AUSTRALIAN ELECTORAL LAW: 'FREE AND FAIR'?
Bryan Mercurio* and George Williams**
I
INTRODUCTION
An essential feature of any democratic system is the holding of regular elections that
lead to the creation of the government of a nation. It is often said that such elections
should be 'free and fair'.1 Some obviously fail this test. For example, observers,
including representatives of the European Union ('EU') and the Commonwealth, found
that in recent elections in Zimbabwe the number of polling stations was reduced in
_____________________________________________________________________________________
*
Director, Electoral Law Project, Gilbert + Tobin Centre of Public Law and Lecturer, Faculty
of Law, University of New South Wales.
**
Anthony Mason Professor and Director, Gilbert + Tobin Centre of Public Law, Faculty of
Law, University of New South Wales; Barrister, New South Wales Bar. The Electoral Law
Project is supported by the Australian Research Council and the Electoral Council of
Australia. We thank Ben Golder and Mark Walters for their research assistance.
1
See, eg, the 58th session of the United Nations Commission on Human Rights, which took
place in Geneva in early 2002. At that session, a Peruvian-led initiative co-sponsored by 59
states, building on resolutions of previous years on 'Further Measures to Promote and
Consolidate Democracy', was adopted by a vote of 41 to zero (with nine abstentions): The
Report of the Commission on Human Rights on its Fifty-eighth Session, UN ESCOR, 58th
sess, Supp No 3, [393], [404], UN Doc E/CN.4/2002/200 (2002) (the report contains the
resolutions and decisions of the Commission, as well as a listing of the participants). The
resolution, Further Measures to Protect and Consolidate Democracy, ESC Res 2002/46, UN
ESCOR, 58th sess, Supp No 3, [1], UN Doc E/CN.4/2002/200 (2002), declares that
the essential elements of democracy include respect for human rights and fundamental
freedoms, freedom of association, freedom of expression and opinion, access to power
and its exercise in accordance with the rule of law, the holding of periodic free and fair
elections by universal suffrage and by secret ballot as the expression of the will of the
people, a pluralistic system of political parties and organizations, the separation of
powers, the independence of the judiciary, transparency and accountability in public
administration, and a free, independent and pluralistic media.
See also Article 17 of the Inter-American Democratic Charter, which grants the Secretary
General of the Organisation of American States ('OAS') the authority to send preliminary
missions to a member state to assess if the country in question has sufficient security and
free access to information for an effective electoral-observation mission. Under Article 18, if
minimum conditions required for the holding of 'free and fair elections' are not present, the
OAS has the authority to send preliminary technical missions to the affected state in order
to create or improve conditions for holding free and fair elections, provided that the state
consents. See Convocation of the Twenty-Eighth Special Session of the General Assembly, CP Res
793 (1283/01), OAS Doc OEA/Ser.G/CP/RES.793 (1283/01) (2001).
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strong opposition areas, the body supervising the election was unqualified and the
ruling party (Zanu-PF) used violence, intimidation, bribery and vote-rigging to secure
re-election.2 Of course, elections need not be so blatantly violent or corrupt to fail the
'free and fair' standard. International observers and opposition parties have, for
instance, criticised the recent Russian elections because the state run television station
promoted the ruling party while criticising and defaming the challengers.3
By contrast, it is often assumed that elections in nations with long-standing
democratic traditions and processes, such as Australia, Canada, the United Kingdom
('UK') and the United States ('US'), are 'free and fair'. Elections in those nations may be
seen as setting the standard for elections elsewhere. With some exceptions, such as the
2000 US Presidential election between George Bush and Al Gore,4 these electoral
systems may be taken to set, almost by default, the standard of what is a 'free and fair'
election.5
In this article, we examine in more depth whether the Australian electoral system is
indeed 'free and fair'. There are many ways of approaching this question, including
through political science or statistical analysis of the different voting systems operating
in Australia and of the different legal regimes at the federal level, in the States and
Territories and for local government. Our approach is to examine the law of Australia's
electoral system, with the primary focus upon the federal aspect of that system. While
for many there would be an immediate and resounding 'yes' to whether this system of
law creates a 'free and fair' federal electoral system, our answer is more qualified.
Part II of this article explores the 'free and fair' standard as a gauge of electoral law.
Part III then measures the Australian record against this standard. We do not seek to
comprehensively analyse Australian electoral law (such an audit is beyond the scope
of this paper),6 but instead focus upon key areas that have been either the subject of
litigation or intense debate in recent years. Part IV concludes that, although the
_____________________________________________________________________________________
2
'Mugabe
Poll
Challenge
in
Court',
BBC
Online,
3
November
2003,
<http://news.bbc.co.uk/1/hi/world/africa/3236053.stm> at 3 November 2003.
3
See, eg, 'US Shares Russia Poll Concerns', BBC Online, 8 December 2003,
<http://news.bbc.co.uk/1/hi/world/europe/3300483.stm> at 8 December 2003; Maksim
Glikin, 'Going to the Polls Blindfolded', Nezavisimaya Gazeta (Russia), 13 February 2003,
<http://www.cdi.org/russia/johnson/7061-18.cfm> at 8 December 2003.
4
In fact, a Russian election official was quoted as saying that the US should adopt Russian
standards and even Zimbabwe, a country repudiated for its dictatorial leader and corrupt
elections, offered to send electoral officials to 'help' the US: Brian Whitaker, 'Race for the
White House: World View: America Should Copy Us, Says Russian Poll Chief: Many
Countries Are Enjoying the US Shambles', The Guardian (London, UK), 11 November 2000,
3. For more on the controversy surrounding the 2000 US Presidential Election, see Daniel
Lowenstein, 'Lessons from the Florida Controversy' in Graeme Orr, Bryan Mercurio and
George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 7.
5
The imposition of the electoral system of a long-standing democracy on an emerging
democracy has been questioned. See Michael Maley, 'Australian Electoral Law: Not a
Model for Others' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising
Democracy: Electoral Law in Australia (2003) 40.
6
For a more comprehensive study of Australian democracy, see The Democratic Audit of
Australia, conducted by the Political Science Program in the Australian National
University's Research School of Social Sciences to assess Australia's strengths and
weaknesses as a democratic society. The website for the audit is located at
<http://democratic.audit.anu.edu.au>.
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Australian system of electoral law is in many respects a 'free and fair' system, and has
some obvious and important strengths, it is in other areas not 'free and fair' and is in
need for reform.
II
'FREE AND FAIR' ELECTIONS
The cry that elections should be 'free and fair' is often used rhetorically. It also
provides a useful and generally accepted analytical standard against which electoral
systems can be assessed. In this article, we view 'free and fair' elections as embodying
the four principles set out below, which we have developed from two comprehensive
studies. The first study is a White House commissioned report by the US National
Science Foundation, Internet Policy Institute and the University of Maryland. The
report was the product of an October 2000 workshop in which political scientists,
computer scientists, election officials and others analysed and assessed the feasibility
of, and identified research priorities for, the advancement of Internet voting.7 The
second study was conducted in 1998 by KPMG for Elections Canada entitled
Technology and the Voting Process.8 In addition, we have also used other sources, such as
the United Nations Organisation for Security and Co-operation in Europe ('OSCE')
Copenhagen Commitments, to further ensure that these principles are soundly based.9
The first principle of 'free and fair' elections is the participation principle. It mandates
that electoral systems provide all citizens with an equal opportunity to participate in
the electoral process and to access the ballot box. This principle requires conferring the
right to vote in elections on a non-discriminatory basis, as opposed to a system that
denies the right to vote to certain sections of the community or to people in an
arbitrary manner. The principle is necessarily subject to reasonable limitations and
exceptions, such as in relation to age. For example, the Commonwealth Electoral Act 1918
(Cth) limits the right to vote to Australian citizens who are at least 18 years of age.10 It
also excludes from the franchise people who, by reason of being of unsound mind, are
incapable of understanding the nature and significance of enrolment and voting,
prisoners serving a sentence of three years or longer (recently reduced from five years),
people who have been convicted of treason and not pardoned and overseas citizens
who do not intend to return to Australia within six years.11
This first principle also requires that citizens have the right to form and participate
in political parties, and that those parties have the opportunity to contest elections. Of
_____________________________________________________________________________________
7
See Internet Policy Institute, Report of the National Workshop on Internet Voting: Issues and
Research Agenda (2001) 11 <http://www.vote.caltech.edu/Reports/ipi-nsf-report.pdf> at
23 November 2004 ('IPI Report'). See also Bryan Mercurio, 'Overhauling Australian
Democracy: The Benefits and Burdens of Internet Voting' (2002) 21 University of Tasmania
Law Review 23, 26–7.
8
See Elections Canada, Technology and the Voting Process (1998) 14–15
<http://www.elections.ca/loi/vot/votingprocess_e.pdf>.
9
Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE
(1990)
Organisation
for
Security
and
Co-operation
in
Europe
<http://www.osce.org/docs/english/1990-1999/hd/cope90e.htm> at 23 November 2004
('Copenhagen Commitments').
10
Commonwealth Electoral Act 1918 (Cth) s 93.
11
See Commonwealth Electoral Act 1918 (Cth) pt VII (entitled 'Qualifications and
Disqualifications for Enrolment and for Voting').
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course, as is the case with individual access to the ballot box, reasonable limits may be
placed on political parties. For instance, it may be reasonable for legislation to require
parties to register before standing in an election.12 It may also be reasonable to require
a small deposit from candidates to maintain the sanctity of the process and to ensure
against a multitude of candidates contesting the election for no other reason then to see
their name in print.13
The second principle is the free-conscience principle. It requires that voters be able to
cast their vote without undue influence, the threat of intimidation or coercion. In other
words, voters must be allowed to vote with a free conscience as opposed to being
instructed or otherwise coerced into voting for a particular candidate. Today, most
democracies use some form of secret ballot to ensure that others do not compel or
coerce a voter. In Australia, voters are given an unmarked, untraceable ballot paper
and retire to a private booth to mark the paper before folding and placing it in a
common locked box.14 On the other hand, regimes including that of Fidel Castro's
Cuba and the former Iraqi regime under Saddam Hussein have held elections whereby
government officials watch and sometimes instruct candidates on how to cast their
ballot.15
The third principle is the election outcome principle. This requires that the electoral
system accurately record, store and count each vote and accurately report the outcome.
Votes should not be lost, intentionally disposed of, amended, miscounted or
misreported. This principle requires not only that this occurs, but that the people are
confident that they have indeed occurred (such as through adequate access to the
workings of the electoral process and scrutiny of the count16). The need to maintain
public confidence is one reason why electoral law reform in advanced democracies can
be a slow and deliberate process.
The fourth principle of 'free and fair' elections is the knowledge principle. It requires
that voters possess at least a general knowledge about the voting process, the general
structure of government and the candidates and parties contesting the election.
Without this, there can be no certainty that the electoral system accurately records
voter preferences. For example, a lack of adequate voter knowledge may mean that a
voter's preference as expressed on their ballot is distorted by voter error or ignorance
_____________________________________________________________________________________
12
See Commonwealth Electoral Act 1918 (Cth) pt XI (entitled 'Registration of Political Parties')
and Mulholland v Australian Electoral Commission (2004) 209 ALR 582.
13
While the Commonwealth and each State's deposit vary, the schemes generally operate the
same everywhere in Australia. The candidate pays a deposit which is refundable upon that
candidate receiving a certain percentage of the vote. Of course, once the deposit or voting
threshold reaches a certain level (say $10 000 or 20 per cent of the vote), the participation
principle may be violated. The deposit in the Commonwealth for the House of
Representatives is $350, which is returned when a candidate receives at least 4 per cent of
the first preference vote. See 'Elections for the House of Representatives' (House of
Representatives Infosheet No 8, 2002) 1 <http://www.aph.gov.au/house/
info/infosheets/is08.pdf> at 20 October 2004.
14
See Commonwealth Electoral Act 1918 (Cth) pt XVI (entitled 'The Polling').
15
In both countries, fear and intimidation have been frequently used to 'encourage' voters to
select a particular candidate. See, eg, Anita Snow, 'Cuban Leaders Watch US Election',
Cubanet, 22 August 2000, <http://www.cubanet.org/CNews/y00/ago00/22e7.htm> at 8
December 2003.
