Research Paper no.17 2001-02
Voters and the Franchise: the Federal Story
Jennifer Norberry, Law and Bills Digest Group
and George Williams (Consultant)
28 May 2002
Vision in Hindsight
Vision in Hindsight is a Department of
the Parliamentary Library (DPL) project for the Centenary of
Federation.
The Vision in Hindsight: Parliament and the
Constitution is a collection of essays each of which tells the
story of how Parliament has fashioned and reworked the intentions
of those who crafted the Constitution. The unifying theme is the
importance of identifying Parliament's central role in the
development of the Constitution. A number of essays have been
commissioned and will be published, as IRS Research Papers, of
which this paper is the sixteenth.
Eleven of these papers were selected for
inclusion in the final volume, Parliament: The Vision in
Hindsight, G. Lindell and R. Bennett, eds, Federation
Press, Sydney 2001.
A Steering Committee comprising Professor
Geoffrey Lindell (Chair), the Hon. Peter Durack, the Hon. John
Bannon and Dr John Uhr assisted DPL with the management of the
project.

Centenary of Federation
1901-2001
|
Contents
Major Issues
Introduction
The System of Representative
Government
The Founders Vision
Voters
The Constitution and the
Franchise
Pre-Federation Franchise in the Colonies
The Development of the Federal
Franchise
Gender
Indigenous Peoples
Commonwealth Franchise Act 1902
World War I & World War II
Commonwealth Electoral Act 1949
The 1960s
Commonwealth Electoral Amendment Act 1983
Age
World War I
World War II
Vietnam War
The 1970s, 1980s and 1990s
Non-European Migrants
Commonwealth Franchise Act 1902
Commonwealth Electoral Act 1925
Commonwealth Electoral Act 1961
Offenders
Commonwealth Franchise Act 1902
Reform and Attempts at Reform
The Institutionalised Poor and the Franchise Bill 1902
Mental 'Incapacity'
Members of Unlawful Associations
Entrenchment of the Franchise: Limiting
the Role for Parliament
The Vision in Hindsight
Endnotes
The Australian Constitution expressly creates a
system of representative government. Regular, direct and popular
election for members of the federal Parliament is the centrepiece
of this system. Sections 7 and 24 of the Constitution respectively
provide that the members of the Senate and the House of
Representatives shall be composed of members 'directly chosen by
the people'. Sections 5, 13 and 28 provide that elections are to be
held at least every three years. Within these parameters, the
framers left much of the detail about elections and voting to
Parliament.
In 1901, a Franchise Bill was introduced into
the Commonwealth Parliament. It provided a right to vote in federal
elections for any adult who had resided in the Commonwealth for at
least six months. This attempt to secure a broadly-based suffrage
and establish perhaps 'the most representative Parliament,
according to the truest principles of democracy, ... in the
world'(1) did not survive. Although opposition was
expressed to female suffrage, women were enfranchised by the
Commonwealth Franchise Act 1902. However, other groups in
the community were expressly excluded. Indigenous Australians,
'non-European' migrants, certain offenders, and those of 'unsound
mind' were disenfranchised, subject to the constraints of section
41 of the Constitution.
Section 41 owes its place in the Constitution to
attempts at the Adelaide Convention of 1897-98 to constitutionally
entrench adult female suffrage in federal elections. These attempts
failed. However, a compromise was reached based on the idea that
those women who were qualified to vote under State law should be
not deprived of that right at federal elections. This compromise is
reflected in the section:
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.
These words are ambiguous, and have been debated
from the time of the first Parliamentary debates on franchise laws
and through argument in a number of High Court cases. Legislators,
bureaucrats, litigators and jurists have considered whether section
41 guarantees a right to vote in federal elections to anyone
entitled to vote at elections for the more numerous House of a
State Parliament or whether its reach is either more limited or
entirely spent-for instance, only preserving the voting rights of
anyone enfranchised before the passage of the Commonwealth
Franchise Act 1902.
In general, a narrow view of section 41 has been
adopted. An attempt failed in the 1920s to convince the High Court
that section 41 protected the rights of a Japanese-Australian,
whose application to enrol to vote in federal elections had been
rejected on the basis that he was disqualified under the
Commonwealth Electoral Act 1918 for being an 'aboriginal
native of ... Asia'. In the 1970s, an argument that South
Australians should be able to vote in Commonwealth elections
because South Australian law had lowered the voting age to 18 years
was rejected by the Court.
While section 41 has not provided a
constitutionally guaranteed right to vote, the Commonwealth
Parliament has, over the course of the 20th century, generally
legislated to remove rather than extend exclusions on voting. These
reforms came slowly. For example:
-
- amendments made in 1925 enabled limited numbers of
'non-European' migrants(2) to vote in Commonwealth
elections
-
- Indigenous Australians who had served in the Defence Forces
during World War II or who had been enfranchised under State law
were given the Commonwealth franchise in 1949
-
- in 1961 the remaining disqualifications on 'aboriginal
native[s] of ... Asia, Africa, or the Islands of the Pacific' were
repealed
-
- all Indigenous Australians were given the vote in Commonwealth
elections in 1962 (but enrolment did not become compulsory until
1983), and
-
- in 1973 the voting age for all Commonwealth electors was
lowered to 18 years.
However, a number of issues remain. First, it
must be remembered that the Commonwealth Parliament has legislated
on the basis that it has a largely unfettered power to set the
boundaries and content of the Australian system of representative
government, including the qualifications of voters. Second, some
groups remain disenfranchised. For instance, voting rights for
prisoners remains a contested issue. And the Crimes Act
1914 retains provisions, first inserted in 1932, that would
ban the members of unlawful associations and their affiliates from
voting for a period of seven years after the body has been declared
as an unlawful association.
How can a broadly based suffrage be guaranteed
and protected? While section 41 may be a spent force, perhaps we
should turn again to the Constitution for a right to vote. In the
short-term, the words 'directly chosen by the people' in sections 7
and 24 of the Constitution may limit the degree to which the
Commonwealth can restrict the federal franchise. As McTiernan and
Jacobs JJ said in Attorney-General (Cth); Ex rel McKinlay v.
Commonwealth:
the long established universal adult suffrage
may now be recognised as a fact and as a result it is doubtful
whether ... anything less than this could now be described as a
choice by the people.(3)
In the longer term, the lack of a clear
constitutional right to vote is a reason to consider constitutional
reform.
Introduction
This Paper(4) charts the development
of Australian law dealing with eligibility to vote and methods of
voting in federal elections. It does so by first examining relevant
provisions in Australia's foundational legal document-the
Commonwealth Constitution. These provisions enable the Parliament
to legislate on elector qualifications and elections. They
impliedly establish a system of representative democracy and
include the much-disputed section 41 of the Constitution. That
section influenced the drafting of the Commonwealth Franchise
Act 1902 and has provoked debate about whether it provides a
constitutional right to vote. The Paper then examines the history
of Commonwealth franchise legislation from the time of the First
Parliament to the present day. This history shows that Parliament
has legislated on the basis that its power to determine the
franchise and method of voting in Commonwealth elections is largely
uncircumscribed by the Constitution-save for the limited and now
spent impact of section 41. However, recent High Court decisions
suggest that the system of representative government entrenched by
other sections of the Constitution may fetter the Parliament's
power to restrict the franchise and method of voting. It is to
these potential constitutional limitations that the Paper finally
turns.
The Founders Vision
The Australian Constitution was drafted at two
Conventions held in the 1890s. The delegates were deeply influenced
by their British heritage and assumed that the Australian
federation would be steeped in the Westminster traditions of
representative and responsible government. However, the Westminster
system was inadequate as a model for an Australian federal
government that was to be based upon a written constitution.
The other obvious comparative models were the
written constitutions of Switzerland, Canada and the United
States.(5) Neither the Swiss nor the Canadian models
were as compelling as that of the United States. Switzerland, which
had become a federation in 1848 and had revised its Constitution in
1874, possessed a language and political traditions alien to the
Australian drafters. The Canadian Constitution might at first have
appeared to be the appropriate model given its creation of a
federal structure under the British Crown. However, the Canadian
Constitution was rejected because it was believed to give too much
power to the central government. The framers of the Australian
Constitution instead gave primacy to the United States
Constitution. As Sir Owen Dixon, a former Chief Justice of the High
Court, has remarked:
The framers of our own federal Commonwealth
Constitution (who were for the most part lawyers) found the
American instrument of government an incomparable model. They could
not escape from its fascination. Its contemplation damped the
smouldering fires of their originality.(6)
Hence, the Australian Constitution, like that of
the United States, incorporates a separation of powers, entrenches
the position of the High Court and balances the relative powers of
the smaller and larger States by, for example, creating a Senate in
which the States are equally represented.
Like the United States Constitution, the
Australian Constitution expressly creates a system of
representative government, that is, government of the people by
their elected representatives. The centrepiece of this system is
regular elections for members of the federal Parliament by the
Australian people. Thus, sections 7 and 24 of the Constitution
respectively provide that the members of the Senate and the House
of Representatives shall be composed of members 'directly chosen by
the people'. Section 25 shows that even though section
24 (unlike section 7) does not mention 'voting', such a system
of selection was clearly intended. Sections 5, 13 and 28 provide
that elections are to be held at least around every three years.
Other sections in the Constitution are also consistent with the
creation of a system of representative government. For example,
sections 8 and 30 speak of the qualifications of voters for the
Senate and House of Representatives, respectively.
While the Constitution establishes the
parameters of representative government, the framers' intention was
to leave most of the detail to the new federal Parliament. Hence,
section 8 states that the federal Parliament 'may make laws
prescribing the method of choosing senators, but so that the method
shall be uniform for all States', while section 31 enables
Parliament to legislate for the conduct of elections for the House
of Representatives.(7) Sections 16 and 34, respectively,
also enable the Parliament to establish the qualifications of
members of the Senate and House of Representatives.(8)
Of course, the qualifications as set by Parliament under these
sections cannot override the mandatory disqualification of members
for the matters set down by sections 44 and 45 of the Constitution,
such as where a person has been convicted of treason.
An objective of some of the framers of the
Australian Constitution was to secure the right to vote for women.
At the Adelaide session of the 1897-1898 Convention, Frederick
Holder, the Treasurer of South Australia, proposed that the draft
constitution contain the following clause: 'Every man and women of
the full age of twenty-one years, whose name has been registered as
an elector for at least six months, shall be an
elector.'(9) By this provision, Holder sought to extend,
at least in regard to federal elections, the right to vote enjoyed
by South Australian women since 1894. The attempt failed, Adye
Douglas, the President of the Legislative Council of Tasmania,
protesting 'I do not see why it should be forced upon people who do
not want it, simply because South Australia has got
it'(10) and 'I have not found a single woman yet who is
anxious for this franchise'.(11) The proposal was
defeated by 23 votes to 12.(12)
Holder then suggested a compromise that would
allow women who were qualified to vote under the law of their State
to also be able to vote for the new federal Parliament. This
preserved the ability of each State to determine its own franchise,
at least until the federal Parliament enacted a national franchise.
Holders' compromise was approved by 18 votes to 15(13)
and is expressed in section 41 of the Constitution, which
states:
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.
This provision guaranteed women the right to
vote at Commonwealth elections only where they were given the right
by their own State. Thus, in 1901 only women in South Australia and
Western Australia were able to vote in federal elections.
Section 41 is the closest that the Constitution
comes to expressly conferring a right to vote in federal elections.
However, it only operates where a State law already allows a person
to vote. Moreover, the section does not actually confer a right. It
is worded as a restriction upon the power of the Commonwealth to
pass certain laws. It does not vest any individual
entitlement.(14) The language of section 41 is also
prone to ambiguity. This is compounded by its history. Particular
difficulty is associated with the words 'who has or acquires a
right to vote at elections for the more numerous House of the
Parliament of a State'. Four main interpretations are possible;
namely, that section 41 guarantees the right to vote in federal
elections to:
-
- any person who is entitled to vote for the more numerous House
of the State Parliament
- that class of persons who had acquired the entitlement to vote
for the more numerous House of the State Parliament before the
enactment of a uniform federal franchise
- any person who had acquired the entitlement to vote for the
more numerous House of the State Parliament before the enactment of
a uniform federal franchise, or
- any person who had acquired the entitlement to vote for the
more numerous House of the State Parliament at the time of
Federation.
The first option offers the widest guarantee.
While it has less support from the drafting history of section 41
than the other options, it is the reading most consistent with a
literal wording of the section.(15) The third option is
more narrow. Unlike the second option, it would not entitle to vote
South Australian women coming of age after the federal franchise
had come into effect, but would only apply to those individual
women who had acquired the vote prior to that date. The
Commonwealth provided for a uniform federal franchise shortly after
Federation in the Commonwealth Franchise Act 1902 (Cwlth).
