacobs JJ in McKinlay) Toohey J said:
while the essence of representative democracy remains unchanged, the method of giving expression to the concept varies over time and according to changes in society. It is the current perception which is embodied in the Australian Constitution.140
Similar to the approach taken in Roach and Rowe, Toohey J referred to contemporary legislation as giving content to the ‘current perception’ of representative democracy, with the requirement of equality of electorate size under such legislation anchoring the constitutional requirement of equality of voting power.141 Reconciling his judgment with McKinlay, Toohey J considered that McKinlay could be distinguished as ‘[m]ost members of the Court did not examine the requirements of representative democracy’.142
The High Court decisions in McKinlay and McGinty then provide little support for a constitutional requirement of equality of voter power in relation to elections for members of the House of Representatives. They can be grouped together with a series of unsuccessful challenges to the Senate group voting system, where arguments were made that this voting system breached an implied prohibition against discrimination arising from section 7 of the Constitution. In three decisions, the High Court sitting as the Court of Disputed Returns rejected these arguments. The key decision here are that of Gibbs CJ in McKenzie,143 a decision later affirmed by Dawson J in Abbotto,144 and Hayne J in McClure.145
The Senate group voting system in McKenzie provided for two ways of voting: ‘above the line’ for registered political parties and ‘below the line’ for candidates. Electors voting ‘above the line’ could do so formally by marking ‘1’; their preferences would then be governed by the group voting ticket lodged by the registered party. A formal vote of those voting ‘below the line’ required a preference to be indicated for every single candidate (as illustrated in Langer).
In McKenzie, Gibbs CJ acknowledged that candidates of political parties which are not registered may be disadvantaged in various ways, for example the (unregistered) party’s name did not appear on the ballot paper or ‘the simplified voting procedure’ of ‘above the line’ voting was not available to these candidates.146 His Honour was also prepared to assume that section 7 of the Constitution ‘requires that the Senate be elected by democratic methods’.147 However, Gibbs CJ concluded:
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.148
In Mulholland v Australian Electoral Commission,149 both the constitutional requirements as to choice and equality under sections 7 and 24 were implicated in a challenge to the federal party registration rules.150 Two rules under Part XI of the Commonwealth Electoral Act 1918 (Cth), in particular, were challenged: the ‘500 rule’ which required that a party seeking registration under the Act have at least 500 members unless it had one member who was a member of the Commonwealth Parliament; and the ‘no overlap rule’ which required that the members put forth by a party seeking registration not overlap with members of another registered party. As noted by Gummow and Hayne JJ, while ‘[t]he registration system [is] permissive rather than mandatory’, registration conferred ‘various advantages or privileges’, including: eligibility for public funding, the naming of the registered parties on the ballot, and the ability of the parties to direct preferences through the group voting tickets.151
In six separate judgments, the High Court unanimously found that these two rules did not breach the requirements in sections 7 and 24 that members of the Commonwealth Parliament ‘be directly chosen by the people’. This was principally on the basis that these rules could be justified as measures to ensure that the benefits and privileges of registration—in particular party identification on the ballot paper—accrued to parties that enjoyed a minimum degree of public support and, in so doing, aided informed voting by the electors.152
In reaching this conclusion, the judgments all emphasized the breadth of the power of the Commonwealth. Kirby J spoke of ‘the ample scope of the Parliament’s power to enact electoral laws’;153 Callinan J referred to ‘the very broad power of the Parliament’ to make laws drawing lines in electoral laws;154 and Gleeson CJ observed that:
determining the electoral process in a representative democracy requires regulation of many matters, of major and minor significance, and the Constitution gives Parliament a wide range of choice.155
A number of the judges went on to explain the broader rationales for such breadth of power, beyond what was spelt out in the text of the Constitution. According to the judges, such power was conferred to allow the evolution of representative References(p. 998) government in Australia in the context where the concept of representative government encompassed a diversity of electoral systems.156 Gleeson CJ and Kirby J emphasized, in particular, how the Constitution provided for such evolution according to the changing views of the Australian community. For Kirby J, ‘[t]he Constitution does not impose rigid limitations on the power of the Federal Parliament, in enacted electoral law, to respond to changing attitudes concerning the conduct of elections’.157 In the spirit of what Isaacs J emphasized in Smith and Judd, Gleeson CJ said that:
Leaving it to Parliament, subject to certain fundamental requirements, to alter the electoral system in response to changing community standards of democracy is a democratic solution to the problem of reconciling the need for basic values with the requirement of flexibility.158
For Kirby J, the need for (democratic) flexibility had to be seen in conjunction with the risk of ‘laws that permit temporary majorities to entrench themselves against effective democratic accountability’.159 Given ‘the abuse of legislative power for partisan advantage is potentially a special risk in the case of electoral laws’,160 Kirby J proposed a standard of ‘scrupulous care’ in relation to the provisions said to breach the express requirements in the Constitution (including those in sections 7 and 24).161 His Honour, however, considered the challenged provisions valid for most of the same reasons as the rest of Court, finding that the challenged provisions were not ‘measures protecting incumbent political parties, to which courts such as this Court must be alert in considering statutory amendments to electoral law’.162
