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The Federal Constitutional Right to Vote in Australia

Published online by Cambridge University Press:  24 January 2025

Anne Twomey
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Extract

The franchise is the linchpin of representative democracy. The level of representation is dependent upon the extent of the franchise. This most fundamental of democratic rights, the right to vote for those who govern, is not entrenched in the Commonwealth Constitution. At the time the Constitution was enacted, the franchise was in a period of flux, with property qualifications and plural voting on the demise and the concept of a universal franchise in the ascendant. Proposals to enshrine the franchise in the Constitution met with protests that the smaller colonies, such as South Australia (which allowed women the right to vote) were attempting to impose their will on the larger colonies of New South Wales and Victoria. It is not surprising therefore that such protection as mar be found in the Constitution for the right to vote has been described as “obscure”.

Type
Article
Information
Federal Law Review , Volume 28 , Issue 1 , March 2000 , pp. 125 - 153
Copyright
Copyright © 2000 The Australian National University

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Footnotes

*

The views expressed are those of the author and not the NSW Government.

References

1 King v Jones (1972) 128 CLR 221 at 231 per Barwick CJ.

2 For recent discussions on the right to vote, see A Brooks, “A paragon of democratic virtues? The development of the Commonwealth franchise” (1993) 12 U Tas LR 208; G Williams, “Sounding the Core of Representative Democracy: Implied Freedoms and Electoral Reform” (1996) 20 MULR 848 at 861-863; J Kirk, “Constitutional Implications from Representative Democracy” (1995) 23 FL Rev 63; P Hanks, “Constitutional Guarantees” in HP Lee and G Winterton, Australian Constitutional Perspectives (1992) at 95-97; M Coper, Encounters with the Australian Constitution (1988) at 309-313; GS Reid and M Forrest, Australia's Commonwealth Parliament 1901-1988 (1989) at 94-98.

3 See, for example, Attorney-General (Cth); Ex Rel. McKinlay v Commonwealth (1975) 135 CLR 1 at 44 per Gibbs J.

4 Official Report of the National Australasian Convention Debates (hereafter Convention Debates), Sydney, 1891 (1986) at 948.

5 Convention Debates, Sydney, 2 April 1891 at 628.

6 Ibid at 636.

7 Convention Debates, Adelaide, 15 April 1897 at 715.

8 For a discussion on women and the right to vote see: D Cass and K Rubenstein, “Representation/s of Women in the Australian Constitutional System” (1995) 17 Adel LR 3 at 10-12. See also K Lees, Votes for Women: The Australian Story (1995) and A Oldfield, Woman Suffrage in Australia: A Gift or a Struggle (1992).

9 Convention Debates, Adelaide, 15 April 1897 at 715. Note, however, that Mr Howe observed in reply that there are also worthless women in the world and that, by letting women vote, you are only increasing the number of worthless voters. He went on to note, however, at 719, that “the good women who are so numerous will counteract the influence of the bad ones”.

10 Ibid at 715-716.

11 Ibid at 718.

12 Ibid at 722.

13 Ibid at 725.

14 Ibid at 726.

15 Ibid at 727.

16 Ibid at 731.

17 Ibid.

18 Ibid.

19 Convention Debates, Adelaide, 22 April 1897 at 1196 per Sir John Downer and at 1197 per Mr Higgins.

20 Ibid at 1196.

21 Ibid at 1197.

22 Convention Debates, Melbourne, 3 March 1898 at 1841.

23 Ibid at 1842.

24 Ibid at 1848.

25 Ibid at 1846-7.

26 Ibid at 1851.

27 As originally introduced, the Bill would have permitted all Aboriginal people to vote in Commonwealth elections. It was amended in the House of Representatives to remove this right. See discussion in GS Reid and M Forrest, above n 2 at 97-98.

28 Cth Parl Deb 1902, Vol 9 at 11979. For a comment to the same effect by Senator Major Gould, see Cth Parl Deb 1902, Vol 10 at 13005.

29 Cth Parl Deb 1902, Vol 10 at 13009.

30 For a further discussion of the debate on the Commonwealth Franchise Act, see G S Reid and M Forrest, above n 2 at 94-98.

31 See Lake v Australian Electoral Officer [1998] AATA 83 where removal from the electoral roll because of a change in address had the consequence that two “British subjects” who had previously been enrolled to vote in Australia were not enrolled at the crucial date of 25 January 1984 and were therefore no longer qualified to enrol to vote unless they became Australian citizens.

