Voting Election to The Fed Parliament

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This topic is within Principles of Public Law.


Required Reading

Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (5th ed, Federation Press, 2010) pp. 367-381 (Chapter 9, sections 3 (a)-3(c); 402-410 (Chapter 9, section 4). Additional material on Rowe v Electoral Commissioner (15 December 2010).


[1] The idea of voting originates from s 7 and s 24 of the Constitution, which indicate that members of the Commonwealth Parliament (Senate and HoR respectively) must be 'directly chosen by the people'. This has been implemented the Commonwealth Electoral Act 1918 (Cth).

Compulsory voting

  • s 245(1) entails that voting to the federal parliament is compulsory (since 1924).
  • s 240 – Specifies the preferential voting system (where electors number all the boxes consecutively).
  • Judd v McKeon[2] - High Court makes a concession towards a socialist – doesn’t have to vote because all candidates support capitalism.
  • Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth[3] - s 116 (protects freedom of religion) protects the rights of atheists as well – in the same way, is s 245 flawed? (because it forces people to vote).
    • s 245 doesn’t force a person to vote. Voter doesn’t need to actually mark the ballot paper, simply put it in the deposit box.
  • Langer v Commonwealth - the courts decided that neither compulsory voting nor the voting systems set by the Electoral Commission are constitutionally flawed.
    • Langer argued that s 240, which specifies the numbered boxes voting process, is inconsistent with s 24 of the Constitution, because it entails that the people aren’t choosing freely (they have to give indirect votes by ticking all the boxes - curtailing political freedom).
    • Rejected by the court, Parliament is allowed to do whatever method as long as it allows a free choice.

Express right to vote

[4]The right to vote is expressly provided in s 93 of the Commonwealth Electoral Act 1919 (Cth).

  • Eligible for voting:
    • Australian citizens over 18.
  • Ineligible for voting:
    • Prisoners serving a 3 year sentence or more
    • A person of an unsound mind
    • A person convicted of treason.

There is no constitutional provision which expressly gives the people the right to vote. The express right to vote is statutory. s 41 of the Constitution appears to guarantee an express right to vote (for anyone who can vote in state level). However, it does not.

  • It has been held that this section was a transitional provision which only applied to those who acquired the right to vote before the passing of the Commonwealth Franchise Act 1902 (Cth).
    • Only inserted to protect voting rights of women in SA in 1901

This issue was debated in King v Jones , which mainly discussed whether the word ‘adult’ s 41 was open to a shift in meaning:

  • After the voting age was lowered to 18 in state level, an 18 year old tried to use s 41 to ensure she could vote for Federal.
  • Rejected, s 41 was not meant to be open to a shift in meaning. It protected the rights of adults as they were described in 1901 (21 yrs of age).

The transitional effect of s 41 and was more properly discussed in R v Pearson; Ex parte Sipka:

  • If s 41 wasn’t transitional, than State Parliaments would have the power to give voting rights to people the Commonwealth specifically excluded.
  • The Commonwealth must have the power to set a uniform franchise, over the State Parliaments
  • Obviously, s 41 was transitional and only intended to ensure those who already have the right to vote in 1901 will not lose it upon enactment of the statutory franchise.
  • From then and on, the practical effect of s 41 was spent and the eligibility for voting was to be determined by statutory franchise.
  • s 41 does not give an express right to vote.

Implied right to vote

[5] It can be argued that s 7 and s 24 confer an implied right to vote. This was confirmed in McGinty v Western Australia[6] and again in Roach v Electoral Commissioner:

  • Amendment made (s 93(8AA)) in 2006 to disqualify all prisoners from voting (rather than just those with 3 yr sentence).
  • Amendment was against the implied right to vote in s 7 and s 24.
  • Amendment (a blanket ban) also against the system of democracy that the Constitution perpetuates:
    • Parliament has authority to set a criterion by which people don’t vote – but disqualifications have to have a substantial reason.
    • However, there was not enough of a criterion here – it was a blanket ban, the method became arbitrary.

The issue of implied right to vote came up again in Rowe v Electoral Commissioner:

  • Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (Cth) removed the grace period between the date of the issue of the writs and the closure of the rolls.
  • Rowe sought to strike down the 2006 amendments as invalid.
  • Amendments were held to exceed the limits implied by s 7 and s 24.
    • Too much of a qualification on electors.
    • Inconsistent with the system of representative government prescribed by the constitution.
  • Using Ex rel McKinlay v The Commonwealth[7]: “ss 7 and 24, because of changed historical circumstances including legislative history, have come to be a constitutional protection of the right to vote.
  • A constraint on voting needs to be somehow justified on the basis of its helping democracy. No such justification here.

Eligibility for Election

[8] Eligibility is determined by Commonwealth legislation: the Commonwealth Electoral Act 1919 (Cth) . s 163(1) specifies candidates must be:

  • Over 18
  • Australian citizens
  • An elector(/qualified to become an elector) that is entitled to vote for HoR

Restrictions on eligibility

[9]There are restrictions imposed by the Constitution:

  • s 43 - a member of one house cannot be elected to the other house.
  • s 44:
    1. A person under acknowledgement of allegiance to a foreign power
    2. A person attainted for treason, or has been convicted for a sentence of a year and over
    3. A person who is bankrupt
    4. A public servant
    5. A person with a monetary interest in any agreement with the Commonwealth.

These restrictions first had relevance in Re Webster .

  • Webster was deemed to still be eligible, as disqualification relied on exchanges over “a substantial period of time” and must have been one where the Crown could “conceivably influence the contractor in relation to parliamentary affairs by the very existence of the agreement” or by “something done or refrained from being done in relation to the contract or to its subject matter”.
  • Barwick CJ basically demonstrated the anachronistic and vague nature of s 44, and applied a narrow definition of it.
  • Immediately after the verdict, there was a discussion about the ambiguous nature of s 44 and how it should be amended. However, no amendments have been made.

It also came up again in Re Wood[10] .

  • Senator Wood was a British citizen, and so his election was challenged.
  • However, the High Court held that although he had not been validly elected, “the election was not void as the problem could be solved by a further distribution of preferences[11]”.
  • Didn’t attract s 44 because he wasn’t an Australian citizen.

In this case, the issue of s 44 was avoided. It was dealt with in Sykes v Cleary:

  • Cleary was a school teacher and therefore a public servant / ’officer under the crown’.
  • Elected to parliament, however he was still officially a teacher through the entire election process.
  • Disqualified since it is contrary to s 44 (4) and the separation of powers.

Finally, it came up again in Sue v Hill.

  • UK retains no residual influence upon legislative, executive or judicial processes in Australia – it is considered a ‘foreign power’ in the context of s 44.


This is the end of this topic. Click here to go back to the main subject page for Federal Constitutional Law.


Textbook refers to Blackshield, T, Williams G, Australian Constitutional Law & Theory: Commentary and Materials (6th ed, Federation Press, 2014)

  1. Textbook, pp. 367-71
  2. (1926) 38 CLR 380
  3. (1943) 67 CLR 116
  4. Textbook, pp. 371-5
  5. Textbook, pp. 375-81
  6. (1996) 186 CLR 140
  7. (1975) 135 CLR 1
  8. Textbook, pp. 402
  9. Textbook, pp. 403-10
  10. (1988) 167 CLR 145
  11. Textbook pp. 404
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