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Right to Vote

Discussion in 'The Pub' started by toadcat, Aug 28, 2013.

  1. #1 toadcat, Aug 28, 2013
    Last edited: Aug 28, 2013
    S 41 doesn't really operate expressly to guarantee a right to vote - well, at least no longer. In my view, it instead operates from s 24.

    I'll just copy paste from an assignment I had to do on this particular area. It's quite long but I found it very interesting while researching the topic to discover how unprotected the right to vote actually is under our constitution. Furthermore, there remain a number of sections (ss 25, 30, 41 and 128) which allow the right to vote to be restricted on grounds of sex, age, property, residence and race: Attorney-General (Cth) Ex ReI McKinlay v Commonwealth (1975) 135 CLR 1.

    S 41 of the Australian Constitution provides:
    No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

    This section which prima facie may provide a right to vote has been interpreted throughout the century by the High Court. Over time, s 41 has moved from a prospective and broad interpretation, to the narrow and restrictive one taken today, leaving Australia in a disparate position relative to many other democratic nations, leaving our right to vote possibly vulnerable to attack by a future malevolent Parliament exercising their Constitutional power.

    The first case to interpret s 41 was Muramats . In this case, Higgins J appeared to have taken the view that s 41 is prospective in nature and remains as a continuing safeguard for voting rights, however the rest of the Court, in dismissing the appeal very shortly did not discuss s 41. This broad interpretation of s 41 was limited in its authority in that it was only discussed by a single justice whose dicta seemed to contradict the majority of academic legal opinion at the time and indeed later opinion as well.

    The prospective application propounded in Muramats by Higgins J was adopted in King v Jones. Here the majority of Judges were in favour of a prospective reading of s41. Barwick CJ expressed that s 41 was a “permanent provision of the Constitution intended... to find its principal operation when the Parliament had made a law determining the Commonwealth franchise”. Menzies J closely followed Barwick’s reasoning and was of the opinion that “The character of s. 41 is that of a permanent constitutional provision. It is not a provision to make temporary arrangements for the period between the establishment of the Constitution and the making of Commonwealth laws. It applies to a person, who, in 1901, had or who, in the future, acquires particular voting rights by the laws of a State”. Gibbs J expressly rejected the ‘dead letter’ interpretation of s 41, holding it protected rights ‘acquired’ after Federation and Parliament began to legislate for the franchise. Gibbs J acknowledged the previous academic opinion while dismissing them, describing Quick and Garran’s interpretation was “far from clearly correct” despite failing to give an in-depth analysis of why that is so.

    The High Court’s decision in R v Pearson; Ex parte Sipka showed great contrast to previous decisions. The High Court[16] took a ‘dead letter’[17] interpretation of s 41 with the exclusion of Murphy J. In the Court’s opinion, s 41 would have only applied to those who had a State right to vote at the time of the passing of the Franchise Act. Brennan, Deane, Dawson JJ held that the purpose of s 41 is to ensure that rights granted under s 8 and s 30 would not be extinguished following the Commonwealth Franchise Act 1902 (Cth). The High Court then followed this interpretation of s 41 in Snowden v Dondas with the Court applying a narrow view of s 41: “In any event, the practical effect of s. 41 is now spent.” Further, the 1988 Constitutional Commission took a similarly narrow view of s 41 and declared “s 41 is spent.

    The case of Sipka marks a dramatic change in the Court’s view of s 41 as a bulwark for voting rights to an outdated and inoperative provision. Sipka overruled the previous fifty years of law established in Muramats, Bullosh and later in King v Jones. In this respect, the decision in Sipka could be said to be a quite revolutionary approach to s 41’s interpretation. However, there have been academic murmurs which have supported the minority’s approach to s 41, suggesting that the interpretation of s 41 is not yet at a finality. Nevertheless, given the strength of the authority for the narrow view is seems unlikely a broader view of s 41 will be adopted in the future. This is further cemented following Roach where both Hayne and Heydon JJ disclaimed the relevance of international materials in interpreting the Constitution which will severely restrict any attempt to use other nation’s Constitutions or even treaties Australia is a signatory to influence the interpretation of s 41 to include a right to vote. As a result, it seems the Constitution’s narrow interpretation given to s 41 by the High Court has made it an unsuccessful provision for protecting our franchise[34].