32 J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth (1901) at 485.

33 Ibid.

34 Ibid at 486.

35 Ibid at 486-487.

36 Ibid at 487.

37 See W Harrison Moore, The Constitution of the Commonwealth of Australia (1902) at 109, where he said of the Quick and Garran approach that “such an operation of the law would be so partial and anomalous as to constitute a strong reason for rejecting altogether the limitation of time”. Moore interpreted s 41 as meaning “has at the establishment of the federal franchise or acquires at any time afterwards under a State law in force at the establishment of the federal franchise”.

38 P Brazil (ed), Opinions of the Attorneys-General (1981) Vol 1, No 542 at 695 (emphasis in original).

39 (1923) 32 CLR 500. See also HS Nicholas, The Australian Constitution (1952) at 75.

40 Bullosh v Miller, 3 September 1924, cited in P Stretton and C Finnimore, “Black Fellow Citizens: Aborigines and the Commonwealth Franchise” (1993) 24 Australian Historical Studies 521 at 527-528.

41 High Court case no 40, 1924. See P Stretton and C Finnimore, ibid at 528.

42 Ibid at 529, quoting a letter from Carran which is held in the Australian Archives.

43 Royal Commission on the Constitution, Evidence (1929) para 1066.

44 Royal Commission on the Constitution, Report of the Royal Commission on the Constitution 1929 (1929) at 27.

45 Professor AP Elkin, Aborigines and the Franchise-Facts and Suggestions (1946) at 1-2.

46 Cth Parl Deb 1946, Vol 187 at 2062 per Mr White, quoting correspondence from Professor Elkin. Mr White also quoted other views supporting the broad interpretation of s 41 and inquired of the Minister of the Interior whether he was aware of instructions to electoral officials to exclude Aboriginal people from the electoral roll even in those States where they had the right to vote. The Minister, Mr Johnson, replied, at 2064, that he was “enthusiastically interested” in extending the franchise to Aborigines with a sufficient level of education and was pursuing the matter with the States.

47 Commonwealth Parliament Select Committee on Voting Rights for Aborigines, Report of the Select Committee on Voting Rights For Aborigines (1961) at paras 28-29.

48 Ibid at para 66 and Appendix VI.

49 Ibid at para 67 and Appendix IV. Oth\:>rs who have taken the broader view or been critical of the narrow view of the meaning of s 41 include: M Coper, above n 2 at 312; PH Lane, The Australian Federal System (2nd ed 1979) at 41-42; A Brooks, above n 2.

50 (1972) 128 CLR 221.

51 Ibid at 239 per Barwick CJ.

52 Re Wakim; Ex parte McNally (1999) 163 ALR 270 at 285-286 per McHugh J.

53 (1972) 128 CLR 221 at 231.

54 Ibid at 232.

55 Ibid at 232-233.

56 Ibid at 231.

57 Ibid.

58 Ibid at 232-233.

59 Ibid at 244.

60 Ibid at 246.

61 Ibid at 251.

62 Ibid at 267.

63 Ibid at 258.

64 Ibid at 259.

65 Ibid.

66 (1983) 152 CLR 254.

67 Two were qualified to be enrolled before 4 February, but the two others were not so qualified, as one turned 18 on 15 February 1983 and the other was only naturalised on 15 February 1983. This raised the distinction between qualification to vote and actual registration to vote. However, the Court did not need to address it because of the narrow view taken of the meaning of s 41.

68 (1983) 152 CLR 254 at 260-261.

69 Ibid at 261.

70 Although many of the Aboriginal people who were entitled to vote in Victoria, New South Wales, South Australia and Tasmania in 1902 may have died by 1962, the amendment of the Commonwealth Electoral Act in 1949 (which gave express Commonwealth voting rights to Aborigines who had the right to vote in the States) ensured that there was no uniform Commonwealth franchise until at least 1962 when all Aborigines were given full Commonwealth voting rights.

71 (1983) 152 CLR 254 at 262.

72 (1923) 32 CLR 500.

73 (1983) 152 CLR 254 at 263.

74 Compare the judgment of Brennan, Deane and Dawson JJ where it was recognised that Higgins J “was of the opinion that a right to enrolment on the Commonwealth roll would follow from an entitlement to vote at elections for the State Legislative Assembly”: ibid at 277.