Was there an implied prohibition against discrimination in the sense of differential treatment arising from sections 7 and 24? None of the judges expressly found so. Gleeson CJ side-stepped this question by finding the challenged rules valid due to the breadth of power conferred upon the Commonwealth Parliament and the justifications underlying the rules.163 McHugh J was prepared to accept that ‘a point could be reached where the electoral system is so discriminatory that the requirements of ss 7 and 24 are contravened’, but concluded that such a point was clearly not reached by the challenged rules.164 Gummow and Hayne JJ said that ‘the invocation by the appellant of unreasonable discrimination between candidates does not advance the argument’ given that ‘differential treatment and unequal outcomes may be the product of a legislative distinction (p. 999) which is appropriate and adapted to the attainment of a proper objective’.165 The judgment of Kirby J studiously avoids a sustained discussion of discrimination in an analysis grounded in proportionality.166 As for Callinan J, ‘the challenged provisions cannot be said to involve any unreasonable discrimination’ as ‘[t]he Constitution itself contemplates discrimination’.167 On the assumption that there was an implied prohibition against unreasonable discrimination arising from sections 7 and 24, Heydon J found that such a prohibition was not breached by the challenged rules.168
Following the 2013 federal election, there were serious concerns that the group voting tickets under the Senate voting system allowed the ‘gaming’ of the system through elaborate preference deals, concerns fuelled in particular by the election of Ricky Muir, a Victorian candidate for the Australian Motoring Enthusiast Party after having polled only 0.5 per cent of first preference votes cast in the State.169 So strong were these concerns that the foreword to the Joint Standing Committee on Electoral Matters’ report on Senate voting practices in that election began by stating that ‘[t]he 2013 federal election will long be remembered as a time when our system of Senate voting let voters down’.170
These concerns culminated in the passage of the Commonwealth Electoral Amendment Act 2016 (Cth). The Act abolished group voting tickets in line with a key recommendation of the Joint Committee on Electoral Matters171 and put in their place provisions requiring an elector to number sequentially at least six preferences (parties) ‘above the line’ on the ballot paper or to number sequentially at least twelve preferences (candidates) if s/he voted ‘below the line’ on the ballot paper. The latter provisions were challenged in Day. This challenge was dismissed by a unanimous High Court decision.
The decision of High Court was explicitly based on an emphasis on the breadth of legislative power over federal elections. Citing statements by McHugh J and Gummow References(p. 1000) and Hayne JJ in Mulholland to that effect,172 the Court said ‘[t]hose general considerations weigh against the plaintiffs’ arguments in this case’.173
The emphasis on the breadth can also be seen implicitly in the Court’s rejection of the two key arguments made by the plaintiffs. The plaintiffs argued that the challenged provisions, by allowing for two alternative ways of voting (above the line and below the line), breached section 9 of the Constitution which conferred power on the Commonwealth Parliament to make laws ‘prescribing the method of choosing senators’ (emphasis added).174 Rejecting this argument, the Court said:
‘Method’ is a constitutional term to be construed broadly allowing for more than one way of indicating choice within a single uniform system. What the plaintiffs contended for is a pointlessly formal constraint on parliamentary power to legislate in respect of Senate elections which has nothing to do with the purpose of national uniformity.175
The other key argument made by the plaintiffs involved a submission that the requirement in section 7 of the Constitution that Senators be ‘directly chosen by the people of the State’ meant that candidates for the Senate should be elected ‘without the intervention of any intermediary or third party’. It followed, according to the plaintiffs, that the challenged provisions, by allowing electors to vote ‘above the line’ for candidates by reference to their political parties, breached this requirement.176
The Court curtly dismissed these arguments: ‘A vote marked above the line is as much a vote for individual candidates as a vote below the line’.177 Of importance here is the Court’s reference to the earlier decisions in McKenzie, Abbotto, McClure, and Ditchburn178 which dismissed challenges to the Senate group voting system.179
With one exception, the text of the Constitution does not provide a promising foothold for arguing that it contains an express right to vote.180 Its various provisions signal the breadth of power conferred upon the Parliament over federal elections. More (p. 1001) than this, the Constitution clearly contemplated the disenfranchisement of many residents in Australia. Section 24, which requires that ‘[t]he numbers of members chosen in the several States shall be in proportion to the respective numbers of their people’, is followed in quick succession by section 25, which openly acknowledges racial discrimination—it provided that if the law of any State disqualified persons of any race from voting for representatives of the more numerous House of the State Parliament, such persons shall not be counted for the purpose of section 24. Section 128, which deals with alterations of the Constitution through referenda, nodded towards female disenfranchisement by providing that ‘until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails’.
The one exception is section 41 which states the following:
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 from either House of the Parliament of the Commonwealth.
