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LegislatureRight to Vote Section 7: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate.Section 24: The Senate shall be composed of senators for each State, directly chosen by the peop...

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Legislature Right to Vote Section 7: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. Section 24: The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. Section 30: until the parliament otherwise provides

We have a new implied right (right to vote on equal terms), constitution always gives us the right to vote , as established in s7 and s24, for parliament should be ‘directly chosen by the people of the state’. Therefore ,making it legally compulsory to vote, hence the fine that is received when you don’t show up. Roach v Electoral Commissioner ( 2007) 233 CLR 162 Summary Roach was sentenced to 6 years, non-parole period 4 years prison Gov. had recently changed law to be that anyone with a sentence at all couldn’t vote (2006 all full-time inmates disenfranchised approximated to 20,000 prisoners couldn’t vote) Therefore Roach challenged this. Point of Law Upon review Glesson CJ Held  2006 amendment was an invalid law  Court then invalidated 2006 amendment and brought it back to the 2004 arrangement that the cut off was 3 years.  Disenfranchisement is contrary to the right to vote which is constitutionally protected ( ss7 and 24 which notes ‘chosen by the people)  Glesson reasoned with the proportionality test: popularly used in varying areas of the law as a balancing act  focuses on preventing decisions based on random choice and personal whim but rather reasoning- within rights to vote it would be disproportionate for people to be treated in differently and unequal in ways with no good reason Proportionality test Step 1: legitimate purpose? (look for purpose , for which government is breaching right) Two possible purposes (for creating 2006 legislation) Additional Punishment?  Cant give this restriction as an extra punishment/ cant be punishing prisoners twice  Glesson CJ rejects that this 2006 legislation is acting in purpose as there are already criminal penalties set shouldn’t have to create more Membership in political community?  Yes, serious offending may warrant temporary suspension o Australian citizenship is a common bond, involving reciprocal rights and obligations. …Serious offending may warrant temporary suspension of one of the rights of membership [in the community], that is, the right to vote’. o

Built around the idea of a social contract reciprocal roles.

Step 2: Reasonably & appropriately adapted/ proporationate (proportionality is the purpose in line with the breach of rights). 

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only disallows voting if prison term over 3 years (QN- why 3 years?) - electoral cycle is 3 years sentencing is too variable its based on homelessness people are more likely to be sent to prison for being homeless and just simply not having a home, therefore given shorter sentence 1st reason we have 3 year parliamentary maximum, it corresponds so that you have the opportunity to vote in the next election Court doesn’t want to rewrite they would much rather cancel and go back to the old

► Below this level sentencing is too variable, based eg on homelessness; barring voting by all prisoners is arbitrary. Things to take into consideration to Roach I.

Is this decision fair?

II. III.

Does it set the right cut off? Does it leave out important concerns

1. Social contract? 

It cede(surrenders) our right to the sovereignty to establish order, within this change all people are better off

2. Unequal effects  

24% of those affected are indigenous Indigenous Australians 16 times more common in prisons

 intentional convention on the Elimination of all Forms of Discrimination   

There is a right to political participation based on universal and equal suffrage Laws must not create or perpetuate racial discrimination and division Subject to ‘’reasonable expectations’’ this might allow for people to be discriminated

3.Interest of prisoners   

Subject to much abuse and neglect’ They’re unpopular in the community Who will speak for them

