Implied Right to Vote - Paragraphs for constitutional law, paragraphs for PDF

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Paragraphs for constitutional law, paragraphs for...

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o 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 8 o The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

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 Section 24 o The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth ...

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 Section 30

o Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.  Section 41 o 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. Right to Vote 

The Australian Constitution does not create a constitutionally guaranteed ‘right to vote’ but rather a statutory franchise: Attorney-General (Cth); Ex rel Mckinlay v Commonwealth (1975) 135 CLR 1.

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Section 41 is a transitional provision that is effectively now redundant for all practical purposes: R v Pearson; ex parte Sipka (1983) 152 CLR 254.

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1988 referendum proposal ‘to alter the Constitution to provide for fair and democratic parliamentary elections throughout Australia’. Roach v Electoral Commissioner (2007) 233 CLR 162

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Case concerned amendments to the Commonwealth Electoral Act 1918 (Cth) restricting the voting rights of prisoners.

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‘... 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. That, however, leaves open for debate and nature and extent of the exceptions. The Constitution leaves it to Parliament to define those exceptions, but its power to do so is not unconstrained. Because the franchise is critical to representative government, and lies at the centre of our concept of participation in the life of the community, and of citizenship, disenfranchisement of any group of adult citizens on a basis that does not constitute a substantial reason for exclusion from such participation would not be consistent with choice by the people’ (Gleeson CJ at 174). Rowe v Electoral Commissioner (2010) 283 ALR 1

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Case concerned amendments to the electoral law regarding the closure dates of the electoral rolls for new enrolments and address transfers.

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Majority (4:3) held amendments were invalid.

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‘The content of the constitutional concept of ‘chosen by the people’ has evolved since 1901 and is now informed by the universal adult-citizen franchise which is prescribed by Commonwealth law. The development of the franchise was authorised by ss 8 and 30 of the Constitution, read by s 51(xxxvi). Implicit in that authority was the possibility that the constitutional concept would

acquire, as it did, a more democratic content than existed at Federation. That content, being constitutional in character, although it may be subject to adjustment from time to time, cannot now be diminished’ (per French CJ at [18]). Right to Vote – Roach & Rowe ‘The majority judgments in those two cases, in my view, rested on the most implausible and far-fetched understanding of our Constitution, one that just happened to liberate significantly the scope top judges have for over-ruling the Parliament. Indeed, I think they were two of the worst decisions in some time.’ (Professor James Allan, The Spectator, 10 September 2011)...