16
See, eg, Commonwealth Electoral Act 1918 (Cth) pt XVIII (entitled 'The Scrutiny').
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as to the effect of voting in a particular way (including as to how this may affect the
formation of a government). Distortion may also result from a voter not being aware of
the candidates' platforms or parties' directives. In order to meet the knowledge
principle, governments and electoral authorities need to educate voters on how the
electoral system works, including on basic issues such as how to register to vote and
how to correctly fill in a ballot paper. In addition, the government and electoral
authorities must ensure that candidates and political parties have the right and
opportunity to express and publicise their policies.
While these four principles encapsulate the core features of a 'free and fair' electoral
system, they are not exhaustive. For example, a further principle might be that the
electoral system enables the formation of governments that have the support of the
majority of the voters, as opposed to a system that can allow governments to be
formed with a minority of votes. The principles are also not static, but continue to
develop to reflect international best practice in the area as well as community
standards. For example, from Roman times up until the mid-to-late nineteenth century,
it was not only an accepted practice but a guiding principle of democracy and 'free and
fair' elections that voters declare their vote in a public forum. This avoided many
modern controversies about the final tally and concerns over the intent of the voter. It
was also thought that a voter only truly exercised his (of course, women were excluded
from the franchise at this time) rights as a citizen when he publicly declared allegiance
to a particular candidate. Yet today an election that required voters to publicly declare
their choice of candidates would likely be seen as being an intrusion into voter privacy
as well as inconsistent with the free-conscience principle given the reprisals that could
result from such an open system of voting.17
In addition, even where a principle has not changed, its application may differ over
time. For example, it was once seen as an acceptable limitation to the participation
principle to exclude women from the franchise, as well as men who did not own
property in the jurisdiction or were illiterate. These would not be accepted as
appropriate limitations today. For example, in Australia the right to vote is now held
equally by people who own property or are homeless, with the Commonwealth Electoral
Act 1918 containing a special regime directed at ensuring that the votes of people who
are homeless are collected.18 In the future, it may not be not seen as reasonable to deny
the right to vote to prisoners19 or to Australian citizens living overseas or to people
aged between 16 and 18.
_____________________________________________________________________________________
17
However, the Australian electoral system does require blind voters, voters with limited
arm movements and illiterate voters to disclose their vote to an electoral official in order to
cast a ballot. The fact that technology exists that would grant those voters the right to vote
in secret could mean that Australia is violating a principle of 'free and fair' elections. See
below, Part IV.
18
See Commonwealth Electoral Act 1918 (Cth) s 96.
19
Most recently, the Electoral and Referendum Amendment (Prisoner Voting and Other Measures)
Act 2004 (Cth) amended the Commonwealth Electoral Act 1918 (Cth) to prevent prisoners
serving a sentence of three years or longer from enrolling to vote (the disqualification had
been for sentences of five years or longer).
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III
THE AUSTRALIAN ELECTORAL SYSTEM
Well before Federation in 1901, the Australian colonies experimented with different
electoral systems.20 Not willing to accept the perceived injustices of the inherited
British electoral system, mid-nineteenth century colonists were at the cutting edge of
electoral practice and were generally regarded as innovators and leaders in the field.21
In doing so they sought to bring about a system that could be described, according to
the values of the time, as being 'free and fair'.22 It might be thought that, based upon
this record of nineteenth and early twentieth century innovation, Australia today
retains a system of electoral law that meets this standard. Below, we analyse this issue
in more detail with reference to some of the key features of the contemporary electoral
system as defined by law.23
(a)
Secret ballot
While the participation principle requires that the time and place of voting be
publicised and the polling places freely accessible to voters, the free-conscience
principle further requires that the act of voting be done in secret and that an
individual's ballot not be traceable to that person. The importance of this ballot system
is now widely recognised and the secret ballot is regarded as a central feature of
democratic electoral systems and of the idea of a free vote. According to leading
American scholar Robert A Dahl, a country in which the secrecy of the vote is widely
violated is 'lacking free and fair elections'.24
In 1856, Victoria and South Australia inaugurated a voting revolution by
introducing the technique of secret voting using printed ballots and ballot boxes.25
Within the space of three years, the secret ballot spread through all the colonies, except
Western Australia.26 Australia was fertile ground for this innovation because it was
free of the longstanding legal, institutional and cultural practices and assumptions of
the UK. The success of the secret ballot in Australia led to its adoption in many
_____________________________________________________________________________________
20
See Marian Sawer, 'Enrolling the People: Electoral Innovation in the New Australian
Commonwealth' in Graeme Orr, Bryan Mercurio and George Williams (eds) Realising
Democracy: Electoral Law in Australia (2003) 52.
21
See ibid 53–6.
22
For several examples of attempts to improve upon the electoral system in colonial
Australia, see Marian Sawer, 'Pacemakers for the World?' in Marian Sawer (ed) Elections:
Full, Free & Fair (2001) 1.
23
For a brief history of reform to the Australian electoral system, see The Parliament of the
Commonwealth of Australia, Joint Select Committee on Electoral Reform, First Report, Parl
Paper No 227 (1983) ch 1.
24
Robert A Dahl, On Democracy (1998) 96.
25
Although sometimes still called 'the Australian ballot' in the US and other parts of the
world, the secret ballot was actually the product of an international movement beginning
in Britain in the 1930s. See Mark McKenna, 'Building "a Closet of Prayer" in the New
World: The Story of the "Australian Ballot"' in Marian Sawer (ed) Elections: Full, Free & Fair
(2001) 45, 45–7. Others yet still trace early forms of secret voting to ancient Greece and
Roman times. See, eg, Russell G Smith, 'Electronic Voting: Benefits and Risks' (2002) 224
Trends and Issues in Crime and Criminal Justice 1.
26
The secret ballot was introduced into the Western Australian Legislative Council in 1877
and, with the granting of responsible government, in 1896 in the Western Australian
Legislative Assembly. See McKenna, above n 25, 46.
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Australian Electoral Law
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overseas jurisdictions, although it took 65 years for the secret ballot to be introduced in
all western democracies.27
The invention and adoption of the secret ballot in Australia was part of the long
struggle for universal suffrage. It became a practical manifestation of a deep shift in the
way the vote came to be seen as a talisman of an egalitarian society. It reflected the
democratic notion that participation in government was an inalienable birthright that
had not only to be shared equally and broadly, but had to be exercised, like an act of
individual expression, in free conscience. Curiously, in a development not universally
shared, the ballot in Australia quickly became characterised by absolute, rather than
merely limited, secrecy. That is, individual ballots became untraceable once cast, a fact
that rankles with those concerned today about ballot purity and the potential for
electoral fraud.28
Prior to the secret ballot, electors were polled by voice at a public forum.29 It had
been thought in western nations that public voting was necessary to ensure an open
and transparent process and hence public voting was the electoral procedure most
closely associated with democracy. Secret voting, by comparison, was viewed as
aristocratic and closed in nature and open to widespread abuse and fraud. Defenders
of public voting came from across the ideological divisions of the time, with critics of
the secret ballot including liberals such as John Stuart Mill30 and Alexis de
Tocqueville31 as well as conservatives such as Lord Russell in England and Germany's
_____________________________________________________________________________________
27
The secret ballot was adopted in the German Empire in 1871, UK in 1872, the Netherlands
in 1887, most states of the US beginning in 1888, Austria in 1907 and France in 1913.
28
See Amy McGrath, The Frauding of Votes? (2nd ed, 2001) 9–26, 113–38. In Kean v Kerby (1920)
27 CLR 449, 457, Isaacs J, sitting as the Court of Disputed Returns, determined 'whether it is
permissible to receive evidence as to the intention of those electors [wrongly denied a vote
by official error]'. Isaacs J was willing to accept such evidence, reasoning that to deny the
evidence would have defeated the franchise of those wrongly deprived the ballot. Section
365 of the Commonwealth Electoral Act 1918 (Cth) reverses Kean v Kerby (1920) 27 CLR 449 on
that point, but only applies to disputed returns petitions where electors were denied a vote
by official error.
29
The forms of voting ranged from oral voting ('viva voce') in England to signing a public
voting list in France and reading and handing in a ballot in front of fellow citizens in
Massachusetts. See Hubertus Buchstein, Public Voting in Modern Societies: Arguments for an
Alternative in the Nineteenth Century <http://www.jyu.fi/yhtfil/polcont/hbpublic.htm> at
5 December 2003.
30
Once a proponent of the secret ballot, John Stuart Mill became known as a staunch
defender of public voting, arguing social modernisation can only be complete when votes
can be cast freely, even in public voting proceedings. See John Stuart Mill, Considerations on
Representative Government (1861) 205–16; John Stuart Mill, Autobiography in John M Robson
and Jack Stillinger (eds) Collected Works of John Stuart Mill (1981) vol 1, 1.
31
In his famous work Democracy in America, Alexis de Tocqueville argued that the secret
ballot was not needed in modern democracies, as voters in the US and other societies
characterised by modernity and social mobility do not have to fear any negative
consequences from the publicity of the vote (see, generally, Alexis de Tocqueville,
Democracy in America, J P Mayer and Max Lerner (eds) (George Lawrence trans, 1968 ed)).
De Tocqueville's assessment of the US enjoyed prominent company. James Mill, a
prominent proponent of the secret ballot, explicitly excluded the US from his demand for
voting reform in the UK, asserting that the US had fewer social inequalities, higher social
and regional mobility, and less 'sinister (aristocratic) interests'. Mill wrote: 'The Americans
have little motive for the accurate use of it' and 'this case and ours are in this respect
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Otto von Bismarck, Rudolf von Gneist and Heinrich von Sybel and, later, Carl
Schmitt.32 Attitudes changed with the introduction of the secret ballot throughout the
world. The prevailing view became that public voting resulted in voters being more
susceptible to bribery, intimidation, corruption and undue influence and that some
voters could be disenfranchised and left as voiceless, vulnerable and dependent.
(b)
Voter participation
Elections in Australia are unusual in the western democratic world in having a
participation rate in federal elections at around 95 per cent of citizens eligible to vote.
While this reflects how bodies such as the Australian Electoral Commission ('AEC')
have been effective in educating and alerting potential voters to upcoming elections, it
is also a result of such elections being conducted upon a system of compulsory
voting.33 In this, Australia is one of a relatively few democratic countries, and the only
English speaking country, where enrolling and turning up to vote is mandatory.34
In 1914, Queensland became the first State to introduce compulsory voting. With bipartisan support, compulsory voting was adopted federally in 192435 and all States
had adopted compulsory voting by 1942.36 Today, s 245(1) of the Commonwealth
Electoral Act 1918 states: 'It shall be the duty of every elector to vote at each election.'
The section goes on to establish a penalty of $20 (or $50 plus costs if the matter is dealt
with by a court) for electors who fail to vote and who cannot provide a valid and
_____________________________________________________________________________________
diametrically opposite; they do not depend upon the ballot for independent voting, we
cannot possibly obtain it by any other means': James Mill 'On the Ballot', Westminster
Review (July 1830) 27.
32
See Buchstein, above n 29.
33
Compulsory voting has withstood court challenge. In 1926 in Judd v McKeon (1926) 38 CLR
380, a member of the Socialist Labour Party appealed to the High Court in regard to the
fine levied for not voting in the 1925 federal election. He argued that since all candidates
represented capitalism, he could not, in all sincerity, vote for any of them. The majority of
the Court rejected this argument and held that the voter could be compelled to choose
between the candidates (the case did not mention the idea of casting an informal vote as a
protest). In 1996, the High Court in Langer v Commonwealth (1996) 186 CLR 302, 340
revisited the issue and declared that 'compulsory voting in federal elections is within the
power of Parliament.' Similar reasoning was applied by the High Court later in the same
year in Muldowney v South Australia (1996) 186 CLR 352.
34
Belgium introduced compulsory voting first in 1893. Other nations which have compulsory
voting for the entire voting population are Argentina, Bolivia, Brazil, Chile, Costa Rica,
Cyprus, Dominican Republic, Ecuador, Egypt, Fiji, Greece, Liechtenstein, Luxembourg,
Nauru, Panama, Peru, Singapore, Thailand and Uruguay: see Lisa Hill, '"A Great Leveller":
Compulsory Voting' in Marian Sawer (ed) Elections: Full, Free & Fair (2001) 129.