4. Rehabilitation Joint Standing Committee on Electoral Matters (Parliament) 1993: Main “aim of the modern criminal law is to rehabilitate offenders and to orient them positively toward the society they will reenter on their release. [T]his process is assisted by a policy encouraging offenders to observe their civil and political obligations Supreme Court of Canada Sauvé Decision 2002: Court identified that: Disenfranchisement “is more likely to send messages that undermine respect for the law and democracy than enhance those values. The legitimacy of the law … flow[s] directly from the right of every citizen to vote.  at first this law was designed to deter but someone not having a right to vote wont not commit crime due to fear of leaving that. Blanket= Disenfranchisement was contrary to the right to vote Limitations and implications and the right to vote French CJ test in Rowe v Electoral Commissioner (2010):  If the law’s adverse legal or practical effect upon the exercise of the entitlement to vote is disproportionate to its advancement of the constitutional mandate, then it may be antagonistic to that mandate. R v Pearson ex p Sipka (1983)  Murphy J dissent ; s 41 one of the few guarantees of the rights of persons…A right to vote is so precious that it should not..read..by implication Roach (2007)  s7 and 24 have come to be a constitutional protection of the right to vote ….Glesson CJ Majority providing permission to vote ( Roach 2007)  Gummow, Kirby and Crennan JJ: the Act was beyond what is reasonably appropriated and adapted…to the maintenance of representative government (Gummow , Kirby and Crennan JJ)  Glesson CJ  (we) need a rational connection between exclusion and community membership. Connection might be found in conduct which manifests such a rejection of civil responsibility as to warrant temporary withdrawal of a civic right….  Glesson CJ : The words of ss 7 and 24 because of changed historical circumstances including legislative history have come to be a constitutional protection of the right to vote…. Right to vote v parliamentary sovereignty (Roach dissent) Hayne J in Roach (in dissent) re Parliamentary sovereignty  [T]he purpose of the conferral of legislative power under s 30 was to provide the parliament with the power to determine which groups should be given the franchise

The right to not vote Commonwealth Electoral Act 1918 s245(1) “it shall be the duty of every elector to vote at each election” Judd v McKeon In Judd v McKeon (1926) 38 CLR 380, Mr Judd provided the following reason for not voting at a Senate election: 1. “ All the political parties and their candidates participating in the election support and do all in their power to perpetuate capitalism with its exploitation of the working class, unemployment, prostitution, etc. 2. The Socialist Labour Party, of which I am a member, stands for the ending of capitalism and the inauguration of socialism – and, consequently, its members are prohibited from voting for the aforementioned supporters of capitalism. 3. The Socialist Labour Party has paid and lost hundreds of pounds in Federal election deposits for its candidates. 4. The unjust penalty of 25 pounds on each candidate penalizes us if we participate in a Federal election, and your letter suggests that we will be penalized if we don’t. Is this fair? ”  Courts brought in compulsory voting in 1912  Judd was a community  Won’t vote because all candidates are capitalists and he is a socialist. In the High Court it was decided that this was not a valid and sufficient reason, Chief Justice Knox, and Justices Duffy and Starke, remarked: These reasons do not purport to express the views of the appellant but those of the party to which he belongs; and in that view his only excuse, which is clearly insufficient, is that his party prohibits him from voting…  Even if the reasons stated by the party is what Judd believed they amount to no more than the expression of an objection to the social order of the community in which he lives. In our opinion such an objection is not a valid and sufficient reason for refusing to exercise his franchise.  The High Court gave some practical examples of what would be regarded as valid and sufficient reasons for not voting:  Physical obstruction,  whether of sickness or outside prevention,  or of natural events,  or accident of any kind, would certainly be recognised by law in such a case. However its not limited to this category can include other things too. The question was that choices between 2 bad options was this even a choice? Higgins J said agreed and said it wasn’t a choice 

Implied Rights: Role of the Court EXAM TIP: There are two types of constitutionally protected rights; express rights and implied rights. 1. Express rights: are clearly and explicitly outlined in the text of the Constitution  can only be altered by constitution as they are deeply entrenched 2. Implied rights: these are not as clearly outlined in the constitution, derived from interpretation of key words or phrases and outlined by HC in cases.  these can be revisited, re-examined, changed and overruled by HC McGinty v Western Australia WA electorates were wildly disproportionate  some city electorates had as as many as 4 times as many people in them as compared to country ones– Brought up issue of ‘one vote, one value’  The plaintiffs in that case argued that just as sections 7 and 24 of the Constitution could support the implied freedom of political discussion, so could the sections support a guarantee of voter equality. They argued that this guarantee rendered invalid the electoral boundaries operating in Western Australian State elections.  The argument failed Point of law  Court found that protection of ‘chosen by the people’ in s7 and 24 did not require all votes to be equal  Brennan CJ and Dawson J: Need a specific textual basis to imply a right. Can’t just have a general inkling that something is undemocratic  Dawson J: unjustness and unfairness in scale is a question of ‘political nature about which opinions may vary considerably (there is no ‘right’ way to design democracy) some rules may be a bit more unfair. - EG. When looking at the qualification in s 8 and 30 they amount to less than universal suffrage, however politically unacceptable they may be.  

