I wrote this essay for “Constitutional Law” in my second year of university (spring semester, 2010).
This paper will seek to define the right to vote; discuss how this right is enacted, through jurisprudential and practical frames; as well as conclude on the manner in which the rights might best be bolstered. This paper concludes that the current implied right to vote, when supplemented with Australia’s international treaty obligations, proves sufficient in protecting the voting rights of Australians.
Australia’s constitution has framed the representative, progressive democracy Australia has become. Since federation, franchise has been extended to almost all citizens of voting age. There is debate on the derivation of this right to vote, and on the extent of the protection of that right. It may be the right is express: provided for in s41; or is implied by the words “directly chosen by the people.”  The right might not be constitutional at all, instead being governed by international treaty obligations and commonwealth legislation. The right to vote has, historically, been defined in a broad sense, as the right to cast a ballot in an election. However, in order to fulfil the democratic goal of representative government, modern definitions require that the vote cast is effective, that each individual may only vote a single time and that franchise is equal. Further, the right must have legal prevalence in order to prevent its erosion through legislation.This paper will discuss the nature of the right to vote in Australia as well as to conclude whether, and how, to further strengthen this right.
2 S41 does not create an explicit right to vote
An express right is one clearly delineated in the constitution. For example, the South African constitution delineates the right to vote:
Every citizen has the right to free, fair and regular elections […]. Every adult citizen has the right to vote in elections […] and to do so in secret.
No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.
On its face, this section may be taken as requiring the vote to be extended, at minimum, to those who were able to vote in state elections at the time of federation.  However, wording is somewhat vague: Twomey proposes there are at least five materially different interpretations of the above section.These interpretations have diverse effects. The narrowest interpretation limits the section to protecting the right of those who had the right to vote in state elections, to vote federally only until federal legislation overrode them. The broadest interpretation of the section makes state legislation paramount to federal legislation on the matter of franchise ad infinitum. Since this section is unclear, we must look to the case law to define the limits of this provision.
2.1 The early cases: Muramats and Bullosh
Muramats rejected previous views of constitutional academia in its broad definition the s41 right, as a continuing protection. However, this definition was dicta, since the case was decided on another issue, and Higgins J was alone in discussing this issue in his reasoning. As such, this decision was not conclusive in cementing s41 as a broadly construed right. The Bullosh Case on the voting rights of Indian immigrants had a similar legal fate. The Magistrate who heard the case first followed the broad construction of s41 as in Muramats and found for Bullosh. This case did not reach the High Court (HC) because international pressure required the Australian government to amend the offending law before its legality had the chance to be tested. Muramats and Bullosh both interpreted the s41 right to vote as a broad, continuing limit on legislative power to determine franchise. Neither case put this argument forth in their rationes, or in majority: as such, these arguments are not binding.
2.2 King v Jones
In Jones, the definitions within the provision began to be defined in a limited scope. This case was decided on the definition of the word “adult” within s41; Barwick CJ and his court interpreted this unusually narrowly, meaning those considered adults at the time of federation: people above the age of 21. In the dicta of this case, however, the issue of the extent of s41 was discussed. Barwick CJ and Stephen JJ alluded to s41 being continuing, although Gray believes this was an assumption, and it was not taken into proper legal consideration. Menzies focuses on this issue directly, describing the section as protecting federal franchise with a so that it is at least extended to those who can vote at a state level; the section is “permanent” and it extends to persons “who, in the future, acquire […] voting rights by the laws of a state.” In Jones, the requisite in s41 for the right to extend only to adults prevented the HC from setting a broad, continuing interpretation of s41 as a binding precedent.
In Sipka, the term “adult” was not in issue. Sipka considered those enrolled on a state level that missed the national enrolment deadline. The majority of the HC decided to interpret this section narrowly: it only protects those individuals enfranchised before the Franchise Act: most of those who it would have been able to protect would have been more than a hundred years old by the time of this judgement. As such, it was concluded, s41 was a transitional provision, and was almost spent. This conclusion was derived from the HC’s understanding of the intent of the section and on the limitations within the word “prevented”. The judgements in Maramats, Bullosh and Jones were overruled. Murphy J, dissenting, highlighted the absurdity of the policy consideration of requiring equal franchise, since this section seemed to explicitly allow for different state levels of franchise. Murphy J extrapolated this section is current and continuing, and it is a “constitutional guarantee” of franchise. The decision in Sipka reduced the constitutional guarantee of franchise to only those who had a right under state legislation to vote in state elections before 1902. This decision was subsequently cemented by Snowdon v Dondas, and agreed to by the Constitutional Commission, which also found “s41 is spent”. In this case, there would be no express, constitutional right to vote. There is, however, growing popularity in legal academia for Murphy J’s position in Sipka and the dicta of King v Jones and the earlier cases, which suggests the definitional debate surrounding s41 is not yet exhausted. It is clear, however, there is not yet a binding interpretation of s41 that provides for an express constitutional right to vote.