This Act came into force on 12 June 1902. If the third option were
correct, section 41 would have no further work to do once all those
people who had acquired a right to vote in a State up until 12 June
1902 had died. On the other hand, if the fourth option were
correct, section 41 would be spent when those people who had
acquired a right to vote in a State up until 1 January 1901 had
died.
There is support for each of these options in
the early works on the Australian Constitution. Writing in 1901,
John Quick and Robert Garran tentatively argued for the third
option, finding that section 41 was merely a transitional provision
designed to preserve the voting rights of South Australian women
until the new Commonwealth Parliament could enact a uniform federal
franchise.(16) They based their support for the third
option, as opposed to the second, on the fact that section 41, in
acting upon an 'adult person', concerns individuals and not classes
of people. Although Quick and Garran found that the word "acquires"
in section 41 should be taken to mean 'acquires before the framing
[of] the federal franchise', they weakened this conclusion by
stating that 'it may certainly be argued that 'acquires' is not
expressly limited in point of time'.(17)
In the first edition of his book The
Constitution of the Commonwealth of Australia, written in
1902, Harrison Moore argued that section 41 should be given a
meaning corresponding to either the second or the fourth option.
According to Moore, the correct meaning depended upon that given to
section 30 of the Constitution, which provides: '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'. If
section 30 referred to the 'law in force in each State at the
establishment of the Commonwealth', then the fourth option should
be preferred.(18) On the other hand, if section 30
'means laws enacted by the State Parliament at any time before the
establishment of a federal franchise by the Commonwealth
Parliament', section 41 would 'probably' accord to the second
interpretation.(19) Moore did not develop his argument
further nor suggest which option he considered to be the correct
construction.(20) However, he did reject the
interpretation offered by Quick and Garran, that is, the third
option. Moore said of this option: 'But such an operation of the
law would be so partial and anomalous as to constitute a strong
reason for rejecting altogether the limitation of
time.'(21)
The Convention Debates are of some assistance in
discovering the intentions of the framers of section 41. At the
1897-1898 Convention, Holder apparently intended that section 41 be
limited by the enactment of a federal franchise.(22) For
example, he stated: 'What I wish is that these rights should be
preserved which have been acquired up to the time that the
Commonwealth makes its franchise.'(23) The contribution
of others is inconclusive.(24) It was clearly a concern
that section 41 might operate to enable the States to modify the
federal franchise. Edmund Barton (NSW), subsequently Australia's
first Prime Minister and one of the first members of the High
Court, argued that: 'To give a state the power, after the Federal
Parliament is established, of altering the composition and
character of the Legislature and the legislation of the
Commonwealth certainly would be unwise.'(25) Isaac
Isaacs (Vic.), later a Justice of the High Court and Australia's
first Australian Governor-General, suggested that the clause should
be amended to make clear that this was not the intention by
altering the clause to begin: 'Any elector who has, at the
establishment of the Commonwealth, or who afterwards, and before
the Parliament prescribes the qualification of electors for the
Houses of Parliament, acquired a right to vote'.(26)
This amendment was not adopted.
In the debate in the federal Parliament over the
Commonwealth Franchise Bill 1902, there is not only support for the
second or third option options, but also for the first
option.(27) Section 4 of the Commonwealth Franchise
Act 1902 provided that Australia's Aboriginal peoples
could not vote at federal elections. In the debate over section 4,
the issue arose of how the section might be affected by section 41
if a State were to subsequently give Aboriginal peoples the right
to vote in State elections. In the House of Representatives, Isaacs
(Protectionist, Indi) stated:
If it is ever desired by one or more of the
States to invest the aboriginals within their territory with the
franchise for the more numerous State House, they will come under
section 41 of the Constitution, which then gives them the right to
vote for the Federal Parliament.(28)
Subsequently, in the Senate, Sir John Downer
(Protectionist, SA), a member of the 1891 and 1897-1898
Conventions, was even clearer in supporting the first option:
The laws, as they exist now in the States,
defining the right to vote shall continue, though in each State
they may be divergent, and laws in future passed by each State
deciding who shall vote shall also prevail, notwithstanding any law
we may pass to the contrary. So that any law that we may pass now
upon this matter will be subject to the existing or future law of
any State.(29)
Overall, the historical evidence is inconclusive
on the ambit of section 41. There is support in contemporary
materials and by persons who participated in the drafting of
section 41 for each of the four interpretations outlined above. It
is clear that the section was designed to give recognition in
federal elections to State electoral qualifications. However, there
was no commonly held view as to who might be entitled to this
recognition and for what time. In any event, the intended purpose
of section 41 must be reconciled with the literal meaning of the
section, which does not suggest any limitation of the type set out
in the second, third or fourth options.
The High Court has had to grapple with section
41 on only a few occasions. The first opportunity came in 1923 in
Muramats v Commonwealth Electoral Officer
(WA).(30) Jiro Muramats was born in Japan and
naturalised in Australia. His application to be enrolled to vote in
federal elections was rejected on the basis that he was
disqualified under section 39(5) of the Commonwealth Electoral
Act 1918 (Cwlth) for being an 'aboriginal native of ... Asia'.
He took the matter to the High Court, where he argued that because
he was entitled to be enrolled in Western Australia under section
17 of the Electoral Act 1907 (WA), section 41
protected his right to vote in federal elections. This argument
failed, but not because of a narrow reading of section 41. Instead,
it was held that section 41 did not apply because Muramats was not
even entitled to be enrolled in Western Australia. Higgins J
nevertheless gave some support for a broad interpretation of
section 41, stating that if Muramats had not been disqualified in
Western Australia, 'his right to vote at elections for the [Western
Australian] Assembly, and therefore to be enrolled on the
Commonwealth roll, would seem to be clear'.(31)
The next time section 41 came before the High
Court was in 1972 in King v Jones.(32) At the
time of Federation, and for many years afterwards, the voting age
across Australia was set at 21 years. Under the Constitution
Act Amendment Act (No. 2) 1970 (SA), the South
Australian Parliament, like the New South Wales and Western
Australia Parliaments before it, reduced the voting age for State
elections from 21 to 18 years. Until 1973, it remained a
requirement that a person be at least 21 years old to vote in
federal elections.(33) Three South Australians aged
between 18 and 21 years applied to be placed on the Commonwealth
electoral roll. Their applications were rejected. It was argued in
the High Court that, as they were qualified to vote for the more
numerous House of the South Australian Parliament, section 41
applied to also allow them to vote in federal elections. The Court
unanimously rejected this argument. It did so on the ground that
the plaintiffs could not be considered to be 'adult person[s]'
under section 41. The Court interpreted 'adult' to give it the
'commonly accepted meaning' that it held at the time of Federation,
that is, a person who had attained 21 years.(34)
The Court's finding that the plaintiffs were not
'adult persons' meant that it did not need to address wider issues,
including the four options outlined above. However, some judges
commented on these issues. J. Menzies, for example, gave
unqualified support to an interpretation of section 41 which was
not limited in time, that is, the first option. He stated:
The character of section 41 is that of a
permanent constitutional provision. It is not a provision to make
temporary arrangements for the period between the establishment of
the Constitution and the making of Commonwealth laws. It applies to
a person, who, in 1901, had or who, in the future, acquires
particular voting rights by the laws of a State.(35)
The issue of whether section 41 is limited by
the enactment of the federal franchise arose in R v Pearson; Ex
parte Sipka.(36) Late in the afternoon of 3
February 1983, Prime Minister Malcolm Fraser called a snap federal
election for 5 March 1983. On 4 February 1983, proclamations were
made to the effect that the writs for the election would be issued
later that day. This meant that, under section 45(a) of the
Commonwealth Electoral Act 1918 (Cwlth), persons
who had not yet enrolled had until 6pm that day, instead of the
normal several days, if they wished to be able to vote in the
election. The four plaintiffs sought enrolment after that time and
were placed on the electoral roll for New South Wales. However,
they were refused enrolment for the federal election due to section
45(a). They brought an action in the High Court claiming that they
were entitled to vote in the federal election due to section 41.
Their action was heard on 16 and 17 February 1983, with the Court
handing down its decision on 24 February 1983.
The High Court found, with Murphy J dissenting,
that section 41 was merely a transitional provision. It was held
that it should be given the meaning set out in the third option,
that is, that 's. 41 preserves only those rights which were in
existence before the passing of the Commonwealth Franchise Act
1902'.(37) The majority consisted of two joint
judgments each made up of three judges. Gibbs CJ, Mason and Wilson
JJ recognised that their conclusion involved giving section 41 a
narrow construction. However, they found that 'this construction of
the section is supported not only by obvious considerations of
policy, but also by the history of the section'.(38) The
policy they referred to was that if section 41 were not limited in
time it would stand as a continuing barrier to the Commonwealth
being able to maintain a uniform franchise. A State could
unilaterally amend that franchise, perhaps to the benefit of its
own residents, and 'It is impossible to suppose that results of
this kind were intended.'(39) Brennan, Deane and Dawson
JJ delivered a judgment to the same effect. They recognised
that:
It follows, of course, that the practical effect
of section 41 is spent. Most of the electors who acquired a right
to vote at federal elections under sections 30 and 8 of the
Constitution would have died. Since 12 June 1902, when the
Commonwealth Franchise Act came into force, no person has
acquired a right to vote the exercise of which is protected by
section 41.(40)
Murphy J dissented in arguing for a wide
construction of section 41 corresponding to that set out in the
first option. His approach was very different from that of the
other judges. He characterised the provision as 'one of the few
guarantees of the rights of persons in the Australian
Constitution'.(41) As such, it:
should not be read narrowly. A right to vote is
so precious that it should not read out of the Constitution by
implication. Rather every reasonable presumption and interpretation
should be adopted which favours the right of people to participate
in the elections of those who represent them.(42)
He then went on to interpret section 41
according to its literal 'plain meaning', that is, as 'a
constitutional guarantee that every adult person who has a right to
vote at State elections shall not be prevented by any Commonwealth
law from voting at federal elections'.(43)
Today, there is no-one alive who could claim the
benefit of the section on the interpretation reached by the High
Court in R v Pearson; Ex parte Sipka. In 1988, the
Constitutional Commission described section 41 as a 'dead letter'
and recommended that it be removed from the
Constitution.(44)
Section 41 is not the only way that the
Constitution recognised State electoral laws for the purposes of
Commonwealth elections. Under sections 30 and 31 of the
Constitution, the 1901 federal elections were conducted under State
franchise laws.(45) Further, the pre-federation
franchise in the colonies provided a reference point for debates in
the First Parliament about the Franchise Bill 1902. The content of
the Commonwealth Franchise Act 1902 partly reflects
colonial laws about voter qualifications and disqualifications, as
well as being influenced by section 41 of the Constitution.
At Federation, women could vote in South
Australia and Western Australia. 'Aboriginal natives of Australia,
Asia or Africa' were disqualified from voting in Western Australia.
'Aboriginal natives of Australia, India, China or the South Sea
Islands' could not vote in Queensland unless they were property
owners. In the Northern Territory of South Australia, only natural
born British subjects (with the exception of Indian immigrants),
and Europeans or Americans who had been naturalised as British
subjects could vote. In New South Wales and Victoria Aboriginal
Australians were not specifically disqualified but in general could
not vote because they received charitable assistance.
Disqualifications based on charitable assistance were also found on
the statute books of Queensland and Western Australia. Four
colonies denied the vote to those of unsound mind and anyone
convicted of treason or a felony who was still under sentence or
had not been pardoned. Other criteria for disqualification existed
in New South Wales (for example, habitual drunkards, idle and
disorderly persons). Members of the armed forces and police
services were disenfranchised in New South Wales and
Queensland.(46)
This section looks at voters explicitly
discriminated against under Commonwealth franchise laws. It does
not, however, consider all of those effectively disenfranchised as
a result of legal rules. For example, until the enactment of the
Commonwealth Electoral Legislation Amendment Act 1983, no
special arrangements existed for people with disabilities such as
quadriplegia; for electors in the Antarctic who had been
disenfranchised and for itinerant people.