S7 and 24 don’t directly affect western Australia. The legislation doesn’t really talk about states and the power Maybe in an extreme case of 1000/1 then courts will step in but if its noting that major courts wont step in when it comes to that inequality

Gleeson CJ used 3 constitutional interpretation: (EXAM TIP) 1. 2. 3.

Text: necessary implication from the text History: legislation & social standard irreversibly developed Justice: excluding Catholics is obviously arbitrary and unjust

Hayne J Dissented ► Rejects reasoning based on ‘common understanding’ or ‘generally accepted Australian standards’  

Hard to determine what social standards are and what extent they are accepted Is a passage by majority enough? If so the ‘limiation has no content the parliament may do as it chooses’

Method 1: Direct Implication  Looking at the direct idea of ‘chosen people’ it doesn’t associate anything to do with the fairness, its concerned about the representative government and participation of citizens in the life of community Method 2: contemporary Consensus ( reading in accordance with contemporary virw)  We have to take into consideration “ changed historical circumstance” including legislative history  which has allowed for the constitutional protection of the right to vote  Everything is about finding the overall purpose using the proprietary test , here there is arbitrary action taking place as this is contrary to common law assumptions  Arbitrary = based on random choice of personal whim, rather than any reason or system Method 3: Justice  Looking at justice is requires equal franchise  The only fairness being focused on here is a fairness on everyone being about to vote despite their faiths. For example it would be silly for parliament to disenfranchise people on the grounds of having a particular religion. Rowe v Electoral Commissioner the poll was diverted to save life, or to prevent crime, or to assist at some great disaster, such as a fire: in all of which cases, in my opinion, the law would recognise the competitive claims of public duty. 43. However, the Court warned this was not the only class of reason that would be accepted, it will depend on the circumstances in each case. McGinty v Western Australia Summary – WA electorates were wildly disproportionate – some city electorates having as many as 4 times as many people in them as country ones – Brought up issue of ‘one vote, one value’ – The plaintiffs in that case argued that just as sections 7 and 24 of the Constitution could support the implied freedom of political discussion, so could the sections support a guarantee of voter equality. They argued that this guarantee rendered invalid the electoral boundaries operating in Western Australian State elections. The argument failed. Point of law – Court found that protection of ‘elected by the people’ in ss7 and 24 did not require all votes to be equal Case about a girl who turned 18 but didn’t get the chance t ovote cause she enrolled late . Arguing there should be a right to vote even if you are unprepared Rowe v Electoral Commissioner & Commonwealth (2007) Re restriction of adult citizens voting rights  Gleeson CJ: done if there was a substantial reason or their exclusion which is consistent with the choice by the people  Gummow, Kirby Crennan JJ: whether it is reasonably appropriate and adopted, or proportionate to maintain a system of representative gov. Rowe v Electoral Commissioner & Commonwealth (2010) Impugned Law: Electoral and Referendum Amendment Act 2006 removed the grace period between the date of the issue of the write and the closure of the rolls.  Amendment meant 10,000 people couldn’t vote because of this.  Just like Roach we question was this contrary to the voting rights in the constitution? Questioning the implied right to vote  Get up! Brings case on behalf of Shannon Rowe