3 An implied right to vote can be found in ss7, 24 & 31
An implicit constitutional right to vote one that is alluded to, but not expressly delineated. For example, the US constitution specifies what factors – such as religion, race and gender – cannot limit franchise. As such, whilst the US constitution does not provide a positive right to vote, there is an implication that the limits above should not constrain franchise, and thus franchise should be universally extended to adults, as reasonable. In Australia, it may be possible to extract an implied right to vote from the phrase “directly chosen by the people.” This has been construed by the HC as a requirement for representative democratic government.
3.1 Attorney-General (Cth); Ex rel McKinlay v Commonwealth
McKinlay was one of the first cases to approach the right to vote as an implied right in the constitution.McTiernan and Jacobs JJ derive this right from the term “the people” as relative to the times:
The long established universal adult suffrage may now be recognised as a fact […] it is doubtful whether […] anything less than this could now be described as a choice by the people.
This case did not create universal adult suffrage. The same judgement also stated: in light of the wording of other sections of the constitution the commonwealth government could restrict franchise based on race, gender, etc. and still be within its constitutional bounds. This view towards creating an implied right to vote out of the wording “chosen by the people” was echoed in McGinty and Langer v The Commonwealth.
3.2 Roach v Electoral Commissioner
In Roach, the Electoral Act’s amendment preventing any prisoners voting was challenged on grounds that it removed franchise from those serving minor sentences. The HC found the amendment unconstitutional.  Gleeson CJ held, as in McKinlay: whilst universal suffrage was not protected by ss 7 and 24, those sections did provide a protection for franchise apart from where there would be a substantial reason to remove franchise from a group. Since the majority of NSW prisoners were imprisoned for terms less than 6 months, excluding them from the vote would be arbitrary and irrational. Gummow, Kirby and Crennan JJ, in a joint reasoning, state these sections could be read as requiring the “substantial reason” test, where franchise may only be removed for a legitimate reason. Like Gleeson CJ, they found removing franchise from any imprisoned person was arbitrary and not legally valid. This view was rejected by the minority, who criticized the international perspective applied to the section. The test as per the majority in Roachis now the dominant authority on the ability for the government to legislate away franchise. It is quite a high burden, and is an effective constitutional protection of the right to vote.
4 The legislature determines the mechanics of Australian democracy
§s 3 and 4, above, discuss the constitutional provisions for franchise within Australia. However, §3 shows there exists no express constitutional right to vote. §4 shows a limited implied right to adult franchise. Both of these merely act as legal checks against the power conferred to the federal parliament to determine the gears of democratic government domestically. International Treaty obligations serve as another legal check.
4.1 Legislature may determine franchise
Legislation determines franchise within Australia. The Commonwealth Electoral Act stipulates universal adult suffrage, excepting the mentally impaired, those serving a prison sentence of more than three years and those convicted of treachery or like offences. Legislation, however, is not protected: a subsequent government is able to alter the legislation and change the scope of franchise. In practice, this is limited constitutionally. As Roach shows, the HC is keen to exercise judicial discretion to prevent the reduction of franchise. Further, the government has historically legislated to increase franchise, in line with an increasingly liberal national zeitgeist. However, this, still, is not a constitutional protection, and, as the dicta in McKinlay discusses, it may be constitutional to pass a law reducing franchise in a manner is discriminatory: it is only subject to judicial interpretation of “by the people.” As such, whilst legislation does provide a right to vote, it is a fragile one.
4.2 Votes are not of equal value
Ss 7 and 24 of the constitution, in delineating a quota system for assigning seats nationally, seems to provide for a requirement of equal voting. However, this, alongside the provisions in s 128 requiring a double majority to alter the constitution, enshrine, in the spirit of federalism, an inequality of vote-worth. This was affirmed in McGinty where the constitutional requirement for a minimum of 5 seats in the House of Commons per state was held to be exclusive to the concept of equal franchise.  Whilst this seems contrary to the classical conception of democracy, it ensures the representation of the interest of states at a federal level. The right isn’t constitutionally apparent or necessary for the effective administration of democracy nationally.