In King v Jones, the High Court unanimously concluded that ‘adult person’ in section 41 meant persons who had attained twenty one years of age.181 In part, this ruling was based on the meaning of ‘adult person’ at the time of federation.182 It was also grounded in the rejection of alternative interpretations: a definition based on ‘maturity’ was deemed too vague and uncertain,183 while defining ‘adult person’ according to the State laws of majority was considered to run counter to the uniform Commonwealth franchise.184
The case of Sipka considered a more fundamental question concerning the scope of section 41: did it extend to the right to vote in elections for the more numerous House of State Parliaments as acquired from time to time? By a majority (Murphy J dissenting), the High Court held that section 41 had a much more limited effect, and that it applied only up until the time when the federal franchise was established. With such a construction, the ‘practical effect of s. 41 is spent’.185
(p. 1002) The joint judgments of Gibbs CJ, Mason and Wilson JJ and that of Brennan, Deane and Dawson JJ are strongly similar. A key starting point for both judgments was that section 41 did not itself confer a right to vote because of the use of the word ‘prevented’. According to these judgments, the right to vote or ‘constitutional franchise’186 protected by section 41 was, in fact, found in sections 8 and 30 of the Constitution, which provides that the qualification of electors for the Commonwealth Parliament shall be that as prescribed by State laws in relation to the more numerous House of the State Parliaments—but only ‘[u]ntil Parliament otherwise provides’. Once the Commonwealth Parliament provided for the federal franchise through the Commonwealth Franchise Act 1902 (Cth), there was no right to vote to be protected by section 41.187 Both joint judgments were also strongly influenced by ‘obvious considerations of policy’,188 notably by what they saw as the imperative of a uniform franchise,189 and for Gibbs CJ, Mason and Wilson JJ, the history of section 41.190
2. An Implied Right to Vote
The High Court decision in Sipka foreclosed the possibility of an express right to vote under the Constitution. But did the Constitution provide for an implied right to vote, particularly, one implied from sections 7 and 24 requiring that the Senate and the House of Representatives be ‘directly chosen by the people’?
This was, in fact, a question dealt with by the judges in McKinlay, with a majority of the judges answering ‘no’. For Barwick CJ, section 24 did not guarantee universal adult suffrage because the provisions conferring power on the Commonwealth Parliament in relation to the franchise were not subject to section 24.191 For section 24 to provide such a guarantee, according to Gibbs J, this would require ‘the people’ to be read as ‘all the people’. In his Honour’s view, this would result in ‘a manifest absurdity’ as ‘it would mean that babes in arms, lunatics and criminals were entitled to vote’.192 Furthermore, Gibbs J drew attention to sections 25, 30, 41, and 128 of the Constitution, where ‘it was recognized that people might be constitutionally denied franchise on the ground of race, sex or lack of property’.193 Mason J similarly highlighted sections 25 and 30 in concluding that ‘the Constitution does not guarantee or insist upon universal adult suffrage’.194 As discussed earlier, Stephen J adopted a polymorphous understanding of representative democracy, which References(p. 1003) implied ‘adult suffrage, free of discrimination on the grounds of race, sex, property or educational qualification’ was not ‘in absolute form … necessarily imported into the Constitution by the selection of representative democracy as the chosen mode of government for the nation’.195
The other three judges, however, drew different conclusions. For Murphy J, ‘the silent operation of constitutional principles’ meant that disenfranchisement based on sex or property qualification would contravene section 24, as members of the House of Representatives could not then be considered as being ‘chosen by the people’.196 The judgment of McTiernan and Jacobs JJ, which adopted an evolutionary approach to interpreting section 24, perhaps went the furthest. As noted earlier, this approach was based in part upon ‘the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth’.197 Elaborating on this, their Honours said that:
the long established universal adult suffrage may now be recognized as a fact and as a result it is doubtful whether, subject to the particular provision in s. 30, anything less than this could now be described as a choice by the people.198
Conflicting dicta on whether sections 7 and 24 gave rise to an implied right to vote is also found in McGinty. Brennan CJ said that ‘[i]n view of the fact that the franchise has historically expanded in scope, it is at least arguable that the qualifications of age, sex, race and property which limited the franchise in earlier times could not now be reimposed so as to deprive a citizen of the right to vote’.199 Dawson and McHugh JJ firmly rejected any such implied right. For Dawson J, ‘the qualifications of electors are to be provided for by parliament under ss 8 and 30 and may amount to less than universal suffrage, however politically unacceptable that may be today’.200 McHugh J stated that ‘[t]he Constitution … makes the federal Parliament the final arbiter on whether there should be universal suffrage, secret ballot, preferential or proportional voting or first past the post voting’.201
The other three judges, Toohey, Gaudron and Gummow JJ, however, expressly adopted the evolutionary approach found in the joint judgment of McTiernan and Jacobs JJ in McKinlay, concluding that ‘universal adult suffrage’ was now a constitutional requirement.202 As discussed earlier, this is an approach that emphasizes constraint based on a benign view of the legislative power in relation to federal elections. As will become clear in the following discussion, this is the approach that prevails in the decisions of Roach and Rowe.