Gleeson CJ interpretations 2. History: legislation and social standards Howard government developed the amendment based on a) Avoiding fraud b) Make voters get more organised about voting sooner. Using Ex rel McKinlay v The Commonwealth “ ss7 and 24 because of the changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote”  Therefore, what is parliaments capacity in this right  Commonwealth has the capacity to amend as it is an implied right but it needs to be proportionate “ an electoral law which denies enrolment and therefore the right to vote…can only be justified if it serves the purpose of the constitutional mandate” law affecting such a change causes a detriment. Its justification must be that is it nevertheless, beneficial because it contributes to the fulfillment of the mandate. If the detriment...is disproportionate to that benefit, then the law will be invalid as inconsistent with that mandate.”- CJ French (Rowe v Electoral Commissioner) Court Held: Majority held that the the law did not take this as a legitimate reason to have this law  What fraud was taking place? How did this law even avoid law? = it’s an invalid law, there is no fraud taking place instead 10,000 people are missing out on their right to vote  Therefore this is no good reason in breaching this right  Court found no evidence therefore the disproportion is not equalling to the benefit.  Due to legislative history, the right to vote is a constitutional protection, its up to the Parliament to define those exceptions.  The franchise of allowing adults to vote is embedded in the concept of participation in the life of the community, therefore disenfranchising adults would not be consistent with the concept of them ‘choice by the people’ Mulholland v Australian Electoral Commission (2003) 2009 ALR 582 Impugned Law:  Parties in CTH elections usually get funding only if they surpass a 4% vote threshold  Must either have 500 names of members or sitting member in a legislature  No overlapping membership (involved in multiple parties) Issue  

Does it violate ss 7 and 24 ‘directly chosen by the people’ ? Does this violate the freedom of political communication?

Decision  There isn’t a right to party funding from government ; therefore discrimination is allowed and particular guidelines can be enforced courts aren’t using the prop test of purpose but saying there is a good purpose for restriction  The funding “aids political communication and political process” and decrease reliance on contributions  There are legitimate thresholds for the 4% threshold ‘ it distinguishes between fake parties who want to manipulate the system  Why is it useful? We can fund groups so that we create a greater form of equality Gummow and Hayne JJ  Care is called when elevating a ‘direct choice’ principle  Requirement of ‘substantial body members’ is consistent with the objective of maintain a system of representative government  Public funding may minimise the reliance by parties on campaign contributions. It would encourage candidates from new parties and groups. Electoral Office Section 44(i) Any person who: i]s under any acknowledgement of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power ... shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives

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Canavan ( Citizen Seven Case):Who can sit in federal parliament Facts: Seven MPS discovered they are/may be dual citizens (Canavan, Ludlam, Waters, Roberts, Joyce, Nash, Xenophon) As per Sykes v Clearly a person must take “all reasonable steps” to renounce their foreign citizenship prior to running for office, otherwise they would be disqualified from sitting a senator or member

Issues  

Where the citizen seven ineligible to sit as senators/members? Should requirments of s44(i) be stricter/permissive?

Relevant constitutional provision : “ s 44 disqualification : Any person who..(i) is under any knowledge of allegiance, obedience or adherence to a foreign power, or is subject to a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power…shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives Held (by whole court)  The courts decided to include a mental element (intention, reckless, wilfully blind, mens rea) 3 judges proposed their ought to be a mental element  Alternative constructions of s 44(i) considered. Some of the cases ‘departed substantially from the text’ and include a ‘mental element’: AG’s case construction : Disqualification would occur if MP ‘know[s] or [is] wilfully blind about his or her foreign citizenship’ 2. Joyce/Nash case Construction : disqualify if MP knew aout foreign citizenship 3. Lundlam/Water’s case construction : MP ‘had knowledge of facts that, in the mind of a reasonable person taking a properly diligent approach to compliance with the Constitution, ought to call into question the belief that he or she is not a subject or citizen of a foreign power and prompt proper inquiries’. 4. IMPORTANT ONE ADOPTED BY COURT: Windsor construction: “‘give[] s 44(i) its textual meaning(strictly textual), subject only to the implicit qualification in s 44(i) that … an Australian citizen not be prevented by foreign law from participation in representative government where it can be demonstrated that the person has taken all steps that are reasonably required by the foreign law to renounce his or her foreign citiz...