Australian judicial decisions relating to representative government

[Note: this page will deserve revision after the release of the decision in Day v Australian Electoral Commission in May 2016]

Australia’s national Parliament makes laws for its own election, but the scope of action for Parliament in making such laws is not infinite.

Parliament is constrained by the terms of the national Constitution, and the rulings of the High Court on constitutional issues. The key judicial decisions have been concerned to protect the essential character of the Constitutional arrangement of institutions, and of the election of Parliament in particular. They have required a strong degree of protection of the ‘representative’ character of the houses of Parliament. These court judgements – many of which have been either unanimous judgements or strong majorities – have established limits to Parliament’s role in electoral law-making which are yet to be fully explored.

The five goals which best define representativeness are (1) a high level of participation in the election by voters, (2) that the election involve direct voting by electors for individual candidates, (3) that electors have a high degree of choice between candidates, (4) that the effective influence of every voter on the outcomes is equal, and (5) that the greatest number of voters achieve actual representation in the parliament by MPS whom they supported.

Below are some brief observations about how past cases have applied to the principle goals of representativeness.

Constitutional law relating to participation

Key High Court judgements in recent years have established that the principle of participation, in terms of laws governing both enrolment and also voting, has quite high protection. While there is no unambiguous definition of what standard of access to each of enrolling and voting is guaranteed to electors, we have seen that amending laws passed by Parliament which appear to reduce such access have been ruled to be beyond the Parliament’s powers. (See Roach v Electoral Commissioner and Rowe v AEC.)

Constitutional law relating to direct election

The Constitution requires that Senators and Members be directly elected. This seems to leave little doubt that indirect voting systems – including party list systems – are not acceptable under our Constitution. The ruling of the Court in the 1984 McKenzie case was cited above.

In the 2004 Mulholland case Chief Justice Gleeson examined “…the stipulation, in the Australian Constitution, that senators and members of the House of Representatives shall be directly chosen by the people”, and wrote that “I accept that the stipulation goes beyond a mere prohibition of indirect election, as by an electoral college.” (See Mulholland v AEC at 25-26.)

Constitutional law relating to choice (whether representatives can be said to be ‘chosen’)

In regard to the degree of choice, the Australian Constitution does not guarantee that all the options that a voter might desire are made available, but only that at least some options are available. (See Mulholland v AEC.)

The Court has not especially ruled to protect high levels of choice as a feature of Australian constitutional law. The Court has held that even the presence of just two candidates amounts to an adequate amount of choice. (See Mulholland v AEC and Langer v Commonwealth.)

In fact between the first election in 1901 and the 1950s there were several dozen occasions on which a single-member division of the House was ‘contested’ by only a single nominee, leading to no election being held. No-one seems to have pointed out that the members who took those seats lacked the attribute of having been “chosen by the people”. It would seem that the provision of a nomination opportunity alone was regarded as making up a system of choosing. More likely no-one questioned these uncontested ‘elections’ in the conceptual terms used by the Court in recent years.

Nor is it true that candidate options must all be presented to the electors in a strictly uniform manner. In Mulholland the Court considered litigation on the issue of whether the design of the ballot paper specified in the Act was having a discriminatory impact on choice, by reason that independent candidates did not have a place in the above-the-line section of the ballot paper. The Court ruled that whatever differential impact this design had on choice, it did not fatally detract from the choice that each elector could exercise by using the main body of the ballot (the ‘below-the-line’ area).

But the finding in Mulholland did not rule out Court supervision in appropriate cases; Chief Justice Gleeson again:

“I also accept that certain kinds or degrees of interference … including arrangements as to the form of the ballot paper, conceivably could be antithetical to the idea of representative democracy and direct choice.

Constitutional law relating to equality of voter influence

It is not clear that equality of influence has yet achieved much substantial protection. Equality of influence has been understood in recent decades only in the limited sense of pursuing equality of divisional enrolments. In the McGinty case, which considered wither a state parliament could under its state constitution adopt laws with inequality of enrolments between electoral divisions, the Court ruled that state laws (for electing state parliaments) were valid even though they had plainly failed to implement equality of divisional enrolment, specifically by continuing with the old practice of enrolment weightings for rural divisions.

Some of the judicial comments noted that the Court might on some future occasion find that divisional enrolments that were highly unequal might be impugned.

These rulings only touch on the equality of divisional enrolments, and give no consideration to the other ways in which different voting systems give voters different levels of influence on election outcomes.

Constitutional law relating to actual representation

Actual, or effective representation is proportion of the electorate (most easily taken as the total enrolments) that achieves through an election direct representation in parliament by a the representative whom each voter genuinely prefers.

It does not appear that the Court has ever addressed the notion of the extent of actual representation. As outlined above, and given detail below, over half of Australia’s electors have been denied actual representation since 1901, and the voting methods that allow this to happen have not been impugned in judicial decisions.

Malcolm Baalman
April 2014, revised February 2016

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This article is based on extracts from my Submission 181 to the Joint Standing Committee on Electoral Matters inquiry into the 2013 election which took place during 2014.

References

Langer v Commonwealth (1996) 186 CLR 302

McCloy v New South Wales [2013] HCA 34

McGinty v Western Australia (1996) 186 CLR 140

Monis v The Queen [2013] HCA 4

Mulholland v AEC [2004] HCA 41 at 25-26

Roach v Electoral Commissioner [2007] HCA 43

Rowe v Australian Electoral Commissioner (2010) 85 ALJR 213

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