On 5 June 1901, the Franchise Bill 1901 was
introduced into the House of Representatives by the Protectionist
Government of Edmund Barton (Hunter, NSW). In his Second Reading
Speech for the companion Electoral Bill 1902, Senator Richard
O'Connor (Protectionist, NSW), Government Leader in the Senate,
described the Government's plans for a Commonwealth franchise in
the following way:
... the franchise proposed recognises one
ground, and one ground only, as giving a right to vote, and that is
residence in the Commonwealth for six months or over by any person
of adult age. That franchise is the broadest possible one. There is
no class of the community left out ... I think the Commonwealth
will have reason to congratulate itself when that measure is passed
into law, as I have no doubt it will be, on having the most
representative Parliament, according to the truest principles of
democracy, which exists in the world.(47)
On 3 April 1902, the Franchise Bill 1901 was
withdrawn. A substantively identical bill, the Franchise Bill 1902,
was introduced into the Senate on 4 April 1902. It is not clear why
this occurred. However, the workload of the lower
Chamber(48) and a view that, tactically, it was
preferable to have the States' house, the Senate, discuss it first
may explain the decision.(49) In the Senate, Senator
O'Connor remarked that it was 'in the interests of the business of
the Government and in the interests of the measure itself that it
should be introduced here.'(50) And later, in the House
of Representatives, Home Affairs Minister Sir William Lyne
(Protectionist, Hume) commented: '... we have been so continuously
occupied during the last 12 months that no opportunity has been
afforded for discussing the measure here.'(51)
Clause 3 of the Franchise Bill 1902 gave the
vote to any adult inhabitant of Australia resident for six months
who was a 'natural born or naturalized subject of the King'. Only
those 'attainted of treason' or convicted and under sentence for an
offence attracting a penalty of 12 months imprisonment were
disqualified from voting.(52) Clause 4 explicitly
protected adult voters whose rights were preserved by section 41 of
the Constitution.(53)
The long title of the proposed legislation was
'A Bill to provide for an Uniform Federal Franchise'. Senator
O'Connor recalled the Constitutional Convention's vision of a
parliament representing 'the whole of the people of
Australia'(54) and remarked that a uniform franchise
based in Commonwealth law was the only 'rational' basis for
Commonwealth elections.(55) The rationale for and nature
of a uniform Commonwealth franchise was explained by Senator Edward
Harney (Free Trade, WA):
It would be an anomaly if we found members of
this Senate coming here to discuss matters of Australian interest
sent by mandates of different degrees and of different characters
...
... It is impossible for us to narrow in any
degree, and if we desire to have a uniform franchise we must accept
the widest franchise that exists in any one of the
States.(56)
However, as foreshadowed in Senator O'Connor's
Second Reading Speech,(57) the breadth of the franchise
contemplated by clause 3 was contested in both Chambers. Debate
focused on women, Indigenous peoples and 'coloured' migrants, with
some attention devoted to offenders, the institutionalised poor,
and those of 'unsound mind'. Forming a backdrop to these
proceedings were tensions between the view that there should be a
uniform franchise for Commonwealth elections, the different
qualifications for voting existing in each of the States and the
Northern Territory of South Australia, the much-disputed and
misunderstood requirements of section 41 of the Commonwealth
Constitution, constitutional provisions dealing with Indigenous
peoples(58) and provisions governing the qualifications
for parliamentary office.(59) Self-interest also played
a part. To quote Reid and Forrest:
The architects of the Constitution placed great
faith in the capacity of the elected Senators and Members to design
statute law for a system of representative self-government,
notwithstanding that they would be legislating in their own
interest.(60)
Additionally, 'the absence of a developed party
structure [meant that] each member participating in the legislative
process felt comfortable in opening up new avenues of
amendment.'(61)
Female suffrage occupied the greatest amount of
Senate debating time on the Franchise Bill 1902. Politically,
philosophically and in terms of sheer weight of numbers this was a
significant reform-with the Government estimating that over 750 000
new voters would be added to the electoral
rolls.(62)
Although the question of voting rights for women
went to a division only in the House of
Representatives,(63) opponents put their views on
record. They claimed that women did not want the
vote(64) and already exercised considerable informal
influence through their roles as wives, mothers and
sisters.(65) They said that women should not be burdened
by the franchise, that they were unlikely to bring an independent
mind to the ballot box (in effect giving their husbands or sons an
additional vote) and that the record in South
Australia(66) showed that decreasing numbers of women
were choosing to vote. Senator Edward Pulsford (Free Trade, NSW)
added:
... it [the franchise] will tend to the
vulgarization of women, ... it is an introduction of elements which
will not strengthen political life, but which will tend to lessen
the strength of domestic life.(67)
Further objections were made to women's suffrage
'... as a tory vote, as a conservative vote.'(68) Others
claimed that it would gradually train '... women to become
masculine creatures ... entirely [unfitted] to discharge the
functions which properly belong to their sex'.(69)
The Bill's Second Reading debate in the Senate
concluded without a division being called.(70) In
Committee, on 10 April 1902, Senator Pulsford unsuccessfully moved
that clause 3 be amended to restrict the franchise to adult males.
Although some Senators expressed 'in principle' objections to
female suffrage, few were prepared to vote against it or the Bill.
In some cases, desire for a uniform Commonwealth franchise was
decisive,(71) others acknowledged the weight of numbers
supporting the measure.(72)
Many parliamentarians who supported women's
suffrage did so eloquently-drawing on the principles of
representative democracy and recognising that women should have a
voice in framing the laws that affected them and reforming the laws
that oppressed them. Others looked to the future, expressing the
hope that New South Wales, Victoria, Queensland and Tasmania would
be encouraged to follow the Commonwealth's example.(73)
Senator O'Connor remarked:
I see no reason in the world why we should
continue to impose laws which have to be obeyed by the women of the
community without giving them some voice in the election of the
members who make those laws.(74)
And Senator Anderson Dawson (Labor, Qld)
commented that:
... the ideal representative government is a
collection of persons possessing a knowledge and experience of
life, and wisdom enough to use it for the benefit of the general
community. Can anyone say that all knowledge and experience is
concentrated in the male being?(75)
Senator Norman Ewing (Free Trade, WA) asked:
Can it be asserted that women have no interest
in the laws we make for the government of the country? Can it be
pretended that they have no interest in the divorce and matrimonial
laws in connexion with which they labour under such distinct
disadvantages today?
... we require representation on the part of the
oppressed and the oppressed in these cases are in my humble opinion
the women. ... and inasmuch as every man in this country is given
the right to take part in the making of the laws that control him
so ... a similar right should be extended to women, irrespective
altogether of the question of a uniform
franchise.(76)
Senator James Stewart (Labor, Qld) contrasted
the conditions under which some women worked with the pious
concerns of opponents of female suffrage who argued that it might
be degrading:
The very men who say that giving a woman a vote
would degrade here, have not the slightest compunction about making
her a drudge ... It is not degrading for her to scrub a floor ...
or to be put into a factory where she will have to work for nine or
ten hours a day for a wretched pittance.(77)
The Bill was passed in the Senate on 11 April
1902. In the House of Representatives, the Bill secured a Second
Reading by 29 votes to six on 23 April 1902.
The need to guarantee women's suffrage and
ensure that the meaning of the word 'adult' was not misinterpreted
as the result of a strict application of 'English
precedents'(78) led Attorney-General Alfred Deakin
(Protectionist, Ballaarat) to move an amendment to clause 3. As
amended the clause gave the vote in Commonwealth elections to 'all
persons not under twenty-one years of age whether male or female
married or unmarried' not who were not otherwise disenfranchised,
met residency criteria and were British subjects. The provision
remained unchanged for over seven decades. In 1983 the Joint Select
Committee on Electoral Reform recommended that the words 'male or
female married or unmarried' be omitted 'in accordance with current
views on gender and marital status'-a recommendation incorporated
into the Commonwealth Electoral Legislation Amendment Act
1983(79) which changed the phrase to read 'all
persons ... who have attained the age of 18 years'.
Commonwealth Franchise Act
1902
Of more general concern for the First
Commonwealth Parliament than votes for 'white' women was the
question of Indigenous suffrage. The non-discriminatory nature of
the original Franchise Bill 1902 was, to a large extent, the result
of the policy goal of a uniform franchise operating within the
constraints of section 41 of the Constitution. The Barton
Government was also inclined to view Aboriginal people with some
sympathy. Senator O'Connor explained the Government's position in
this way. First, he said, the disenfranchisement of Aborigines who
were 'settled members of the community' was not worthy of serious
consideration.(80) Second, he considered that
Australia's Indigenous peoples should be treated not only 'fairly,
but with some generosity' given that they were a 'failing
race'.(81) Third, he commented that:
... it would be a monstrous piece of savagery on
our part, to treat the aboriginals, whose land we were occupying,
in such a manner as to deprive them absolutely of any right to vote
in their own country, simply on the ground of their colour, and
because they were aboriginals.(82)
However, in both the Senate and the House of
Representatives, a uniform franchise giving the vote to Indigenous
Australians was roundly attacked. Unashamedly racist opinions were
expressed about Indigenous peoples-particularly Indigenous women.
Various Senators and Members were hostile to the possibility of
Indigenous Australians being elected to Parliament-given sections
16 and 34 of the Constitution(83) and the relevant parts
of the Electoral Bill 1902(84) (then before the
Parliament). The latter provisions meant that anyone entitled to
vote in a House of Representatives election could be nominated as a
Senator or Member. The Commonwealth's first parliamentarians also
voiced concerns about the electoral consequences of an Indigenous
franchise in northern Australia.
Some Senators estimated that there were
200 000 Indigenous peoples of all ages in Australia and
expressed fears that the votes of those living in Queensland, the
Northern Territory and Western Australia would be manipulated by
'old crusted conservative' squatters.(85) Senator George
Pearce (Labor, WA) remarked that:
We have to remember also that in the north-west
of Western Australia we have large numbers of aborigines living
upon the sheep and cattle stations. ... Allow the squatters to get
them put upon the roll, and who is the returning officer when the
election comes around but the squatter himself? What is to prevent
him enrolling all the blackfellows on his run and manipulating
their votes at election times ...(86)
In contrast to the much-lauded virtues of
'white' women-variously described as 'the fair sex',(87)
'elevated above [men]',(88) having 'a too refined
intelligence'(89) and being endowed with 'sacred
functions'(90)-parliamentarians saved their most
vituperative comments for Indigenous women. 'Surely', said Senator
Alexander Matheson (Free Trade, WA) 'it is absolutely repugnant to
the greater number of people of the Commonwealth that an aboriginal
lubra or gin-a horrible, degraded, dirty creature-should have the
same rights, simply by virtue of being 21 years of age, that we
have, after some debate to-day, decided to give to our wives and
daughters.'(91) On 10 April 1902, he suggested that
clause 4 of the Bill be amended by the insertion of the following
words:
No aboriginal native of Australia, Asia, Africa,
or the islands of the Pacific, or persons of the half blood shall
be entitled to have his name placed on an electoral roll, unless so
entitled under section 41 of the Constitution.(92)
However, Senator Gregor McGregor (Labor, SA)
moved that the word 'Australia' be omitted from Senator Matheson's
proposed amendment, remarking:
In the majority of States those aborigines who
have shown that they are intelligent enough to exercise the
franchise are entitled to do so, but they have only availed
themselves of the right to a limited extent, and no evil
consequences have resulted ... I should be very sorry if we took
away a right from a declining race like the aborigines
...(93)
By a majority of 12 to eight votes, the Senate
voted to omit the word 'Australia' and then agreed to the amendment
(as amended).(94)
In the House of Representatives, two amendments
relating to Indigenous Australians were agreed to. The first,
proposed by Sir William Lyne, removed the disqualification in
clause 4 on 'persons of the half-blood'.
Mr H. B. Higgins (Protectionist, North
Melbourne) then successfully moved(95) that the word
'Australia' be re-inserted into clause 4. He argued that giving the
vote to Australian Aborigines was 'a ridiculous franchise', and
that it was not underpinned by any 'constitutional
obligation'.(96) Higgins' amendment was supported by Sir
Edward Braddon (Free Trade, Coventry) on the ground that it would
prevent the vote being given to Aboriginal women.(97)
Few took issue with the proposal-one being Mr Hugh Mahon (Labor,
Coolgardie) who expressed his disappointment that:
... the Government had decided to accept an
amendment which places a stigma upon the race that held this
continent long before white people came here.(98)
Nevertheless, Mahon's view of his Indigenous
compatriots differed little from that of his colleagues:
... I am free to admit that there is perhaps no
lower type of humanity on this planet than the aboriginal of
Western Australia. I believe also that it is impossible for the
average aboriginal to understand any political question, or to vote
with intelligence. At the same time I do not think the first
Australian National Parliament should place upon the statute-book a
prohibition against the native races of the continent, and a stigma
upon their name. We could easily prevent these people from being
enrolled, without leaving ourselves open to reproach, by providing
in the Electoral Bill that no aboriginals shall be enrolled unless
they are able to read, write, and understand the English
language.(99)
The idea of a literacy test for electoral
enrolment was supported by Mr James Ronald (Labor, Southern
Melbourne) who remarked:
To draw a 'colour line' and say that because a
man's face is black he therefore is not able to understand the
principles of civilization, is misanthropic, inhumane, and
unchristian.(100)
However, the Government supported the Higgins'
amendment to clause 4 disenfranchising Indigenous Australians. Sir
William Lyne remarked:
We saw some difficulty in the way of making the
law uniform, because we knew there were a large number of wild
blacks in the northern territory of South Australia, in northern
Queensland, and in Western Australia, who could be half-tamed so
that they could be roped in, like wild horses, to have their names
placed upon the roll. I do not think there can be any objection to
adopting the amendment submitted by the honourable member for
Northern Melbourne.(101)
Section 41 of the Constitution was also called
in aid of the amendment. Sir William Lyne commented that the
amendment could not disenfranchise any Indigenous person protected
by section 41. Mr Isaac Isaacs (Protectionist, Indi) argued that
section 41 guaranteed the Commonwealth franchise to anyone entitled
to a State vote under future State laws-thus taking the view that
Indigenous peoples could achieve the vote at future Commonwealth
elections by operation of State laws.(102)
The Franchise Bill 1902 was then returned to the
Senate,(103) which agreed to the amendments made by the
House of Representatives.(104) Senator O'Connor
considered it more important for the Bill to pass both Houses than
for the Senate to insist on the enfranchisement of Indigenous
Australians and risk the defeat of the legislation.(105)
Senators also voiced concerns about the effect of an Indigenous
vote, given the numbers of Indigenous peoples in Western Australia,
and about the possibility of an Indigenous woman being elected to
the Commonwealth Parliament.(106) Only Senator
Lt-Colonel John Neild (Free Trade, NSW) spoke against the House of
Representatives amendment:
While the law stands as it is, and there is no
bar to any one in the community, unless he is in an asylum or a
gaol, exercising his vote, whether he is drunk or whether he is
sober, it is only reasonable that the franchise should be granted
by the Commonwealth to men who vote but seldom, and who certainly,
as the original landlords of Australia, are entitled, in my humble
view, to vote in the Commonwealth ...(107)
The Senate also agreed to the House of
Representatives amendment that removed the Senate's
disqualification of Aboriginal people of mixed
descent.(108)
As passed by the Parliament, clause 4 read:
No aboriginal native of Australia Asia Africa or
the Islands of the Pacific except New Zealand shall be entitled to
have his name placed on an Electoral Roll unless so entitled under
section forty-one of the Constitution.