35
The Commonwealth introduced compulsory enrolment in 1911. A Conservative
government introduced the measure (which the House debated for 15 minutes), but it was
not seen as being for political advantage, as both parties were interested in increasing voter
participation. See Marian Sawer, 'Inventing the Nation Through the Ballot Box' in
Department of the Senate, Papers on Parliament No 37, For Peace Order, and Good
Government: The Centenary of the Parliament of the Commonwealth of Australia (2001) 69.
Evidence from the 1980s suggests that the Labor Party has overall benefited the most from
compulsory voting. See Murray Goot, Thwarted or Facilitated? Pauline Hanson's One Nation
and the Party Cartelisation Thesis (Unpublished paper, 2003) 7 (on file with authors).
36
Victoria, New South Wales and Tasmania (1928), Western Australia (1936) and South
Australia (1942).
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sufficient reason for not doing so.37 Sections 239 and 240 also provide that voters 'shall'
mark their ballot papers in the prescribed way in order to achieve a formal vote.
However, the Act does not actually compel a person to mark their ballot paper to
affirmatively select a candidate and a voter could choose to cast an informal ballot. The
Act merely requires attendance at the polling booth and the depositing of the voting
paper in the ballot box.38
Before the adoption of compulsory voting, Australia suffered, as do many nations
today with voluntary voting, from low turnouts. In fact, the 1903 federal election saw
only 47 per cent of eligible voters go to the polls. While the figure increased to 77 per
cent in the 1917 election, it dropped to 58 per cent in 1922.39 Today, for all eligible
voting ages, the current participation rate is at around 95 per cent of all persons
enrolled to vote (Australia's enrolment rate is also approximately 95 per cent of all
persons eligible to enrol). Combined with provisional enrolment for 17 year olds,
compulsion encourages high youth enrolment levels, which in 2001 represented 77 per
cent of 18 year olds, a figure that rose to 87 per cent of 20 year olds.40 This high level of
enrolment is matched by only a handful of countries in the democratic world.41
Compulsory voting in Australia retains widespread community42 and political
support.43 Nevertheless, some criticise it as undemocratic in denying a right not to
participate in the electoral process, and in 1997 the majority on the Joint Standing
Committee on Electoral Matters ('JSCEM') recommended the abolition of compulsory
_____________________________________________________________________________________
37
See Commonwealth Electoral Act 1918 (Cth) ss 101, 245.
38
Langer v Commonwealth (1996) 186 CLR 302; Muldowney v South Australia (1996) 178 CLR
352. See also Anne Twomey, 'Free to Choose or Compelled to Lie? — The Rights of Voters
after Langer v The Commonwealth' (1996) 24 Federal Law Review 201, 208–12.
39
Martin Painter, 'Elections' in Rodney Smith (ed), Politics in Australia (2nd ed, 1993) 148, 150.
Compulsory voting increased the Senate participation rate from 57 per cent in 1922 to 91.3
per cent in the 1925 election (the first election under compulsory voting). See Brian Costar,
'Electoral Systems' in Andrew Parkin, John Summers and Dennis Woodward (eds),
Government, Politics, Power and Policy in Australia (5th ed, 1994) 184.
40
Australian National Audit Office, Integrity of the Electoral Roll, Audit Report No 42 (2002).
While it would be literally impossible to ensure that 100 per cent of eligible voters are
registered, the attempt is made to register as many people as possible. Examples of
encouraging the vote include reminding 17 year olds to enrol as well as providing in
legislation for itinerant enrolment (for homeless people, or people who travel constantly
and have no permanent fixed address).
41
For a comparison with other nations, see International Institute for Democracy and
Electoral
Assistance,
Voter
Turnout:
A
Global
Survey
<http://www.idea.int/voter_turnout/voter_turnout.html> at 18 October 2004.
42
Polls often show support for compulsory voting at between 66–75 per cent. Hill, above n
34, 130 n 6. For a detailed analysis of compulsory voting, see Lindsay Smith, Compulsory
Voting: A Comparative Approach (1980); Colin A Hughes, 'Compulsory Voting' in Colin A
Hughes (ed), Readings in Australian Government (1968) 225–39.
43
Without compulsory voting, politicians and political parties would, no doubt, spend
considerable resources ensuring their supporters travelled to the polling station and voted.
Of course, there are some politicians who have spoken out against compulsory voting,
including Prime Minister John Howard and former Australian Democrats leader Janine
Haines. See Scott Bennett, Winning and Losing: Australian National Elections (1996) 77.
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voting for federal elections and referendums.44 The Committee found that '[i]f
Australia is to consider itself a mature democracy, compulsory voting should be
abolished.'45
There is also a tension between compulsory voting and the knowledge principle.
Compulsory voting places a high burden on bodies like the AEC, which must design
education programs not only for those Australians interested in the political process
but also for those who are uninterested but nonetheless compelled to vote. The obvious
difficulties in the latter area may make it almost impossible to record the real
preferences of this group without distortion due to a lack of knowledge of the electoral
process and the policies of those vying for office. There is no specific data on the
knowledge of those who would choose not to vote, but surveys more generally of the
population reveal that many Australians have little understanding of how the
Australian system of government works. For example, the 1994 report of the Civics
Expert Group46 found that only 18 per cent of Australians have some understanding of
what their Constitution contains (which may impede knowledge of matters such as
which tier of government has responsibility for the issues that most affect a person's
vote), while only 40 per cent could correctly name both Houses of the federal
Parliament (which may affect voting where a person's preference is that one party
forms government but is checked by a different party in the upper house).
While Australia has a high percentage of eligible voters who are enrolled to vote
and cast a vote, this provides only part of the story. Further analysis, including who
actually comprises the category of eligible voters and hence which citizens are
excluded from that figure, is required to assess whether Australia (or any other nation)
is fulfilling the participation principle. For example, a nation that only allows male
landowners over the age of thirty-five to vote might be able to claim that 100 per cent
of the eligible voters cast a ballot, yet the exclusion of women, individuals who do not
own land and people under thirty-five years of age calls the election into question.
The record of the Australian electoral system is mixed. On one hand, Australia was
a pioneer in the extension of the vote towards universal suffrage. South Australia
became the first colony to implement adult male suffrage in 1856, quickly followed by
Victoria, New South Wales and Queensland, respectively. In 1894, South Australia
became the first colony to introduce political rights for women and grant full adult
suffrage as well as the right for women to stand for election. The Commonwealth
granted equal rights to women in voting and the right to stand for election in 1902, and
by 1909 all State lower houses were elected by adult suffrage. Women could stand for
election in every State by 1923. South Australia also led the way in disbanding plural
voting (a system by which property owners got more votes), which it banned in 1856.47
_____________________________________________________________________________________
44
The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral
Matters, Report of the Inquiry into All Aspects of the Conduct of the 1996 Federal Election and All
Matters Related Thereto, Parl Paper No 93 (1997) 26.
45
Ibid.
46
Civics Expert Group, Whereas the People: Civics and Citizenship Education — Report of the
Civics Expert Group (1994).
47
Plural voting was abolished elsewhere in Australia near the turn of the century, though it
survived in some respects in some local government regimes. In contrast, Britain did not
achieve adult male suffrage until 1918, full voting rights for women until 1928 and retained
forms of plural voting until 1948.
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On the other hand, while Australia achieved much in the mid-late nineteenth
century, certain limitations on the franchise remained in the twentieth century. For
instance, limitations on the election of the upper house in some States remained until
recent times.48 Of more concern was that the 1902 uniform federal franchise49 failed to
grant the vote to Indigenous Australians.50 It had been proposed that the Bill also
extend the franchise to Aboriginal Australians. However, this was strongly resisted
and was finally defeated. Among its opponents were Isaac Isaacs, subsequently Chief
Justice of the High Court and Australia's first Australian Governor-General, who
thought Aborigines 'have not the intelligence, interest, or capacity' to vote;51 and
Henry Higgins, later a Justice of the High Court, who thought it 'utterly inappropriate
… [to] ask them to exercise an intelligent vote.'52 As finally enacted, s 4 of the
Commonwealth Franchise Act 1902 (Cth) denied the voting rights of the 'aboriginal
native[s] of Australia … unless so entitled under section forty-one of the Constitution.'
It was not until 1962 that the Commonwealth Electoral Act 1918 was amended to extend
universal adult suffrage to Aboriginal people.53 In the meantime, even when
Aboriginal people were entitled to vote as a matter of law under s 41 of the
Constitution, as a matter of administrative practice they were denied that right.54 Even
after 1962, unlike other Australians, it was not compulsory for Indigenous people to
enrol to vote.55 Equality for Indigenous people at Commonwealth elections did not
eventuate until 1983, when the Commonwealth Electoral Legislation Amendment Act 1983
(Cth) made enrolment for and voting in Commonwealth elections compulsory for
Aboriginal Australians.56
The Commonwealth Electoral Act 1918 still denies the franchise to people sentenced to
imprisonment for three years or more and any persons who 'has been convicted of
treason or treachery and has not been pardoned'.57 The number of Australians thereby
_____________________________________________________________________________________
48
For instance, the first elections for the New South Wales Legislative Council were
conducted in 1978. For much of its existence, Legislative Council members were appointed
by the Governor (on the advice of the Premier) for life and there was no upper limit on the
number of members. See generally, Ian McAllister, Malcolm Mackerras and Carolyn Brown
Boldiston, Australian Political Facts (2nd ed, 1997). For comparison with other States, see Joan
Rydon, 'Upper Houses — The Australian Experience' in GS Reid (ed), The Role of Upper
Houses Today: Proceedings of the Fourth Annual Workshop of the Australasian Study of
Parliament Group, 1983, 22–42.
49
On the 1902 uniform franchise and its implementation, see Sawer, above n 20, 52–65.
50
On the evolution of the franchise and parliamentary history since federation, see Jennifer
Norberry, 'The Evolution of the Commonwealth Franchise — Tales of Inclusion and
Exclusion' in Graeme Orr, Bryan Mercurio and George Williams (eds) Realising Democracy:
Electoral Law in Australia (2003) 80. Even today, enrolment rates for Aboriginal Australians
are consistently lower than for non-indigenous Australians.
51
Commonwealth, Parliamentary Debates, House of Representatives, 24 April 1902, 11979
(Isaac Isaacs).
52
Ibid 11977.
53
Commonwealth Electoral Act 1962 (Cth).
54
Pat Stretton and Christine Finnimore, 'Black Fellow Citizens: Aborigines and the
Commonwealth Franchise' (1993) 25 Australian Historical Studies 521.
55
Commonwealth Electoral Act 1962 (Cth).
56
For more on Indigenous voting, see Stretton and Finnimore, above n 54.
57
Commonwealth Electoral Act 1918 (Cth) s 93(8). Until 1983, all persons convicted of an
offence punishable by imprisonment of one year or longer were disenfranchised: see
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disenfranchised has been estimated at 6000 and 11 000, although this figure was
calculated when law excluded those people who had been sentenced to five or more
years in prison.58 The only other group of adult citizens residing in Australia denied
the right to vote are those with unsound mind, incapable of understanding the nature
and significance of the electoral process. Australia is not alone in denying the right of
convicted persons to vote. In fact, many nations, including the US (where voting is a
constitutional right) similarly deny the franchise to convicted persons.59 In denying a
section of the population the right to participate in the electoral process, nations risk
violating the participation principle which requires that (with reasonable exceptions)
all citizens have access to the ballot. Of course, much depends upon what is reasonable
and commentators still debate whether restrictions on convicted persons are
appropriate.60
(c)
Voting methods
Australia has experimented with different forms of voting. In fact, all the major forms
of preferential voting, including the alternative vote, contingent vote and Hare-Clark
(using the single transferable vote) were developed largely in Australia.61 Until 1918,
Australia relied on the first-past-the-post system for parliamentary elections. Under
this method, the candidate that receives the most votes is elected. The method is
simple, but its shortcoming is that the winner can be elected even though the majority
could prefer other candidates, and votes for minor parties are effectively wasted.62 The
_____________________________________________________________________________________
Commonwealth Electoral Legislation Amendment Act 1983 (Cth) s 23, amending Commonwealth
Electoral Act 1918 (Cth) s 39(4). Until August 2004, all persons convicted of an offence
punishable by imprisonment of five years or longer were disenfranchised.
