LWB242 Constitutional Law

1. LWB242 Constitutional Law • Lecture 12: Rights and freedoms implied in the Constitution Photo: “Australia Votes 2010” by Alex Schlotzer from Flickr http://www.flickr.com/photos/alexschlotzer/4974324556/ (Licensed under a Creative Commons License Attribution-NonCommercial-NoDerivs 2.0 Generic (CC BY-NC-ND 2.0

2. Right to vote “The Constitution requires that members of Parliament be ‘directly chosen by the people’. That requirement is ‘constitutional bedrock’. It confers rights on ‘the people of the Commonwealth’ as a whole. It follows, as Isaacs J said in 1912, that: ‘The vote of every elector is a matter of concern to the whole Commonwealth’.Individual voting rights and the duties to enrol and vote are created by laws made under the Constitution in aid of the requirement of direct choice by the people.” (Rowe v Electoral Commissioner [2010] HCA 46 per French CJ at [1])

3. Roach v Electoral Commissioner • Roach v Electoral Commissioner • Roach challenged the constitutional validity of the 2006 amendments to the Commonwealth Electoral Actthat changed the voting entitlement for prisoners. The effect of the amendments removed the entitlement for people serving less than a three year term of imprisonment to vote at federal elections. All prisoners were thus excluded from voting. In 2004, Roach was sentenced to six years imprisonment for burglary, including negligent injury and endangerment. She argued that she should have the right to vote. • Held, in a 4-2 majority decision, the 2006 amendments were inconsistent with the system of representative democracy established by the Constitution. • The majority consisted of Gleeson CJ, who authored his own opinion, as well as Gummow, Kirby and Crennan JJ, who authored a joint opinion. Hayne and Heydon JJ delivered separate dissenting opinions.

4. Roach v Electoral Commissioner • Roach v Electoral Commissioner • Gleeson CJ held that the right to vote was mandated by sections 7 and 24 of the Constitution, which requires that the senators and members of the House of Representatives be "directly chosen by the people" of the State or the Commonwealth respectively.  Gleeson CJ noted at [7] that "In 1901, those words did not mandate universal adult suffrage", but that "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."  However, Gleeson CJ noted at [7]-[8] that Parliament retained the power to legislate 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. To say that, of course, raises questions as to what constitutes a substantial reason, and what, if any, limits there are to Parliament's capacity to decide that matter ... An arbitrary exception would be inconsistent with choice by the people. There would need to be some rationale for the exception; the definition of the excluded class or group would need to have a rational connection with the identification of community membership or with the capacity to exercise free choice.”

5. Roach v Electoral Commissioner • Roach v Electoral Commissioner • The other members of the majority - Gummow, Kirby and Crennan JJ - approached it from a slightly different angle (at [81]): • “Voting in elections for the Parliament lies at the very heart of the system of government for which the Constitution provides. This central concept is reflected in the detailed provisions for the election of the Parliament of the Commonwealth in what is otherwise a comparatively brief constitutional text.” • Gummow, Kirby and Crennan JJ also accepted that there had to be exceptions to the right to vote.  All members of the majority accepted that there had to be "a substantial reason for exclusion", but while Gleeson CJ held that "an arbitrary exception would be inconsistent with choice by the people", Gummow, Kirby and Crennan JJ employed at [85] the test of whether the disqualification is "reasonably appropriate and adapted to serve an end which is consistent or compatible with the maintenance of the constitutionally prescribed system of representative government".

6. Rowe v Electoral Commissioner • Rowe v Electoral Commissioner • Rowe challenged amendments made to the Commonweal Electoral Actin 2006, which reduced the time within which persons could make a claim for enrolment to vote or to transfer enrolment after elections had been called. Prior to this change, new electors could enrol, previous enrolled electors could re-enrol, and enrolled electors could update their details in the seven days following the issue of the writs. The close of rolls period for new enrolments, re-enrolments and detail updates had been seven days since the 1984 federal election. However, as a result of the changes, for the 2007 and 2010 federal elections new enrolments and re-enrolments had to be received by the Australian Electoral Commission (AEC) by 8 pm on the day of the issue of the writs, and changes to enrolment details had to be received within three days of the issue of the writs. • Held, by a 4-3 majority, that these provisions contravened the requirement, contained in ss 7 and 24 of the Constitution, that members of both Houses of the Commonwealth Parliament be “directly chosen by the people”.

7. Rowe v Electoral Commissioner • Rowe v Electoral Commissioner • The majority consisted of French CJ, Gummow Bell and Crennan JJ. French CJ stated at [2]: • “An electoral law which denies enrolment and therefore the right to vote to any of the people who are qualified to be enrolled can only be justified if it serves the purpose of the constitutional mandate. 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. If that be so, it will be invalid.” • French CJ concluded that while the rationale of the 2006 amendments to avert the future possibility of electoral fraud were ‘legitimate in terms of the constitutional mandate’, the provisions in question were not proportionate to that end. • Gummow and Bell JJ at [167], with whom Crennan J broadly agreed, also applied a proportionality test, taking account of the practical effects of 2006 amendments on the capacity of for qualified persons to participate in an election: • “A legislative purpose of preventing such fraud ‘before it is able to occur’, where there has not been previous systemic fraud associated with the operation of the seven day period before the changes made by the 2006 Act, does not supply a substantial reason for the practical operation of the 2006 Act in disqualifying large numbers of electors. That practical operation goes beyond any advantage in preserving the integrity of the electoral process from a hazard which so far has not materialised to any significant degree.

8. Rowe v Electoral Commissioner • Rowe v Electoral Commissioner • In separate dissenting judgments, Hayne, Heydon and Kiefel JJ each held that the provisions did not contravene any limitation imposed by the Constitution on the legislative power of the Commonwealth to fix the date and time after which claims for enrolment or transfer of enrolment may not be considered before an election. • In particular, their Honours placed emphasis on the failure of the plaintiffs to fulfill the legal obligation of timely enrolment, attributing primary responsibility for their exclusion from voting to their inaction rather than the changes made by the 2006 amendments.

9. Activity Online Quiz

10. Activity Discussion Board