    [Footnotes omitted due to character count].

    It would seem that instead of s41 giving an express guarantee on the right to vote, it comes from s24's interpretation by the HCA:

    The High Court has interpreted s 24 which requires that Parliament be “directly chosen by the people” as implying a right to vote although there is no express provision for this in the Constitution. This seems to be a necessary implication of our representative government derived from the Constitution.

    The High Court first considered s 24 in McKinlay v Commonwealth where the majority held that there was an implied right to vote, however this right was somewhat limited in that it did not provide equality of both voting rights and values. Barwick CJ, Gibbs and Mason JJ took a restrictive view, holding that when s 24 was read in light of ss 25, 30, 41 and 128 the Commonwealth franchise could be restricted on grounds of sex, age, property, residence and race and still be “constitutionally acceptable”. McTiernan and Jacobs JJ took the view that “chosen by the people” imports contextual notions into what the right to vote constitutes. Stephen J seems to have taken an intermediate view holding that universal adult suffrage is an important part of representative democracy but, nonetheless, there was no requirement of it under s 24. Further, the majority held that s 24 did not demand equality of voting rights through equal electoral divisions.

    The High Court again considered the meaning of “directly chosen by the people” contained in s 24 in McGinty. Brennan CJ found that s 24 would impose a right to vote which was universal and not subject to the historical exclusions with Gaudron J delivering a similar opinion. Toohey J espoused the position McTiernan and Jacobs JJ in McKinlay. Other members of the Court were not prepared to ignore the express terms of the Constitution in ss 8 and 30 allowing the Parliament to determine electoral qualifications[15]. Again, the Court rejected that there was any implied right to equality of voting power requiring uniform electorate distribution.

    Langer also considered s 24. Here McHugh J was of the opinion that s 24 had the purpose of insisting that Parliament be “be truly chosen in a democratic election by that vague but emotionally powerful abstraction known as "the people", a term whose content will change from time to time”, seemingly taking a view similar to Gaudron J in McGinty. Further, Langer upheld a number of provisions of the Electoral Act which Parliament had passed and required voters to enrol to vote, to do so preferentially and to make it an offence to encourage informal voting as these still would permit “a free choice among the candidates for election” and was therefore “ within the legislative power of the Parliament”.

    The High Court last considered s 24 in Roach. Here, the Court found that amendments to the Electoral Act were unconstitutional. Gleeson CJ found so on the basis that “disenfranchisement of any group of adult citizens” without a “substantial reason for exclusion” would not be consistent with a “choice by the people” . Despite s 24 not mandating universal suffrage, disenfranchisement could not be “arbitrary” and would require “some rationale”. Gummow, Kirby and Crennan JJ applied a test similar to the second limb in Lange which invalidated any laws that went beyond what was “reasonably appropriate and adapted to” the maintenance of representative government.

    It seems that s 24 is the most powerful provision in our Constitution with regards to the protection of the right to vote. However, it is still overall a very weak one when compared internationally, giving no express guarantee of a universal franchise. Moreover, equality of voting power amongst the electorates is not guaranteed leaving the practice of ‘gerrymandering’ available to be abused. Despite this, it seems clear that the High Court is willing to step in and invalidate laws which unreasonably or arbitrarily encroach on the right to vote implied from s 24.
  2. Tell us what you really think
    • Funny Funny x 1
  3. now its justuses turn to read
  4. Seriously having done it yesterday ....I'd rather watch paint dry than read all of that

    For the rest of Netrider, have some relief after having to read the mountain of mid numbing shit in the original post

    - for the record this thread feels like it shouldn't have been started and instead taken to pm, doesn't serve the rest of the forum any good besides trying to show justus up - but I maybe a lil biased
  5. Perhaps, I didn't start the thread though - posted it elsewhere (which should have been done via pm) but I don't think I can delete?
  6. so a mod has branched it off thinking it wasn't appropriate in said thread, not the first time...all good.
  7. Well, I found it quite interesting. The topic of utter crappiness of our constitution and the lack of firm legal foundations for just about all of the liberties we take for granted is close to my heart.