58
See Jerome Davidson, 'Inside Outcasts: Prisoners and the Right to Vote in Australia'
(Current Issues Brief No 12 2003–04, Australian Parliamentary Library, 2004) 2
<http://www.aph.gov.au/library/pubs/CIB/2003-04/04cib12.pdf> at 20 October 2004.
See also Graeme Orr, 'Ballotless and Behind Bars: The Denial of the Franchise to Prisoners'
(1998) 26 Federal Law Review 55. Prior to 1995, persons convicted of a crime and serving a
sentence where the potential sentence (as opposed to the actual sentence received) was five
years or more were disenfranchised. However, this proved difficult to administer as prison
authorities generally only receive information in regard to the actual sentence imposed, not
the maximum possible sentence each prisoner might have received. See the evidence of
AEC in The Parliament of the Commonwealth of Australia, Joint Standing Committee on
Electoral Matters, The 1993 Federal Election: Report of the Inquiry into the Conduct of the 1993
Federal Election and Matters Related Thereto, Parl Paper No 416 (1994) 142; Jennifer Fitzgerald
and George Zdenkowski, 'Voting Rights of Convicted Persons' (1987) 11 Criminal Law
Journal 11, 15.
59
In the US, the practice of denying convicted persons the right to vote has been upheld in
numerous cases. See, eg, Otsuka v Hite, 64 Cal 2d 596 (1966); State ex rel Barrett v Sartorious,
351 Mo 1237 (1943); Green v Board of Elections of the City of New York, 389 US 1048 (1968). Cf
Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519, in which the Supreme Court of
Canada stuck down s 51(e) of the Canada Elections Act, RSC 1985, c E-2, that denied the right
to vote to '[e]very person who is imprisoned in a correctional institution serving a sentence
of two years or more.'
60
See generally Orr, 'Ballotless and Behind Bars', above n 58.
61
See Sawer, above n 35, 78.
62
Unlike first-past-the-post voting, preferential voting does not intentionally exclude minor
parties, but in a system with two entrenched political parties, it does tend to ensure, nationwide, that minor parties are virtually unrepresented in the lower house of government.
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Commonwealth decided to improve upon this system and introduced preferential
voting for federal elections in 1918.63 Contingent, that is, optional preferential voting,
was used in Queensland as early as the 1890s, and today applies at State elections in
both that State and in New South Wales.64 Whilst it avoids most of the concerns about
forcing to choose between disliked candidates, those who support compelling full
preferences fear that a significant failure to specify preferences could reduce the
system into a de facto first-past-the-post system.
Another experiment in Australian voting systems was proportional representation,
with its introduction in Senate elections in 1949.65 It is sometimes trumpeted as the
most democratic form of voting system66 because it allows popular will to be more
accurately reflected in parliament and increases the chances of minority parties
achieving representation.67 However, the system in practice has proved less than
perfect, including because, as applied in federal elections, it effectively excludes the
possibility of an independent Senate candidate from being elected. In federal elections
and most State and Territory elections, the system of proportional voting allows a 'tick
a box' voting option whereby voters simply check the box of their preferred party
instead of having to mark their entire ballot. As Senate ballots are often very long and
confusing, over 90 per cent of electors make use of this convenient option, thereby
giving the parties control of voter preferences.68 Independent candidates are grouped
together and relegated to the far right end of the usually long Senate ballot and can
only be voted for if a voter decides to mark all of the individual boxes on the ballot
paper rather than voting 'above the line'.69 In practice, this means that it is almost
impossible for any new independent to be elected. Further, exceptions are made for
_____________________________________________________________________________________
63
See David Solomon, Australia's Government and Parliament (4th ed, 1978) 84–6. Interestingly,
feeling they would win more divisions without preference distributions, the Labor Party at
one time sought to reintroduce first-past-the-post voting. See Bennett, above n 43, 78.
64
Optional preferential voting was introduced in New South Wales in 1981 by the Labor
government, which sought to reduce the level of informal vote occasioned by exhaustive
preferential voting and correspondingly also wanted to disrupt the exchange of preferences
between the Liberal and National Party. While the rate of informal vote did not drop, the
campaign to reduce the power of the Liberal-National coalition appeared to have been
effective. See Goot, above n 35, 9.
65
For a good historical record of the reasons behind Australia's shift to proportional
representation, see John Uhr, 'Why We Chose Proportional Representation', in Department
of the Senate, Papers on Parliament No 37, Representation and Institutional Change (1999) 13.
66
See, eg, Painter, above n 39, 151–7; see also the Proportional Representation Society of
Australia <http://www.cs.mu.oz.au/~lee/prsa/>. Cf the New Zealand method of elected
parliamentarians, which uses a hybrid plurality and proportional system originally
developed by the Germans whereby each elector has two votes, one for their preferred
candidate and another for their preferred party. This system has been called 'the model all
democracies should follow', Austin Ranney, Governing: An Introduction to Political Science
(6th ed, 1993) 183.
67
Painter, above n 39, 155–63.
68
The ACT and Tasmania do not use this system of voting.
69
This practice has been unsuccessfully challenged in the High Court on at least three
occasions: McClure v Australian Electoral Commission (1999) 163 ALR 734; Abbotto v
Australian Electoral Commission (1997) 144 ALR 352; McKenzie v Commonwealth (1984) 57
ALR 747. For discussion, see Graeme Orr, 'Of Electoral Jurisdiction, Senate Ballot Papers
and Fraudulent Party Registrations: New Developments in Electoral Case Law' (1999) 2
Constitutional Law and Policy Review 32, 34–5.
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independents already in Parliament to enable them to take advantage of the 'tick a box'
system of voting as if they belonged to a political party.70
There are other ways in which incumbents also have a substantial edge over
challengers, particularly those challengers from minor parties or independents.
Parliamentary resources are only available to members and even 'parliamentary'
parties. While an exhaustive list of such benefits is too long to list in this article, some
of the more noteworthy include mailing and printing allowances and the use of, and
abuse of, government advertising budgets for image conscious advertising throughout
the life of a government.71
(d)
Voter equality
A form of voter equality, known popularly as 'one vote, one value', has been adopted
in Australia at the federal level and in all States and Territories, except Western
Australia (the only State to retain weighting for rural and remote electorates).72 In the
Australian context, 'one vote, one value' suggests that people ought to vote for a
member of parliament as part of electorates of equal size, thereby ensuring that each
vote is of equal weight. This is implemented by the Commonwealth Electoral Act 1918
Part IV — 'Electoral Divisions'. Section 66 states that while the size of an electorate may
be affected by factors such as the 'community of interests within the proposed Electoral
Division, including economic, social and regional interests', it also states that in no case
shall the size of an electorate depart from the average 'to a greater extent than onetenth more or one-tenth less'.
The capacity for voter equality is, however, limited by the Constitution. Section 24
dictates that each of the States must have at least five members in the House of
Representatives, meaning that a small State like Tasmania has more seats than its
relative population size would suggest. It is also limited by s 7, which states that the
Senate must be based upon the 'equal representation' of the States. As a result,
Tasmanian voters possess far greater voting power in electing 12 Senators than their
counterparts in say New South Wales and Victoria in electing the same number.
_____________________________________________________________________________________
70
See Commonwealth Electoral Act 1918 (Cth) s 211A (inserted in 1987 as part of the
Commonwealth Electoral Amendment Act 1987 (Cth)).
71
Note that, by convention, such advertisements stop in the caretaker period once an election
is called. Also see New South Wales, Independent Commission Against Corruption, Report
on an Investigation into the Conduct of the Hon Malcolm Jones MLC (2003)
<http://www.icac.nsw.gov.au/files/pdf/pub2_83i2.pdf>, condemning Malcolm Jones
MLC (Outdoor Recreation Party NSW) for misusing parliamentary resources on party
matters. Jones was eventually forced out of Parliament for his activities. See Paola Totaro,
'MP Who Picked Public Pocket Faces Expulsion', Sydney Morning Herald, 11 July 2003,
<http://www.smh.com.au/articles/2003/07/10/1057783287533.html> at 11 July 2003;
New South Wales, Parliamentary Debates, 3 September 2003, 3003 (Malcolm Jones). Cf
Charles Blunt, National Party leader, who infamously in the early 1990s spent $250 000 on
postage to his electorate during an election but was not penalised for his activities. He did,
however, lose the election. See ABC Online, Electoral Profile for Richmond (1998)
<http://abc.ozemail.com.au/electorates/data/profiles/RICH.htm> at 2 February 2004.
72
However, only two Australian jurisdictions have entrenched one vote, one value in their
constitutions: New South Wales and South Australia – see Constitution Act 1902 (NSW) s 28
and Constitution Act 1934 (SA) s 77(1). Two attempts to change the federal Constitution to
reflect one vote, one value have failed. The first was by the Whitlam government in 1974
and the second by the Hawke government in 1988.
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These constitutional provisions are one reason why, unlike the US Supreme Court,
the Australian High Court has not held that voter equality is constitutionally
prescribed. There are, however, some limits set by the Constitution, especially s 24. For
example, in Attorney-General (Cth) ex rel McKinlay v Commonwealth,73 it was suggested
that, in some situations, there might be such a degree of malapportionment between
electoral divisions as to bring into question whether the Parliament had been 'directly
chosen by the people' under s 24. Mason J stated:
It is perhaps conceivable that variations in the numbers of electors or people in single
member electorates could become so grossly disproportionate as to raise a question
whether an election held on boundaries so drawn would produce a House of
Representatives composed of members directly chosen by the people of the
Commonwealth.74
McTiernan and Jacobs JJ, in a joint judgment,75 and Stephen J, in a separate
judgment,76 voiced similar views.
Otherwise, the High Court has left the question of electoral equality to
parliaments.77 In McGinty v Western Australia,78 the Court denied a challenge to the
large disparity existing between the numbers of enrolled electors in metropolitan
districts compared with those in country regions in Western Australian State elections.
It was argued that the disparities in voting power were inconsistent with the principle
of representative democracy and that, just as ss 7 and 24 of the Constitution could
support an implied freedom of political communication,79 so too could it support a
guarantee of voter equality in State elections.80 The Court, by a four to two majority,
found no constitutional requirement for equal numbers of people in such elections
could be derived either from the Commonwealth or West Australian Constitutions.
Hence, subject to the possibility that electorates might be 'grossly disproportionate' in
size to each other, it was left to that Parliament to determine the extent to which it
wanted to implement 'one vote, one value'.81 This issue remains contentious in
Western Australia and a recent legislative attempt to enact voter equality legislation in
_____________________________________________________________________________________
73
(1975) 135 CLR 1.
74
Ibid 61.
75
Ibid 36–7.
76
Ibid 57.
77
Noted electoral expert Colin Hughes has written that 'the parameters to enrolment
numbers required to satisfy the one vote, one value principle will have to be set in the
parliamentary sphere rather than the judicial': Colin A Hughes, 'Institutionalising Electoral
Integrity' in Marian Sawer (ed), Elections: Full, Free & Fair (2001) 142, 146–7.
78
(1996) 186 CLR 140 ('McGinty').
79
See generally George Williams, Human Rights Under the Australian Constitution (1999) 96–
128.
80
See Susan Downing, 'One Vote One Value — An Implied Right Too Far? The High Court
Decision in McGinty & Ors v State of Western Australia (1996)' (Research Note No 38 1995–
96, Australian Parliamentary Library, 1996) 1 <http://www.aph.gov.au/library/
pubs/rn/1995-96/96rn38.htm> at 14 January 2002.
81
For example, it was noted by Gummow J in McGinty at that variations in the number of
electors in single-member divisions could be so 'grossly disproportionate as to deny
ultimate control by popular election': (1996) 186 CLR 140, 286.