In Roach v Electoral Commissioner,203 the High Court, by a majority of four to two, concluded that there is a constitutional right to vote. The case involved a challenge to the constitutionality of the prisoner disenfranchisement provisions enacted by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) (2006 amendments). Prior to this enactment taking effect, and as a result of amendments made in 2004, prisoners serving a sentence of three years or more were disqualified from voting in federal elections (2004 amendments). The 2006 amendments disqualified all prisoners serving a sentence. Gleeson CJ, Gummow, Kirby and Crennan JJ (Hayne and Heydon JJ dissenting) found the 2006 amendments to be constitutionally invalid. The entire Court, however, found the 2004 amendments to be valid.
In the first instance, the judgment of Gleeson CJ acknowledges how the Constitution ‘reflects a high level of acceptance of … the notion of sovereignty of Parliament in the scheme of government’, ‘[n]owhere … more plainly illustrated in the extent to which the Constitution left it to Parliament to prescribe the form of our system of representative democracy’.204 And one result of legislative action was ‘universal adult suffrage’.205
The Chief Justice, however, went on to hold that Parliament could not now legislate to remove universal adult suffrage. Favourably quoting the dicta of McTiernan and Jacobs JJ in McKinlay on universal adult suffrage, Gleeson CJ concluded that ‘the words of ss 7 and 24, because of changed historical circumstances, including legislative history, have come to be a constitutional protection of the right to vote’.206
This meant that ‘disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people’.207 A substantial reason, according to Gleeson CJ, required ‘some rationale for the exception’—‘the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice’.208 Gleeson CJ considered that lack of citizenship could provide a substantial reason for exclusion, whereas his Honour thought it highly doubtful that adherence to a particular religion could furnish such a reason.209
References(p. 1005) Gleeson CJ consequently found the 2006 amendments to be invalid on the ground that they were more severe than section 44(ii) of the Constitution, which disqualified those serving a sentence of imprisonment of one year or more from being members of the Commonwealth Parliament,210 and gave rise to ‘arbitrary’ consequences in the context of short-term prison sentences (those shorter than six months) given that imprisonment depended on availability and practicability of other sentencing options.211
The joint judgment of Gummow, Kirby and Crennan JJ reached broadly similar conclusions as those of Gleeson CJ, but through a different route. Like Gleeson CJ, their Honours identified the key constitutional question in relation to voter disqualification as to whether the disqualification was for a ‘substantial’ reason.212 They, however, elaborated that:
A reason will answer that description if it be reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government.213
Gummow, Kirby and Crennan JJ also did not place much emphasis on ‘changed historical circumstances’. The constitutional protection of the right to vote seems, according to their Honours, to stem from the centrality of voting in the Constitution—‘[v]oting in elections for the Parliament lies at the very heart of the system of government which the Constitution provides’.214 For reasons similar to Gleeson CJ, the joint judgment of Gummow, Kirby and Crennan JJ also ruled the 2006 amendments to be invalid,215 and the 2004 amendments, on the other hand, to be constitutionally valid.216
Hayne J (with whom Heydon J agreed)217 dissented, finding both the 2004 and 2006 amendments to be constitutionally valid. For his Honour, ‘the words “directly chosen by the people” are to be understood as an expression of generality, not as an expression of universality’,218 because of the history of sections 7 and 24219 and the provisions of the Constitution conferring power upon the Commonwealth Parliament in relation to the franchise.220 Hayne J further rejected references to ‘common understanding’ in interpreting ‘directly chosen by the people’ (as McTiernan and Jacobs JJ in McKinlay would have it) because of the ‘obvious difficulty’ of ascertaining such an understanding and, more fundamentally, because ‘[p]olitical acceptance and political acceptability’ should not determine the scope of legislative power.221
In the case of Roach, it is only the judgment of Gleeson CJ that could plausibly be said to strongly reflect a perspective that emphasizes constraint on the legislative power in relation to federal elections based on a benign view of the power. In the case of Rowe, a majority of judges adopted this perspective, and went further in terms of the intensity of the constraint, by characterizing the power of the Commonwealth Parliament in relation to elections as purposive.222
Up until Rowe, there had been little support for the notion that the power of the Commonwealth Parliament in relation to federal elections is a purposive power. An exception is the judgment of Kirby J in Mulholland, where his Honour said that ‘the constitutional powers in issue are of a purposive character, namely powers afforded for the purpose of providing for the conduct of elections to the Federal Parliament’.223 Another exception is the judgment of Dawson J in Langer v Commonwealth, where his Honour considered that the power under section 31 (and section 51(xxxvi)) relating to elections for members of the House of Representatives ‘may properly be regarded as a purposive power and it is therefore open to test the validity of a law enacted in the purported exercise of that power by asking whether the law is reasonably and appropriately adapted to the achievement of an end which lies within power’.224 These instances aside, the High Court has, until Rowe, tended to treat the legislative power in relation to federal elections as a power over subject matter. The joint judgment of Gummow and Hayne JJ in Mulholland represented this dominant view when their Honours said that:
the view of Dawson J as to the ‘purposive’ nature of the head of legislative power was not adopted by the other members of the Court in Langer and should not now be accepted.225
This view was overturned in Rowe with French CJ, Gummow and Bell JJ characterizing the power of the Commonwealth Parliament in relation to federal elections as purposive.