75 (1972) 128 CLR 221.

76 (1983) 152 CLR 254 at 279.

77 Query, however, whether there is any real value to a State in increasing its number of electors for this purpose, given the rarity of referenda and the other requirements about a majority of voters in a majority of States. Realistically, no State would change its franchise solely for this dubious advantage.

78 (1996) 188 CLR 48 at 71-72. See also Muldowney v Australian Electoral Commission (1993) 178 CLR 34 at 39 per Brennan ACJ where he appeared to support the view that the practical effect of s 41 is spent, and a comment to similar effect by McHugh Jin McGinty v Western Australia (1996) 186 CLR 140 at 244, fn 467. In contrast, it is interesting to note thats 41 is used as support for the implication of “representative government” or “representative democracy'' arising from the Constitution-seeAustralian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 209 per Gaudron J and at 229 per McHugh J; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 189 per Dawson J and at 195- 196 per McHugh J; McGinty v Western Australia (1996) 186 CLR 140 at 182-183 per Dawson J and 230 per McHugh J.

79 J Quick and R Garran, above n 32 at 456.

80 Further consideration of s 25 was cursory: Convention Debates, Sydney 1897 at 453-454 and Melbourne 1898 at 1827-1828.

81 Note, however, that s 127 of the Constitution excluded Aboriginal natives from being counted. This provision did not exclude them, however, from obtaining or exercising a right to vote in either State or Commonwealth elections. Such exclusions occurred by way of legislation. Section 127 did, however, eliminate the penalisation of a State which excluded Aborigines from exercising the right to vote in State elections. Section 127 was repealed by referendum in 1967.

82 Brazil, P (ed), Opinions of the Attorneys-General, (1981) Vol 2, No 1049 at 637Google Scholar

83 Ibid at 639.

84 See suggestions to this effect in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 138 per Mason J; McGinty v Western Australia (1996) 186 CLR 140 at 230 and 237 per McHugh J. See also discussion in G Winterton, “Popular Sovereignty and Constitutional Continuity” (1998) 26 F L Rev 1 and an earlier analysis in G Lindell, “Why is Australia's Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 FL Rev 29.

85 See further A Twomey, “The Constitution-19th Century Colonial Office Document or a People's Constitution?” in Parliamentary Research Service, The Constitution Papers (1996) 1.

86 Electoral Code 1896 (SA), s 15.

87 Constitution Acts Amendment Act 1899 (WA), s 26.

88 Ibid.

89 Elections Act 1885 (Qld), s 6.

90 Electoral Code 1896 (SA), s 16.

91 Parliamentary Electorates and Elections Act 1893 (NSW), s 23; Constitution Acts Amendment Act 1899 (WA), s 28; Elections Act 1885 (Qld), s 8; Constitution Act Amendment Act 1890 (Vic), s 128.

92 Parliamentary Electorate and Elections Act 1893 (NSW), s 23.

93 Elections Act 1885 (Qld), s 8.

94 Constitution Acts Amendment Act 1899 (WA), s 28. In Western Australia a person was also disqualified if he or she was in receipt of relief from the Government.

95 Constitution Act Amendment Act 1890 (Vic), s 142.

96 Parliamentary Electorates and Elections Act 1893 (NSW), s 23.

97 Elections Act 1885 (Qld), s 8.

98 Electoral Code 1896 (SA), s 17.

99 Constitution Acts Amendment Act 1899 (WA), s 28.

100 Such a conviction must have happened within 1 year prior to the sitting of the Revision Court, which revised the electoral rolls.

101 Parliamentary Electorates and Elections Act 1893 (NSW), s 23

102 Ibid.

103 Elections Act 1885 (Qld), s 8.

104 Constitution Amendment Act No 21896 (Tas), s 4.

105 Property qualifications were traditionally applied to the franchise for State upper Houses, as the upper House was intended to represent the interests of landed people. Lower Houses, being “popular” or “more numerous” Houses, tended to havea broader franchise.

106 See discussion below.

107 Constitution Acts Amendment Act 1899 (WA), s 26.

108 Elections Act 1885 (Qld), s 6.

109 Constitution Amendment Act No 21896 (Tas), s 4.

110 Constitution Act Amendment Act 1899 (Vic), s 4.

111 (1975) 135 CLR 1 at 19.