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that State has failed in the High Court due to the law having passed through the
Legislative Council of Western Australia without the required absolute majority.82
The debate over one vote, one value is characterised by two main positions: either
electoral districts should comprise equal voter numbers or, in the interests of fairness
to rural voters, electoral districts should be weighted in favour of those interests.83 The
issue is thereby exposed as an argument between equality of 'voting power' versus
equality of 'representation'.84 Those seeking to introduce electoral equality in Western
Australia do so because they believe it to be an essential feature of electoral democracy.
They would argue that because the current system denies voters equality in the form of
'one vote, one value' the State fails to comply with the first principle of electoral
democracy, that is, that all voters have equal access to the ballot box.
On the other hand, others would contend that there is more to electoral equality
than simply dividing the population into evenly divided precincts. They claim that
Western Australia's vast, sparsely populated geography, as well as its tradition of
'relative equality' and responsibility for the protection for minority groups must be
factored in when attempting to achieve electoral equality.85 The main argument
against the notion of 'one vote, one value' is that fewer electors in rural electorates (as
opposed to geographically smaller city electorates) are required to enable electors in
rural and remote regions to have equivalent representation to those in more populated
areas. Without weighted votes, they believe rural and remote representation would
suffer even more than it currently does.86 In such a case, they argue that the
geographic size of an electorate is an important consideration that should be taken into
_____________________________________________________________________________________
82
A-G (WA) v Marquet (2003) 202 ALR 233. See also the further attempt, by federal private
members Bill, to override these boundaries in the State Elections (One Vote, One Value) Bill
2001 (Cth). See also Senate Legal and Constitutional References Committee, State Elections
(One Vote, One Value) Bill 2001 [2002] (2004).
83
For detailed arguments for and against on vote, one value, see Dean Jaensch, Election!: How
and Why Australia Votes (1995) ch 4. See also Electoral and Administrative Review
Commission, Report on Queensland Legislative Assembly Electoral System, Report No 4, vol 1
(1990), 118–72, 176–90.
84
See Kirsten Robinson, 'One Vote, One Value: The WA Experience' in Graeme Orr, Bryan
Mercurio and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003)
100.
85
The Commission on Government found that Western Australia is a large State in which
there are problems of remoteness as well as communities of interest and minority groups
that need to be protected by some latitude in the application of the principle of equal
electoral districts: Commission on Government, Report No 1 (1995) 301.
86
Whether the fact that weighting can be attributed solely to Western Australia's geography,
however, is debatable. Electoral reform, particularly in relation to one vote, one value, has
been an evolutionary process in Western Australia, typified by negotiation, partisan
advantage and compromise along the way. Both Labor and non-Labor governments have
endorsed weighting at various times in the past. Even the Labor government's recent
inclusion in its legislation of weighting for geographically large electorates, borrowed from
Queensland, can be attributable as much to political exigencies as to an attempt to meet
geographic difficulties. For a detailed history of electoral reform in Western Australia, see
Graham Hawkes, 'A Long Rocky Road Towards Electoral Reform' (Paper presented at the
Australasian Study of Parliament Group Ninth Annual Conference, Wellington, August
1987).
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account in determining whether voter equality has been achieved.87 Nevertheless, it
seems hard to justify the weighting in Western Australia when most of the other
Australian States also experience geographical difficulties in the creation of electorates,
yet they no longer differentiate to the same extent between metropolitan and nonmetropolitan zones in applying the principle of voter equality, or one vote, one value.
(e)
Independent and effective electoral administration
Australia's reputation as a leader in the field of elections is based in part upon the
strength of the administrative apparatus that supports its electoral system. The most
important feature of this apparatus is the independent, professional bodies that
administer elections in Australia. These bodies are essential both to the third (election
outcome) and fourth (knowledge) principles of 'free and fair' elections. They ensure a
professional administration of the electoral process as well as confidence in and
knowledge of the system by the community at large.
The beginnings of professional electoral administration can be traced to preFederation times. In contrast to the UK, where powerful local authorities closely
controlled the elections, the lack of entrenched local authorities in the recently
colonised Australian continent aided the movement to the professional administration
of elections. The colonies' first elections were conducted by public servants in a
ministerial department, and were later given increased independence by the creation
of statutory bodies. This trend culminated in the creation of the AEC in 1984 as a nonpoliticised, federal independent statutory body.88 The AEC's ongoing freedom from
executive influence and its practical independence through adequate funding are
central to the integrity of the national electoral system.89 Similar commissions exist in
all of the States and Territories.
The AEC is formally constituted by a Chairperson, an Electoral Commissioner and
one other person. The Chairperson 'shall be a person whose name is included in a list
of the names of 3 eligible Judges submitted to the Governor-General for the purposes
of this section by the Chief Justice of the Federal Court of Australia'.90 The Electoral
Commissioner and the one other member of the Commission can be removed by the
Governor-General if he or she is absent from three consecutive meetings or fails,
without reasonable excuse, to comply with his or her obligations.91 The GovernorGeneral also has the power to terminate, for misbehaviour, the Electoral
Commissioner, the Deputy Electoral Commissioner or an Australian Electoral Officer
_____________________________________________________________________________________
87
As Marian Sawer notes, the 'idea that rural interests had a special claim to representation
has declined in legitimacy over time': Marian Sawer, 'Representing Trees, Acres, Voters and
Non-voters: Concepts of Parliamentary Representation in Australia' in Marian Sawer and
Gianni Zappalà (eds), Speaking for the People: Representation in Australian Politics (2001) 36,
42. One vote, one value is applied to Western Australia at the federal level for the House of
Representatives, with the result that the federal seat of Kalgoorlie is 'roughly the same size
as France, Germany, Italy and Spain put together': at 42.
88
See Commonwealth Electoral Act 1918 (Cth) pt II (entitled 'Administration'), div 2 (entitled
'The Australian Electoral Commission'). For more on the AEC, see Bron Stevens, Elections:
How? Why? When? (1984) 16–19.
89
For more on the independence of the AEC, see John Uhr, 'Rules for Representation' in
Geoff Lindell and Bob Bennett (eds), Parliament: The Vision in Hindsight (2001) 249–90.
90
Commonwealth Electoral Act 1918 (Cth) s 6(4).
91
Commonwealth Electoral Act 1918 (Cth) ss 6, 12.
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for a State.92 Of course, in a country with compulsory voting, 'non-partisan' electoral
administrators do in fact favour, at least in casting their own vote, candidates and
parties. However, no credible instances of bias on the part of AEC administrators have
been raised.
The JSCEM was also created in 1984. This Committee is an important and
influential innovation in providing a cross-party forum for debate on technical
improvements in electoral administration. Prior to its formation, bipartisanship was
harder to achieve.93 Of course, no Committee process can eliminate the self-interest
that parliamentarians naturally have in amending electoral legislation.94 The JSCEM
has a broad mandate and, as part of its duties, it also plays an important role in
involving the community by calling for and receiving submissions from the public, of
reviewing current electoral practices and recommending both legal and structural
changes to the electoral system.95
The strength of Australia's non-partisan, independent and centralised system of
electoral administration can be gauged when it is contrasted to that of other western
nations such as the US. In the US, electoral administration is governed by each
individual state, as opposed to a central authority. Such decentralised governance
causes numerous disparities in the system. For instance, various states may have
different eligibility requirements (some states disenfranchise anyone convicted of a
felony and others do not), may have different voter registration periods and even
different rules and procedures governing who can vote in which elections (such as
primaries). Some key electoral choices are even left up to city and town councils. This
could lead to unequal voting power between electorates. For example, in many states,
local towns and electorates decide which voting technology a voting booth will use.
This can lead to poor and minority voters being under-represented.
Indeed, statistics from the 2000 US Presidential election demonstrate that minority
votes are more likely to be miscounted, misplaced, disregarded, or otherwise
uncounted. This inequality is primarily due to the fact that minority precincts cannot
afford to purchase state-of-the-art voting machines and are forced to rely on outdated
voting technology to record and count the vote.96 For example, the Florida county of
_____________________________________________________________________________________
92
Commonwealth Electoral Act 1918 (Cth) s 25.
93
Sawer, above n 35, 75–6. Apparently, it was even difficult to achieve bipartisan support on
such mundane matters as the time for closing the polling booths: at 76.
94
For more on the role of federal Parliament in developing electoral law, see John Uhr,
'Measuring Parliaments against the Spence Standard', in Graeme Orr, Bryan Mercurio and
George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 66–79.
95
The Parliament of Australia web site states 'the role of the Joint Standing Committee on
Electoral matters is to inquire into and report on such matters relating to electoral laws and
practices and their administration as may be referred to it by either House of the
Parliament or a Minister. The matters that may be referred by the House include reports by
the Commonwealth Auditor-General. The Committee could also inquire into matters
raised in annual reports of Commonwealth Government departments and authorities':
<http://www.aph.gov.au/house/committee/em/emrole.htm> at 23 January 2004.
96
'Decision 2000/America Waits: A "Modern" Democracy that Can't Count Voters; Special
Report: What Happened in Florida is the Rule and Not the Exception. A Coast-to-Coast
Study by The Times Finds a Shoddy System that Can be Trusted When the Election isn't
Close', Los Angeles Times (Los Angeles, USA), 11 December 2000, A1. As each county has to
fund the cost of voting equipment, the poorer counties cannot afford $5000 on proper
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Gasden, the only Florida county where black voters make up a majority of the
electorate, is a poor county that uses outdated voting technology. As a result, in the
2000 election, voters in Gasden had a 68 times greater chance of having their votes
deemed invalid than in adjoining Leon County, a county that could afford to purchase
the latest voting technology.97
This scenario of one county using unreliable voting technology while another
county in the same state uses a more reliable method of recording and tabulating votes
creates a 'voting technology divide'.98 In the 2000 election, over 2000 Gasden County
votes were deemed invalid in an election decided by only 537 votes, leading one to
question whether differences in voting technology have the potential to alter statewide election outcomes.99 As only nine states voted with uniform or near-uniform
technology, this gap is not peculiar to Florida. Instead, the 'voting technology divide' is
present in almost every state in the nation.
Many post-2000 investigations reveal that problems with uncounted ballots are
particularly concentrated in disadvantaged communities. For example, it has been
found that in 'many black precincts in Chicago, one of every six ballots in the
presidential election was thrown out' but that the uncounted rate for suburban
precincts was virtually nil.100 Moreover, as many as one in three votes were uncounted
in black sections of Jacksonville, Florida, a rate 400 per cent above the uncounted rate
in predominantly white precincts.101 Black voters in Ohio also appear to have been
disadvantaged, with a vast majority of the uncounted votes in that state being from
poorer, predominantly black precincts.102 These are but a few examples that prove the
'voting technology divide' is real and significantly disadvantages minority voters.
Perhaps the most convincing evidence of the divide is the results of a study
conducted by Representative Henry A Waxman, the Ranking Minority Member of the
Committee on Government Reform of the US Congress.103 The study was
commissioned to examine whether voting technology can reduce the rate of uncounted
ballots. Detroit was chosen as the location of the study for a number of reasons,
including the fact that it recently made a substantial effort to reduce uncounted ballots
and the fact that it has one of the highest minority populations (African-Americans
make up 76 per cent of the population) and the highest poverty rate of any US city (32
per cent of the population live below the poverty line).104
_____________________________________________________________________________________
technology: see Paul Schwartz, Voting Technology and Democracy (2002) 77 New York
University Law Review 625, 643.
97
Schwartz, above n 96, 625–6.
98
To the authors' knowledge, the term 'voting technology divide' first appeared at ibid 625.
99
Ibid.
100 John Mintz and Dan Keating, 'A Racial Gap in Voided Votes; Precinct Analysis Finds Stark
Inequity in Polling Problems', The Washington Post (Washington DC, USA) 27 December
2000, A.01.
101 John Mintz and Dan Keating, 'Florida Ballot Spoilage Likelier for Blacks; Voting Machines,
Confusion Cited', The Washington Post (Washington DC, USA) 3 December 2000, A.01.
102 Darrel Rowland, 'Many Votes Uncounted in Ohio's Poor Areas', The Columbus Dispatch
(Columbus, USA) 17 December 2000.