The legislation challenged in Rowe concerned the closing of the electoral rolls after the writs for a federal election are issued. From 1983 to 2006, a statutory grace period of seven days after the issue of the writs applied to claims for enrolment or transfer of enrolment. On 17 July 2010, a federal election was announced to be held (p. 1007) on 21 August 2010 with writs for the election issued on 19 July 2010. The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) had the effect, in relation to the 2010 federal elections, of closing the rolls to new enrolments on the day the writs were issued and closing the rolls to transfers of enrolment three days after the writs were issued. These provisions were challenged on the basis that they breached the requirements in sections 7 and 24 that members of the Commonwealth Parliament be ‘directly chosen by the people’.226 This challenge succeeded with a majority of the Court finding the challenged provisions invalid (French CJ, Gummow, Crennan and Bell JJ; Hayne, Heydon and Kiefel JJ dissenting).
All of the majority judges adopted the evolutionary approach to interpreting section 24 found in the joint judgment of McTiernan and Jacobs JJ in McKinlay. French CJ stated that:
The content of the constitutional concept of ‘chosen by the people’ has evolved since 1901 and is now informed by the universal adult-citizen franchise which is prescribed by Commonwealth law. The development of the franchise was authorised by ss 8 and 30 of the Constitution, read with s 51(xxxvi). Implicit in that authority was the possibility that the constitutional concept would acquire, as it did, a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished. In Attorney-General (Cth); Ex rel McKinlay v The Commonwealth, its evolution was linked in the judgment of McTiernan and Jacobs JJ to ‘the common understanding of the time on those who must be eligible to vote before a member can be described as chosen by the people of the Commonwealth’.227
French CJ further elaborated:
The term ‘common understanding’, as an indication of constitutional meaning in this context, is not to be equated to judicial understanding. Durable legislative development of the franchise is a more reliable touchstone. It reflects a persistent view by the elected representatives of the people of what the term ‘chosen by the people’ requires.228
The approach of French CJ strongly appears to be based on a linear (or Whiggish) understanding of representative democracy in the sense that representative democracy is seen to advance through various stages with a later stage being viewed as more developed than those preceding. This is reflected in his dicta that the constitutional concept of ‘chosen by the people’ ‘would acquire, as it did, a more democratic content than existed at Federation’ and that such content ‘being constitutional in character’ ‘cannot now be diminished’.
References(p. 1008) The judgment of French CJ further notable for its characterization of the legislative power in relation to federal elections as purposive. In a key passage, French CJ states:
Individual voting rights and the duties to enrol and vote are created by laws made under the Constitution in aid of the requirement of direct choice by the people. An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if it serves the purpose of the constitutional mandate. If the law’s adverse legal or practical effect upon the exercise of the entitlement to vote is disproportionate to its advancement of the constitutional mandate, then it may be antagonistic to that mandate. If that be so, it will be invalid.229
This meant that ‘legislators (must) attend to the mandate of “choice by the people” to which all electoral laws must respond’.230 According to French CJ, their failure to adequately do so in adopting a law which imposes a detriment disproportionate to its benefit meant that the law lacked a ‘substantial reason’ as understood by the majority in Roach—this would spell its invalidity even when ‘its provisions nevertheless results in members of Parliament being “directly chosen by the people” ’.231
Applying his approach, French CJ found the challenged provisions—‘an electoral law of a procedural or machinery character’232—to be unconstitutional: its detriment in terms of the exercise of vote was disproportionate to the benefits that were sought to be secured in terms of the integrity of the electoral process given there was no existing problem of electoral fraud and that the Australian Electoral Commission was able to deal effectively with the number of late enrolment claims.233
The joint judgment of Gummow and Bell JJ appears to take two tracks. On the one hand, Gummow and Bell JJ expressly state that ‘s 51(xxxvi) of the Constitution may be described as purposive in the sense that it is facilitative of the particular method of choice to be employed by qualified electors’.234
Other parts of their judgment, however, seem to follow what has been the prevailing approach of considering the power of the Commonwealth Parliament over federal elections, in particular the franchise, as being subject to the requirements in sections 7 and 24. Speaking on the legislative development of the franchise and methods of voting, their Honours stated that this ‘always was to be overseen by the imperative of popular choice found in ss 7 and 24 of the Constitution’.235 In another part of their judgment, their Honours adopted the portion of Gleeson CJ’s judgment where his Honour concludes that there is a ‘constitutional protection of the right to vote’ given ‘changed historical circumstances’, particularly, the ‘common understanding’.236 In addition, their Honours, in concurrence with Crennan J,237 state that ‘the term “chosen by the people” had come to signify the share of individual citizens in political power by the means of a democratic franchise’.238