World War I
& World War II
In the First Commonwealth Parliament, some
arguments against female suffrage were based on the view that
'[a]ll political privileges are based on political
duties'(109)-the ultimate political duty being armed
service in defence of the nation. Australia's involvement in
overseas conflicts generated a number of proposals, albeit limited
ones, to extend the franchise to Indigenous Australians and young
Australians. As Summers has remarked, Indigenous peoples served
with distinction in both World Wars.(110)
During World War I suggestions were made that
Indigenous peoples should be enrolled to vote at Commonwealth
elections if they could pass a test prescribed by the Electoral
Registrar.(111) However, an amendment to this effect
during debate on the Commonwealth Electoral Bill 1918 was defeated
in the Senate 15 votes to seven.(112) And, despite the
hopes of some that Aboriginal enlistment would lead to full
citizenship rights during World War II,(113) it was not
until after the end of that war that on going, if minor, reforms
were made to the Commonwealth franchise relating to Indigenous
peoples.
Commonwealth
Electoral Act 1949
In 1949, Indigenous peoples were entitled to
enrol and vote in State elections in New South Wales, Victoria,
South Australia, Tasmania. In Queensland, they were disqualified
from voting. In Western Australia and the Northern Territory their
voting rights were conditional. In Western Australia, an Indigenous
person could apply for a certificate of citizenship under the
Natives (Citizenship Rights) Act 1944, if a magistrate
issued a certificate the certificate-holder was deemed to be no
longer an Aboriginal and instead to have all the duties and
liabilities of a British subject-including the right to vote.
Serving and former members of the armed forces could vote in the
Northern Territory, as could any Aboriginal person declared fit to
perform the duties of a citizen.
The Commonwealth Electoral Bill 1949 was
introduced by the Chifley Labor Government on 3 March 1949 and gave
Aboriginal people the right to vote at Commonwealth elections if
either they were enfranchised under a State law or they were or had
been a member of the defence forces.(114) 'To our
eternal shame', said Mr Arthur Calwell (Labor, Melbourne), 'we have
not treated the aborigines properly ...'(115)
adding:
At last, our consciences have been stirred, and
we are now admitting some of our obligations to the descendants of
Neanderthal man, whether he be full-blood, half-caste or
three-quarter-caste.(116)
For its part, the Opposition acknowledged
'uneasiness at the way in which we, as a people, have treated the
aborigines who are the true natives of the Australian
continent'.(117)
However, the consciences of neither the
Government nor the Opposition were stirred sufficiently to propose
a right to vote for all Indigenous peoples at Commonwealth
elections. Mr Kim Beazley, Snr (Labor, Fremantle) indicated that
the Government felt itself constrained by State electoral laws
although he suggested it would be a good thing if:
The Commonwealth returning officer in each State
had, himself, the right to classify aborigines and half-castes as
having a sufficient standard.(118)
As amended in 1949, the Commonwealth
Electoral Act 1918 enfranchised any aboriginal native of
Australia who:
-
- is entitled under the law of the State in which he resides to
be enrolled as an elector of that State and, upon, enrolment, to
vote at elections for the more numerous House of the Parliament of
that State or, if there is only one House of the Parliament of that
State, for that House;
- is or has been a member of the Defence
Force.(119)
The
1960s
In May 1961, the Labor Opposition moved to
delete provisions in the Commonwealth Electoral Bill 1961 which
would have re-enacted those parts of the Commonwealth Electoral
Act 1918 that effectively denied certain Aboriginal people the
right to enrol and vote at Commonwealth elections.(120)
Mr E. G. Whitlam (Labor, Werriwa) commented that an Aboriginal
person was denied the vote '... not because he is in any way
inferior to his fellow citizens, but because he is an
aboriginal.'(121) However, the Liberal-Country Party
Government of Robert Menzies opposed the amendment, arguing that it
would pre-empt the deliberations of a House of Representatives
select committee established to examine Indigenous voting rights.
The Opposition amendment was defeated 57 votes to
39.(122)
The House of Representatives Select Committee on
Voting Rights of Aborigines reported later in 1961. It estimated
that if voting rights were extended to Aborigines at Commonwealth
elections about 30 000 extra persons would be enfranchised.
And it found that many Indigenous ex-service personnel who had been
enfranchised by the Commonwealth Electoral Act 1949 were
unaware of their right to vote. The Committee recommended that all
Indigenous peoples should be entitled to vote but that enrolment
should be voluntary, commenting: 'These people have not perceived
the relevance of parliamentary elections to their lives, so to
compel enrolment would be harsh'.(123) However, it
dismissed suggestions that criteria such as literacy, employment,
financial status, or receipt of public assistance should determine
whether Aboriginal people should be able to vote 'on the ground
that they are not applicable to the electorate at
large.'(124)
The Government responded to the Committee's
report by introducing the Commonwealth Electoral Bill 1962,
asserting that the legislation would '... proclaim to the world
that the representatives of all sections of the Australian
community are determined to ensure that the aboriginal people of
Australia enjoy complete political equality with the rest of the
community.'(125) The Commonwealth Electoral Act
1962 gave Indigenous peoples the option of enrolling to vote
at Commonwealth elections.(126) However, voting was
compulsory for anyone enrolled. The Act also contained a number of
provisions creating specific offences of bribery and undue
influence in relation to Indigenous peoples.(127) The
Labor Opposition attempted to amend the Bill to preserve compulsory
Indigenous enrolment for Commonwealth elections in New South Wales
and Victoria. In these two States, Aboriginal people were already
enfranchised under State laws which made enrolment compulsory and
had been able to vote at Commonwealth elections since the
commencement of the Commonwealth Electoral Act 1949.
However, the Labor amendment was unsuccessful.(128)
The Commonwealth Electoral Act 1962
repealed subsection 39(6) of the Commonwealth Electoral Act
1918-the subsection which at that time excluded Aboriginal
people from voting in Commonwealth elections unless they were
entitled to vote in State elections or were a member of the Defence
Forces.(129) The 1962 Act also provided that the
compulsory enrolment and transfer provisions contained in section
42 of the Commonwealth Electoral Act 1918 did not:
... apply to a person who is an aboriginal
native of Australia except to the extent that such a person may, if
he so chooses, comply with [the enrolment or transfer of enrolment
provisions contained in subsection 42(1) of the
Act].(130)
Commonwealth
Electoral Amendment Act 1983
Formal equality for Indigenous voters at
Commonwealth elections did not come about until 1983. The
Commonwealth Electoral Amendment Act 1983, sponsored by
the Hawke Labor Government, implemented many of the recommendations
of the First Report of the Joint Select Committee on Electoral
Reform-including the proposal that enrolment for and voting in
Commonwealth elections should be compulsory for Indigenous
Australians.(131)
As originally introduced, clause 3 of the
Franchise Bill 1902 enfranchised 'adult persons'. However, the
clause was amended in the House of Representatives to enfranchise
'persons not under 21 years of age' as a result of doubts about the
technical meaning of the word 'adult'.(132)
World War
I
The question of lowering the voting age was
raised during World War I. During debates on the Commonwealth
Electoral (War-time) Bill 1917,(133) Mr William
Finlayson (Labor, Brisbane) unsuccessfully proposed that all
members of the armed forces aged 18 years should be enfranchised.
He successfully moved a similar amendment in November 1918 during
debate on the Commonwealth Electoral Bill 1918.(134)
Consequently, the Bill, as introduced into the Senate, would have
enfranchised:
(c) every member of the forces, according to the
definition of such in the Commonwealth Electoral (War-time) Act
1917.(135)
In the Senate, John Grant (Labor, NSW)
unsuccessfully moved an amendment to lower the general voting age
to 18 years saying:
I say that, intellectually, the young man and
young woman of eighteen years of age is equal to the average
citizen, and, in many respects, surpasses him in education and
intelligence.(136)
While the Senate rejected Senator Grant's
amendment, the Commonwealth Electoral Act 1918 enabled all
current and former members of the forces to vote at Commonwealth
elections during the war and for three years after the end of
hostilities-if they were either residents or British
subjects.(137) Senator Pearce (Nationalist, WA)
said:
We propose this as an acknowledgment that, by
their military service, they have earned the full rights of
citizenship.(138)
No minimum age was specified. It was estimated
that between 20 000 and 30 000 soldiers would be entitled
to vote as a result of the amendment.(139)
World War
II
The issue of a reduced voting age for service
personnel was again raised during World War II.(140) The
Commonwealth Electoral (War-time) Bill 1943,(141)
introduced by the Curtin Labor Government reduced the voting age to
18 years of age for all service personnel. However, the Opposition
successfully moved an amendment to restrict the lowered voting age
to those who had seen service overseas. The spectre of Communism
and issues of gender appear to have prompted this move. Senator
Philip McBride (United Australia Party, SA) remarked:
It would be a short step for this Government,
again under the influence of the Communists, to [give] a vote also
to minors engaged in war work in government factories, and then, no
doubt, it would not be long before we found the Government
advocating that all persons over the age of eighteen years should
have a vote.(142)
And, said Senator John Spicer (Liberal,
Vic):
It is sheer nonsense to suggest that, because a
typist has ceased to work in civil employment and has gone into the
Army, and put on a uniform, and now, instead of taking a tram to
her office she takes a tram to Victoria Barracks, and types all
day, she is entitled to the same privilege as a man who has
sacrificed everything and served overseas in the defence of his
country.(143)
The Commonwealth Electoral (War-time) Act
1943 enabled qualified members of the Forces to vote.
Qualified members included members of the Forces aged under 21
years who had served or were serving outside Australia and
discharged members of the Forces aged under 21 years who had served
outside Australia.(144)
Vietnam
War
Another war, this time in Vietnam, again raised
the issue of the voting age of members of the defence forces.
Conscription was introduced in Australia in 1964. During debate on
the Commonwealth Electoral Bill (No. 2) 1965,(145) the
Labor Opposition moved an amendment to lower the voting age to
18,(146) pointing out that young people were
well-educated, paid taxes and could marry. Further, said Fred Daly
(Labor, Grayndler):
The Government is prepared to send Australian
men anywhere in the world to fight for this country, but it will
not extend to them, if they happen to be under 21 years of age, the
right to vote and to decide whether this Government should be in
office and responsible for calling them up. No wonder it does not
want to give the under 21 year-olds a vote ... it realises that
among the people today who are under 21 years of age there are many
who will be conscripted by the Government and who would vote
against the Government which introduced the conscription
legislation.(147)
However, the Government's view was that the
majority of young people were not politically mature until they
turned 21 years of age:
Although the Government believes that there may
be some justification for reducing the franchise age of service-men
who are at present on active service outside Australia, there is
little justification for a general reduction in the age of
voters.(148)
It was not until 1966 that an amendment
sponsored by the Holt Liberal-Country Party Government was made to
the Commonwealth Electoral Act 1918(149)
enfranchising service personnel who were or had been on active
service or service within the strategic reserve in South-East Asia.
