Voting And Election To The Federal Parliament - Public Law

Voting and election to the Federal parliament

Page 423-427

Voting and Elections:

• Sections 7 and 24 of the Constitution require that the House of Representatives and senate be “Directly chosen by the People”.

• The High Court has drawn from these words that Australia has freedom of political communication.

• In R v Pearson; Ex Parte Sipka (1983)...section 41 does not give an ‘express’ right to vote. But section 7 and 24 can support an ‘implied’ right to vote.

• In McGinty v WA (1996), Toohey J reasoned that by today’s standards it would be undemocratic to deny universal franchise.

• Gaudron J reasoned that to deny women or a racial minority or require a property or educational qualification would not occur today.

Commonwealth Electoral Act 1918 (Cth)

• Section 93. There is no express right to vote in the Constitution but there is this Act which states that a person must be over 18, an Australian citizen, not holding a temporary visa under the Migration Act 1958, sound in mind, not serving a sentence longer than three years against the Commonwealth.

• Section 94 and 94A exclude Australians who are living overseas and who do not intend to return for six years from voting and in 1962 it was amended so Aboriginals were not excluded from voting.

• Section 245(1). Since 1924, voting has been compulsory. “It is the duty of every elector to vote at each election”. There is a $20 penalty or $50 in court for failing to vote.

• Judd v Mckeon (1926)...Only Higgins J argued that there is “valid and sufficient reason” to make a conscientious objection if a socialist refuses to vote for all capitalist candidates.

• Adelaide Company of Jehovah’s witnesses’ Inc v Commonwealth (1943) said that section 116 of the Constitution protects the right of religion but also the right to have no religion. Section 7 and 24 give the right to vote. But parliament cannot force electors to vote. The Act is therefore constitutionally flawed. But even though you have to attend the polling booth, you don’t have to mark the ballot paper.

Page 425

Langer v Commonwealth (1996) – Langer tried to argue that freedoms of section 24 of the constitution had been infringed by the voting mechanism prescribed in the Commonwealth Act 1918.

Facts:

• Section 240 of the Commonwealth Electoral Act 1918 said that in a House of Representative election a person shall mark their vote by numbering every square “1,2,3,4..” until an exhaustive order of preferences is stated.

  • Section 268 says that any paper that fails to do this is informal.

  • Under section 329A it is an offence to “print, publish or distribute” anything encouraging people to fill out their paper differently to section 240. A maximum of six months prison can be given as a sentence.

• In the 1993 Federal election, Langer urged voters to vote “1,2,3,3” with major parties voted last. This was an informal vote.

Remedy sought:

• Langer argued that section 329A was invalid and that the Commonwealth advertisements were misleading and would have an unfair effect on voters.

• He wanted the ads stopped and section 329A to be found invalid.

• He did not want Gummow or Brennan to hear the case because they were appointed by the 1993 government.

Proceedings:

• A full Court of the High Court is judging the proceedings. Brennan, Toohey, Gaudron and Dawson.

Arguments:

• Langer argued that section 329 infringed on Constitutional freedom of political communication (section 24 of the Constitution).

• That is the section that said that representatives must be “directly chosen by the people”. Therefore people should be free not to number every square. As a result the 1993 Parliament was invalid.

Outcome:

• Found 5:1 with Dawson dissenting that section 329A was valid. This is because it protected the voting method validly prescribed in section 240.

• Langer lost and was prevented from printing against section 240.

• He did not listen and later got ten weeks prison for contempt of court. But 46,000 people voted in his method. The sentence was later reduced to three weeks.

Legal reasoning:

• Brennan reasoned that under section 240, the prescribed method of voting permits a free choice for candidates for election and does not limit free choice through this method. Section 240 sets out a procedure to vote but does not limit people’s voting choices. It is a way to allow people to better express their opinion and to minimise the number of ballot papers excluded. Section 329A is just a method to protect section 240 and make sure it works properly. It is valid because it aids the goals of section 240.

• Toohey and Gaudron JJ reasoned that section 24 of the Constitution is a freedom to strike down laws which curtail freedom of communication. Yet these sections are used to further the democratic process and so do not go against this freedom.