(p. 1009) Moreover, and consistent with viewing sections 7 and 24 as qualifying the power of the Commonwealth Parliament in relation to federal elections rather than supplying the (constitutional) purpose for such power, Gummow and Bell JJ essentially apply Roach to the challenged provisions—‘[t]he requirements operate to achieve disqualification in the sense used in Roach’.239 For reasons similar to French CJ, their Honours found that these provisions lacked a ‘substantial reason’ and were, therefore, invalid.240 Crennan J’s judgment in this regard was broadly similar to that of Gummow and Bell JJ.241
Hayne, Heydon and Kiefel JJ, dissented on two main grounds. First, they considered that the challenged provisions did not affect the franchise and hence, it was not appropriate to apply Roach.242 Second, the challenge to the impugned provisions could only succeed if the Constitution required maximum participation of eligible voters, a premise that they rejected.243
The judgment of Murphy J in McKinlay is one which stresses constraint on the legislative power in relation to federal elections based on a sceptical view of such power. To his judgment can be added others in the decisions of the High Court dealing with challenges to campaign finance laws based on the implied freedom of political communication.244
The implied freedom is, of course, a constraint or limitation on legislative power over federal elections.245 More to the point of this chapter, it is a constraint that has been applied with explicitly sceptical views of this power when it comes to laws affecting the freedom. In the Australian Capital Television case, Mason CJ insisted on heightened scrutiny in this context:
the Court must scrutinise with scrupulous care restrictions affecting free communication in the conduct of elections for political office for it is in that area that the guarantee fulfils its primary purpose.246
Experience has demonstrated on so many occasions in the past that, although freedom of communication may have some detrimental consequences for society, the manifest benefits it brings to an open society generally outweigh the detriments. All too often attempts to restrict the freedom in the name of some imagined necessity have tended to stifle public discussion and criticism of government. The Court should be astute not to accept at face value claims by the legislature and the Executive that freedom of communication will, unless curtailed, bring about corruption and distortion of the political process.247
In McCloy v New South Wales, Gageler J elaborated upon the sceptical view expressed by Mason CJ in Australian Capital Television. For Gageler J, restrictions on political communication in the conduct of elections for public office should involve ‘close scrutiny’ with the standard of justification being one of a ‘compelling justification’.248 This was because of:
The ever-present risk within the system of representative and responsible government established by Chs I and II of the Constitution … that communication of information which is either unfavourable or uninteresting to those currently in a position to exercise legislative or executive power will, through design or oversight, be impeded by legislative or executive action to an extent which impairs the making of an informed electoral choice and therefore undermines the constitutive and constraining effect of electoral choice.249
For Gageler J:
The judicial power, insulated from the electoral process by the structural requirements of Ch III of the Constitution, is uniquely placed to protect against that systemic risk. Here, as elsewhere within our constitutional tradition, ‘the absolute independence of the judiciary is the bulwark of the constitution against encroachment whether by the legislature or by the executive’.250
Along with explicit scepticism of Mason CJ in Australian Capital Television and Gageler J in McCloy are also judgments that arguably reflect implicit scepticism of the exercise of legislative power when it comes to laws that provide for differential treatment in terms of the political communication. In a number of judgments, including those of Mason CJ in Australian Capital Television and Gageler J in McCloy,251 there appears to be a presumptive stance against the constitutionality of such laws, laws that are said to discriminate. This is so with Nettle J’s judgment in McCloy252 with his Honour requiring a ‘strong justification’ for such laws.253 It is also the case with the judgment of Keane J in Unions NSW 254 and perhaps too with References(p. 1011) the plurality in that case through their emphasis on how the invalidated provisions were ‘selective’255 and ‘targeting’256 particular groups and individuals.
By analysing the constitutional law on electoral participation through a focus on the power of the Commonwealth Parliament over federal elections, this chapter has drawn out three different perspectives towards such power: an emphasis on the breadth of such power based on a benign view of its exercise; an emphasis on constraining this power based on a benign view of its exercise; and an emphasis on constraining this power based on a sceptical view of its exercise.