However, the amendments did not encompass national servicemen under
the age of 21 who had not served in Vietnam.(150)
The 1970s, 1980s
and 1990s
Attempts by the Labor Opposition in 1968, 1971
and 1972 to amend the Commonwealth Electoral Act 1918 to
reduce the voting age to 18 were unsuccessful. The Act was finally
amended in 1973-as part of the legislative program of the Whitlam
Labor Government.(151) In 1983, the Commonwealth
Electoral Act was further reformed to enable 17 year olds to
provisionally enrol. Once provisionally enrolled a person who turns
18 after the close of the rolls and before election day can
vote.(152)
Attempts to lower the voting age still further
have been unsuccessful. In 1996, Senator Christobel Chamarette
(Greens, WA) introduced the Commonwealth Electoral Amendment (16
and 17 Year Old Voluntary Enrolment) Bill. The Bill provided for
voluntary enrolment for 16 and 17 year olds but, once enrolled,
voting would have been compulsory. The Bill was read a first time
on 26 June 1996. Debate was adjourned and was not revisited in the
Senate.(153)
Commonwealth Franchise Act
1902
As introduced into the Senate, Franchise Bill
1902 did not discriminate against naturalised
'coloured'(154) migrants. Like the proposal for an
Indigenous franchise this was partly because the Government
believed it would have minimal impact. In the case of Indigenous
voters, the Government believed that Aboriginal people were dying
out. In the case of 'coloured' migrants, the Government pointed to
the effect of State Chinese Restriction Acts and the passage of the
Commonwealth Immigration Restriction Act
1901:(155)
It appears ... that, in view of the provisions
of the Immigration Restriction Act, which will enable us
practically to shut out altogether any influx of coloured persons
into Australia, whether British subjects or not, we might regard
the matter only from the point of view of those who are here
already ... Once having naturalized any of these coloured people,
and given them rights of citizenship in relation to the holding of
property and in other directions, it would be a mistake to deprive
them of the right to aid in making the laws. What is one of the
strongest arguments for a white Australia? Surely it is that we do
not want to have in our community any section which is in a servile
condition.(156)
However, 'coloured' migrants-especially
Chinese-people in the Northern Territory and Queensland were
considered an electoral threat. Senator Miles Staniforth Smith
asked:
What would be the result if, under this Bill,
those coloured people [in the Northern Territory] had the right to
vote, and any person the right to stand for the Federal Parliament?
It would be possible, and in fact probable, that we should have a
Chinaman in this Parliament as representative of the Northern
Territory, for I understand that the Chinese are the most populous
race there ... (157)
Senator McGregor observed that:
... with respect to Chinese, Japanese, Africans,
and other aliens, who are much more dangerous than the aborigines,
I should be quite willing to take some step.(158)
If the Chinese were considered 'dangerous',
South Sea Islanders were considered to be easily manipulable by the
Government of Queensland.(159) Senator Pearce
cautioned:
We have to remember that there are somewhere
about 80 000 of the coloured races in Australia apart from
aborigines. ... We would have in Queensland such a large coloured
alien vote that allied to the existing conservative vote it would
be able to defeat the rest of the white voters in
Queensland.(160)
The enfranchisement of migrants from Africa,
Asia, the West Indies, India or the South Pacific was also opposed
on the basis of differences in culture, politics and religion and
the undesirability of their influencing federal
politics.(161) Senator Matheson categorised his
objection '... as a racial one.'(162) He described
'coloured' migrants as 'idolators' and added 'it must be borne in
mind that any person who is entitled to be a voter is also entitled
to be a candidate for Parliament'.(163)
A Senate amendment disenfranchising 'coloured'
immigrants was enthusiastically(164) supported in the
House of Representatives but modified to exclude Maori from its
operation-an amendment agreed to by the Senate when the Bill was
returned there. Both Chambers noted that Maori were represented in
the New Zealand Parliament and would have '... as keen an interest
in any proposed legislation as would any white
man.'(165) There seems to have been a general view of
Maori as intelligent, 'highly civilised'(166) people who
were unlikely to come to Australia in any large numbers-unlike the
'Asiatic hordes [who] would come if they got the
opportunity.'(167) The prospect of New Zealand joining
the federation was also influential-Senator O'Connor remarked that
there was no prospect of federation if Maori were discriminated
against by Australian laws.(168) The only amendment made
to clause 4 by the Senate when it considered the House of
Representatives' amendments was to simplify a reference to New
Zealand.(169) This Senate amendment was agreed to by the
House of Representatives.(170)
As passed by both Houses, section 4 of the
Commonwealth Franchise Act 1902 provided that:
No aboriginal native of Australia Asia Africa or
the Islands of the Pacific except New Zealand shall be entitled to
have his name placed on an Electoral Roll unless so entitled under
section forty-one of the Constitution.
Commonwealth
Electoral Act 1925
Disqualifications from voting in Commonwealth
elections first imposed in 1902 on non-European migrants remained
largely unchanged until 1961.
In 1925, British-Indians who met the residency
requirements of the Commonwealth Electoral Act 1918 and
some naturalised 'Asiatic'(171) Australians were
exempted from the disqualification.(172) The amendment
relating to British India flowed from the Imperial Conference in
1921 which acknowledged the 'incongruity between the position of
India as an equal member of the British Empire and the existence of
disabilities upon British Indians lawfully domiciled in some other
parts of the Empire'(173) and resolved to remove it.
When it introduced the Commonwealth Electoral Bill 1925 into the
Senate, the Bruce-Page Government emphasised that there were only
2300 Indian residents in Australia and that their numbers would not
increase because of the Immigration Restriction
Act.(174) Once assured that the White Australia Policy
was not endangered, Senators and Members supported the
Bill.(175)
The Bill(176) also extended the
franchise to 'naturalised Asiatics' who had previously been
disqualified from voting at Commonwealth elections for a variety of
reasons.(177) The Government stressed:
That may sound somewhat alarming, but there is
really no occasion for alarm, since there are relatively few
naturalized Asiatics(178) in
Australia.(179)
As amended in 1925, subsection
39(5)(180) of the Commonwealth Electoral Act
1918 read:
No aboriginal native of Australia, Asia, Africa,
or the Islands of the Pacific (except New Zealand) shall be
entitled to have his name placed on or retained on any roll or to
vote at any Senate election or House of Representatives election
unless:
-
- he is so entitled under section forty-one of the Constitution;
- he is a native of British India;
- he is a person to whom a certificate of naturalization has been
issued under a law of the Commonwealth or of a State and that
certificate is still in force, or is a person who obtained British
nationality by virtue of the issue of any such certificate.
Commonwealth
Electoral Act 1961
The Commonwealth Electoral Act 1961
removed the disqualification on 'aboriginal native[s] of ...
Africa, or the Islands of the Pacific'.(181) The
amendment was accompanied by little Parliamentary discussion or
comment-the words simply being described by the Menzies' Government
as 'objectionable and outmoded'.(182)
Commonwealth Franchise Act
1902
The Franchise Bill 1902 disenfranchised anyone
'.. attainted of treason, or ... convicted and ... under sentence
or subject to be sentenced for any offence punishable under the law
of the Commonwealth or of a State by imprisonment for one year or
longer ...' It was Senator O'Connor who also suggested that the
reference to Commonwealth or State laws should be replaced with a
reference to offences in 'any part of the King's
dominions'(183) - an expression with wider reach than
found in some State laws. The amendment was agreed to with
virtually no debate.(184)
Reform and
Attempts at Reform
In general, the Commonwealth franchise has been
progressively expanded since federation. However, the issue of
offender voting remains contested although it is estimated that
less than one-third of Australian prisoners voted at the 1996
election.(185) Despite a legislative relaxation on
offender voting in 1983 and 1995 and the uncertain meaning of the
current provision,(186) further attempts at reform have
been unsuccessful and concerted efforts have been made to
disenfranchise all prisoners.
The First Report of the Joint Select Committee
on Electoral Reform recommended that only those offenders serving a
sentence for an offence against Australian law carrying a maximum
penalty of at least five years imprisonment should be
disenfranchised. This recommendation was incorporated in the
Commonwealth Electoral Legislation Amendment Act
1983.(187)
In 1986, the Joint Standing Committee on
Electoral Matters recommended that all sentenced offenders, except
those convicted of treason or treachery, should be entitled to vote
at Commonwealth elections.(188) The proponents of reform
were motivated by both practicality and principle. The basis of the
disqualification was not the actual sentence imposed on the
offender but the potential sentence for the offence-information
unknown to prison authorities who were required under section 109
of the Commonwealth Electoral Act 1918 to forward to the
Electoral Commissioner a list of persons under sentence for an
offence attracting a maximum penalty of five years imprisonment.
And, not only did the disqualification bear no relation to the
seriousness of an individual's offence, it imposed an additional
punishment and did not promote rehabilitation.
An amendment incorporating the Joint Committee's
recommendation was introduced by the Hawke Labor Government in the
Electoral and Referendum Bill 1989 but was rejected by the
Senate.(189)
The Joint Standing Committee's report on the
1993 election endorsed the earlier Committee's recommendation and
an amendment along those lines was again introduced in 1995-this
time by the Keating Labor Government.(190) However, in
July 1995 Acting Prime Minister Kim Beazley (Labor, Swan) announced
that the Government would not proceed with the amendments and
instead would 'look at ways of streamlining the current
arrangements'.(191) The result was the amendment of the
Commonwealth Electoral Act 1918 to disenfranchise any
person serving an actual sentence of five years or
longer.(192)
In 1996 the Joint Committee, by then dominated
by Coalition members, recommended that anyone serving a prison
sentence of any length for an offence under Australian law be
disqualified from voting. The majority commented:
... this Committee believes that its
predecessor's recommendation was entirely inappropriate. While
rehabilitation is an important aspect of imprisonment, equally
important is the concept of deterrence, seeking by denial of a
range of freedoms to provide a disincentive to crime. Those who
disregard Commonwealth or State laws to a degree sufficient to
warrant imprisonment should not expect to retain the
franchise.(193)
As introduced by the Howard Coalition
Government, the Electoral and Referendum Amendment Bill (No. 1)
1999 disenfranchised all prisoners.(194) However, the
relevant provisions were defeated in the Senate.
The subject of voting rights for sentenced
offenders has most recently been considered by the Joint Standing
Committee on Electoral Matters in its report on the 1998 election.
The majority report supported the view of some of its predecessors
that the restrictions on prisoner voting should be relaxed but
concluded that '... the current legislation should stand until
there is sufficient and widespread public support for a
change.'(195) The issue remains a live one. On 1 March
2001, the Government tabled its response to the Joint Standing
Committee's report on the 1998 election. Among other things it
said:
In responding to this report, the Government
wishes to take the opportunity to foreshadow that it will also be
pursuing the following reforms:
Abolition of the Vote for Prisoners
The Government believes that this matter, a
recommendation of the JSCEM report into the 1996 election, should
again be pursued. At present, only prisoners serving a sentence of
five years or more lose their right to vote. The Government
believes that the right to vote should be revoked for all
prisoners.(196)
At the time of writing, no legislation had been
introduced into the Parliament to amend the Commonwealth Electoral
Act by denying the vote to all prisoners.
The Institutionalised Poor and the
Franchise Bill 1902
On 10 April 1902, the Government proposed to
amend the Franchise Bill to disenfranchise those receiving
'charitable relief as an inmate of a public charitable
institution'. It took the view that anyone resident in such an
institution was 'withdrawn absolutely from contact with ordinary
life and public affairs, [and] should not be in a position to
exercise full political rights'.(197) Some Senators
supported the amendment fearing that the votes of large numbers of
frail and infirm people could be manipulated. However, other
Senators criticised it as both unjust and unjustifiable-because it
targeted only those in institutions, not the homeless or people
receiving state pensions:
Why should an aged man-or an aged woman-who has
fulfilled all his duties in life up to the time when he was
incapacitated and compelled, because there was no legitimate system
of old-age pensions, to go into a public institution, be deprived
of the right to vote?(198)
The Government chose not to press its amendment
when it was pointed out that no similar disqualification existed
under South Australian law(199)-and that as a
consequence of section 41, the amendment could not apply uniformly
throughout Australia.
Mental 'Incapacity'
While not present in the original Franchise Bill
1902, a proposal to disenfranchise those of 'unsound mind' was
agreed to with little debate in 1902.(200) The
Commonwealth Electoral Legislation Amendment Act 1983
altered the disqualification to provide that a person who 'by
reason of being of unsound mind, is incapable of understanding the
nature and significance of enrolment and voting' cannot enrol or
vote at a federal election.(201) This amendment was made
in response to the First Report of the Joint Select Committee on
Electoral Reform which commented that:
The wording 'unsound mind' is most imprecise.