4.3 Compulsory and preferential voting are legislated and constitutional
Australians have a legislative duty to vote: that is, failure to enrol and vote properly, filling out all preferences is punishable. Langer affirmed that this law is not contrary to s24 of the constitution, since it provides a means for the free expression of the political will of the people. The requirement for proper voting is tempered by the right to a secret ballot, giving people scope to vote informally with no legal consequence.
4.4 International treaty obligations
Australia’s constitution is not the only limit on federal legislation on the right to vote. Australia has signed and ratified the International Covenant on Civil and Political Rights.This treaty provides
Every citizen is to have the right to vote at genuine periodic elections involving universal and equal suffrage and secret ballot, and guaranteeing the free expression of the will of the electors.
The right to vote is also mentioned in the International Covenant on the Elimination of all forms of Racial Discrimination, also ratified by Australia, and the Universal Declaration of Human Rights. Australia’s subsequent legislation will be viewed by the HC in light of its international treaty obligations, thus, international treaty obligations provide one more safeguard of the right to vote in Australia. The legislature has the power to determine the workings of the electoral system. On its face, this does not protect the minimum rights of franchise: in the early years of federated Australia, this legislative discretion would have allowed Queensland to disenfranchise aboriginal people in 1905 had it not been for constitutional provisions (see sub§3.1, above). However, these constitutional checks provide franchise as progressive and reasonable, reflexive of modern liberal thought. This allows for flexibility, and has been used to extend franchise: to women, aboriginal Australians, Australians living abroad, and more. Further, this flexibility may be used to provide for equal suffrage. If the right to vote was wholly constitutional, each of these would have required a referendum, which is both costly and historically ineffective.
5 The future of Australia’s protection of the right to vote
Australia has been criticised because the right to vote is not expressly constitutionally enshrined. Further, there has been criticism of Australia’s strict preferential compulsory voting system. However, it is possible to conclude the Australian system is working, with Australia having one of the highest rates of voter turnout in the world (at 95% of the vote eligible population voting much greater than the 54% of voters who turned out the US elections). This is undoubtedly due to the compulsory nature of voting, which is allowed for by the flexibility of Australia’s legislation-based electoral system. However, the near-universal suffrage enjoyed by adult Australians is based almost solely on legislation. As such, in the near future, it would be prudent to cement these rights, or at least their inclusive nature, in some manner, constitutionally. This section will now discuss three possible methods of progression. I will now discuss three models of progression: the first leaving the constitution as is, explored through the lens of the recent case, Rowe v Anor; the second requiring the constitution to be changed to reflect an express right to vote; and the third where the constitution remains unchanged but where international treaties are given primacy.
5.1 Leaving the constitution as is: Rowe v Anor
The current system allows for judicial interpretation of the vague rights in the constitution. In recent history the judiciary has chosen to interpret the implied constitutional right to vote liberally. In Anor, it was decided that the requirement to enrol on the day of the writ of election did not fulfil the test of reasonableness as in Roach, and, as such it was unconstitutional. This is thought to have extended franchise to more than 100,000 young voters.Whilst, recently, this judicial discretion has been a liberal force, this system does not constitutionally bind the legislature; it is thus potentially subject to abuse and/or regression.
5.2 An express right
S41 fails to ensure a right to vote. As such, there has been a proposition that it be changed to reflect an explicit right. The proposed change was to replace s41 with:
All citizens who are of or over the age of 18 years are qualified to be electors of members of the House of Representatives.
This however, might limit the right to vote (as s41 was limited) to the intent of the drafters and prevent future extension of franchise. In Australia, the constitution may only be altered by referendums, which rarely succeed. Further, similar referenda have failed twice.It is not clear that an express right to vote would be accepted by the populace, or that it would improve the security of the right to vote within Australia.
5.3 An implied right backed up by the ratification of international treaties
This paper proposes an alternate solution: that the implied constitutional right to vote is read as being contingent only to the minority test in Roach and Australia’s international treaty obligations. This would afford the citizens much of the same rights as if there was an express right without requiring a referendum. This is also in line with Australian HC practice, with international law held to be persuasive on both common law and statute.