These perspectives clearly differ in terms of the scope they allow for legislative power in relation to federal elections. They also obviously differ in terms of how they view the impact of such power on Australia’s democracy: the perspective emphasizing breadth based on the benign view of such power not only sees the exercise of such power as enhancing Australia’s democracy257 but also considers the use of such power in itself as an exercise in popular sovereignty;258 by contrast, the perspective emphasizing constraint based on a sceptical view of such power sees the risk of the legislature subverting the democratic process, therefore rupturing the link between popular sovereignty and parliamentary supremacy.259
Beyond these (more) obvious differences, these perspectives adopt contrasting orientations in other crucial ways. The emphasis on breadth based on a benign view is grounded in a polymorphous understanding of representative government260 whereas the emphasis on constraint based on a benign view can be traced to a more linear understanding.261 Another contrast concerns their orientation to changing community attitudes to the electoral system as expressed in legislative developments: judges emphasizing the breadth of legislative power over federal elections based on a benign view see these changes as a reason for maintaining legislative flexibility;262 while those emphasizing constraint based on a benign view have leveraged upon these changes to impose constitutional restrictions on this power.263
(p. 1012) A further contrast concerns the proper role of the judiciary in adjudicating constitutional questions concerning electoral laws. For some judges emphasizing the breadth of power based on a benign view, the political nature of these questions was a reason for restraint on the part of judiciary.264 Compare this with the position of those who emphasize constraint based on a sceptical view: the raison d’etre for judicial intervention—the risk of the legislature subverting the democratic process—means the judiciary will be necessarily deciding highly controversial political questions. And further compare these orientations with the perspective that emphasizes constraint based on a benign view where these questions seem to be treated as apolitical (a matter of common understanding) and therefore unproblematic in terms of the constitutional adjudication.
Given these profound differences, it is difficult to see how the three perspectives can be reconciled. Indeed, it is difficult to see the High Court even attempting to reconcile them as the three perspectives seem to be running on parallel tracks: the emphasis on the breadth of such power based on a benign view of its exercise mapping on the cases dealing with the electoral system generally; the emphasis on constraining this power based on a benign view of its exercise prevailing with the implied right to vote; and the emphasis on constraining this power based on a sceptical view of its exercise emerging from decisions dealing with the implied freedom and campaign finance.
The result would seem to be the fragmentation of the Australian constitutional law on electoral participation.
1 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 559 (emphasis added). Another form of political participation contemplated by the Australian Constitution is participation in the amendment of the Constitution through the mechanism provided under s 128 of Constitution of the Commonwealth of Australia. This chapter does not examine this form of participation in detail.
27 Smith (n 25).
29 Smith (n 25) 360 (Barton J).
37 Judd (n 26).
38 Another issue in Judd (n 26) was one of statutory interpretation—whether the elector who did not vote because of his membership of the Socialist Labour Party prohibited him from voting as all the candidates supported capitalism. All the judges except Higgins J found there was not a ‘valid and sufficient reason’.
39 Judd (n 26) 383. Higgins J concurred with the rest of the judges on the constitutional validity of the challenged provision: ibid 387.
44 Judd (n 26) 385.
46 For Isaacs J, the connection between the scope of power conferred upon the Commonwealth Parliament and the system of representative government under the Commonwealth Constitution went beyond the field of federal elections. In Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 178, his Honour stated that ‘the Constitution is for the advancement of representative government’ after highlighting the ‘necessary constitutional means by which Parliament may in its discretion meet, and is at present accustomed to meet, the requirements of a progressive people’.
47 Judd (n 26) 385.
49 ibid 327.
50 ibid 328.
52 ibid 329.
55 A successful challenge was made to ss 3, 4, and 12 of the Representation Act 1905–1975 (Cth) on the basis they breached the requirement in s 24 of the Constitution that number of members of the House of Representatives ‘shall be in proportion to the respective numbers of their people’.
56 McKinlay (n 54) 18–19.
64 McKinlay (n 54) 44–45.
92 Judd (n 26). A recent challenge to compulsory voting was unsuccessful before the South Australian Supreme Court: Holmdahl v Australian Electoral Commission (No 2)  SASFC 110. Special leave was refused on appeal to the High Court: Holmdahl v Australian Electoral Commission  HCATrans 072. See also Faderson v Bridger (1971) 126 CLR 271.
93 McKenzie v Commonwealth  HCA 75, (1984) 59 ALJR 190, 57 ALR 747; Abbotto v Australian Electoral Commission (1997) 144 ALR 352; McClure v Australian Electoral Commission  HCA 31, (1999) 163 ALR 734; Ditchburn v Australian Electoral Officer (Qld)  HCA 40, (1999) 165 ALR 147 (22 July 1999).
94 Langer v Commonwealth (1995–96) 186 CLR 302; Ditchburn (n 93).
96 McKinlay (n 54); McGinty v Western Australia (1995–96) 186 CLR 140.
98 See discussion in text accompanying (n 26).
99 Langer (n 94). The decision in Langer was applied in Muldowney v South Australia (1996) 186 CLR 352.
100 Another aspect of Langer concerned whether the implied freedom of political communication was breached by s 329A of the Commonwealth Electoral Act 1918 (Cth) which prohibited publishing material with the intention of encouraging persons to vote other than in accordance with section 240 said to breach this freedom. By a majority (Dawson J dissenting), s 329A was found to be valid. This aspect of Langer is discussed in Chapter 39 ‘Expression’.