The Committee recommends review of this wording with a view to
excluding on the ground only those persons who are incapable of
making any meaningful vote.(202)
The provisions relating to the disqualification
of those of 'unsound mind' were further amended by the
Electoral and Referendum Amendment Act 1989 to require
that an objection to a person's enrolment on this ground be
accompanied by a doctor's certificate.(203)
Members of Unlawful
Associations
The only new category of disqualified persons
added to Commonwealth electoral law since the enactment of the
Commonwealth Franchise Act 1902 relates to certain members
of unlawful associations. An 'unlawful association' is defined in
section 30A of the Crimes Act 1914 as a body which
advocates or encourages the overthrow of the Constitution by
revolution or sabotage, the overthrow of any government or
organised government or the destruction of Commonwealth property.
The expression also encompasses a body affiliated with an
organisation which advocates or encourages those things.
In 1932, the Crimes Act 1914 was
amended to ban executive members of 'unlawful associations' from
enrolling or voting for a period of seven years from the date of
the declaration. This, and other disabilities imposed on unlawful
associations was said to be 'necessary':(204)
The danger to the body politic is to be feared,
not from the Communist Party directly, but from various other
organizations, dissociated in name, but in reality directing
Communist activities in the Commonwealth.(205)
Section 30FD has not been substantively amended
since its enactment in 1932.(206) In 1983, the Human
Rights Commission concluded that disqualification for an arbitrary
period of a person who may have had no knowledge of the matter
leading to a declaration, especially in the case of an organisation
affiliated with an unlawful association, amounted to an
unreasonable restriction on the right to vote contrary to Article
25(b) of the International Covenant on Civil and Political Rights.
The Commission recommended that section 30FD be amended to 'limit
its application to persons who had, at all relevant times,
knowledge of the matter giving rise to the association's being
declared to be an unlawful association'.(207) However,
no action has ever been taken to amend or repeal section 30FD.
Since 1901, the federal Parliament has
legislated on the basis that it has a largely unfettered power to
set the boundaries and content of the Australian system of
representative government. The Constitution was not seen as a
significant impediment to whichever version of representative
government the Parliament might wish to implement. Certainly, the
Constitution places few express limits upon the power of the
Parliament to set the method of voting for either house or the
qualifications of voters. Hence, the Parliament has legislated
widely on such qualifications as well as upon which persons are
included in or excluded from the franchise.
In recent years, the leeway afforded to the
Parliament has been narrowed by the High Court's interpretation of
the Constitution. The Court has asserted its own role in defining
the content of the system of representative government. It has
found that implications can be drawn from text of the Constitution
that limit federal legislative power.
Australian Capital Television Pty Ltd v
Commonwealth(208) involved a challenge to the
Political Broadcasts and Political Disclosures Act 1991
(Cwlth), which added a new Part IIID dealing with 'Political
Broadcasts' to the Broadcasting Act 1942 (Cwlth).
Section 95B imposed a blanket prohibition on political
advertisements on radio or television during federal election
periods. There were similar bans for Territory elections under
section 95C and for State and local government elections under
section 95D. Exceptions to the ban were made for policy launches,
news and current affairs items, talkback radio programs and
advertisements for charities which did not 'explicitly advocate' a
vote for one candidate or party. Division 3 of Part IIID
established a scheme of 'free time' for political advertising. Of
the total time available, 90 per cent was reserved for parties
represented in the previous Parliament who were fielding a minimum
number of candidates. Units of 'free time' could be used for a
two-minute telecast or one-minute radio broadcast by a single
speaker, 'without dramatic enactment or impersonation', accompanied
in a telecast by a picture of the speaker's head and shoulders.
Part IIID clearly fell within the Commonwealth's
power over broadcasting in section 51(v) of the Constitution or
under the Commonwealth's power with respect to federal elections.
The question before the Court was therefore whether Part IIID was
invalid because it infringed a constitutionally guaranteed freedom
of political communication. The Court, with Dawson J dissenting,
found that such an implication could be found in the Constitution.
Mason CJ, Deane, Toohey and Gaudron JJ held that Part IIID was
wholly invalid. McHugh J found that Part IIID was invalid except in
relation to section 95C, which concerned Territory elections.
Brennan J found that Part IIID was not invalid as it could be
reconciled with the implied freedom as a reasonable restriction on
political communication. The reasoning of Mason CJ was typical of
the majority. He found that the Act would favour:
the established political parties and their
candidates without securing compensating advantages or benefits for
others who wish to participate in the electoral process or in the
political debate which is an integral part of that
process.(209)
The majority judges gave little weight to the
views of the Parliament, which in the Report of the Joint Standing
Committee on Electoral Matters, Who Pays the Piper Calls the
Tune, had determined that the Act was a necessary response to
problems such as corruption in the political
process.(210)
The High Court in Australian Capital
Television relied upon the words 'directly chosen by the
people' in sections 7 and 24 of the Constitution. These words
harbour many potential implications. The word 'directly' indicates
that electors are to cast their choice for candidates without any
intervening stage, such as an electoral college.(211)
The word 'chosen' is more significant. The 'choice' mandated by
sections 7 and 24 would be frustrated by any law that provided that
there could only be one candidate per electorate, or indeed a
limited number of candidates per electorate. It would also be
inconsistent with a law that limited eligibility to stand for
office to members of a particular political party, or indeed a law
that provided that members of a certain organisation could not
stand for election. A 'choice' implies, if nothing more, a free and
'genuine choice',(212) perhaps even an informed choice.
Each of these possibilities could restrict the scope for the
federal Parliament to itself determine the content of the system of
representative government.
It appears that the High Court may apply
sections 7 and 24 of the Constitution to prevent the Commonwealth
from limiting the federal franchise. Even though the High Court
held in R v Pearson; Ex parte Sipka that such a right is
not conferred by section 41 of the Constitution, this does not
preclude sections 7 and 24 supporting an implied right to vote.
After all, these provisions require a 'choice' by the 'people'.
Decisions on these sections have not addressed the question whether
each Australian is vested with a constitutionally guaranteed right
to vote. The question might arise if a person, excluded under
section 93(8)(b) of the Commonwealth Electoral Act because he or
she is serving a sentence of five years or longer for an offence
against the law of the Commonwealth or of a state or
territory,(213) were to seek a declaration as to his or
her entitlement to cast a vote.
Members of the High Court have approached this
issue from the converse, but equivalent, perspective of whether
sections 7 and 24 limit the Commonwealth's power to restrict the
federal franchise as provided for by section 93 of the
Commonwealth Electoral Act 1918. The universal adult
franchise recognised by several members of the High Court as
entrenched by sections 7 and 24 may make the question of a separate
implied right to vote obsolete. Whether a personal right to vote,
or at least an immunity from legislative and executive interference
with that right, can be implied from the Constitution may be
irrelevant when the Commonwealth lacks the power to legislate other
than for universal adult suffrage.
In Attorney-General (Cth); Ex rel McKinlay v
Commonwealth(214) McTiernan and Jacobs JJ
stated:
the long established universal adult suffrage
may now be recognized as a fact and as a result it is doubtful
whether, subject to the particular provision in section 30,
anything less than this could now be described as a choice by the
people.(215)
In McGinty v Western
Australia(216) Toohey J argued that 'according to
today's standards, a system which denied universal adult franchise
would fall short of a basic requirement of representative
democracy'. Gaudron(217) and Gummow JJ.
(218)also supported the notion that universal adult
suffrage is now entrenched in the Australian Constitution. Only
Dawson J rejected this.(219) In Langer v
Commonwealth,(220) McHugh J supported entrenchment
of the franchise by stating that: '[I]t would not now be possible
to find that the members of the House of Representatives were
'chosen by the people' if women were excluded from voting or if
electors had to have property qualifications before they could
vote'.(221) According to these judges, the right to vote
of, say, Australian women or indigenous peoples could not now be
abrogated. This would be inconsistent with the requirement that the
Federal Parliament is to be 'directly chosen by the
people' (emphasis added). This conclusion depends upon a
view of the Constitution as an evolving document, one that embraces
a very different notion of 'the people' at the end of the twentieth
century than at the beginning. After all, the uniform federal
franchise, as enacted by the Commonwealth Franchise Act
1902, extended the vote to women, but, in section 4, denied it
to any 'aboriginal native of Australia'.(222)
At the time of its introduction in 1901 and
re-introduction in 1902 the Commonwealth franchise bill
contemplated an astonishingly broad franchise. The Bill's sponsors
and many of its supporters acknowledged the importance of a uniform
franchise for a new, national Parliament and the constraints
imposed by section 41 of the Commonwealth Constitution. Others
spoke of the importance of representative democracy and recognised
the need for a democracy to be composed of 'equals'. However, the
Senators and Members of the First Commonwealth Parliament were also
products of the State franchises that had elected them. They
speculated about the voting tendencies of non-European migrants,
women and Indigenous peoples. They were concerned about extending
the vote to people whom they perceived as 'different' and about the
potential for such people to be elected to the parliament and make
laws and policy for the nation.
In the end, their vision of a White Australia
overcame their desire for a broad-based and uniform suffrage, and
only section 41 of the Constitution, albeit in a temporary and
limited fashion,(223) saved the votes of those
Indigenous people who might have otherwise been disenfranchised in
1902.
Distrust of 'difference'-in the case of
Indigenous peoples and non-European migrants-and speculation about
the radical voting tendencies of young people and prisoners helped
preserve the original franchise for many decades. It also served to
narrow the franchise with the enactment of disqualification
provisions for executive members of unlawful associations. It is
important to note, however, that this latter instance is the only
occasion that that the federal franchise has been contracted since
its enactment in 1902.(224)
Restrictions on the Commonwealth franchise based
on race or ethnic group have long disappeared from the statute
books. The law now reflects the multicultural nature of Australian
society. Contemporary Commonwealth laws and High Court
jurisprudence now acknowledge the principle of universal suffrage.
However, questions remain about the content of 'universal suffrage'
and whether there is a constitutionally protected right to vote.
For example, should the franchise be restricted to Australian
citizens and certain British subjects?(225) Should
'overseas electors' have their enrolment cancelled after a certain
period or should they retain their entitlement to enrol and vote in
Commonwealth elections?(226) Is there a case for
extending the franchise to others living permanently in Australia?
Should the voting age be lowered further? Should the law continue
to disenfranchise certain prisoners and offenders under sentence
and members of unlawful associations, and is it constitutionally
permissible to do so?
These matters have not been the subject of
considered political debate nor have they been discussed in the
context of the implications that might flow from the system of
representative government established by the Commonwealth
Constitution. While section 41 of the Constitution might have been
consigned by the High Court to the status of historical curiosity,
the system of representative government found in the Constitution
may now constrain Parliament's legislative power by grounding a
positive right to vote in individuals or by creating limitations on
Parliament's power to restrict the franchise.
-
- Senator Richard O'Connor, Senate, Debates, 31 January
1902, p. 9530.
- Referred to in the law as 'natives of British India' and
certain other naturalised persons.
- (1975) 135 CLR 1 at 36.
- This Paper is current at 31 December 2001.
- J. Quick and R. Garran, The Annotated Constitution of the
Australian Commonwealth, Angus and Robertson, Sydney, 1901 ed,
Legal Books, 1995, p. 130.
- O. Dixon, 'The Law and the Constitution', Law Quarterly
Review, vol. 51, 1935, pp. 590 at p. 597. Compare
Attorney-General (Cth); Ex Rel McKinlay v Commonwealth
(1975) 135 CLR 1 at 24 per Barwick CJ.
- Section 31 states 'Until the Parliament otherwise provides, but
subject to this Constitution, the laws in force in each State for
the time being relating to elections for the more numerous House of
the Parliament of the State shall, as nearly as practicable, apply
to elections in the State of members of the House of
Representatives', while section 51(xxxvi) states that the federal
Parliament may legislate for 'Matters in respect of which this
Constitution makes provision until the Parliament otherwise
provides'.
- See also R. Bennett, 'Canidates, Members and the Constitution',
Research Paper, forthcoming, Department of the
Parliamentary Library, Canberra 2002.
- Australasian Federal Convention, Adelaide, 1897,
Debates, p. 715.
- ibid., p. 725.
- ibid., p. 724.
- ibid., p. 725.
- ibid., p. 732.
- Muldowney v Australian Electoral Commission (1993) 178
CLR 34 pp. 38-39 per J. Brennan, Snowdon v Dondas
(1996) 139 ALR 475 p. 483 per the Court.
- See A. Brooks, 'A Paragon of Democratic Virtues? The
Development of the Commonwealth Franchise', University of
Tasmania Law Review, vol. 12, 1993, pp. 208-48.
- J. Quick and R. Garran, The Annotated Constitution of the
Australian Commonwealth op. cit., at pp. 483-487. Garran
also supported this view as Secretary to the federal
Attorney-General's Department in an advice given on 27 July 1914.
See Opinions of Attorneys-General of the Commonwealth of
Australia (AGPS, 1981), vol. 1, at p. 695.
- J. Quick and R. Garran, The Annotated Constitution of the
Australian Commonwealth op. cit., at p. 487.