103 United States House of Representatives, Minority Staff Special Investigations Division,
Committee on Government Reform, Election Reform in Detroit: new Voting Technology and
Increased Voter Education Significantly Reduced Uncounted Ballots (2001).
104 Ibid 4.
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Detroit upgraded its electoral system in 1998 and replaced punch-card voting with
an optical scan system that allowed voters to view and amend their ballots before
leaving the polling booth. The change resulted in the overall percentage of uncounted
votes in Detroit decreasing from 3.1 per cent of the ballots cast in 1996 to 1.1 per cent of
ballots cast in 2000 (in other words, from over 50 per cent above the national average in
the 1996 election to almost 50 per cent below the national average in 2000).105 The city
saw an across the board reduction in the number of uncounted ballots, with every
precinct reducing its percentage of uncounted votes from 1996 to the 2000 election and
some precincts reducing their uncounted rate from over 7 per cent in 1996 to less than
1 per cent in 2000.106
Another study, conducted by the Cal Tech-MIT Voting Technology Project, also
revealed the effects of the 'voting technology divide'.107 The study found that voting
equipment has strong and 'substantial effects' on the rate of uncounted votes, with the
difference between the best performing voting equipment and the worst performing
voting equipment being as much as 2 per cent of ballots cast.108 As five of the last 20
presidential elections have been determined by less than 2 per cent of the vote, this
finding casts doubt on the reliability of many past election results.109
Both studies confirm the existence of a 'voting technology divide' and the direct
correlation between voting equipment and the rate of invalid votes. In the wake of the
2000 Presidential election, some American academics and commentators have
recommended the end to partisan interests controlling elections and have called for a
neutral agency to administer the process to overcome this and other problems.110
Many more have also criticised the lack of uniformity among local and state election
boards, citing a disparity of resources among districts, with some poorer districts
having high informal voting and antiquated electoral technology,111 with at least one
academic showing that the lack of a central electoral agency plays a large part in the
shortcomings of the American voter registration, polling place operations and vote
counting systems.112 American attitudes towards electoral administration are shifting
away from partisan, localised processes. This re-thinking may be only a few years
behind that of the UK, which had a non-partisan but not independent electoral
bureaucracy until it created an independent Electoral Commission accountable to
_____________________________________________________________________________________
105 Ibid 1.
106 Ibid.
107 See Stephen Ansolabehere and Charles Stewart III, 'Voting Technology and Uncounted
Votes in the United States' (2002), Cal Tech-MIT Voting Technology Project, Cal Tech MIT,
http://www.vote.caltech.edu/Reports/residual_vote.pdf> at 27 November 2003. Voting
technologies have only seriously been studied in the 1950s and 1960s, when lever-arch
machines became popular, and again in the 1980s, when punch cards and optical scan
machines became operational: at 1, 3.
108 Ibid 2.
109 Ibid 28.
110 See, eg, Paul Herrnson, 'Improving Election Technology and Administration: Toward a
Larger Federal Role in Elections?' (2002) 13 Stanford Law and Policy Review 147, 150–3.
111 See Schwartz, above n 96, particularly 625–6; John Mintz and Dan Keating, above n 100;
Bryan Mercurio, 'Democracy in Decline: Can Online Voting Save the American Electoral
System' (2004) 22 John Marshall Journal of Computer and Information Law 409, 428–430.
112 See, eg, Herrnson, above n 110.
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Parliament in November 2000.113 It appears, then, that the problems with the US
electoral system may not be resolved until it moves to a centralised, non-partisan
system of electoral administration and governance. Fortunately, Australia already has
a strong system of this kind in place.
IV
THE NEED FOR INNOVATION AND REVITALISATION
The preceding section illustrates some of the strengths and weaknesses of key aspects
of the Australian electoral law framework. While the system, on the whole, has much
to be commended, it should not rest on its past achievements in what is an evolving
area. Although subject to machinery reform at the federal level via the JSCEM process,
the deeper structure of electoral law has remained largely unchanged for many years,
with the last substantial overhaul taking effect in 1984.114 Whilst this is a reflection of
the historical strength of Australia's system of electoral law, it is also something of a
conceit for Australia to continue to claim to be a leading innovator in electoral law and
practice. The UK for instance, long thought of as lagging behind in this field, has in the
late 1990s engaged in more significant debate and reform than Australia.115
Many of the challenges now facing the Australian electoral system are legal in
origin. The experience of the 2000 US Presidential election demonstrated how a lack of
forethought regarding the design of an electoral law system can create a situation
where judges can effectively be left to decide the outcome of an election.116 Like the
preceding section, the following is not meant to be an exhaustive list of the challenges
that face contemporary electoral law, nor does it attempt to provide solutions to those
challenges. Rather, it examines key issues that have either been the subject of recent
litigation or intense debate. It explores some of the main problems that face those
interested in Australian electoral law and the type of revitalisation that system requires
in order for Australia to ensure that its elections remain 'free and fair'.
(a)
Technology and people with disabilities
The maintenance of public confidence is a primary reason for electoral administrators
hesitating before adopting new voting methods to improve upon the systems currently
in place. Where elections are concerned, the official results must be scrupulously
accurate. The electoral process of registering voters, generating ballots, and casting and
counting votes are increasingly becoming automated in many nations, with electronic
machines replacing humans in many areas of the electoral process. The use of
computers to make voting more accessible and vote counting faster and more reliable
is a natural extension of the burgeoning technology. Moreover, a system of
computerised voting would appear to have several advantages over the traditional
form of voting. A perfected computerised system might be a more secure, cost
_____________________________________________________________________________________
113 See
the
United
Kingdom
Electoral Commission web
site
located at
<http://www.electoralcommission.gov.uk/about-us/> at 27 November 2003. The
Commission is an independent body whose functions and powers are set out in the Political
Parties, Elections and Referendums Act 2000 (UK) c 41.
114 See Commonwealth Electoral Legislation Amendment Act 1983 (Cth).
115 For an account of this, see Keith Ewing, 'Electoral Reform in the United Kingdom', in
Graeme Orr, Bryan Mercurio and George Williams (eds), Realising Democracy: Electoral Law
in Australia (2003) 26–39.
116 For an account of this, see Lowenstein, above n 4, 7–25.
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effective, efficient, convenient and environmentally friendly way to vote. For these
reasons, many countries have adopted, or are in the process of implementing,
computerised voting. The AEC, while not at the forefront of activity in the area,
sponsored a study on the issue in 2001 and again in 2002.117
Another reason many nations are introducing computerised voting, and an
important reason why Australia should further investigate such possibilities, is for its
ability to grant the secret ballot to voters unable to vote without assistance under
traditional voting methods. This group of voters (special needs voters) comprises a
substantial, yet indeterminate number of all voters, and includes disabled voters with
impaired vision or limited arm movements as well as illiterate voters and those voters
from non-English speaking backgrounds who may not feel comfortable reading or
writing in English. These voters are at present given the option of either voting with
assistance at the polling station118 or registering as a General Postal Voter ('GPV') and
having election materials and a paper ballot sent to their home through the post.119
Neither option is acceptable.
Voting with assistance at the polling station means that voters are denied the rights
and protections associated with the secret ballot.120 In addition, many voters feel that
being forced to tell someone else their vote is degrading and violates the spirit of the
secret ballot.121 Voting as a GPV is also unworkable for many as the election materials
and ballot paper are only available and posted in print form. Blind, limited arm
movement and illiterate voters are reminded again of their dependency by being
forced to rely on others, in effect, to vote for them. In addition, having disabled and
illiterate voters voting by post segregates them from the rest of the voting public on
polling day and excludes them from receiving polling day literature (such as how-tovote cards) or from considering late-breaking political developments. To many
Australians, the act of voting at the ballot box is an ingrained part of the election
process. Special needs voters should not be excluded from this important
manifestation of democracy in action.
While some may view the current inequality as a minor degradation or burden, and
rationalise that the government could better allocate scarce resources to other causes,
the issue of genuine equality is of the great importance to those voters denied the right
to vote in secret. Physically challenged members of our community are often treated
differently and separated from the rest of society simply because of their physical
situation. At times, this treatment is inescapable. But such treatment should be
minimised and avoided if reasonably possible. Similarly, forcing voters who cannot
sufficiently read and write the English language (whether through a lack of education
_____________________________________________________________________________________
117 See Colin Barry, Paul Dacey, Tim Pickering and Debra Byrne, Electronic Voting and
Electronic Counting of Votes: A Status Report (Australian Electoral Commission, 2001); Colin
Barry, Paul Dacey, Tim Pickering and Tim Evans, eVolution Not Revolution: Electronic Voting
Status Report 2 (Australian Electoral Commission, 2002). While not applicable in Australia,
many countries view computerised voting as a way to bridge the generation gap of
declining youth participation. See Mercurio, above n 111, 418–420.
118 Commonwealth Electoral Act 1918 (Cth) s 234.
119 Commonwealth Electoral Act 1918 (Cth) ss 184A, 186.
120 See generally Bryan Mercurio, 'Discrimination in Electoral Law: Using Technology to
Extend the Secret Ballot to Disabled and Illiterate Voters' (2003) 28 Alternative Law Journal
272.
121 See ibid 273.
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or non-English background) to admit this deficiency and vote with assistance adds
unnecessary embarrassment and could subject the voter to future discrimination.
The current treatment of special needs voters violates the second principle of
electoral democracy. The free-conscience principle dictates that voters be allowed to
vote without influence or the threat of intimidation or coercion. While we do not assert
that the ballots of special needs voters are being recorded against their wishes, the very
fact that the system relies on and trusts a polling volunteer or friend of the voter to
accurately and honestly mark the ballots and record the votes of assisted voters can
spark fear, or at least doubt, in the minds of some in the community that the assisters
will encourage or coerce the voter into voting a particular way or even go so far as to
ignore the wishes of the voter and mark the ballot paper however they desire. These
concerns were raised by a number of submissions to the JSCEM, including one from
Barry Wakelin MP, Federal Member for Grey.122 In response, the AEC responded with
a one-sentence reply 'absolutely refut[ing] the implication … that polling staff who
assist voters are encouraging voters to vote in a particular way'.123 This may be correct,
but it does not remove the need to examine how the law could be changed to enable
new technologies to enable more electors to vote in secret. Both the JSCEM Report on
the 2001 federal election and the JSCEM Report on the 1998 federal election examined
this issue.124 They demonstrate how not everyone in the community is fully satisfied
that the assisted voting process is free from encouragement, coercion or corruption.
The law should be adapted to minimise the number of assisted voters to those who are
truly incapable of voting without assistance.
Without action on the part of the legislature and electoral administrators, legal
action on behalf of disabled voters is a real possibility. This has occurred in a number
of states in the US, a nation with 54 million disabled citizens, 24 million of whom are of
voting age. The issue was first litigated in the District of Columbia under Title II of the
Americans with Disabilities Act 1990, 42 USC (1990) ('ADA'). The case settled before trial,
so no authoritative ruling on the issue was made. However, the settlement signified a
victory for the plaintiffs, with the electoral commission agreeing to purchase and make
available a number of accessible computerised voting machines at each polling
station.125
In another case, a blind voter in Maryland filed a complaint after election officials
refused to allow him the use of a specially designed Braille-type template in the 2002
congressional elections. The complaint, filed in conjunction with the American Civil
Liberties Union on behalf of 20 000 blind or visually impaired people in Baltimore,
_____________________________________________________________________________________
122 Submission to the 2001 Joint Standing Committee on Electoral Matters (Mr B Wakelin MP,
no 108).
123 Submission to the 2001 Joint Standing Committee on Electoral Matters (AEC, no 174) 22.
124 The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral
Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal
Election, and Matters Related Thereto (2003) [4.9–4.93]; The Parliament of the Commonwealth
of Australia, Joint Standing Committee on Electoral Matters, The 1998 Federal Election:
Report on the Inquiry into the Conduct of the 1998 Federal Election and Matters Related Thereto,
Parl Paper No 128 (2000), 78–84. Both inquiries are also concerned about the high levels of
assisted voting in some communities and corresponding mistrust between the voter and
polling staff in those communities.
125 See Perry Bacon, 'Optical-Scan Ballot Debuts for Primary; Write-In Count Will Not Benefit',
The Washington Post (Washington DC, USA) 5 September 2002, D.03.