101 Langer (n 94) 316.
110 Ditchburn (n 93).
112 McGinty (n 96). For discussion of McGinty, see George Williams, ‘Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform’ (1995–96) 20 Melbourne University Law Review 848; Greg Carne, ‘Representing Democracy or Reinforcing Inequality: Electoral Distribution and McGinty v Western Australia’ (1997) 25 Federal Law Review 351. See also Peter Creighton, ‘Apportioning Electoral Districts in a Representative Democracy’ (1994) 24 University of Western Australia Law Review 78 which provides an analysis of the McGinty proceedings.
118 McGinty (n 96) 143.
121 ibid 168 (Brennan CJ), 182–83 (Dawson J), 231 (McHugh J), 284–85 (Gummow J). The emphasis prevailed in the unanimous High Court decision in Lange where it was said that ‘(s)ince McGinty it has been clear, if it was not clear before, that the Constitution gives effect to the institution of “representative government” only to the extent that the text and structure of the Constitution establish it’: Lange (n 1) 566–67.
122 McGinty (n 96) 182.
134 McGinty (n 96) 269.
143 McKenzie (n 93).
144 Abbotto (n 93).
145 McClure (n 93).
146 McKenzie (n 93) .
151 Mulholland (n 149) 230.
160 Mulholland (n 149) 261–62.
169 See generally Antony Green, ‘Is it Time for a Fundamental Review of the Senate’s Electoral System?’ Papers on Parliament No 62, October 2014; Michael Maley, ‘Senate Electoral Reform’ on AUSPUBLAW (29 September 2015) <https://auspublaw.org/2015/09/senate-electoral-reform/> accessed 26 September 2017.
180 On the right to vote more generally, see Adrian Brooks, ‘A Paragon of Democratic Virtues? The Development of the Commonwealth Franchise’ (1993) 12 University of Tasmania Law Review 208; Jennifer Norberry, ‘The Evolution of the Commonwealth Franchise—Tales of Inclusion and Exclusion’ in Graeme Orr, Brian Mercurio, and George Williams (eds), Realising Democracy: Electoral Law in Australia (Federation Press 2003); Bryan Mercurio and George Williams, ‘The Australian Diaspora and the Right to Vote’ (2004–05) 32 University of Western Australia Law Review 1; Graeme Orr, The Law of Politics: Elections, Parties and Money in Australia (2010) ch 3.
185 R v Pearson; Ex parte Sipka (1983) 152 CLR 254, 280 (Brennan, Deane and Dawson JJ). For critiques of Sipka, see Anne Twomey, ‘The Federal Constitutional Right to Vote in Australia’ (2000) 28(1) Federal Law Review 125; Jonathan Crowe and Peta Stephenson, ‘An Express Constitutional Right to Vote? The Case for Reviving Section 41?’ (2014) 26(2) Sydney Law Review 205.
186 Sipka (n 185) 278 (Brennan, Deane and Dawson JJ).
191 McKinlay (n 54) 18.
199 McGinty (n 96) 166–67.
203 (2007) 233 CLR 162. For discussion of Roach, see Anthony Gray, ‘The Guaranteed Right to Vote in Australia’ (2007) 7(2) Queensland University of Technology Law and Justice Journal 178; Cornelia Koch and Lisa Hill, ‘The Ballot Behind Bars after Roach: Why Disenfranchise Prisoners?’ (2008) 33 Alternative Law Journal 220; Graeme Orr and George Williams, ‘The People’s Choice: The Prisoner Franchise and the Constitutional Protection of Voting Rights in Australia’ (2009) 8 Election Law Journal: Rules, Politics and Policy 123.
204 Roach (n 203) 173.
222 For discussion of Rowe, see Ruth Greenwood, ‘A Progressive Court and a balancing test: Rowe v Electoral Commissioner’ (2010) 14 University of Western Sydney Law Review 119; Graeme Orr, ‘The Voting Rights Ratchet’ (2011) 22 Public Law Review 83; Anne Twomey, ‘Rowe v Electoral Commissioner—Evolution or Creationism?’  University of Queensland Law Journal 181; James Allan, ‘The Three ‘R’s of Recent Australian Judicial Activism: Roach, Rowe and (no) “Riginalism” ’ (2012) 36 Melbourne University Law Review 743.
223 Mulholland (n 149) 267.
224 Langer (n 94) 325.
225 Mulholland (n 149) 238–39.
244 A full treatment of these cases is found in Chapter 39 ‘Expression’. This section focuses on how some of the judgments in these cases reflect an emphasis on constraining legislative power in relation to federal elections based on a sceptical view of this power. On campaign finance laws more generally, see Joo-Cheong Tham, Money and Politics: The Democracy We Can’t Afford (University of New South Wales Press 2010); Orr, The Law of Politics (n 28) ch 11.
245 Lange (n 1) 560
246 Australian Capital Television (n 115) 144.
257 See text accompanying (n 59).
264 See text accompanying (n 125).