Whilst there is no express constitutional right to vote in Australia, there is an implied right to vote which is binding upon the federal legislature. The minutiae of democracy are left to parliament, with the implied constitutional controls preventing a misuse of their power. Whilst this is currently working soundly, that is only in the context of a liberal Australian populace, government and HC. A malign government, however, can still remove suffrage from groups by gender, race and many other factors. In order to prevent this, the constitutional right to vote must be strengthened. This requires one of two options. The first option is a referendum, which is statistically unlikely to succeed. The second requires merely the continuing practice of Stare Decisis, binding future parliaments and HCs to the rules set out previously and Australia’s international treaty obligations. I believe that the second is more likely to succeed and is equally likely to protect the rights of Australians, both in majority and minority, to vote.
7.1 Articles, Books, Reports
- The Hon Michael Kirby J AC CMG, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship’  MULR 1.
- Australian Parliament House, ‘Constitutional Change’ (24/06/1998) 2 <http://www.aph.gov.au/HOUSE/committee/laca/ConstitutionalChange/part2.pdf > at September 9 2010 .
- Arony, Nicholas, ‘Representative democracy eclipsed? The Langer, Muldowney and McGinty decisions’ (1996-1997) 19 U. Queensland LJ 75.
- Australia, High Court of, ROWE & ANOR v ELECTORAL COMMISSIONER & ANOR (2010) <http://www.hcourt.gov.au/media/rowe.pdf> at September 10 2010.
- Butterworths, Halsbury’s Laws of Australia, (at September 4 2010) 80-1745 (B) Voting Rights, ’80 Civil and Political Rights’ [1745-1777].
- Commission, Constitutional, Report of the Advisory Committee on Individual and Democratic Rights under the Constitution (1987).
- Constitutional Commission, 1988, Vol 1.
- Coper, Michael and Williams, George, Justice Lionel Murphy: influential or merely prescient? (1997).
- Gray, Anthony, ‘The guaranteed right to vote in Australia’  QUTLJJ 12.
- Issacharoff, Samuel, ‘Groups and the Right to Vote’ (1995) 44 Emory L. J. 869-909.
- Levinson, Sanford, ‘One person, one vote: a mantra in need of some meaning’ (2001-2002) 80 N.C. L. Rev 1269.
- Lumb and Moens, The Constitution of the Commonwealth of Australia – Annotated (7 ed, 2007).
- Mercurio, Bryan and Williams, Georger, ‘The Australian diaspora and the right to vote’ (2004-2005) 32 U.W. Aust. L. Rev. 1.
- News, ABC, High Court upholds GetUp! case (2010) at 09/09/2010.
- Report of the Republic Advisory Committee, Vol 2, (1993).
- ‘Rights of Indians’, The Argus (Melbourne, Victoria), Thursday 28 August 1924, p 19, column 5.
- Twomey, Anne, The Constitution of New South Wales (2004).
- Twomey, Anne, ‘The Federal Constitutional Right to Vote in Australia ‘ (2000) 28 Federal Law Review 45.
7.2 Case Law
- Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1.
- Bullosh v Miller “the Bullosh case” (Unreported, Magistrate’s Court, Melbourne, 3 September 1924).
- King v Jones (1972) 128 CLR 221.
- Langer v The Commonwealth (1996) 134 ALR 400.
- Mabo v. Queensland (No.2) (1992) 190 CLR 513.
- McGinty v Western Australia 186 CLR 140.
- Muramats v Commonwealth Electoral Officer (WA) (1923) 32 CLR 500.
- Newcrest Mining v The Commonwealth (1997) 190 CLR 513.
- R v Pearson; Ex parte Sipka (1983) 152 CLR 254.
- Roach v Electoral Commissioner (2007) HCA 43.
- Snowden v Dondas (1996) 188 CLR 48.
- Wesbberry v. Sanders (1964) 376 U.S 1.
- Williams v Rhodes (1968) 393 U.S. 23.
- Commonwealth Electoral Act 1918 (Cth).
- Commonwealth Franchise Act 1902 (Cth).
- Commonwealth of Australia Constitution Act “Australian Constitution” 1900 (Commonwealth) 63 & 64 Vict.
- Constitution of the Republic of South Africa 1996.
- United States Constitution.
- International Covenant on Civil and Political Rights (New York, 19 December 1966; Aust TS 1980 No 23; 999 UNTS 171).
- International Covenant on the Elimination of all forms of Racial Discrimination.
- Universal Declaration of Human Rights.