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Maryland, alleges violations of both the Constitution and the ADA.126 Litigation and
settlement negotiations are ongoing. Class action suits have also been filed in Florida,
Pennsylvania and Texas, and in all cases bar Florida, the electoral officials and state
legislatures have capitulated to voter demand and mandated the purchase of accessible
voting equipment.127
This US litigation indicates how electoral authorities may have to provide disabledaccessible voting options or else face the cost and potential embarrassment of
defending a discriminatory voting system in court. This is leading to the purchase and
availability of accessible voting equipment in polling booths before the legislatively
mandated deadline requiring any new voting equipment purchased by any US
electoral authority be accessible to disabled voters.128
The 2001 JSCEM Report acknowledges that computerised voting has the capability
to 'extend the secret ballot to those with visual impairment who otherwise require
assisted voting to cast their vote'.129 Even more encouragingly, the AEC recommended
for the initiation of pilot computerised voting trials, a recommendation that,
disappointingly, the JSCEM chose to ignore.130 This acknowledgement that
computerised voting is not only feasible and safe, but that it also could place disabled
and illiterate voters on an equal level with other voters, potentially further opens the
door for legal action. The fact that some disabled voters are denied their right to vote in
secret during our compulsory elections, even though technology exists to allow those
voters to vote in secret, may violate s 24 of the Disability Discrimination Act 1992 (Cth),
which provides that it is unlawful for a person who provides services, or makes
facilities available, to discriminate against another person on the ground of the other
person's disability by refusing to provide the other person with those services.131 It
_____________________________________________________________________________________
126 Poole v Baltimore County and Maryland Board of Elections, No 02-3610 (D Md, 2002).
127 For instance, Pennsylvania officials are negotiating a settlement that will see election
officials providing e-voting systems to aid disabled voters. Plaintiffs in Texas lost their case
at the appellate level, but the state subsequently passed a law requiring that any new
voting system must make secret balloting available for blind and physically impaired
voters. Litigation remains ongoing in Florida, although a new state statute requiring that
any new voting system purchased must be accessible to visually and physically impaired
voters, state officials refuse to settle any lawsuits or purchase any accessible voting
machinery until the federal government provides promised (and much delayed) funding.
See AAPD v Smith, 227 F Supp 2d 1276 (MD Fla, 2002) (reconsideration denied in AAPD v
Hood, 278 F Supp 2d 1345 (MD Fla, 2003).
128 See, eg, Kris Wise, 'Voting System to Change: County Moves Ahead without Guarantee of
Federal Funds', Charleston Daily Mail (Charleston, USA) 3 March 2003, 1A (stating that West
Virginia has allocated $3 million of the $10.5 million federal grant for election reform to be
used to purchase handicapped-accessible voting machines); Cathy Willoughby, 'Hanging
Chads Could Prove Costly', Advertiser-Tribune (Seneca, USA) 6 March 2003 (quoting the
Chairman of the Seneca County Board of Elections, Mr Wayne Hoover, as stating '[new
voting methods] have to meet all ADA requirements'); see also, the text of the above
footnote.
129 The Parliament of the Commonwealth of Australia, Joint Standing Committee on Electoral
Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001 Federal
Election, and Matters Related Thereto (2003) [7.54].
130 Ibid [7.67].
131 Disability Discrimination Act 1992 (Cth) s 24(1)(a). The extent to which the Disability
Discrimination Act 1992 (Cth) can override express provisions of another Act remains
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could be argued that the Commonwealth, in providing the service (ie, facilitating
voting), in which exists a guarantee of the secret ballot, and by correspondingly
denying special needs voters the full service to which other voters are getting (ie, the
secret ballot), is in breach of the Act. It should also be noted that, while the Act does
not render it unlawful to discriminate against a person on the ground of the person's
disability if the provision of the services, or making facilities available, would 'impose
unjustifiable hardship' on the person who provides the goods or services or makes the
facilities available, it has been argued that investing in and implementing
computerised voting would not be a hardship on the Commonwealth.132
It must be noted, however, that litigation in the US only succeeded after a massive
lobbying effort resulted in the passage of disabled-friendly legislation that requires
states to purchase accessible voting equipment.133 While the issue of the accessibility of
polling booths has long been settled in the US, only recently, as a result of a complaint
in 1999 regarding the physical accessibility of voting booths, did the Human Rights
and Equal Opportunity Commission ('HREOC') take up the cause and successfully
lobby the federal government to review access to polling locations and to set
benchmarks on the issue.134 Unfortunately, accessibility to the ballot was not included
in the mandate, but it would seem logical for HREOC to take the lead in campaigning
for equal balloting rights. While it is encouraging that the AEC made
recommendations to the JSCEM for the trialling and potential implementation of
computerised voting, less encouraging is the JSCEM's rejection of that
recommendation and even more discouraging is the demonstrated confusion exhibited
by the JSCEM over the differences between computerised and Internet voting.135
_____________________________________________________________________________________
unclear. Thus, it might be the case that the courts could, in fact, hold that the Commonwealth
Electoral Act 1918 (Cth) is not subject to the equal protection clauses in the Disability
Discrimination Act 1992 (Cth).
132 See Disability Discrimination Act 1992 (Cth) s 24(2). See generally Mercurio, above n 7,
especially 38–9, 47–8, 57–63; Mercurio, above n 120, 274.
133 See Help America Vote Act 2002, 42 USC §§ 15301–545 (2002) ('Help America Vote Act'), which,
among other things, defined and set deadlines for polling site and voting accessibility and
mandated that polling sites provide at least one voting machine per polling place for
private and independent voting by persons with disabilities. For more on the Help America
Vote Act, see the League of Women Voters web site on representative democracy located at
<http://www.lwv.org/where/promoting/ votingrights_hava_advocatesguide.htm> at 27
November 2003.
134 HREOC received two complaints relating to wheelchair access to the polling booth for the
2001 federal elections, while the AEC received 40 complaints 'of an access nature' for that
election. The Parliament of the Commonwealth of Australia, Joint Standing Committee on
Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001
Federal Election, and Matters Related Thereto (2003) [5.28] (citing Submission to the 2001 Joint
Standing Committee on Electoral Matters (AEC, no 147) 25–6)). The AEC reports that the
percentage of wheelchair accessible polling stations has improved from 40 per cent in 1993
to 75 per cent in 2001: at 25–6.
135 See, eg, The Parliament of the Commonwealth of Australia, Joint Standing Committee on
Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the Conduct of the 2001
Federal Election, and Matters Related Thereto (2003), listing 'security' as a reason for its
opposition to 'Internet voting' at [7.55]; however, the proposals to introduce computerized
voting were not Internet-based. Therefore, the security problems associated with Internet
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Apart from the issue of ballot access for voters with disabilities, Australia should
also follow the lead of the US, UK and several European and South American countries
and initiate studies and trials regarding the possibility of implementing computerised
voting to the wider public in general elections. The reason for this recommendation is
simple: Australia should stay at the forefront of electoral governance. While the paper
voting system has worked, it may not be the best system currently available (whether
'best' is judged by accuracy, cost, administrative ease, etc). While it is true that
governments cannot leap into the technological unknown at the expense of the
integrity and accuracy of the election process, and that the public must trust,
understand and have the utmost confidence in the system under which they vote, part
of that trust results from effective electoral administration and appropriate trials of
new technology. Trust in a new voting system, and correspondingly the fulfilment of
the third principle exposed in this article, the outcome principle, will only come after
the public embraces the technology. But the public cannot fully embrace the
technology until they fully understand it. Thus, governments and electoral authorities
should ensure that the fourth principle of electoral democracy, the knowledge
principle, is realised before introducing the technology in 'real' elections. The
realisation of the principle could be accomplished in a number of ways, including by
embarking on an education campaign whereby the public could test the technology in
mock-elections.136 Computerised voting can only be introduced after the fulfilment of
the outcome and knowledge principles, which can only come after the system has
proved itself successful in thorough trials in mock-elections and real time situations.
Computerised voting, as with any new system of voting, will also have to be
anchored in a carefully drafted legal framework governing the voting process. For that
reason, before implementing any new technology into the electoral system on the
widespread voting public, electoral laws must be scrutinised and amended in order
that the technology complements, rather than contradicts, electoral values. The current
electoral laws are written to handle paper balloting only, and while various legal
provisions could arguably be read to cover different forms of electronic voting, other
sections would clearly need to be amended in order to cope with any technological
adaptations. In order to implement any form of e-voting, the various Commonwealth
and State electoral statutes would have to be scrutinised to ascertain which sections
would need amending to accommodate the technology. For instance, the statutes refer
to 'ballot-papers' and make numerous other references to traditional forms of voting,
all of which would have to be amended.137 In addition, provisions relating to a
_____________________________________________________________________________________
voting (ie, hacker attacks) should not have been considered: at [7.55]. For a more detailed
description of the various forms of computerised voting, see Mercurio, above n 7, 26–30.
136 Such a campaign has been successfully attempted. For example, before the Florida
congressional elections of 2002, some counties undertook to educate voters in the new
system, taking the machines to grocery stores, music concerts and other public venues
months before the election to demonstrate the technology and allow the public to trial the
machine. Electoral staff also benefited from these demonstrations, as votes were retrieved
as if it were a real election: see Bryan Mercurio, 'Beyond the Paper Ballot: Exploring
Computerised Voting' in Graeme Orr, Bryan Mercurio and George Williams (eds), Realising
Democracy: Electoral Law in Australia (2003) 230, 239.
137 Other issues which need revisiting are provisions governing the recount, the secret ballot
and privacy issues.
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'recount' and events which trigger such an action would also have to be amended and
updated for the e-voting setting.
The law must also accommodate the possibility of technological failure. For
instance, the US has recently enacted legislation providing that all electronic voting
must enable voters to see their vote and have the ability to change it before it is
registered, and that print-outs, or audit trails, of the vote be generated in certain
circumstances. The electronic voting experiment conducted in the Australian Capital
Territory in 2001 began the process of legislative adaptation to implement electronic
voting, but the process must continue on a systematic basis to ensure the laws do not
fail when tested during an election.138
(b)
Political advertising
In modern times, communication through the media is often the most effective way a
candidate can present their policies and program to the public. The content and
manner of delivery of political advertising during an election campaign leads to calls
for reform after every election. The calls for reform are not just from the losing
candidate and the media, but also from the JSCEM, which has often included in its
reports references to the debate over the scope and method in which political
advertising is regulated.139 The reason for the calls of reform is not difficult to see, as
the Australian political advertising regime has been described by noted political
scientist Dean Jaensch as 'full of dissembling, half-truths, fudging, questionable
statistics and plain, straight lies.'140 Another scholar added that '[e]xaggeration,
distortion and lying is part and parcel of an Australian election'.141
As more voters are increasingly loosening their ties to particular parties, political
advertising becomes the most important means of attempting to sway undecided
voters to support a particular party or candidate. In that regard, the regulation of
political advertising becomes a major part in the overall system of electoral
governance. It impacts on several of the principles of democracy, including the fourth
principle, that the electorate possess at least a general knowledge about the voting
process, and for what they are casting their vote for. It could be argued that deceptive
and deceitful advertising could be regarded as not meeting the knowledge principle,
since voters can easily be deceived by untruthful advertising and may alter their vote
accordingly.
Parliament has largely left political communication unregulated, although the
Commonwealth Electoral Act 1918 does make false and misleading statements 'in relation
to the casting of [an elector's] vote' an offence.142 In interpreting the section, the High
Court held the section to refer 'to the act of recording or expressing the political
_____________________________________________________________________________________
138 On the potential for computerised voting in Australia as well as the safeguards the ACT
had in place in the 2001 trial, see generally Mercurio, above n 136.
139 See, eg, The Parliament of the Commonwealth of Australia, Joint Standing Committee on
Electoral Matters, Who Pays the Piper Calls the Tune: Minimising the Risks of Funding Political
Campaigns — Inquiry into the Conduct of the 1987 Federal Election and 1988 Referendums,
Report No 4, Parl Paper No 171 (1989).