- W. H. Moore, The Constitution of the Commonwealth of
Australia, London, Murray, 1902 at p. 109. Moore's
interpretation is actually wider than that set out in option 4. He
argued that section 41 would confer the right to vote in federal
elections on those people who had such a right at the State level
at the time of Federation, 'or who at any time afterwards acquires
a right under that law'. ibid., p. 109.
- ibid., p. 109.
- Nor did his develop this further in the second edition of his
book. In the second edition, in 1910, he had removed the material
on section 41, stating in a footnote that section 41 'might have
been important if the Commonwealth had adopted a franchise narrower
than the States. The wide franchise adopted, however, makes it
unnecessary to recur to the matters discussed in the first edition
of this book at pp. 107-109, and in Quick and Garran, pp.
483-7.' W. H. Moore, The Constitution of the
Commonwealth of Australia, Legal Books, 2nd ed., 1910, 1997
reprint, p. 126, n 2.
- W. H. Moore, The Constitution of the Commonwealth of
Australia (Murray, 1902) p. 109, n 1.
- Australasian Federal Convention, Adelaide, 1897,
Debates, p. 1195; Australasian Federal Convention,
Melbourne, 1898, Debates, vol. 5, p. 1843.
- Australasian Federal Convention, Adelaide, 1897,
Debates, p. 732 & 1195.
- See, for example, Australasian Federal Convention, Melbourne
1898, p. 1853 (Edmund Barton).
- ibid., p. 1841.
- ibid., p. 1851.
- Brooks, op. cit., pp. 236-238.
- Senate and House of Representatives, Debates, 24 April
1902, p. 1 1979.
- ibid., p. 1 3006, 29 May 1902. See also ibid.,
p. 1 3005 (Major Albert Gould) ('There is , also, a
further power under the Constitution for the enfranchisement of
aboriginal inhabitants in the future, if the State in which they
reside thinks fit to enfranchise them. Section 41 of the
Constitution provides that ... So it appears that under the
Constitution Act there is an opportunity for the enfranchisement of
the aboriginal inhabitants of any State where they are not
enfranchised at the present time.').
- (1923) 32 CLR 500.
- ibid., p. 504.
- (1972) 128 CLR 221.
- Commonwealth Electoral Act 1973, section 39.
- (1972) 128 CLR 221 p. 234 per Barwick CJ.
- ibid., p. 246.
- (1983) 152 CLR 254.
- ibid., p. 264 per Gibbs C. J, Mason and Wilson JJ.
- ibid., p. 261.
- ibid., p. 261.
- ibid., p. 280.
- ibid., p. 268.
- ibid., p. 268.
- ibid., p. 268.
- Constitutional Commission, Final Report of the
Constitutional Commission, Canberra, AGPS, 1988, vol. 1, p.
144.
- See J. Uhr, 'Rules for Representation: Parliament and the
Design of the Australian Electoral System', Department of the
Parliamentary Library, Research Paper no. 29, 1999-2000.
- A. Twomey, 'The Federal Constitutional Right to Vote in
Australia', Federal Law Review,
vol. 28, no. 1, 2000, pp. 125-53.
- Senate and House of Representatives Debates, 31 January 1902,
p. 9530.
- Reid & Forrest point out, 'As proposed laws, [the Electoral
Bill and the Franchise Bill] ... took low priority among the spate
of bills to draw up the tariff, to establish the public service and
judiciary, to co-ordinate posts and telegraphs, to impose
restrictions on immigration, and to provide for granting and
appropriating supply.' G. S. Reid & M. Forrest, Australia's
Commonwealth Parliament 1901-1988, Melbourne University Press,
1989, p. 95.
- For other possible explanations of why the Bills were withdrawn
and re-introduced in the Senate, see Reid & Forrest, ibid.
- Senate and House of Representatives, Debates, 10 April
1902, p. 1 1569.
- ibid., Debates, 23 April 1902, p. 1 1929.
- Clause 5.
- Section 41 reads 'No adult person who has or acquires the 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'.
- Senate and House of Represenatatives, Debates, 4 April
1902, p. 11 450.
- Senator O'Connor spoke of the need for a Commonwealth franchise
law to secure a uniform franchise, given that State laws were
disparate. ibid., p. 11 450.
- ibid., 9 April 1902, p. 11 487.
- ibid., 4 April 1902, p. 11 452.
- For example sections 25 and 127. Section 25 reads 'For the
purposes of the last section [relating to the constitution of the
House of Representatives], if by the law of any State all persons
of any race are disqualified from voting at elections for the more
numerous House of the Parliament of the State, then, in reckoning
the number of the people of the State or of the Commonwealth,
persons of that race resident in that State shall not be counted.'
Before its repeal in 1967, section 127 read 'In reckoning the
numbers of people of the Commonwealth, or of a State or other part
of the Commonwealth, aboriginal natives shall not be counted'.
- Sections 16 and 34 of the Constitution and the provisions of
the Electoral Bill 1902.
- Reid & Forrest, op. cit., p. 87. See also Uhr, op. cit., p.
6.
- Uhr, op. cit., p. 11.
- Senator O'Connor, Senate and House of Representatives,
Debates, 9 April 1902, p. 11 451.
- The Second Reading of the Bill was passed by 29 votes to 6.
- Senator Major Albert Gould (Free Trade, NSW), Senate and House
of Representatives Debates, 4 April 1902, p. 11 476.
- Sir Edward Braddon (Free Trade, Coventry), ibid., 23 April
1902, p. 11 937.
- South Australian women were enfranchised in 1894.
- Senate and House of Representatives, Debates, 9 April
1902, p. 11 466.
- Sir Edward Braddon, ibid., 23 April 1902, p. 11 936.
- Mr William Knox (Free Trade, Kooyong), ibid., p. 11 941.
- ibid., 10 April 1902, p. 11 599.
- For example, Senator Edward Harney, ibid., 9 April 1902, p. 11
488.
- For example, Senator Simon Fraser (Protectionist, Vic.)
remarked 'I see that there is a very large majority in favour of
the Bill, and I am not going to be obstructive.' ibid., 10 April
1902, p. 11557.
- See, for example, Mr William Wilks (Free Trade, Dalley), ibid.,
23 April 1902, p. 11 944.
- ibid., 9 April 1902, p. 11 452.
- ibid., 10 April 1902, p. 11 556.
- ibid., 9 April 1902, pp. 11 491-2.
- ibid., p. 11 499.
- ibid., 23 April 1902, p. 11 974. The Attorney-General said that
the word 'adult' might be interpreted to exclude women unless they
were expressly mentioned. He also thought it desirable to spell out
that an adult was a person aged 21 years or more.
- Legislation introduced by the Hawke Labor Government. See
section 23 of the Commonwealth Electoral Legislation Amendment
Act 1983 which amended the relevant section-then numbered
subsection 39(1)-of the Commonwealth Electoral Act 1918.
- Senate and House of Representatives, Debates, 9 April
1902, p. 11 453.
- ibid., p. 11 453.
- ibid., p. 11 584.
- Section 16 of the Constitution provides that 'The
qualifications of a senator shall be the same as those of a member
of the House of Representatives'. Section 34 sets out the
qualifications of a member of the House of Representatives. These
include, but are not limited to, a person who is 'an elector
entitled to vote at the election of members of the House of
Representatives, or a person qualified to become such elector ...'
- The Commonwealth Electoral Act 1902 provided that 'To
entitle a person to be nominated as a Senator or Member of the
House of Representatives he must be qualified under the
Constitution to be elected as a Senator or Member of the House of
Representatives' (section 95).
- Senator Alexander Matheson (Free Trade, WA), Senate and House
of Representatives, Debates, , 10 April 1902, p. 11 582.
- ibid., 9 April 1902, p. 11 496.
- Mr Thomas Macdonald-Paterson (Free Trade, Brisbane), Senate and
House of Representatives, Debates, 23 April 1903, p. 11
944.
- Sir Edward Braddon (Free Trade, Coventry), ibid., p. 11 936.
- Senator Edward Harney, ibid., 9 April 1902, p. 11 488.
- Mr Thomas Skene (Free Trade, Grampians), ibid., 23 April 1902,
p. 11 945.
- ibid., 10 April 1902, p. 11 582.
- ibid., p. 11 580.
- ibid., pp. 11 594-5.
- ibid., pp. 11 598-11 599.
- By 27 votes to five, ibid., 24 April 1902, p. 11 980.
- ibid., p. 11 977.
- Sir Edward Braddon, ibid., p. 11 977.
- ibid., p. 11 978.
- ibid.
- ibid., p. 11 980.
- ibid., p. 11 979.
- ibid., p. 11 979.
- ibid., 29 May 1902, p. 13 002.
- ibid.
- ibid., p. 13 003.
- For example, Senator Miles Staniforth Smith (Free Trade, WA),
ibid.
- ibid.
- ibid., p. 13 006.
- Mr George Edwards (Free Trade, South Sydney), ibid., 23 April
1901, p. 11 951.
- J. Summers, 'The Parliament of the Commonwealth of Australia
and Indigenous Peoples 1901-1967', Department of the Parliamentary
Library, Research Paper no. 10, 2000-01, p. 10.
- For example, by Senator Albert Gardiner (Labor, NSW), Senate
and House of Represenatatives, Debates, 19 November 1918,
p. 8009. See also, p. 8010.
- ibid., during debate on the Commonwealth Electoral Bill 1918.
During the debates, Senator Lt-Colonel James O'Loghlin (Labor, SA)
remarked, 'Among the members of the Australian Imperial Force with
whom I have come in contact, I can recall several aborigines and
half-castes who were smart fellows, and had been well educated at
mission stations in South Australia.' p. 8009. However, the
majority of Senators seemed more concerned that Aboriginal votes
could be manipulated. There were also concerns that the amendment
would also enfranchise 'Asiatics', 'Africans and kanakas'-see
Senators George Pearce (Labor, WA) and George Fairbairn
(Nationalist, Victoria), p. 8010. Senator George Pearce remarked
that '... there are some constituencies where a little looseness on
the part of an electoral official in enrolling aborigines might
sway an election. Unfortunately, the aborigines, as a class, is
susceptible to the sixpenny piece in a manner which does not
ordinarily apply to the white man.', p. 8009.
- See Summers, op. cit., p. 10.
- Mr Harold Holt (Liberal, Fawkner), Senate and House of
Representatives, Debates, 3 March 1949, p. 1449.
- Mr Arthur Calwell, ibid., p. 1456.
- ibid., p. 1456.
- Mr Harold Holt, ibid., p. 1449.
- ibid., p. 1533.
- Section 3 of the Commonwealth Electoral Act 1949 which
amended section 39 of the Commonwealth Electoral Act 1918.
- That is, those not otherwise enfranchised under State law or
those who were or had been members of the defence forces. This
Opposition proposal appears to have been symbolic, in that the
disqualification provisions already in the Commonwealth
Electoral Act 1918 would have remained.
- House of Representatives, Debates, 3 May 1961, p.
1397.
- Mr Fred Chaney (Liberal, Pearce), ibid., p. 1397. Mr Hasluck
(Liberal, Curtin) explained that there were two implications to be
drawn from the proposal to establish the Committee. The first was
recognition that the present law was unsatisfactory and needed
examination. The second was that '... the giving of a vote to
aborigines, without any restriction at all, will be attended by
some problems which need careful examination.' ibid., p. 1399.
- House of Representatives, Report from the Select Committee
on Voting Rights of Aborigines, Commonwealth Government
Printer, Canberra, 1961, p. 8. It also recommended that the
Commonwealth Electoral Office should assist Aboriginal people who
wished to enrol and that polling places should be established near
significant Aboriginal settlements.
- ibid., p. 9.
- Mr Gordon Freeth (Liberal, Forrest), Commonwealth Electoral
Bill 1962, House of Representatives, Debates, 15 March
1962, p. 861.
- Section 3 of the Commonwealth Electoral Act 1962 which
inserted section 42(5) into the Commonwealth Electoral Act
1918.
- Sections 4, 5, 6 & 7 of the Commonwealth Electoral Act
1962.
- The Opposition amendment was defeated 59 votes to 56 in the
House of Representatives. House of Representatives
Debates, 1 May 1962, pp. 1795-1792.
- Section 2 of the Commonwealth Electoral Act 1962.
- See section 3 of the Commonwealth Electoral Act 1962.
- Section 28 of the Commonwealth Electoral Legislation
Amendment Act 1983 which deleted the relevant section of the
Commonwealth Electoral Act 1918-then numbered section
42(5).
- Sir William Lyne (Protectionist, Hume) Senate and House of
Representatives, Debates, 24 April 1902, p. 11 984.
- Nationalist Government (Hughes Ministry), 17 February 1917-10
January 1918.
- Introduced by the Nationalist Government (Hughes Ministry), 10
January 1918-9 February 1923.
- The definition of 'members of the Forces' included members of
the naval and military forces enlisted or appointed for active
service outside Australia or on a warship, munitions workers who
had worked outside Australia and members of the nursing services
who had been accepted or appointed for overseas service.