• Dawson J dissented. He reasoned that the Constitution does not require the provision of any electoral system. The voter needs to make an informed choice and have access to other alternatives to make that choice. Section 329A stops voters from alternative ways of casting their formal vote and prevents knowledge. This is not an appropriate law.

Ratio decidendi:

• Section 329A is legitimate. It stops people distributing any information which is contrary to section 240 under the Commonwealth Electoral Act 1918. This is only to support the goals of section 240.

• Section 329A does not go against section 24 of the Constitution.

• Section 240 was later amended to include the words “consecutive numbers, without the repetition of any number”

Page 1192-1196:

Right to vote:

• There are not many express rights or freedoms in the Australian Constitution and they are constrictively worded.

• Section 41 of the Constitution might be viewed as guaranteeing the right to vote of anyone entitled to vote. However it was argued that it was a transitional provision to preserve the voting rights of women who had the vote in the states. But when the Commonwealth Franchise Act 1902 was enacted, section 41 had no continuing power for people enrolled after 1902 like the Aboriginals.

• Section 41:

“No adult person who has or acquires a right to vote at election for the more numerous House of the parliament of a state shall, while the voting right continues, be prevented by any law of the Commonwealth from voting at elections for either the House of Parliament or Commonwealth.”

• In 1988 a referendum proposed to delete section 41 and substitute a new provision which guaranteed the right to vote but less ambiguously. It was defeated in every state.

• Section 7 and 24 of the Constitution impliedly protects people’s freedom of political communication. This may be an implied right to vote.

Page 1192

King v Jones (1972) – King challenges section 41, arguing that 18 year olds in South Australia should be able to vote federally because they have the state vote.

Facts:

• King wanted the voting age to be lowered to 18 over the country because she had the right to vote at the age of 18 in SA under the Age of Majority (Reduction) Act 1970 (SA).

• Under section 41 of the Constitution, she argued that she was allowed to vote in Federal elections.

Remedy sought:

• King want the voting age lowered federally.

• The McMahon government was resisting change.

Proceedings:

• Held in the High Court.

Legal Issue:

• Is the word “adult” in section 41 of the Constitution open to a shift in meaning to mean 18?

Outcome:

• King lost.

• “Adult” in section 41 means the same age as it did in 1901.

• (The Whitlam government made it 18 in 1973 anyway)

Legal reasoning:

• Stephen J reasoned that section 41 is a Constitutional guarantee ensuring those who have voting rights are not excluded. The definition cannot be changed because it is fixed.

• Quick and Garran JJ reasoned that King was 70 years too late to get the right to vote at elections.

• Menzies J reasoned that section 41 is a permanent Constitutional provision. It is not a temporary arrangement and will remain.

• None of the judges looked at whether it was a transitional clause.

Ratio decidendi:

• Section 41 of the Constitution means 21 when it says “adult” and not 18. It is a protected right and was intended to be permanent.

Page 1194

R v Pearson: Ex Parte Sipka (1983) – Another case but in NSW trying to get the Commonwealth Franchise Act changed so 18 year olds could vote. They also used section 41 of the Constitution as a voting right.

Facts:

• The Governor General allowed Malcolm Fraser (PM) to have a double dissolution of both houses under section 57 of the Constitution.

• 4 people under 21 that were allowed to vote in NSW elections wanted to vote in this federal election.

• They were exclude by section 45 of the Commonwealth Franchise Act. They said that their rights under section 41 were being infringed.

Remedy sought:

• The four people want to vote in the 1983 election at a Federal level.

Legal issue:

• Does section 41 of the Constitution infer a right to vote Federally if the state allows 18 year olds to vote.

Outcome:

• Defendants lost.

Legal reasoning:

• Brennan, Deane and Dawson JJ reasoned that section 41 was a transitional provision. Under section 8 and 30 of the Constitution, the Parliament has the right to decide who can vote. They use the words “until the Parliament otherwise provides”. If section 41 was not transitional, then the Parliament would not have power under these other sections. Section 41 was a limit on Parliament at Federation but now it is spent. States cannot give anyone the power to vote, whom the Commonwealth has excluded.

• Murphy J reasoned that section 41 is one of the few rights in the Constitution and so should be read...