LAWS1205 Study Guide - Final Guide: Primary And Secondary Legislation, Constitution Of The United Kingdom, Colonial Laws Validity Act 1865
Week 4
Tuesday, 14 March 2017
23:01
Implied right to vote
Many continued to think ss7 and 24 requires members of both houses be "directly
chosen by the people", suggested an implied right to vote.
Require a choice by the people
McGinty v Western Australia: according to today's standard, a system which
denied universal adult franchise would fall short of a basic requirement of
representative democracy
Roach v Electoral Commissioner (2007) 233 CLR 162
Facts:
tested the implied right to vote, concerning the federal voting rights of prisoners
Cth legislation 1902-2006 provided certain prisoners could not vote in federal
elections
The Electoral and Referendum Amendment 2006 (Cth) amended the Cth Federal
Electoral Act 1918 which, s93(8)(b) had disqualified any person 'serving a sentence of 3
years or longer for an offence against the law of the Cth or state or territory
The new s93(8AA) stated " a person who is serving a sentence of imprisonment for an
offence against the law of the Cth or of a state or territory is not entitled to vote at any
Senate or House of Rep election
All prisoners serving a sentence of full time detention were disqualified
Roach, indigenous Aus citizen, convicted of 5 offences in 2004 and sentenced to 6
years
Challenged the validity of s 93(8AA(),
HC held 2006 amendments were invalid due to inconsistency with the system of
representative democracy established by the Constitution.
But previous exclusions of persons serving 3 years or more was upheld
HC
Could Parliament legislate to remove universal adult suffrage?
Ss7 and 24 of the Constitution, requires Senators and House of Rep be 'directly
chosen by the people'
In 1901, those words did not mandate universal adult suffrage
Foreign power: in s 44(i), did not include the UK, but in Sue v Hill, included the UK
due to Australia's relation to the UK. The meaning did not change, but the facts relevant
to the identification of the UK as being included or excluded from that meaning has
changed
McKinlay: just as the concept of foreign power is applied by different circumstances
at different times, the words 'chosen by…" were to be applied to diff circumstances at
diff times
McGinty v WA: constitutional protection of the right to vote,
Rationale for exclusion must be that serious offending represents a form of civic
irresponsibility that it is appropriate for Parliament
The concept of citizenship: represents full and formal membership of the community
of the Cth of Australia, and has reciprocal rights and obligations
Serious offending maywarrant temporary suspension of one of the rights of
membership, that is right to vote
S93(8AA): has no regard to culpability
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The net of disqualification is cast too wide by s 93 (8AA)
It stigmatises offenders by imposing a civil disability during any term of
imprisonment
Prior exclusion of prisoners serving a sentence of 3 years or more was valid, because
it distinguishes serious lawlessness and less serious but still reprehensible conduct
The implied constitutional protection for a universal adult-citizen franchise, subject to
permissible exceptions, was consolidated and extended in Rowe v Electoral Commissioner
S102 (4AA) of the CtH Electoral Act allowed for a grace period for transfer
application by closing the rolls on the 3rd working day after the issue of the writs
2006: Electoral and Referendum Amendment Act 2006 removed the grace period
between the date of the issue of the writs and the closure of the rolls
Many people could not enroll in time
Rowe attempted to enrol after the issuing of the writs, but were unable because of the
removal of the grace period
Sough declaration that the 2006 amendments were invalid
Rowe v Electoral Commissioner
ISSUE: implied right to vote: Cth's ability to prevent people from voting
Rowe reached her 18th bday 33 days before the writs were issued for the Aug 2010
election and did not submit a claim for enrolment until 4 days after the issue
Also another Plaintiff, moved address in March 2010, lodged a claim of transfer claim
3 days after the issue of the writs
Court declared the 2006 amendment invalid, and reverted to the 7 days grace period
The Commission indicated to the HC that it could process claims from the plaintiffs
and like people in time for the 2010 election
Court decision available on the 6th August
Court's reasons were published 5 months later
Challenge upheld, the amendments to enrolment procedure were held to exceed the
limits imposed by ss7 and 24 of the Constitution on parliament's power under some
combination of ss8, 9 , 10, 30 and 31 and 51 (xxxvi) of the Constitution to make laws
about the qualifications of electors and the conduct of federal elections
This case testes the irreducible minimum content of the words directly chosen by the
people in ss7 and 24.
Reasons in Lange v Australian Broadcasting Corp, Mulholad v Australian Electoral
Commission, and Roach showed these words require more than merely an electoral
systerm that affords direct popular choice
Mulholland and Roach: the electoral process must satisfy the requirements of the
system of representative gov prescribed by the Const.
The Const requires members of Parliaments be directly chosen by the people
"constitutional bedrock"-Roach
Confers rights on the people of the Cth- Langer
The right of every elector is a matter of concern to the whole Cth- Smith v Oldham
Development of the unversal adult-citizen franchise has developed, this is warranted
by ss8 and 30 of the Consti with s51(xxxvi)
Constitutional mandate
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Ex Rel Mckinlay v the Cth: ss7 and 24 because of changed historical circumstances
including legislative history , have come to be a constitutional protection of the right to
vote
Parliament had capacity but needs to be proportionate:
1. an electoral law which denies enrolment and therefore the right to vote..only
justified if it services the purpose of the constitutional mandate
2. a law affecting such a change causes a detriment. Its justification must be that
it is nervetheless, beneficial because it contributes to the fulfilment of the mandate. If
the detriment….is disproportionate to that benefit, then the law will be invalid as
inconsistent that mandate
Detriment deemed disproportionate, a large number of voters would not be able vote
Hence no reason to remove the grace period
Further Readings
Constitution, ss106-109
Australia Act s2 (legislative powers of parliament of states)
Parliamentary sovereignty
Dicey argued the practice of responsible government depended on parliamentary
sovereignty as the keystone of British constitutional law
A large proportion of English law is in reality made by the judges , this may seem
inconsistent with the supremacy of parliament but English judges do not claim or
exercise any power to repeal a statue, whilst Acts of Parliament may override the law of
the judges, judicial legislation is a subordinate legislation subject to the supervision of
Parliament
Parliamentary supremacy has been reduced to a general principle as opposed to the
previous Dicey theory "neither more nor less than this, namely that the parliament
has the right to make or unmake any law whatever and further, that no person or
body is recognised by the law of England as having a right to override or set aside the
legislation of parliament
In Australia, the idea of parliamentary sovereignty must be understood in the context
of the rigid limits and boundaries imposed by the Australian constitution
British Railway Board v Pickin [1974] AC
A private act of parliament, sponsored by the British Railways Board confiscated
from Pickin a small area of land that he owned adjoining a railway line
He commenced proceedings for damages, arguing that the Board could not rely on the
Act, as the Act had not been passed in accordance with the standing rules and orders of
the House of Commons, in that the Board had misled Parliament about the effect of the
Act on the interests of other persons
Ratio: the respondent had misled Parliament to secure the passing of a private bill the
Claimant said that the land taken from him under the Act was no longer required and
that he should be entitled to have it returned
The court of justice cannot inquire into the manner in which a bill was introduced into
parliament that later became an Act passed by both houses of Parliament
The function of the court is to construe and apply the enactments of Parliament
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