- Senate and House of Representatives, Debates, 19
November 1918, p. 8008.
- Subsection 39(2).
- Senate and House of Representatives, Debates, 19
November 1918, p. 8008.
- ibid., p. 8009.
- Although the issue does not appear to have been raised during
the debates which preceded the passage of the Commonwealth
Electoral (War-time) Act 1940-a statute directed only at
making voting easier for members of the armed forces.
- The amendments made by the Commonwealth Electoral (Wartime)
Act 1943 were repealed by the Statute Law Revision Act
1950 and the Commonwealth Electoral Act 1953.
- Senate and House of Representatives, Debates, 24 June
1943, p. 282.
- ibid., p. 287.
- Section 4 of the 1943 Act which amended section 6 of the
Commonwealth Electoral Act 1918.
- Introduced by the Liberal-Country Party Government (Menzies
Ministry).
- House of Representatives, Debates, 21 September 1965,
pp. 1098-1099.
- ibid., p 1101.
- Senator Gerald McKellar (Country Party, NSW), Senate,
Debates, 16 November 1965, p. 1546.
- Section 3 of the Commonwealth Electoral Act 1966
amended section 39A of the Commonwealth Electoral Act
1918.
- See Joint Select Committee on Electoral Reform, First
Report, AGPS, Canberra 1983, Chapter 1.
- Commonwealth Electoral Act 1973 which not only lowered
the voting age by amending section 39 of the Commonwealth
Electoral Act 1918 but also lowered the age at which a person
could be elected to the Commonwealth Parliament. Re the latter see
section 6 which amended section 69 of the Commonwealth
Electoral Act 1918.
- Section 27 of the Commonwealth Electoral Legislation
Amendment Act 1983 which inserted section 41A into the
Commonwealth Electoral Act 1918. The legislation was
introduced by the Hawke Labor Government.
- Senate Journals, 26 June 1996, p. 401.
- The adjective 'coloured' is used in this paper only to reflect
terminology at the time of the debates.
- In March 1902, a report on 'Coloured Immigrants admitted to the
Commonwealth' was tabled in the federal Parliament. It showed that
in the first two months of 1901 a total of 810 such immigrants
were admitted to the Commonwealth. In the period following the
passage of the Immigration Restriction Act 1901, 442
'coloured' migrants were admitted-many of these people had permits
or were admitted as the result of agreement or previous residence.
See Printed Papers Presented to Parliament, vol. II,
1901-2.
- Senate and House of Representatives, Debates, 9 April
1902, p. 11 453, (Senator O'Connor).
- ibid., p. 11 486.
- ibid., 10 April 1902, pp. 11 594-11 595.
- See Senator George Pearce (Labor, WA), ibid., 9 April
1902, p. 11 496.
- ibid., pp. 11 495-11 496.
- See, for example, Senators Alexander Matheson & George
Pearce, ibid., pp. 11 496-7.
- ibid., p. 11 467.
- Senator Alexander Matheson, ibid., p. 11 496. See also Senator
George Pearce, ibid., 9 April 1902, p. 11 896 and Senator
Miles Staniforth Smith, ibid., p. 11 486.
- This was the amendment proposed by Senator Alexander Matheson
on 10 April 1902 which read: 'No aboriginal native of Australia,
Asia, Africa or the islands of the Pacific, or persons of the half
blood shall be entitled to have his name placed on the electoral
roll unless so entitled under section 41 of the Constitution,'
ibid., p. 11 580.
- Senator Major Albert Gould, ibid., 29 May 1902, p. 13 008.
- Senator Richard O'Connor, ibid., p. 13 010.
- Senator James Styles (Protectionist, Vic), ibid., p. 13 009.
- ibid., p. 13 010.
- The wording was changed from '... or the Islands of the
Pacific, except New Zealand, situated in the Pacific Ocean, beyond
the Commonwealth ...' to '... or the Islands of the Pacific, except
New Zealand ..' See ibid., pp. 13 006-13 011.
- ibid., 30 May 1902, pp. 13 145-6.
- The term used in the Parliamentary Debates-see, for example,
the Second Reading Speech of Mr Charles Marr (Nationalist, Parkes),
Electoral Bill, Senate and House of Representatives,
Debates, 16 September 1925, pp. 2498-9.
- See section 2, Commonwealth Electoral Act 1925.
- Senator Pearce, Commonwealth Electoral Bill, Senate and House
of Representatives, Debates, 2 July 1925, p. 617.
- ibid.
- See, for example, Senator Edward Needham (Labor, WA), ibid., 3
July 1925, p. 690; Senator Walter Kingsmill (Nationalist, WA),
ibid., p. 690, Senator John Grant (Labor, NSW), ibid., p. 691.
- As amended by the Government in the House of Representatives.
- For example, those who were naturalised before the passage of
the Commonwealth Franchise Act 1902 but who had failed to
obtain State enrolment or who had not continuously retained their
right to enrolment.
- The Government estimated that there was a total of 266
'Asiatic' Australians-four Armenians, 238 Syrians and 24
Palestinians (Mr Charles Marr, Senate and House of Representatives,
Debates, 16 September 1925, p. 2499).
- Senator George Pearce, ibid., 23 September 1925, p. 2603.
- Section 4 of the Commonwealth Franchise Act 1902 was
renumbered when the Commonwealth Electoral Act 1918
consolidated the Commonwealth Franchise Act 1902 and the
Commonwealth Electoral Act 1902.
- See section 4 of the Commonwealth Electoral Act 1961
which amended and replaced the relevant provision-then numbered
subsection 39(5) of the Commonwealth Electoral Act 1918.
- Mr Gordon Freeth, Second Reading Speech, 'Commonwealth
Electoral Bill 1960', House of Representatives, Debates,
8 November 1960, p. 2549. The Commonwealth Electoral Act
1961 was originally introduced as the Commonwealth Electoral
Bill in November 1960. Parliament was prorogued and the Bill was
re-introduced in essentially the same form in May 1961. However,
the Second Reading Speech was not repeated.
- Senate and House of Representatives, Debates, 10 April
1902, p. 11 579.
- ibid., pp. 11 579-80.
- See estimate of Justice Action quoted in Joint Standing
Committee on Electoral Matters, The 1998 Federal Election.
Report of the Inquiry into the Conduct of the 1998 Federal Election
and Matters Related Thereto, Canberra, June 2000, p. 89. It
has been estimated that the restriction on the franchise contained
in paragraph 93(8)(b) of the Commonwealth Electoral Act
1918 affects between 6000 and 9000 Australians-see G. Orr,
'Ballotless and behind bars: the denial of the franchise to
prisoners', Federal Law Review, vol. 26, no. 1, 1998, pp.
55-82.
- Arguably, the Commonwealth Electoral Act 1918
disenfranchises not only some serving prisoners but also other
sentenced offenders-for example, those sentenced to periodic
detention or home detention, those on parole and probation, and
offenders with suspended sentences. See Orr, ibid.
- That Act also reworded the disqualification relating to a
person attainted of treason and replaced it with a disqualification
for anyone 'convicted of treason or treachery' who remained
unpardoned. Section 23, amending section 93 of the Commonwealth
Electoral Act 1918.
- The Operation during the 1984 General Election of the
1983/84 Amendments to Commonwealth Electoral Legislation,
December 1986.
- See Senate Journals, 21 December 1989, p. 2438. The amendment
deleting the enfranchisement provisions was moved by Senator Chris
Puplick (Liberal, NSW) and agreed to by the Senate without a
division being called.
- Electoral and Referendum Amendment Bill (no. 2) 1995.
- Acting Prime Minister, 'Prisoner voting', Press
Release, 10 July 1995.
- Paragraph 93(8)(b), Commonwealth Electoral Act 1918-as
amended by Item 5, Schedule 1, Electoral and Referendum
Amendment Act 1995.
- Joint Standing Committee on Electoral Matters, The 1996
Federal Election. Report of the Inquiry into the Conduct of the
1996 Federal Election and Matters Related Thereto, AGPS,
Canberra, June 1997, p. 48.
- Item 10 of Schedule 1, Electoral and Referendum Amendment Bill
(No. 1) 1999 amending paragraph 93(8)(b) of the Commonwealth
Electoral Act 1918.
- Joint Standing Committee on Electoral Matters, The 1998
Federal Election, op. cit, p. 90. Senator Andrew Murray
(Australian Democrats, WA) in a minority report recommended that
all prisoners should be enfranchised, except those convicted of
treason or of unsound mind, pp. 169-170.
- The Government's response also specifically rejected the
Australian Democrats' recommendation that all persons in detention,
except those convicted of treason or who are of unsound mind,
should have the right to vote. See Senate, Debates, 1
March 2001, p. 22 370 and pp. 22 371-2.
- Senator Richard O'Connor, Senate and House of Representatives,
Debates, 10 April 1902, p. 11 574.
- Senator Gregor McGregor (Labor, SA), ibid., p. 11 575.
- Senator Richard O'Connor, ibid., 10 April 1902, p. 11 576.
- Only Senator Norman Ewing (Free Trade, WA) rather presciently
took the view that only a person adjudged by a court to be of
'unsound mind' should be excluded from exercising a vote-see ibid.,
pp. 11 576-7.
- Section 23 amending the relevant section of the
Commonwealth Electoral Act 1918 (then section 39).
- Joint Select Committee, First Report, op. cit., p. 105.
- Section 41 of the Electoral and Referendum Amendment Act
1989 inserting new Part IX into the Commonwealth Electoral
Act 1918. This matter was also dealt with in by the Joint
Select Committee on Electoral Reform in its Report no.2. The
Operation During the 1984 General Election of the 1983/84
Amendments to Commonwealth Electoral Legislation, December
1986.
- Senator Alexander McLachlan (Nationalist, SA), Second Reading
Speech, Crimes Bill 1932, Senate and House of Representatives,
Debates, 5 May 1932, p. 370. Legislation introduced by the
United Australia Party Government (Lyons Ministry).
- ibid.
- By the Crimes Act 1973, the Jurisdiction of Courts
(Miscellaneous Amendments) Act 1979 and the Crimes
Amendment Act 1982.
- Human Rights Commission, Review of Crimes Act 1914 and
Other Crimes Legislation of the Commonwealth, Report No. 5,
AGPS, 1983, p. 7.
- (1992) 177 CLR 106.
- ibid., p. 132.
- Joint Standing Committee on Electoral Matters, Who Pays the
Piper Calls the Tune, Minimising the Risks of Funding
Political Campaigns Inquiry into the Conduct of the 1987 Federal
Election and 1988 Reporting, AGPS, Report no. 4, June 1989, p. 88.
- Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106 at p. 227 per McHugh J.
- Langer v Commonwealth (1996) 186 CLR 302 p. 325 per
Dawson J.
- See Orr, op. cit.
- (1975) 135 CLR 1.
- ibid., p. 36.
- (1996) 186 CLR 140 at p. 201.
- ibid., pp. 221-2 ('Notwithstanding the limited nature of the
franchise in 1901, present circumstances would not, in my view,
permit senators and members of the House of Representatives to be
described as 'chosen by the people' within the meaning of those
words in sections 7 and 24 of the Constitution if the franchise
were to be denied to women or to members of a racial minority or to
be made subject to a property or educational qualification').
- ibid., p. 287.
- ibid., p. 183.
- (1996) 186 CLR 302.
- ibid., at p. 342. Compare McGinty v Western Australia
(1996) 186 CLR 140 at p. 243 per McHugh J.
- For the debate in the federal Parliament on this point, see
Senate and House of Representatives, Debates, 24 April
1902, pp. 1 1975-1 1980; ibid., 29 May 1902, p. 13 002-13
011.
- The Commonwealth Government came to the view that section 41
only protected the voting rights of Indigenous peoples who had
acquired a constitutional right to vote at the 1901 election. 'The
Electoral Commission, relying on ... advice [from Sir Robert
Garran], consistently denied federal enrolment to any person not
entitled to vote in a State election before 1902.'-see T.
Blackshield & G. Williams, Australian Constitutional Law
& Theory. Commentary & Materials, 2nd ed., Federation
Press, Sydney, p. 161. A later interpretation by Garran (in 1912)
narrowed the Commonwealth's view even further so that unless an
Aboriginal person had actually had their name on a Commonwealth
Electoral Roll, the mere fact that they had been enrolled to vote
in NSW, South Australia, Tasmania or Victoria before 1902 did not
protect their right to vote at Commonwealth elections.
- Allowing for the temporary enfranchisement of some service
personnel during wartime and immediately after the end of
hostilities.
- Those British subjects who were on a Commonwealth of Australia
electoral roll on 25 January 1984.
- An eligible overseas elector is a person enrolled to vote who
has ceased living in Australia but who intends to return to
Australia within six years. See section 94, Commonwealth
Electoral Act 1918. See also http://www.southern-cross-group.org/sys-tmpl/door/