112 (1996) 186 CLR 140.

113 Ibid at 242.

114 Constitution Act Amendment Act 1890 (Vic), ss 128-135.

115 Constitution Act Amendment Act 1890 (Vic), ss 43-45, 50-51.

116 (1975) 135 CLR 1.

117 Ibid at 17.

118 Ibid at 19.

119 Ibid at 25.

120 Ibid at 44. While s 128 implies that voters may be disqualified on the grounds of their sex, and s 25 implies that they may be disqualified on the grounds of race, it is not clear which provision suggests that voters may be disqualified on the basis of lack of property. As noted above, the use of the franchise of the more numerous House of a State, as the basis for the Commonwealth franchise under s 30, does not imply that a person could be denied the right to vote because he or she did not own property. Although in Tasmania property was a qualification for the right to vote, an alternative qualification was income.

121 (1975) 135 CLR 1 at 62.

122 Ibid at 36.

123 Ibid at 69.

124 Ibid at 57.

125 Ibid at 56.

126 (1996) 186 CLR 140 at 166. It is unclear what is meant by the suggestion that Aborigines were once constitutionally disqualified from the franchise. While Aborigines were disqualified by legislation, the Constitution itself did not disqualify them from the franchise: B Galligan and J Chesterman, “Aborigines, Citizenship and the Australian Constitution: Did the Constitution Exclude Aboriginal People from Citizenship” (1997) 8 PLR 45. Note also that in the earlier case of Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 147, Brennan J stated that “[t]he Constitution permits, though it does not require, that the adult franchise be universal”.

127 (1996) 186 CLR 140 at 183.

128 (1993) 177 CLR 541.

129 (1996) 186 CLR 140 at 201. For further judicial discussion of the denotation/connotation distinction see Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 143-144 per Brennan J and at 196-197 per McHugh J. As noted above, contrast the more limited approach taken to the interpretation of “adult” ins 41 in King v Jones.

130 (1996) 186 CLR 140 at 221.

131 Ibid at 221-222.

132 Ibid at 287.

133 Ibid at 244. See also His Honour's comments in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 201, where he noted the absence of any guarantee of universal suffrage in the Constitution.

134 (1996) 186 CLR 140 at 244.

135 (1996) 186 CLR 302.

136 Ibid at 342.

137 (1992) 177 CLR 1 at 72. Quoted and distinguished in McGinty v Western Australia (1996) 186 CLR 140 at 174-5 per Brennan CJ.

138 For a discussion of the franchise and prisoners see G Orr, “Ballotless and Behind Bars: The Denial of the Franchise to Prisoners” (1998) 26 FL Rev 55.

139 Commonwealth Electoral Act 1918, s 93(8)(b) suspends the right to vote in Commonwealth elections from persons serving a sentence of 5 years or longer for an offence against the law of the Commonwealth or of a State or Territory. Technically, this does not mean the person remains in prison. The sentence could be being served by way of periodic detention or parole or possibly as a suspended sentence.

140 This law was enacted even though those who were disenfranchised retained their right to vote in the States. Many would presumably have been protected by s 41, even under its narrowest reading.

141 In considering these matters today, the High Court may also have regard to international standards, and Australia's obligations under art 25 of the International Covenant on Civil and Political Rights which requires that every citizen shall have the right to vote “without unreasonable restrictions” and without any distinctions based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

142 Commonwealth Joint Standing Committee on Electoral Matters, One Vote, One Value,(1988).

143 Constitutional Commission, Report of the Advisory Committee on Individual and Democratic Rights under the Constitution (1987) at 84-88.

144 Constitutional Commission, Report of the Constitutional Commission 1988 (1988) at para 4.16.

145 Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368 per O'ConnorJ. This approach has been frequently approved. See for example McGinty v Western Australia (1996) 186 CLR 140 at 231 per McHugh J.

146 See however, the recent attempt by the Federal Government to further limit the franchise in relation to prisoners. Under the existing law, persons serving a sentence of 5 years or longer have their right to vote suspended. The Electoral and Referendum Amendment Bill (No 2) 1998 sought to suspend the right to vote of all prisoners, regardless of the term of imprisonment. These provisions were defeated in the Senate: Sen Deb, 17 February 1999 at 2047-2060.