140 Dean Jaensch, The Liberals (1994) 183.
141 Bennett, above n 43, 77. See also Sally Young, The Persuaders: Inside the Hidden Machine of
Political Advertising (2004).
142 Commonwealth Electoral Act 1918 (Cth) s 329(1).
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judgment which the elector has made rather than to the formation of that judgment'.143
As a result of the ruling, Parliament passed s 329(2) which made it an offence to print,
authorise or distribute an electoral advertisement containing an untrue or misleading
statement. However, due to its alleged unenforceability, the provision was repealed
shortly after its passage in 1983.144 Therefore, only statements relating to how to cast a
vote, as opposed to statements intended to induce voters to vote for a particular
candidate, are caught under the Act.145 This reflects the difficulty in the law ever
capturing the elusive concept of 'truth' in political advertising.146 The Australian
Democrats continue to sponsor bills that impose similar standards of honesty as those
imposed on commercial advertising by s 52 of the Trade Practices Act 1974 (Cth), but
have had no success at getting such bills enacted.147
Not only do the relatively few legislative provisions that govern political
advertising reflect a laissez-faire, 'free speech' philosophy in Australia over
advertising,148 but it also calls into question the 'free and fair' standards of Australian
elections. The fourth principle of electoral democracy, the knowledge principle,
requires that voters are presented accurate information to assist them in choosing a
candidate and casting their vote. By allowing deceptive and misleading
advertisements to air, Australia is potentially violating that principle. Moreover,
Australia may also be violating the first principle of electoral democracy, the
participation principle. It can be argued that the party running the deceptive or
misleading advertisement denies the other parties a fair and equal piece of the electoral
process. While this argument can be countered by asserting that all parties engage in
such deceptive and misleading comment, such a response is unsatisfactory. Not only is
such a response unhealthy for the electoral system, but also it could only possibly work
amongst the major parties. When one adds minor parties or independent candidates,
all with much less of an advertising budget than the major parties, one clearly sees that
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143 Evans v Crichton-Brown (1981) 147 CLR 169, 207–8.
144 Bennett, above n 43, 77–8. A Parliamentary Committee believed that 'even though fair
advertising is desirable it is not possible to control political advertising by legislation': at
77–8.
145 David Bamford, 'Current Issues in Australian Electoral Law' (2002) 1 Election Law Journal
253, 256. South Australia is exceptional in having a 'truth in political advertising' provision:
see Electoral Act 1985 (SA) s 113. In 1996, the Legal, Constitutional and Administrative
Review Committee ('LCARC') of Queensland recommended the introduction of 'truth in
political advertising' legislation in Queensland. See LCARC, Truth in Political Advertising,
Report No 4, Legislative Assembly of Queensland, December 1996, 29. No such legislation
was enacted. Interestingly, the LCARC in 2000 (with an entirely new composition)
recommended against the introduction of 'truth in political advertising' legislation.
146 See George Williams and Natalie Gray, 'A New Chapter in the Regulation of Truth in
Political Advertising in Australia' (1997) 8 Public Law Review 110.
147 See, eg, the Electoral Amendment (Political Honesty) Bill 2000 (Cth). The legislation mirrors
s 113 of the Electoral Act 1985 (SA), which has withstood a challenge in the South Australian
Supreme Court. The Court found the restriction on political speech was proportionate, as
the public interest of ensuring the elector is not misled or deceived outweighed the
restriction: Cameron v Becker (1995) 64 SASR 238, 255 (Lander J).
148 The provisions that do remain outline requirements for those authorising and printing
election material (Commonwealth Electoral Act 1918 (Cth) ss 328–31) and restrict electronic
forms of political advertising for the two days preceding an election (Broadcasting Services
Act 1992 (Cth) sch 2).
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swamping the electorate with deceptive or misleading advertisements could easily
derail another's campaign.
The above does not mean to imply that no regulation of political advertising
occurs. However, the only form of review of political advertising occurs through the
self-regulation of broadcasters themselves via, for example, Commercial Television
Australia ('CTVA'). CTVA reviews advertising and prevents certain material from
being shown on television. For example, at the 2001 federal election, CTVA (then
known as the Federation of Australian Commercial Television Stations ('FACTS'))
determined that a Labor Party commercial stating it was 'the last chance' to save
Telstra could not be shown as 'it was impossible to say whether or not it was in fact the
last chance to save Telstra'. CTVA also banned a Liberal Party commercial that claimed
that Labor leader Kim Beazley changed his mind on a number of issues.149 While this
system may work for banning commercials asserting clearly outrageous or misleading
claims, the system inevitably draws criticism from losing candidates who failed in their
attempts to have commercials removed during the election (or whose advertisements
were banned). In effect, the system is an unaccountable system of private regulation
over a crucial form of electoral communication without the backing of any legal
framework. This is unsatisfactory at a time when political advertising has become the
parties' favourite and most successful way of communicating with the public.
(c)
Political funding
There are no legislative constraints on either the volume of advertising or the amount
each party can spend on advertising. As a result, the two major parties have increased
their advertising budgets and now spend up to 70 per cent of their entire campaign
budgets on television advertising alone.150 In fact, during the 2001 election, the two
major parties spent over $30 million on advertisements and, as the majority of funding
each party receives is through the government,151 the public (through the payment of
taxes) has borne these costs and has indirectly aided the two major parties in
effectively silencing the minor parties and independents. Such a laissez-faire,
campaign finance regime potentially violates the first principle of electoral democracy,
the participation principle, by effectively denying minor parties and independents an
effective opportunity to participate in the battle to form a government. Such a regime
also potentially violates the fourth principle of electoral democracy, the knowledge
principle, in as much as allowing a party to blitz the electorate with advertisements
(some of which may be deceptive and misleading) may distort their opinions and their
sense of choice.
The cost of campaigning continues to be largely driven by the cost of advertising,
particularly electronic broadcasting. Laws aimed at achieving transparency, equality
and the minimisation of (the appearance of) corruption through donation disclosure,
limits and state funding are having mixed success around the world and in some
instances seem to be in constant disrepute. In this regard, Australia is no different as
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149 See Bamford, above n 145, 257.
150 Sally Young, 'Spot On: The Role of Political Advertising in Australia' (2002) 37 Australian
Journal of Political Science 81, 81.
151 Ibid 84.
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the challenge of 'money politics' is universal.152 However, much could be done to
tighten up the reins of electoral funding. Australia's laissez-faire approach to campaign
finance and advertising laws is troubling for a number of reasons, not the least of
which is that it inherently favours the two major parties.153 For instance, the fact that
Australia allows unlimited donations and no expenditure caps effectively means that
the parties can blitz the electorate with advertising similar to what we are used to with
corporate ads, such as Coles v Woolworths or Coke v Pepsi. This unfettered
advertising frenzy crowds out minor party voices, which cannot attract as much
money in donations and therefore cannot afford to spend large amounts on
advertising. The system can thereby marginalise alternative voices.154
Political parties in Australia receive their funding from three sources: (1) internal
funding (such as membership fees); (2) public funding; and (3) external funding (such
as gifts and donations). The third source, external funding, is of particular concern to
electoral and representative democracy, as large sums of money are donated by
corporations to political parties every year.155 Regardless of whether such gifts and
donations come without strings attached and political promises, the nature of such
gifts call into question the political equality of Australians.156 While such a system
does not prevent any person from standing for election, it does create an unequal
opportunity to have access to the government. Commonwealth regulations only
require disclosure of most corporate and personal donations, and do contain a
provision attempting to catch donations through 'front' organisations.157 The system is
ineffective at both stemming the tide of electoral donations (it is thought that a
disclosure regime limits donations, as donors lose anonymity) and in providing
electoral equality to all citizens.
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152 For a critique of the Australian regulatory regime, see Joo-Cheong Tham, 'Campaign
Finance Reform in Australia: Some Reasons for Reform' in Graeme Orr, Bryan Mercurio
and George Williams (eds), Realising Democracy: Electoral Law in Australia (2003) 114–29.
153 Unlike the UK and many continental democracies, Australia has no meaningful free airtime for candidates. While public broadcasters such as ABC and SBS provide some free air
time, it is provided only at their discretion and not as a result of a legal requirement. In
addition, the leadership debates televised by the commercially-driven stations only include
the Prime Minister and the Opposition Leader and shut out all other party leaders, thereby
re-affirming the two-party system.
154 The unregulated campaign finance system also encourages major corporations to hedge
their bets and donate to both major political parties, knowing that one of them will form
government. For more on campaign finance, see Tham, above n 152; Joo-Cheong Tham,
'Legal Regulation of Political Donations in Australia: Time for Change' in Glenn Patmore
(ed) and Gary Jungwirth (series ed), The Big Makeover: A New Australian Constitution: Labor
Essays 2002 (2001) 72–86; Graeme Orr, 'The Currency of Democracy: Campaign Finance
Law in Australia' (2003) 26 University of New South Wales Law Journal 1; Deborah Z Cass and
Sonia Burrows, 'Commonwealth Regulation of Campaign Finance: Public Funding,
Disclosure and Expenditure Limits' (2000) 22 Sydney Law Review 447; and Ewing, above
n 115.
155 The three-year period between 1995/96 to 1997/98 saw $29 million donated by
corporations to political parties: see Tham, above n 154, 72.
156 It is known that some gifts are made in exchange for a meeting with a member of
parliament. See ibid 74–5.
157 See Commonwealth Electoral Act 1918 (Cth) ss 287, 305, 305B, 314AEA, 320.
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There have been calls from some commentators for a strict limit or ceiling on
political donations. For instance, Joo-Cheong Tham has proposed several methods to
examine the problem of 'soft money' contributions.158 This proposal and others have
been met with fierce resistance.159 Campaign finance reform is a major issue in the US
and the UK and, while it is also a major issue in Australia, the nation has not followed
their path and sought to improve the electoral funding regime. Reform of the
Australian system is long overdue.
V
CONCLUSION
The history of the Australian electoral system is largely a story of experimentation and
change. Australia pioneered numerous voting methods and led the world in achieving
'free and fair' elections. The law has had an important role to play in this. A flexible
system of law has accommodated, rather than hindered, innovation and has also
ensured public confidence in the process. This has enabled Australia to be a leader in
electoral governance. Indeed, the Australian model stands as a guide now used by
emerging democracies just starting to craft their democratic futures.160
It is not surprising that many would proclaim the virtues of the system of
Australian electoral law. However, this article has shown that, upon deeper inspection,
some of Australia's long-held traditions and practices, such as the secret ballot and
compulsory voting, are not as consistent with basic electoral principles as they should
be. For example, voting systems need to be improved to allow disabled and illiterate
voters the right to vote by secret ballot. Likewise, the political advertising and funding
regimes need urgent reform.
While experimentation has been a feature of the past, the modern era has seen less
vitality. While other nations are moving forward with initiatives such as major
electoral reviews, computerisation, experimentation with new registration methods,
tough campaign finance laws and clear laws regulating political advertising, Australia
is resting on its laurels. This is not to suggest that a revolution is needed. Indeed, the
system of electoral law retains the core strengths set out in this article. However, it
does mean that the nation should now reassess its electoral regime. Australia has a
long tradition of innovation in electoral law, a tradition that is vital to the ongoing
achievement of 'free and fair' elections.
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158 Tham, above n 154, 84–5. The US's recent ban on 'soft money' was upheld substantially as
constitutional by the United States Supreme Court in McConnell v Federal Election
Commission, 540 US 93 (2003). The Court upheld the ban on the 'soft money' that national
political parties collected from corporations, labour unions and anyone wealthy enough to
wish to donate. The law also restricts political advertising around election time. Candidates
can now only collect up to $US2000 per donor in each election and parties can raise $25 000
per donor each year. For more information on that case, see Glen Justice, 'Court Ruling
Affirms New Landscape of Campaign Finance', The New York Times (New York, USA), 11
December 2003, <http://www.nytimes.com/2003/12/11/national/11CAMP.html?th> at
12 December 2003.
159 It has been argued that a ceiling or ban on donations would devastate parties, which rely
on such funding to operate. Other criticisms include the possibility that such a ban might
infringe an implied right of freedom of political association. See Tham, above n 154, 82.
160 Cf Maley, above n 5, 40–51.