Representative
democracy in the
Constitution
The voting system
s 7 – bicameral parliament whose members are to be ‘directly chosen by the
people’
s 24 – representative are chosen by vote
s 6 – Senators have a fixed six year term
s 28 – maximum duration of the House of Reps is three years from the first
meeting of the House
s 128 – mechanism for altering the Constitution
Other rules are left for Parliament to establish and are found in the
Commonwealth Electoral Act 1918
s 163(1) of Commonwealth Electoral Act 1918 (Cth) people are elegible to stand for
election for the senate or the House of Reps if they are Australian citizens who
have reached the age of 18 years.
S 44 – grounds of which people are ineligible (Heather Hill and issue of foreign
power)
Compulsory voting- 1924 compulsory voting was introduced for federal elections.
Section 245(1) Commonwealth Electoral Act. Judd v McKeon.
House of Reps The Senate – preferential voting (proportional representation)
Commonwealth Electoral Act s 240 – requirement to vote for every candidate in
order of preference (full preferential voting)
s 329A – it is a punishable offence for anyone to encourage voters to deviate from
this process
How democracy and
representative
government function
in Australia
Electoral system
House of Reps The Senate
Commonwealth Electoral Act s 240 – requirement to vote for every candidate in
order of preference (full preferential voting)
s 329A – it is a punishable offence for anyone to encourage voters to deviate from
this process
Langer v The Commonwealth
Facts
Langer opposed the voting system where you always ended up voting for a
majority party. He published material telling people only to number their ballots
1,2, and 3 (that is, to vote informally). He was charged under s 329
Argument
Langer argued that he was constitutionally entitled to publish material
encouraging persons to fill in their ballot papers otherwise than in accordance with
s240 so that, if the encouragement is taken, their ballot papers would be informal.
One of the arguments he put forward in support of his case was that s329A was
invalid because it infringes the freedom of communication about political matters
which the High Court has held to be implied in the Constitution.
Held
Section 329A was valid. Per Brennan CJ, the powers of the Parliament are impliedly
limited so as to preserve that freedom of political discussion which is essential to
the maintenance of the Commonwealth system of representative government.
But the extent of the limitation depends on the particular circumstances, including
especially the subject matter of the law which impairs the freedom. If the
impairment of the freedom is reasonably capable of being regarded as appropriate
and adapted to the achieving of a legitimate legislative purpose and the
impairment is merely incidental to the achievement of that purpose, the law is
within power.
It was an offence to give people advice on voting informally, as Langer had done.
The HC upheld the validity of full preferential voting under s 240. The Court also
upheld the validity of s 329A which made it an offence to ‘print, publish or
distribute…with the intention of encouraging persons to fill in a ballot paper
otherwise than in accordance with s 240.
Implied right to vote
Voting is compulsory under s 245(1) of the Commonwealth Electoral Act, unless;
Rowe v Australian Electoral Commissioner
HC case dealing with validity of Cth legislation that sought to restrict the time in
which a voter may seek to enrol in an election after the writs for such an election
have been issued by the GG.
102(4) prevents electoral commissioner from considering claims for enrolment
lodged after 8pm on date of issue of writs
The Cth can only affect enrolment if it is for a justified and proportionate reason.
Court by majority ruled that such restrictions were invalid.
Roach
In 2006 Parliament introduced amendment to disqualify any prisoner serving a
sentence regardless of its length from voting in Commonwealth elections.
Parliament could not legislate to remove universal adult suffrage or disenfranchise
people on the ground of adherence to a particular religion because of ss 7 and 24
of the Constitution which requires that senators and members of the house of reps
be ‘directly chosen by the people’ of the state or the Commonwealth respectively.